in Re Christus Health Southeast Texas D/B/A Christus St. Elizabeth Hospital

In The

Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00538-CV
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IN RE CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A CHRISTUS ST.
ELIZABETH HOSPITAL

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Original Proceeding
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OPINION

This discovery dispute arises from a health care liability lawsuit that

concerns a patient’s cardiac catheterization. In this mandamus proceeding, Christus

Health Southeast Texas d/b/a Christus St. Elizabeth Hospital contends the trial

court abused its discretion by refusing to order the opposing party to respond to

two of its requests for production of documents. Because the trial court could

conclude that the discovery requests at issue were not sufficiently tailored to avoid

the production of irrelevant evidence, the trial court had discretion to deny

Christus’s motion to compel. As a result, we deny relief.

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 Plaintiffs, Linda Lowe, individually and representative of the Estate of

Arthur Lowe, and Amanda Lowe, Melissa Lowe, and Laura Singletary,

individually, filed a health care liability case against Christus and Arthur Lowe’s

treating physician. In their petition, the Lowes sought to recover wrongful death

and survival damages they alleged were related to Arthur’s cardiac catheterization

on June 30, 2009, and Arthur’s death, which occurred the following day. See Tex.

Civ. Prac. & Rem. Code Ann. §§ 71.002, 71.021 (West 2008).

Approximately ten months after Christus answered the Lowes’ suit, it served

them with a request asking them to produce various documents; the trial court’s

rulings on two of the requests are the subject of this mandamus proceeding. One of

the requests at issue asked that the Lowes produce documentation, in whatever

form, of all purchases and calls that were made by Melissa Lowe and Laura

Singletary on June 30, 2009, the date Arthur had a cardiac catheterization. The

other request, now subject to this proceeding, asked the Lowes to produce copies

of any postings pertaining to Arthur or Arthur’s death on any social media site.

It is settled that “[p]arties are ‘entitled to full, fair discovery’ and to have

their cases decided on the merits.” Ford Motor Co. v. Castillo, 279 S.W.3d 656,

663 (Tex. 2009) (quoting Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex.

1995) (orig. proceeding)). “A trial court abuses its discretion when it denies

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discovery going to the heart of a party’s case or when that denial severely

compromises a party’s ability to present a viable defense.” Id.

Rule 192.3 of the Texas Rules of Civil Procedure defines the general scope

of discovery. See Tex. R. Civ. P. 192.3. “In general, a party may obtain discovery

regarding any matter that is not privileged and is relevant to the subject matter of

the pending action, whether it relates to the claim or defense of the party seeking

discovery or the claim or defense of any other party.” Tex. R. Civ. P. 192.3(a). A

request for documents or tangible items is governed by Rule 192.3(b). Under the

provisions of Rule 192.3(b), “[a] party may obtain discovery of . . . documents and

tangible things . . . that constitute or contain matters relevant to the subject matter

of the action.” Tex. R. Civ. P. 192.3(b). The party responding to the request to

produce “is required to produce a document or tangible thing that is within the

person’s possession, custody, or control.” Id.

A court may deny a discovery request if the discovery is unreasonably

duplicative, could be obtained from a more convenient, less burdensome, or less

expensive source, or if it finds the burden or expense of the discovery outweighs its

likely benefit. See Tex. R. Civ. P. 192.4. To object to a discovery request, the

objecting party must “state specifically the legal or factual basis for the

objection[.]” Tex. R. Civ. P. 193.2(a). At a hearing on the objections, “[t]he party

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making the objection or asserting the privilege must present any evidence

necessary to support the objection or privilege.” Tex. R. Civ. P. 193.4(a).

The Lowes objected to producing documents responsive to the two requests

at issue in this proceeding. They objected to Christus’s request that Melissa and

Laura produce documents that reflected their purchases and calls, asserting “[t]he

information sought is not relevant or reasonably calculated to lead to the discovery

of admissible evidence.” They also objected to Christus’s request for copies of

postings on any social media sites, claiming the request was “an invasion of

privacy and any such information would be unreliable and constitute hearsay and a

fishing expedition and this request is meant for the purpose of harassment.” We

note that the Lowes presented no evidence the discovery requests at issue in this

proceeding were burdensome, asserted no claim that the information sought to be

discovered was privileged, nor did they provide the trial court with a privilege log.

In response to the Lowes’ objections, Christus filed a motion to compel.

Following an unrecorded hearing, the trial court entered an order denying

Christus’s motion to compel; afterwards, in this proceeding, the parties could not

agree whether the trial court’s order addressed only the two requests at issue, or

whether the trial court overruled other requests addressed in Christus’s motion to

compel. At our request, the trial court clarified its order, specifying that its ruling

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applied only to Christus’s request for records of purchases and phone calls made

by Melissa and Laura on June 30, 2009, and to social media posts that mentioned

Arthur.

In response to Christus’s petition for mandamus, the Lowes argue that

Christus failed to submit a sufficient record for mandamus review. See, e.g., In re

Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding). However, the Lowes do not identify what records that we do not have

that are needed to resolve the issues Christus raises in its petition. Although

Christus did not submit a reporter’s record of the hearing, counsel for Christus has

certified that there was no testimony introduced at the hearing on its motion to

compel. See Tex. R. App. P. 52.7(a). The trial court’s order does not mention that

it considered any testimony, nor do the Lowes claim the trial court conducted an

evidentiary hearing. We conclude that the record is sufficient for the purpose of

our review of the trial court’s discovery rulings. See In re Houseman, 66 S.W.3d

368, 373-74 (Tex. App.—Beaumont 2001, orig. proceeding) (concluding

mandamus record sufficient where neither party identified relevant evidence not

included in record before the court).

