NO. 12-06-00065-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: BROOKSHIRE GROCERY
COMPANY D/B/A SUPER 1 FOODS, § ORIGINAL PROCEEDING
RELATOR
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MEMORANDUM OPINION
Brookshire Grocery Company d/b/a Super 1 Foods (“Brookshire”) filed a petition for writ of mandamus challenging the trial court’s discovery order in the underlying slip and fall case.1 We conditionally grant the writ in part and deny in part.
Background
Sandra Floyd, the real party in interest, fell while shopping in a Super 1 Foods store in Longview, Texas. She sued Brookshire for her alleged injuries and resulting damages. During discovery, Floyd served Brookshire with her first request for written discovery. Seven of those requests, Request No. 7 and Request Nos. 15 through 20, are the subject of this proceeding. Brookshire objected to these requests and produced no responsive documents or information. Floyd filed a motion to compel. Immediately prior to the hearing on Floyd’s motion, Brookshire produced one page of photographs that were “hard to see” and a two page customer accident report.
At a hearing on the motion, the trial court sustained Brookshire’s objection to Request No. 7 in part, overruled its objections to Request Nos. 15 through 20, and ordered production of the responsive information and documents. This original proceeding followed. We stayed the trial court’s order pending our disposition of Brookshire’s petition.
Availability of Mandamus
Mandamus will issue to correct a clear abuse of discretion where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). The burden of establishing an abuse of discretion and an inadequate appellate remedy is on the party resisting discovery, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). An order compelling discovery that is well outside the proper bounds constitutes an abuse of discretion and is reviewable by mandamus without a showing that appeal is an inadequate remedy. See In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998).
Abuse of Discretion
Brookshire complains that Request Nos. 7 and 15 through 20 are overly broad as a matter of law and seek information and documents that are irrelevant.2
Applicable Law
Parties must have some latitude in fashioning proper discovery requests. Texaco v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). On the other hand, discovery may not be used as a fishing expedition to investigate new claims rather than to support existing claims.3 In re Am. Optical, 988 S.W.2d at 713; In re Sears, Roebuck & Co., 123 S.W.3d 573, 578 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding) (citing Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)).
Generally, the scope of discovery is within the trial court’s discretion. Dillard, 909 S.W.2d at 492. This discretion is not unlimited, however. In re Am. Optical, 988 S.W.2d at 713. The trial court must make an effort to impose reasonable discovery limits. In re CSX, 124 S.W.3d at 153. The rules of procedure provide that the scope of discovery includes any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is “reasonably calculated to lead to the discovery of admissible evidence.” Tex. R. Civ. P. 192.3(a); see also In re CSX, 124 S.W.3d at 152. “Relevant to the subject matter” and “reasonably calculated to lead to admissible evidence” are liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues prior to trial. Axelson v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990); see also Tex. R. Civ. P. 1.
Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute’s resolution. In re CSX, 124 S.W.3d at 152; see also Tex. R. Civ. P. 192 cmt. 1. Consequently, discovery requests must be “reasonably tailored” to include only relevant matters. In re CSX, 124 S.W.3d at 152. A reasonably tailored discovery request is not overly broad merely because it may include some information of doubtful relevance. Texaco, 898 S.W.2d at 815. A central consideration in determining overbreadth is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary pertinent information. In re CSX, 124 S.W.3d at 153. A discovery request that is unlimited as to time, place, or subject matter is overly broad as a matter of law. See, e.g., In re Am. Optical, 988 S.W.2d at 713 (order requiring production of virtually all documents regarding company’s products for a fifty year period overly broad as matter of law); Dillard, 909 S.W.2d at 492 (order requiring twenty state search for documents over five year period overly broad as matter of law); Texaco, 898 S.W.2d at 815 (request for all documents authored by safety director on subject of safety, without limitation as to time, place, or subject matter, overly broad as a matter of law).
