in Re: Heb Grocery Company, L.P.

NUMBER 13-10-00533-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE HEB GROCERY COMPANY, L.P.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Chief Justice Valdez1

Relator, HEB Grocery Company, L.P. (“HEB”), filed a petition for writ of

mandamus in the above cause on October 4, 2010, seeking to compel the trial court to

vacate its order requiring HEB to “produce all incident reports related to motorized

vehicles ridden by customers inside HEB stores in any of the HEB [s]tores in Texas for

the years 2004 through November 30, 2009.” The Court requested and received a

response to the petition for writ of mandamus from Allyce Campbell, the real party in

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See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required
to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
interest, and further received a reply brief from HEB. As stated herein, we deny the

petition for writ of mandamus.

I. AVAILABILITY OF MANDAMUS RELIEF

Mandamus will issue if the relator establishes a clear abuse of discretion for

which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,

839 (Tex. 1992) (orig. proceeding). With regard to discovery rulings, a party will not

have an adequate remedy by appeal when: (1) the appellate court would not be able to

cure the trial court‟s discovery error; (2) the party‟s ability to present a viable claim or

defense at trial is vitiated or severely compromised by the trial court‟s discovery error; or

(3) the trial court disallows discovery and the missing discovery cannot be made a part

of the appellate record or the trial court, after proper request, refuses to make it part of

the record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding);

Walker, 827 S.W.2d at 843. An order that compels overly broad discovery is an abuse

of discretion for which mandamus is the proper remedy. In re Deere & Co., 299 S.W.3d

819, 820-21 (Tex. 2009) (orig. proceeding) (per curiam).

When determining whether the trial court abused its discretion, we are mindful

that the purpose of discovery is to seek the truth so that disputes may be decided by

what the facts reveal, not by what facts are concealed. In re Colonial Pipeline Co., 968

S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). The rules of civil procedure define the

scope of discovery to include 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.

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P. 192.3; see In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding).

However, the broad scope of discovery is limited by the legitimate interests of the

opposing party in avoiding overly broad requests, harassment, or the disclosure of

privileged information. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig.

proceeding).

To object to a discovery request, the responding party must make a timely

objection in writing and "state specifically the legal or factual basis for the objection and

the extent to which the party is refusing to comply with the request." TEX. R. CIV. P.

193.2(a). Any party making an objection to requested discovery must present any

evidence necessary to support the objection. In re CI Host, Inc., 92 S.W.3d 514, 516

(Tex. 2002) (citing TEX. R. CIV. P. 193.4(a)). When a party contends that a part of a

request is improper, the objecting “party is also required under the rules to produce

what is discoverable.” Id.; see also TEX. R. CIV. P. 193.2(b) (confirming the objecting

party‟s duty to comply with the part of the request which the party has not objected to);

TEX. R. CIV. P. 193 cmt. 2 (“An objection to written discovery does not excuse the

responding party from complying with the request to the extent no objection is made.”).

“Any party who seeks to exclude matters from discovery on grounds that the requested

information is unduly burdensome, costly or harassing to produce, has the affirmative

duty to plead and prove the work necessary to comply with discovery” because “the trial

court cannot make an informed judgment on whether to limit discovery on this basis or

place the cost for complying with the discovery” in the absence of such evidence.

Indep. Insulating Glass/Sw., Inc. v. Street, 722 S.W.2d 798, 802 (Tex. App.–Fort Worth

1987, writ dism‟d); see In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999)

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(orig. proceeding) (“A party resisting discovery . . . cannot simply make conclusory

allegations that the requested discovery is unduly burdensome or unnecessarily

harassing. The party must produce some evidence supporting its request for a

protective order.”); Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (same).

Accordingly, “to the extent that a discovery request is burdensome because of the

responding party‟s own conscious, discretionary decisions, that burdensomeness is not

properly laid at the feet of the requesting party, and cannot be said to be „undue.‟” In re

Whitely, 79 S.W.3rd 729, 735 (Tex. App.–Corpus Christi 2002, orig. proceeding)

(quoting ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App.–Houston [1st

Dist.] 1996, orig. proceeding)).