According to Christus, documents regarding the locations and amounts of

purchases made by Melissa and Laura on June 30 are necessary because there are

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discrepancies regarding when they were with Arthur at the hospital on that day.

According to Christus, the records may reveal when Melissa and Laura were with

Arthur on June 30, allowing Christus to more clearly define what events they may

have witnessed. Christus’s attorney argues that without the records, he cannot

create a timeline showing the times Melissa and Laura were with Arthur at the

hospital. In support of its argument, Christus utilized the discovery it had obtained

from Arthur’s family members to demonstrate that their testimony about when

Laura and Melissa were with Arthur at the hospital is not entirely consistent;

however, the testimony is consistent in showing that Laura and Melissa were with

Arthur at various times after his cardiac catheterization concluded. Nonetheless,

they were not with Arthur during the entire day at issue.

“Mandamus relief is appropriate only if the trial court abused its discretion

or violated a legal duty, and there is no adequate remedy at law, such as an

appeal.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). A

party to a lawsuit is allowed to discover matters that are relevant to the subject

matter of the litigation. See Tex. R. Civ. P. 192.3(a) (allowing discovery of matters

that are not privileged and that are relevant to the subject matter of the pending

action). The trial court may allow discovery of documents that “contain matters

relevant to the subject matter of the action.” Tex. R. Civ. P. 192.3(b). “Although

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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 Corp., 124

S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Consequently, the trial court can

require that discovery requests be reasonably tailored “to include only relevant

matters.” Id.

“It is the discovery proponent’s burden to demonstrate that the requested

documents fall within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co.,

172 S.W.3d 160, 167 (Tex. App.—Beaumont 2005, orig. proceeding). Here, based

on the allegations made in the Lowes’ pleadings, it appears that Christus has a

reasonable need to discover when Melissa and Laura were in Arthur’s room after

he returned from his cardiac catheterization, which was around noon. While

Christus has shown a reasonable expectation that records of purchases and phone

calls made on June 30 might pin down the times Laura and Melissa were in

Arthur’s hospital room after his heart was catheterized, the request at issue seeks

production of records covering a twenty-four hour period, including approximately

twelve hours before either Melissa or Laura claims to have initially arrived at

Christus on June 30. Thus, the request was not limited in time to the records

relevant to the time period in dispute, the period after Arthur’s catheterization. Nor

has Christus demonstrated that documents reflecting purchases or calls made

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before Arthur’s heart was catheterized are documents that will aid in the resolution

of the disputed facts. Because the request could have been more narrowly tailored

and Christus’s request for purchase and phone records was overly broad, we hold

that the trial court did not abuse its discretion by denying Christus’s motion to

compel the Lowes to produce all documents reflecting Laura’s and Melissa’s

purchases and calls made on June 30, 2009. See CSX Corp., 124 S.W.3d at 152

(“Generally, the scope of discovery is within the trial court’s discretion.”)

While the trial court could have narrowed Christus’s request so that the

information to be produced would have been relevant to the time period at issue,

the trial court did not abuse its discretion by not doing so. “The burden to

propound discovery complying with the rules of discovery should be on the party

propounding the discovery, and not on the courts to redraft overly broad discovery

so that, as re-drawn by the court, the requests comply with the discovery rules.”

TIG Ins. Co., 172 S.W.3d at 168.

The other request at issue in this mandamus proceeding asked the Lowes to

produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or

his death on Facebook or any other social media site.” The Lowes objected that

“[s]uch request is an invasion of privacy and any such information would be

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unreliable and constitute hearsay and a fishing expedition and this request is meant

for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died,

the request is not limited in time. While the time period of relevant discovery while

Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring

document production from an unreasonably long time period . . . are impermissibly

overbroad.” CSX Corp., 124 S.W.3d at 152 (citing In re Am. Optical Corp., 988

S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (concluding that a discovery order

was overly broad by requiring production of “virtually all documents regarding its

products for a fifty-year period”)); see also In re Deere & Co., 299 S.W.3d 819,

821 (Tex. 2009) (orig. proceeding) (noting that where requests to produce had no

limitation on time, trial court abused its discretion by neglecting to set a reasonable

time limit). While one of the plaintiffs indicated in her deposition that she had

placed posts about Arthur on a social media site, the request at issue in this

proceeding was not limited to those posts, nor was it limited to the period after

Arthur’s death. While the Lowes are seeking damages for their mental anguish,

and the statements the Lowes made about Arthur’s death are within the general

scope of discovery, the Lowes did not establish that they had an expectation of

privacy in their statements on social media sites. Nevertheless, a request without a

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time limit for posts is overly broad on its face. We conclude the trial court did not

abuse its discretion by denying the request for posts because it was unlimited in

time.

In summary, we hold the trial court did not abuse its discretion by denying

Christus’s motion to compel responses to the two requests at issue. Christus’s

petition is denied.

PETITION DENIED.

PER CURIAM

Submitted on November 26, 2012
Opinion Delivered March 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.

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