The party objecting to discovery must present any evidence necessary to support its objections. Tex. R. Civ. P. 193.4(a) (emphasis added). Evidence supporting an assertion relating to discovery is not required when evidence is unnecessary to decide the matter. In re Union Pacific Resources Co., 22 S.W.3d 338, 341 (Tex. 1999). Where a request is overly broad as a matter of law, the presentation of evidence is unnecessary to decide the matter. See In re Am. Optical, 988 S.W.2d at 712 (relator did not offer evidence, but contended documents requests were overly broad because not tied to particular products plaintiff allegedly used or to time periods of alleged use); see also In re Alford Chevrolet-Geo, 997 S.W.2d 173, 190 (Tex. 1999) (Hecht, J., concurring). Nor is evidence always necessary where the discovery sought is objected to as irrelevant. See In re Union Pacific, 22 S.W.3d at 341.
Request No. 7
In Request No. 7, Floyd seeks “any and all video tapes, photographs, drawings and sketches of the premises.” The trial court overruled Brookshire’s objections “as to current layout at time of the incident.” Brookshire contends, however, that “[t]he discovery ordered in connection with request 7 includes . . . any and all videos and photographs for the entire existence of the store,” as well as “all design drawings for the building, including . . . its electrical, HVAC, and plumbing systems and elevations . . . .” In making such an assertion, Brookshire disregards the limitations included in the trial court’s ruling, apparently in reliance upon In re Sears Roebuck & Co., 123 S.W.3d 573 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding).
In In re Sears, the plaintiffs in the underlying asbestos litigation served Sears with their first written discovery, which consisted of a single spaced 64 page request including 78 interrogatories with 253 subparts and 60 requests for production. To fully comply with the discovery, Sears was required to produce such information as (1) the location, description, and dates of operation of every Sears warehouse or sales office in Texas; (2) a detailed description of every product Sears ever sold containing asbestos; (3) the identity and address of all Sears sales offices or authorized dealers of asbestos-containing home construction products in the United States; and (4) the name, date of manufacture and sale, and asbestos content of each product it sold or made available for sale, including but not limited to a list of more than two hundred items ranging from bath rugs and shower curtains to lawn mowers, small appliances, and washers and dryers. Sears objected, the plaintiffs moved to compel, and the trial court held a number of hearings. Id. at 575.
At the hearing, the trial court announced that it would reserve Sears’s objections until later, but proceeded to consider each of the discovery requests. In its order, the trial court modified the requested discovery, in some instances requiring production not originally sought and in others limiting the requested production or denying it altogether. For example, the trial court omitted more than two hundred products from the original request, but required production regarding other products not originally listed. Id. After conducting additional hearings, the trial court “clarified” its original order, which superseded the original order, resulting in what the court of appeals characterized as “an entire set [of discovery requests] crafted with the trial court’s help in a hearing on a motion to compel.” Id. at 579.
In the instant case, the trial court implicitly sustained Brookshire’s exception to Request No. 7 except “as to current layout at time of the incident.” Brookshire contends that in so doing, the trial court impermissibly rewrote Request No. 7. This action does not approach the level of judicial assistance in In re Sears. We therefore conclude that the trial court’s ruling relating to Request No. 7 does not constitute an abuse of discretion. Because the trial court’s ruling is not an abuse of discretion, we do not address Brookshire’s arguments relating to Request No. 7 as originally written.
Request Nos. 15, 16, and 17
In Request No. 15, Brookshire was asked to admit that there had been evaluations of the premises for safety by a liability insurance carrier. If Brookshire admitted this fact, it was then to identify all documents relating to the evaluations and produce them (Request Nos. 16 and 17). Brookshire points out that neither evidence of liability insurance or any safety evaluation by or on behalf of a liability insurance carrier is admissible in the underlying proceeding. See Tex. R. Evid. 411. But admissibility is not the test for determining the scope of discovery. Axelson, 798 S.W.2d at 553; see also Tex. R. Civ. P. 192.3(a). Brookshire next contends that inadmissible facts cannot be the subject of a request for admission. The plain language of Texas Rule of Civil Procedure 198.1 belies this contention. See Tex. R. Civ. P. 198.1 (a party may serve written requests that another party admit the truth of any matter within the scope of discovery).
