COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-269-CV
IN RE U.S. HOME CORPORATION RELATORS
D/B/A LENNAR CORPORATION
AND DONNY HENDRIX
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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This mandamus proceeding arises out of an employment discrimination
dispute pending in the 67th Judicial District Court of Tarrant County, the
Honorable Don Cosby presiding (“Respondent”). Relator U.S. Home Corp. d/b/a
Lennar Corp. and Real Party in Interest Keri Fields each filed motions to compel
with regard to the order in which depositions would be taken and when
audiotape recordings made by Fields would be produced. Respondent denied
1
… See Tex. R. App. P. 47.4.
U.S. Home’s motion and granted in part and denied in part Fields’s motion.
U.S. Home has filed this original proceeding to request that we determine “as
a matter of state law, whether a party might be denied access to his own
surreptitiously recorded statements during discovery and forced to sit for his
deposition nonetheless.” We divine 2 that U.S. Home has also filed this original
proceeding to request that we order Respondent to allow U.S. Home’s
employees to review Fields’s tape recordings, which allegedly contain
conversations between Fields and U.S. Home’s employees that were
surreptitiously recorded by Fields, before Fields takes their depositions. 3 We are
constrained to deny the petition for writ of mandamus.
Mandamus will issue to correct a discovery order if the order constitutes
a clear abuse of discretion and there is no adequate remedy by appeal. In re
Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding);
2
… Unlike in the previous original proceeding discussed in note 3, this one
does not contain a prayer to inform this court of the exact relief sought. See
Tex. R. App. P. 52.3(i).
3
… This is not the first time U.S. Home has sought a writ of mandamus
involving essentially the same issue—its previous petition involved an order by
the 153rd Judicial District Court of Tarrant County allowing Fields to take U.S.
Home’s employees’ depositions pursuant to Texas Rule of Civil Procedure 202.
See In re Lennar Corp., No. 02-06-00454-CV, 2006 WL 3844167, at *1 (Tex.
App.—Fort Worth Dec. 28, 2006, orig. proceeding [mand. dism’d]). When
Fields filed this lawsuit, the Texas Supreme Court dismissed the earlier petition
as moot.
2
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial
court clearly abuses its discretion when it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law. Walker, 827
S.W.2d at 839. With respect to the resolution of matters committed to the trial
court’s discretion, we may not substitute our judgment for that of the trial court
unless the relator establishes that the trial court could reasonably have reached
only one decision and that the trial court’s decision is arbitrary and
unreasonable. Id. at 839–40. This burden is a heavy one. In re CSX Corp.,
124 S.W.3d 149, 151–52 (Tex. 2003) (orig. proceeding).
U.S. Home sought production of tape recordings that Fields secretly made
prior to the termination of her employment with U.S. Home, and sought this
production prior to the depositions of three of its employees. Fields sought to
take U.S. Home’s employees’ depositions prior to her own deposition and prior
to her production of “an audio taped conversation between herself and [U.S.
Home’s] Human Resources representative.” After a hearing on this issue,
Respondent denied U.S. Home’s motion and granted in part and denied in part
Fields’s motion. Respondent set out in his order that Fields’s deposition would
be taken first and that, upon completion of all four depositions, “no later than
72 hours after time has expired [for U.S. Home’s three employees] to make
corrections to their written deposition transcript[s] . . . [Fields’s] counsel shall
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deliver to counsel for [U.S. Home] a copy of the tape(s) at issue as well as a
transcribed copy of the tape(s).” Respondent also ordered Fields to make a
copy of the “tape(s) at issue as well as a transcript of such tape(s)” to submit
to Respondent within ten days of receiving the order. Respondent indicated
that he would treat the copy as an in camera submission and that “[n]o copy
of the tape(s) shall be submitted to [U.S. Home] at this time.”
Discovery matters are principally within the discretion of the trial court.
See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989) (orig.
proceeding). Further, although a failure by the trial court to apply the law
correctly constitutes an abuse of discretion, the law on whether a party is
entitled to production of his recorded statement prior to any effort to take his
deposition is unsettled. See Tex. R. Civ. P. 192.3(h); compare Costa v. Afgo
Mech. Servs., Inc., 237 F.R.D. 21, 25 (E.D.N.Y. 2006) (holding, on facts
similar to this case, that when the facts on the recording are substantive and
they were recorded in a “less than forthright manner,” the recording should be
disclosed prior to a deposition on it, to prevent the risk of “sandbagg[ing]”),
with Poppo v. AON Risk Servs., Inc., No. 00-Civ-4165(HB), 2000 WL
1800746, at *1 (S.D.N.Y. Dec. 6, 2000) (counting cases, observing that
“[s]ince biblical times the prospect of tailoring testimony and its ramifications
4
has been understood and condemned,” and ordering that depositions should
proceed first, before the plaintiff would be required to disclose the audiotapes). 4
On the record before us, we cannot say that Respondent reached a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law. See Colonial Pipeline Co., 968 S.W.2d at 943 (“A trial court has
discretion to schedule discovery.”); Robert S. Shwarts, The Age of the
Electronic Workplace, 762 PLI/Lit 625, 707 (2007) (“In the end, because courts
are invested with significant latitude to control the ‘timing and sequence of
discovery’ . . . courts will have wide discretion to resolve disputes concerning
the timing of production of prior recorded statements.”). Therefore, because
the timing of discovery is within the trial court’s discretion, we are constrained
to deny U.S. Home’s petition for writ of mandamus.
BOB MCCOY
JUSTICE
PANEL: CAYCE, C.J.; WALKER and MCCOY, JJ.
CAYCE, C.J. concurs without opinion.
DELIVERED: September 11, 2008
4
… The provisions of federal rule of civil procedure 26(b)(3)(C) are similar
to Texas rule 192.3(h). See Fed. R. Civ. P. 26(b)(3)(C). However, neither rule
sets out when such a statement must be disclosed, or whether it must be
before or after the deposition of the statement’s maker.
5