II. BACKGROUND

On October 31, 2009, Campbell, an eighty-five year old woman, was shopping at

an HEB store in Corpus Christi, Texas, when she was struck by another customer

driving a motorized electric cart provided by HEB. Sustaining permanent hip injuries

which required hospitalization and surgery, Campbell brought suit against HEB for

negligence, premises condition, and negligent activity. Campbell filed a request for

production to HEB seeking:

All incident reports of injuries to property, displays, and people related to
motorized vehicles ridden by customers inside the HEB stores in any of
the HEB stores in Texas or any complaint of such for the years 2004-
November 30, 2009.

HEB objected to this request for production on grounds that it called for “the disclosure

of information beyond the scope of discovery pursuant to [Texas Rule of Civil

Procedure] 192.3(a)” and that “the request for production is not limited in time, nor

geographical area, and as such is beyond the scope of discovery pursuant to [Texas

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Rule of Civil Procedure] 192.4.”2 HEB did not file any evidence supporting these

objections. Campbell filed a motion to compel discovery, and after a non-evidentiary

hearing, the trial court granted the motion to compel.

III. STANDARD OF REVIEW

We review discovery rulings for an abuse of discretion. In re CSX Corp., 124

S.W.3d at 152. A trial court abuses its discretion when it acts without reference to

guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d at 941.

“Generally, the scope of discovery is within the trial court‟s discretion, but the trial court

must make an effort to impose reasonable discovery limits.” In re Graco Children’s

Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam) (internal

quotations omitted). Discovery requests must be reasonably tailored to include only

matters relevant to the case. In re Alford Chevrolet-Geo, 997 S.W.2d at 180-81; K Mart

Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (orig. proceeding). Because

discovery is limited to matters that are relevant to the case, requests for information that

are not reasonably tailored as to time, place, or subject matter amount to impermissible

“fishing expeditions.” See In re CSX Corp., 124 S.W.3d at 152; Texaco, Inc. v.

Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). A central consideration in determining

overbreadth is whether the discovery requests could have been more narrowly tailored.

In re CSX Corp., 124 S.W.3d at 153.

IV. ANALYSIS

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“A party may object to written discovery only if a good faith factual and legal basis for the
objection exists at the time the objection is made.” TEX. R. CIV. P. 193.2(c). We note that the request is
specifically limited in time (“the years 2004–November 30, 2009”) and geographical area (“Texas”).

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 HEB contends neither that the discovery request at issue is unduly burdensome

nor that the five-year period of time for production is overbroad.3 Rather, HEB contends

that the discovery order is overly broad as a matter of law insofar as it requires the

production of incident reports from HEB stores other than the one where Campbell was

injured. According to HEB, incidents at other stores are not relevant to Campbell‟s

claims against HEB.

In the instant case, in her original petition, Campbell alleged that HEB provided

electric motorized carts to its customers to increase its profits, but “began seeing

injuries caused by drivers hitting other people while operating the motorized carts.”

According to Campbell, her injury occurred “after many prior occurrences of drivers

hitting customers, hitting displays, and causing damage inside HEB stores.” Campbell‟s

petition specifically alleges:

HEB did not monitor drivers, train or check operators to see if they were
competent to operate the vehicles inside the store, or establish any rules
or procedures for their use. Anyone who desired to drive around the
stores was allowed to do so with no restrictions, no supervision, and no
regulations.

Campbell thus argues that HEB‟s general corporate policies regarding the management

of electric carts are deficient insofar as, for example, the carts are keyless,

unsupervised, and accessible to anyone. Campbell seeks discovery regarding other

accidents involving motorized electric carts to show that HEB had notice of other

3
As we recently noted, “a discovery order that covered a ten-year period might be too broad
under some circumstances,” but “there is certainly nothing too broad as a matter of law about all
discovery orders covering ten years.” In re Exmark Mfg. Co., 299 S.W.3d 519, 528 (Tex. App.–Corpus
Christi 2009, orig. proceeding) (citing In re Energas Co., 63 S.W.3d 50, 55-56 (Tex. App.–Amarillo 2001,
orig. proceeding); Miller v. O'Neil, 775 S.W.2d 56, 59 (Tex. App.–Houston [1st Dist.] 1989, orig.
proceeding)). For example, the Texas Supreme Court narrowed the discovery request at issue in
General Motors v. Lawrence to cover “trucks for model years 1949 through 1972,” a 23-year period
encompassing a variety of truck models. Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex.
1983).