Brookshire also argues that Floyd’s failure to limit Request Nos. 15, 16, and 17 as to time and subject matter required the trial court to sustain its objections as to overbreadth. The supreme court has identified as overly broad “requests encompassing time periods, products, or activities beyond those at issue in the case[;] in other words, matters of questionable relevancy to the case at hand.” In re Alford Chevrolet-Geo, 997 S.W.2d at 181 n.1; see also Texaco, 898 S.W.2d at 815 (request for documents, without limitation as to time, place, or subject matter is overly broad). Here, Request Nos. 15, 16, and 17 are not limited as to time or subject matter. Consequently, the trial court’s order requires Brookshire to produce all documents pertaining to any safety evaluation by a liability insurance carrier for the entire time the subject store has been in existence. Additionally, the subject matter of the information and documents is not limited to incidents similar to the one that is the subject of the underlying lawsuit. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (order requiring description of all criminal conduct within last seven years overly broad where dissimilar criminal conduct had no apparent connection to plaintiff’s injury or cause of action). Floyd’s requests could easily have been drawn more narrowly and still obtain the necessary pertinent information. See In re CSX, 124 S.W.3d at 153.
Floyd counters that the trial court made a factual finding that the ten year period for which the trial court and the parties assumed the store had been in existence was not overly broad. We first note that the record does not clearly show that the parties “assumed” the store had been in existence for ten years. Instead, the record reflects that Floyd’s counsel informed the court that “[t]he store has only been around for 10 years.” Brookshire’s counsel did not comment. Cf. Tjernagel v. Roberts, 928 S.W.2d 297, 303 (Tex. App.–Amarillo 1996, orig. proceeding) (interrogatory not overly broad for failure to state time limitation where relator’s deposition revealed company had been in business for approximately three years). Moreover, no such time limitation is included in the trial court’s order. See Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 287 (Tex. App.–Texarkana 2000, no pet.). Therefore, we do not address whether ten years is a reasonable time limitation.
Finally, Brookshire contends that Request Nos. 15, 16, and 17 seek information and documents that are irrelevant. In substance, Brookshire argues that even if the requests were more narrowly drawn, the responsive information and documents cannot lead to the discovery of admissible evidence. Floyd maintains, in part, that the evaluations, if any, will reveal that Brookshire had notice of dangerous conditions at the store where she fell.
A slip and fall plaintiff can recover damages upon a showing that (1) the premises owner/operator had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) this failure proximately caused the plaintiff’s injuries. Wal-Mart Stores v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998). Evidence of other accidents, near accidents, or related similar events is probative evidence in Texas courts, provided an adequate predicate is established. Henry v. Mrs. Baird’s Bakeries, 475 S.W.2d 288, 294 (Tex. Civ. App.–Fort Worth 1971, writ ref’d n.r.e.). More specifically, similar events are admissible if the earlier accidents occurred under reasonably similar but not necessarily identical circumstances. McEwen v. Wal-Mart Stores, 975 S.W.2d 25, 29 (Tex. App.–San Antonio 1998, pet. denied). Prior to admission of similar events, the plaintiff must first establish (1) a predicate of similar or reasonably similar conditions; (2) connection of the conditions in some special way; or (3) that the incidents occurred by means of the same instrumentality. Id.; Henry, 475 S.W.2d at 294. Once the proper predicate is established, the evidence is probative on several issues, including notice to the owner/operator of the existence of an alleged dangerous condition. McEwen, 975 S.W.2d at 28; Henry, 475 S.W.2d at 294. Therefore, the discovery sought is reasonably calculated to lead to admissible evidence.
Based on the foregoing discussion, we hold that the trial court abused its discretion in overruling Brookshire’s objections that Request Nos. 15, 16, and 17 were overly broad. We further hold, in light of our interpretation of Brookshire’s relevance argument, that the trial court did not abuse its discretion in overruling Brookshire’s relevance objections to Request Nos. 15, 16, and 17.
