Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed April 15, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-04-00001-CV
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IN RE REYNOLDS METALS COMPANY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
Relator Reynolds Metals Company seeks a writ of mandamus directing the Judge of the 212th District Court, Cause No. 03-CV-0043, to vacate her order of December 19, 2003, which compels Reynolds Metals to comply with requests for production. Reynolds Metals contends that the trial court abused her discretion in requiring the production of documents because the requests were overbroad and irrelevant. On January 13, 2004, we stayed the discovery order pending our orders. As we explain below, after reviewing the record, we find the discovery requests overly broad, and we conditionally grant the writ.
I. Background
The underlying suit involves premises and products liability claims by Gabriel and Virginia Salais (Salais) against 66 defendants. During discovery, Salais propounded 136 requests for production on all of the defendants. In response, Reynolds Metals filed objections stating that the requests for production were overbroad, unduly burdensome, vague and ambiguous. Reynolds Metals objected to the discovery because Salais had not provided it specific information regarding Salais=s relationship with its premises including, when he was on the premises, where he was on the premises, who employed him, and how he became exposed to any toxic substances.
In response to Reynolds Metals= objections, Salais filed a motion to compel. He claimed he requested specific documents reasonably calculated to lead to the discovery of admissible evidence and that his 136 requests for production were narrowly-tailored to the years during his exposure to cancer-causing chemicals and substances.
On December 19, 2003, the trial court held a hearing to consider the objections and motion to compel. Without making any changes to the discovery requests, the trial court denied all of Reynolds Metals= objections and ordered it to fully answer the requests for production.
II. Availability of Mandamus Relief
Mandamus is available to correct a clear abuse of discretion when the relator has no adequate remedy at law. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). 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. Id. A clear abuse of discretion occurs when an action is Aso arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@ CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding).
Generally, the scope of discovery is within the trial court=s discretion. Dillard Dep=t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding). However, the trial court must make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding). The trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding).
III. Analysis
A. Waiver
Salais served a 36-page document on all defendants which included 136 requests for production. In his motion to compel, Salais claimed that his requests were narrowly-tailored to the years during which Salais was exposed to cancer-causing chemicals and substances. In this proceeding, Salais argues that Reynolds Metals waived its objections to the discovery by not making clear objections and asserting numerous unfounded objections. See Tex. R. Civ. P. 193.2(e). But, based on the objections to the discovery requests, the responses to Salias=s requests for production, and the transcript of the December 19 hearing, we conclude that Reynolds Metals clearly presented its discovery objections to the trial court.
Salais also argues that Reynolds Metals waived its objections by failing to produce some evidence to the trial court in support of its objections. At the hearing on objections to written discovery, the Aparty making the objection or asserting the privilege must present any evidence necessary to support the objection . . . .@ Tex. R. Civ. P. 193.4(a). Reynolds Metals produced no evidence at the hearing. The trial court had before it only Reynolds Metals= argument, its motion for protection, and its objections and responses to discovery. However, this is not necessarily fatal to Reynolds Metals= claim.
Recently, the Supreme Court stated that Aevidence may not always be necessary to support a claim of protection from discovery@ under Rule 193.4. In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999) (orig. proceeding). As we explain below, this is the type of case the supreme court must have contemplated when it made that statement. For here, the trial court could determine whether the discovery requests were overbroad without hearing evidence.
B. The Overbroad Discovery Requests
Salais=s discovery requests are problematic in this mandamus because he has not alleged clearly the dates he worked at Reynolds Metals, partly because his heirs may not know. Salais died six months before this suit was brought and his family may have very little documentation to show where he worked and when. For example, his representatives say he worked for two contractors B Sizemore and Haas Paving B yet social security records show that Salais earned reported income from Sizemore only in 1988 and 1989. The records do not list Haas Paving at all. These records are the only proof Salais has of work history at Reynolds Metals= premises.
In spite of showing only a two year period of employment, Salais=s lawyers sent the following requests:
Request for Production No. 15: All epidemiological and toxicological tests, studies, and research conducted by or on behalf of Defendant(s) that refer or relate to chemicals during the time period 1948 to present.
Request for Production No. 16: All epidemiological and/or toxicological tests, studies, and research conducted by or on behalf of Defendant(s) that refer or relate to leukemia from 1948 to present.
Request for Production No. 29: Copy of all documents relating and/or referring to chemicals causing cancer in humans, generally, and specifically, causing leukemia, multiple myeloma, lymphoma and cancers of the blood.
Request for Production No. 38: All worker=s compensation claims for leukemia, multiple myeloma, lymphoma and cancers of the blood made by employees (past or present) during the time period 1990 to present.
Request for Production No. 41: All biological monitoring records pertaining to the chemicals during the time period 1948 to 2002.