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incidents pertaining to electric cart usage and considered but failed to make appropriate

changes in its nation-wide policies and procedures. Campbell also seeks this discovery

to counter HEB‟s defensive allegations that Campbell‟s injuries were caused by the

manufacturer of the electric cart and its driver, rather than any action or inaction on the

part of HEB.

In analyzing the discovery request at issue, we are guided by numerous cases

which have addressed overbroad discovery requests. See In re CSX Corp., 124

S.W.3d at 153 (stating that request to identify all safety employees who worked for

defendant over a thirty-year period qualifies as a “fishing expedition”); In re Am. Optical

Corp., 988 S.W.2d at 713 (stating that request for production of all documents the

defendant had ever produced on any of its products over the course of its fifty years in

business was overbroad and of questionable relevancy); K Mart Corp., 937 S.W.2d at

431 (stating that request for information relating to all criminal activity on all K Mart

property over last seven years was overbroad); Dillard Dep’t Stores, Inc. v. Hall, 909

S.W.2d 491, 492 (Tex. 1995) (stating that a 227 store search in twenty states for

documents over a five-year period was overly broad); Texaco, Inc., 898 S.W.2d at 814-

15 (stating that request for “all documents written by [defendant‟s safety director] that

concerned safety, toxicology, and industrial hygiene, epidemiology, fire protection and

training” was overbroad); Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex.

1983) (stating that requests concerning fuel filler necks in every vehicle ever made by

General Motors were overbroad); see also Fethkenher v. Kroger Co., 139 S.W.3d 24,

30 (Tex. App.–Fort Worth 2004, no pet.) (concluding that discovery request was

overbroad where it asked store to describe, in detail, any previous incidents pertaining

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to automatic door malfunctions at all 188 stores in southwest region; court noted that

appellant “failed to narrow the request in a manner that would heighten its relevancy”);

In re Lowe’s Cos., 134 S.W.3d 876, 880 (Tex. App.–Houston [14th Dist.] 2004, orig.

proceeding) (holding that discovery order was overbroad where it allowed plaintiffs to

access computer data without any limitation as to time, place, or subject matter and

print data concerning falling merchandise accidents for an unlimited period of time

preceding the accident in this case and for an unlimited geographic area).

HEB contends that the instant discovery request is “essentially indistinguishable”

from those held to be overly broad in Dillard Department Stores and K Mart. In Dillard

Department Stores, the plaintiff sued Dillard Department Stores for false arrest. 909

S.W.2d at 492. At the plaintiff‟s request, the trial court ordered Dillard Department

Stores to produce “every claims file and incident report prepared from 1985 through

1990 in every lawsuit or claim that involved allegations of false arrest, civil rights

violations, and excessive use of force” for each of its 227 stores located in twenty

states. Id. at 491-92. The supreme court granted mandamus relief, holding that the

requested discovery was “overly broad as a matter of law.” Id. at 492. The court noted

that the plaintiff admitted that he wanted the document production “to explore whether

he can in good faith allege racial discrimination,” and stated that the request was “the

very kind of fishing expedition” that is not allowable under the rules of civil procedure.

Id.

