One of the stock P-side responses, in the post-Bauman personal jurisdiction environment, to a jurisdictionally-based motion to dismiss is to seek “jurisdictional discovery” – the more onerous the better – in an attempt both to slow the often-inevitable dismissal and also to drive up the nuisance value of the case.  That’s the main reason that on our personal jurisdiction cheat sheet we note when jurisdictional discovery is denied.

Only rarely do disputes over jurisdictional discovery produce written judicial opinions, and even less frequently do they result in appellate opinions.  That’s why we think that In re Smith & Nephew Orthopaedics Ltd., 2022 WL 4285564 (Tex. App. Sept. 16, 2022) (“S&NO”), is significant, even though it’s an unpublished opinion.  Not only is it a favorable appellate decision on the proper scope of jurisdictional discovery, but it’s squarely in the middle of our own sandbox.

S&NO arises from what looks like an attempt to gin up a hip-implant mass tort before a pro-plaintiff (or at least very pro-discovery) trial judge in Dallas.  It involves excessive jurisdictional discovery over “United Kingdom entities” that were joined as defendants in “five hip-replacement” product liability cases, all pending in the same court.  2022 WL 4285564, at *1.  These UK defendants entered a “special appearance” – which is how personal jurisdiction issues are adjudicated in Texas – claiming that they lacked minimum contacts (that is, specific jurisdiction) with the Lone Star State.  Id.

These five plaintiffs responded with a demand for a corporate representative deposition that, counting sub-parts, demanded discovery into no fewer than twenty topics.  See S&NO, 2022 WL 4285564, at *2-3 (quoting discovery demand in its entirety).  Although the five plaintiffs’ surgeries were all “performed in 2009 and 2010,” id. at *1, plaintiffs’ jurisdictional discovery demands covered a seven-year period between 2005 and 2012.  Id. at *2-3.  The UK defendants objected “that the topics are overly broad and not reasonably tailored to discover facts supporting the existence of specific jurisdiction.”  Id. at *3.  The trial court compelled the discovery in full, after which the UK defendants sought mandamus relief.  Id.  Mandamus relief is notoriously difficult to obtain – “an extraordinary remedy that is available only in limited circumstances.”  Id.

Since Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017 (2021), effectively nullified via Gresham’s Law the “arising from” aspect of the previously unitary “arising from or related to” specific personal jurisdiction test (by making the other prong of the test easier to satisfy so that nobody bothers any more with the harder prong), the relevant issue was whether, at the time of these plaintiffs’ surgeries, the UK defendants’ activities in Texas satisfied “the relatedness requirement” of specific personal jurisdiction.  S&NO, 2022 WL 4285564, at *4.

Jurisdictional discovery in Texas “is limited to matters directly relevant to the jurisdictional issue.”  Id. (citation and quotation marks omitted).  That means that “information sought in jurisdictional discovery must be essential to prove at least one disputed factor that is necessary to the plaintiff’s proposed theory or theories of personal jurisdiction.”  Id. (quoting In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 678 (Tex. 2022)).  Simply inserting “Texas” into a discovery request isn’t enough to make the request relevant.  Id.

The jurisdictional test against which relevance was assessed was the so-called “stream-of-commerce-plus” (but not very much plus) analysis adopted by the Texas Supreme Court.  Id.

Under this standard, the plaintiff’s “broad” jurisdictional discovery demands so clearly failed that mandamus was granted.  Deposition topics that “broadly request information about contacts concerning general ‘business purposes,’” and thus “cover[ed] a wide range of business-related matters that have nothing to do with the allegedly defective products,” were manifestly excessive.  S&NO, 2022 WL 4285564, at *5.  The only discovery the five plaintiffs could seek was limited to the jurisdictional theory they asserted:

Because [plaintiffs] must show [that the UK defendants] placed the product at issue in the stream of commerce and additional conduct to establish purposeful availment of the forum state, and a connection between the contacts with the forum and the claims, [plaintiffs] are only entitled to information regarding contacts with Texas that have a connection with the allegedly defective products giving rise to [defendants’] potential liability.

Id. (citation omitted).  It was thus an abuse of discretion to permit general discovery into the UK defendants’ “business purposes” – even those in Texas.  Id.

Likewise information on any surgery using the devices at issue “manufactured” or “marketed” “in the United States” was facially overbroad because it was “not limited to the components at issue in this case and to relators’ contacts with Texas.”  Id.  And so on and so forth, through the plaintiffs’ other discovery demands.  Id.  Thus S&NO:

conclude[d] the topics are too broad as they seek non-essential information that will not support their stream-of-commerce plus theory.  Accordingly, the trial court clearly abused its discretion in ordering depositions of corporate representatives on these topics.

Id.  “Mandamus lies if a trial court permits a plaintiff to engage in discovery unrelated to a defendant’s pending special appearance.”  Id. (citation and quotation marks omitted).

Mandamus being extremely limited, this relief was only “conditionally” granted, to “issue only if the district court fails to vacate its order granting the motion to compel within fifteen days.”  Id.  The five plaintiffs were expected “to limit the requests to the proper reach of jurisdiction and to assure that the costs associated with the jurisdictional discovery do not exceed the benefits of same.”  Id.

It is gratifying to see an appellate court shoot down a ridiculously overbroad “jurisdictional discovery” demand in this fashion.  While Texas terminology may be peculiar to that state, the general principles of relevance, scope, and proportionality that S&NO applied are applicable essentially everywhere.