Clearly, these requests are too broad. They also are not the only overly broad requests; we list them only for illustrative purposes. Overall, the requests for production provide time limits between the following dates: (1) 1975 and 1990 (his alleged dates of exposure); (2) 1948 to present; (3) 1975 to present; (4) 1990 to present; (5) 1952 to 1979; and (6) 1960 to 1985. The variety in time limitations is perplexing in light of Salais=s argument at the December 19 hearing that he is only interested in discovery between 1975 and 1990.[1]
C. Controlling Case Law
The case law supports a conclusion that these requests are overly broad. The Texas Supreme Court has written several opinions that control our decision and point out the problems with this discovery. In Dillard Dep=t Stores, Inc. v. Hall, the Court held that the trial court=s order was overly broad, because it required Dillard to produce every incident report filed between 1985 and 1990 in all 227 Dillard stores nationwide. 909 S.W.2d at 492 (A[R]equests for document production may not be used simply to explore.@). In American Optical, the trial court ordered the defendant to produce every document ever produced relating to asbestos. The Court held the order was overbroad, because Aordering a defendant to produce virtually all documents regarding its products for a fifty-year period is an abuse of that discretion.@ 988 S.W.2d at 713. In Texaco, Inc. v. Sanderson, the plaintiffs claimed they were injured by exposure to benzene and requested all safety and toxicology documents written by the corporate safety director, including documents regarding other employees= exposure and plants where the plaintiffs never worked. 898 S.W.2d at 814. These requests included time periods during which the plaintiffs did not work with the company. Id. The Court held the request was overbroad, because it was Anot merely an impermissible fishing expedition; it [was] an effort to dredge the lake in hopes of finding a fish.@ Id. at 815. As in Dillard, it appears here that Salais=s lawyers are using these requests simply to explore. Dillard, 909 S.W.2d at 492. And, in light of the dearth of information about Salais=s work history, these requests border on being as egregious as those in Texaco, Inc. v. Sanderson. See 898 S.W.2d at 814B15.
This Court has also addressed this situation. Recently, we stated that requiring defendants to identify which of their products contain asbestos before plaintiffs identify the products to which they claimed exposure constituted an inappropriate procedure that would require defendants to produce information regarding a claim the plaintiff has not yet made. In re Sears, Roebuck & Co., 123 S.W.3d 573, 579 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding). Because the trial court=s discovery order compelled the production of far more than what the plaintiff identified as potential sources of exposure, this Court concluded that the discovery requests were not narrowly tailored and thus, overbroad. Id.
This dispute suffers from the same problem discussed in Sears as evidenced by the discovery requests and Salias=s argument at the December 19 hearing: AI=m first going to the premises owner and saying give me the basic discovery that we deserve in this case to show what we worked around.@ Similar to Sears, Salias=s discovery asks for information before Salias has made a claim.
Discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad. See Am. Optical, 988 S.W.2d at 713. 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. Id. Discovery requests must be limited by time, place, and subject matter. In re Xeller, 6 S.W.3d 618, 626 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding). A trial court must make an effort to impose reasonable discovery limits. Am. Optical, 988 S.W.2d at 713.
In summary, based on the record before us, we conclude that the requests for production are overbroad because they lack reasonable limitations as to time. The trial court abused her discretion by granting Salais=s motion to compel without imposing reasonable discovery limits.
D. No Adequate Appellate Remedy
Although we have concluded that the trial court abused her discretion, our analysis does not end there. To be entitled to mandamus relief, Reynolds Metals also must have no adequate appellate remedy. AOnce time, labor, and money are spent on improper production, there is no undoing them; wasteful costs may be shifted, but never retrieved.@ Sears, 123 S.W.3d at 575. We hold that by having to produce overbroad discovery that is almost unlimited as to time, Reynolds Metals has no adequate appellate remedy. See In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003).
IV. Conclusion
We conditionally grant mandamus relief and direct the trial court to vacate its December 19, 2003 order compelling Reynolds Metals to answer Salias=s requests for production. Tex. R. App. P. 52.8(c). The parties have presented general arguments regarding the proper scope of discovery, but have not specifically focused on each of the 136 requests for production. We also will not address each of the 136 requests; instead, the trial court should review the requests individually and amend its ruling in light of our opinion today. See Am. Optical, 988 S.W.2d at 713B14. The writ will issue only if the trial court fails to act promptly in accord with this opinion. This Court=s January 13, 2004 stay order remains in effect until the trial court vacates the December 19, 2003 order.
/s/ Wanda Mckee Fowler
Justice
Petition Conditionally Granted and Memorandum Opinion filed April 15, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
[1]In fact, Salais=s counsel informed the trial court that, AWe are not asking for stuff back in the >60's or today.@