In K Mart Corporation v. Sanderson, the plaintiff sued K Mart to recover actual

and punitive damages for injuries she received when she was abducted from a K Mart

store parking lot and raped. 937 S.W.2d at 430. The plaintiff requested information

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regarding “all criminal activities . . . during the last seven years that relate in any way to

the alleged failure to provide adequate security allegedly resulting in any sort of physical

injury to any person,” and further asked for information regarding other incidents at

stores “nationwide in which a person was abducted from the premises and raped” within

a ten-year period of time. Id. at 431. In holding that the discovery requests were

overbroad, the supreme court held that the “likelihood that criminal conduct on the

parking lot of a K Mart store or other property . . . in El Paso or Amarillo as long ago as

1989, or outside Texas as long ago as 1986, will have even a minuscule bearing on this

case is far too small to justify discovery.” Id. In so holding, the supreme court amplified

its holding in Dillard Department Stores and expressly rejected “the notion that “any

discovery device can be used to fish”. Id.

We disagree with HEB‟s contention that Dillard Department Stores and K Mart

compel the conclusion that the request for production herein is overbroad. In both

cases, the allegations of negligence against the store owners were based on store-

specific issues and conditions yet the requested discovery did not relate to the specific

claims made in each case. In Dillard Department Stores, the requested discovery was

sought in order to find out if the plaintiff could raise claims of racial discrimination

against the company. See Dillard Dep’t Stores, 909 S.W.2d at 492. In K Mart, the

requested discovery concerned crime statistics at other locations, whereas the plaintiff‟s

specific cause of action revolved around the crime rate at the particular store where she

was abducted and whether the store could expect an act of crime to occur based on

those statistics. See K Mart Corp., 937 S.W.2d at 431.

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 In contrast, the instant case concerns allegations of negligence on the part of

HEB based not only on a premises defect specific to a particular location, or on

employee conduct at a specific location, or on criminal conduct occurring at a particular

location, but on its nation-wide policy decisions regarding the provision and utilization of

mechanized electronic carts for customers. Thus, unlike Dillard Department Stores and

K Mart, the discovery sought in this case is relevant to the specific allegations at issue

in this lawsuit.

“Other accidents are admissible for some purposes and . . . may be relevant to

show whether . . . a warning should have been given.” Nissan Motor Co. v. Armstrong,

145 S.W.3d 131, 138-39 (Tex. 2004) (citing Gen. Motors Corp. v. Saenz, 873 S.W.2d

353, 356 (Tex. 1993)). Similarly, “accident complaints may be admissible . . . to show

that a [defendant] knew users were not heeding its warnings.” Id. at 140 (citing Uniroyal

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340-41 (Tex. 1998)). “[I]n exercising

discretion regarding admissibility, trial courts must carefully consider the bounds of

similarity, prejudice, confusion, and sequence before admitting evidence of other

accidents.” Id. at 139. In this case, however, we are not assessing the threshold of

admissibility of other incidents but the much lower threshold of mere discoverability of

such incidents. “Fundamentally, the scope of discovery is obviously much broader than

the scope of admissible evidence, and evidence of incidents . . . can be admissible, and

therefore, obviously, discoverable.” In re Exmark Mfg. Co., 299 S.W.3d 519, 528 (Tex.

App.–Corpus Christi 2009, orig. proceeding) (discussing Nissan Motor Co., 145 S.W.3d

at 138-39). Moreover, HEB has not presented argument or evidence indicating that the

policies and procedures vary from store to store and, accordingly, has failed to show

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that other locations are not relevant. See In re Deere & Co., 299 S.W.3d at 820-21

(holding that it was not error to allow discovery as to various product lines where

manufacturer failed to present evidence showing that the product lines lacked the

assembly at issue, although the order nevertheless exceeded the scope of permissible

discovery by neglecting to set a reasonable time limit).

This case is substantially different from the other cases which HEB relies upon in

its petition for writ of mandamus.

