In Wal-Mart Stores, Inc. et. al. v. Texas Alcoholic Beverages Commission, et. al., Case No. 15-00134 (W.D. Texas, Apr. 10, 2017), Plaintiffs challenged the constitutionality of a Texas statute that limited the number of retail liquor sale permits that one person can own and the types of companies that may own such permits; specifically, the statute bans public companies from selling liquor in Texas. The Texas Package Stores Association (TPSA) intervened in the case and made document requests to Plaintiffs, to which Plaintiffs objected. Specifically, Plaintiffs objected to production of communications to Texas governmental entities; communications with other public corporations regarding the lawsuit; documents relating to certain statements made by Plaintiffs’ expert witness; documents relating to Plaintiffs’ proposed business plans in Texas; and documents relating to Plaintiffs’ claims about the disputed statutes. TPSA filed a Motion challenging Plaintiffs’ objections to document requests.
At the hearing on the Motion, TPSA clarified that it wanted the court to overrule the objections, which would then compel Plaintiffs to comply. The court noted that Plaintiffs had engaged in an “overabundance of caution” in responding under the new discovery rules by stating that it was withholding documents pursuant to its objections, as required by the Rules. As an example, the court pointed to Plaintiffs’ response to a request for any documents relating to allegations that Plaintiffs engaged in predatory pricing. Plaintiffs objected that the request was overbroad and unduly burdensome, irrelevant, vague, ambiguous and privileged. Further, Plaintiffs objected to the definition of “document” as including ESI that is not reasonably accessible, and advised that it was withholding documents based upon its objection.
The court noted that Plaintiffs admitted there were likely responsive documents on its computer network and that some would be privileged. The court concluded that rather than state that it was simply withholding documents, Plaintiffs’ objection should have stated that they had not conducted a search and has not identified any such documents, and thus were not producing any. Ultimately, however, the court denied TPSA’s motion, declining to overrule the objections to document requests en masse, but noted that it was not making a determination as to the validity of Plaintiffs’ objections.