Request Nos. 18, 19, and 20
In Request No. 18, Brookshire was asked to admit that there had been evaluations of the premises for safety by OSHA (Occupational Safety and Health Administration). If Brookshire admitted this fact, it was then to identify all documents relating to the evaluations and produce them (Request Nos. 19 and 20). These requests differ from Request Nos. 15, 16, and 17 only as to the source of the information and documents sought. Therefore, Request Nos. 18, 19, and 20 are also overly broad because they are unlimited as to time and subject matter. See K Mart, 937 S.W.2d at 431; Texaco, 898 S.W.2d at 815.
In its relevance argument, Brookshire points out that OSHA focuses on employee safety. See 29 CFR 1910.5(d). Because Floyd is not its employee, Brookshire’s asserts, safety evaluations conducted by or on behalf of OSHA for the purpose of assessing worker issues are certain to yield nothing relevant to Floyd’s slip and fall. As with Request Nos. 15, 16, and 17, Floyd urges that these evaluations relate, in part, to the notice element of her cause of action. We acknowledge that OSHA pertains to employees, their employment, and their places of employment. However, evidence of other accidents, near accidents, or related similar events is probative evidence in Texas courts, provided an adequate predicate is established. Henry, 475 S.W.2d at 294. Once the proper predicate is established, the evidence is probative on several issues, including notice to the owner/operator of the existence of an alleged dangerous condition. McEwen, 975 S.W.2d at 28; Henry, 475 S.W.2d at 294. The fact that a similar accident involved an employee rather than a nonemployee does not bar admission of the evidence. Consequently, we conclude that OSHA evaluations pertaining to accidents similar to Floyd’s are reasonably calculated to lead to admissible evidence.
We hold that the trial court abused its discretion by overruling Brookshire’s objections that Request Nos. 18, 19, and 20 are overly broad. However, it did not abuse its discretion in overruling Brookshire’s relevance objections to Request Nos. 18, 19, and 20.
Conclusion
The trial court’s ruling pertaining to Request No. 7 and its rulings pertaining to Brookshire’s relevance objections to Request Nos. 15, 16, 17, 18, 19, and 20 do not constitute an abuse of discretion. However, the trial court abused its discretion in overruling Brookshire’s objections that Request Nos. 15, 16, 17, 18, 19, and 20 are overly broad. Because this portion of the trial court’s order compels discovery well outside the proper bounds, mandamus is appropriate. See In re Am. Optical, 988 S.W.2d at 713. We are confident that the trial court will promptly vacate the portions of its order overruling these objections and issue an order granting Brookshire’s objections that Request Nos. 15, 16, 17, 18, 19, and 20 are overly broad. The writ will issue only if the trial court fails to comply with this Court’s opinion and order within ten days. The stay of the trial court’s order is lifted. The trial court shall furnish this Court, within the time for compliance with this Court’s opinion and order, a certified copy of its order evidencing such compliance.
JAMES T. WORTHEN
Chief Justice
Opinion delivered July 21, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.
(PUBLISH)
1 The respondent is the Honorable Alfonso Charles, Judge of the County Court at Law No. 2, Gregg County, Texas.
2 In its objections to discovery, Brookshire objected that Request No. 7 was overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Brookshire also objected that Request Nos. 15 through 20 were vague, ambiguous, overbroad, and wholly irrelevant. Because Brookshire limits its complaints here to the trial court’s rulings on its overbreadth and relevancy objections, we limit our discussion to those rulings.
3 One commentator suggests that the prohibition of fishing expeditions means nothing more than (1) the causes of action and defenses in the pleadings determine the boundaries of relevance; and (2) requests about subjects outside the matters pleaded (usually other causes of action) are therefore irrelevant. W. Mark Cotham, Why Not Have Responses to Document Requests That Make Sense?, 43 Houston Lawyer 22, 26 (2006).