First, HEB raises no complaint about any allegedly undue burden with respect to

the order and raises no objection to the five-year time period which is encompassed by

the order. This circumstance immediately distinguishes this case from the In re CSX

and In re American Optical cases, where key aspects of the discovery dispute were the

burden of responding for a thirty-year time period and a fifty-year time period

encompassed by those disputed discovery orders. Under the facts of this case,

however, it is not surprising that HEB raised no objection about the five-year time period

of the discovery order because HEB offered no evidence about the relative burden

necessary to comply with a discovery request encompassing a one-year time period, a

five-year time period, or a ten-year time period as would have been required under the

Independent Insulating Glass decision. 722 S.W.2d at 802. Likewise, if HEB were

complaining that a one-year time period or a four-year time period would have been

appropriate but it was only the five-year scope of the discovery that it was contesting,

HEB presumably would have met its obligation to partially comply with the non-

objectionable portion of the request as envisioned by rule 193. See TEX. R. CIV. P.

193.2(b) (confirming the objecting party‟s duty to comply with the part of the request to

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which the party has not objected); Id. cmt. 2 (“An objection to written discovery does not

excuse the responding party from complying with the request to the extent no objection

is made.”). As far as the record before this Court reveals, it might be true that the

burden of complying with the disputed request involved nothing more that setting the

parameters for a search of an internal database or, on the other hand, it might be true

that there is some burden associated with answering the request. Compliance with the

underlying order might entail the production of a couple dozen pages of documents or it

might entail the production of ten boxes of documents, but the record is completely

silent on this matter. The trial court had no basis to assess such issues, however,

because HEB offered no evidence to support such an assessment, see In re Alford

Chevrolet-Geo, 997 S.W.2d at 181, and so this Court has no basis upon which to

second-guess the trial court‟s order.

Second, HEB neither raises an argument that it has already complied with a

portion of the disputed discovery request, nor has HEB offered any evidence explaining

why the remainder of the request, with which it has not complied, is overly broad, which

was the context of the discovery dispute at the heart of Dillard Department Stores. In

the Dillard Department Stores case, the party resisting discovery had already produced

a number of responsive complaints in compliance with its duties under rule 193.2(b) and

then supported its objection to additional discovery with an affidavit explaining that

further compliance with the discovery request would encompass a search for data in

twenty states across the country. See Dillard Dep’t Stores, 909 S.W.2d at 492. In this

case, the discovery request is expressly limited to incidents in Texas; HEB has made no

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efforts at partial compliance under Rule 193.2(b); and HEB offered no evidence to

support its objection.

Third, HEB raises no issue of trade secrecy and no issue about the discovery

request being duplicative of other discovery which had been previously produced, which

were two key aspects of the dispute at the heart of In re Lowe's. In the Lowe’s case, the

party resisting discovery offered evidence that the proposed search of its database

would invade its trade secrets and that the information requested had already been

produced in the form of a paper printout from the database. In re Lowe’s Cos., 134

S.W.3d at 880. There is no comparable evidence in this case, and there are no

comparable trade secrecy issues or claims regarding duplicative discovery raised in

response to the underlying discovery request.

Finally, it must be noted that the petition in this case asserts claims related to an

incident involving an HEB customer riding a motorized vehicle inside an HEB store, and

the discovery request seeks information about prior reports related to HEB customers

riding motorized vehicles inside HEB stores. There is a direct relationship between the

claims at issue and the discovery sought. Significantly, Texaco v. Sanderson confirmed

that the “plaintiffs are entitled to discover evidence of defendants' safety policies and

practices as they relate to the circumstances involved in their allegations,” but they were

not entitled to all documents “on the subject of safety, without limitation as to time, place

or subject matter.” 898 S.W.2d at 815. As the issue was presented to the trial court,

and as reflected in the record before us, there is no basis to second-guess the trial

court‟s conclusion that the discovery request is tailored to provide discoverable

information reflective of HEB‟s policies and practices as they relate to the circumstances

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involved in Campbell‟s allegations, and there is no evidentiary basis to conclude that the

order is not appropriately limited as to time, place, and subject matter.

V. CONCLUSION

The Court, having examined and fully considered the petition for writ of

mandamus, the response thereto, and relator‟s reply, is of the opinion that relator has

not shown itself entitled to the relief sought. Accordingly, the petition for writ of

mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

________________________
ROGELIO VALDEZ
Chief Justice

Delivered and filed the
8th day of November, 2010.

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