The majority has concluded that good cause existed to support Hyster's belief that a suit against it was imminent when it undertook its investigation. Were the majority the trial court, I would defer to that decision. However, the core issue presented is not, as the majority states it, "whether relator met the burden of producing evidence to satisfy the two part analysis found in Flores," but whether the trial judge's determination that the relator had not met that burden was so arbitrary and unreasonable as to constitute a clear abuse of discretion. The majority ignores the abuse of discretion standard appropriate to mandamus, and improperly substitutes the appellate court's discretion for that of the trial court.
Neither the meaning to be given the facts of this case nor the applicable law are so self-evident that a decision on either side of the question which confronted the trial court should be characterized as an abuse of discretion. I do not believe that the impounding of the parts, when considered with the other circumstances, so unambiguously constituted an "outward manifestation" that litigation was imminent that a contrary decision constitutes an abuse of discretion. The trial judge is charged with deciding when good cause exists to believe a suit will be filed after objectively viewing all of the facts surrounding the investigation to determine if both of the Flores requirements have been met. The trial judge necessarily must make this determination in the light of current case law.
The Flores case also stands for the proposition that the filing of a worker's compensation claim does not constitute "litigation" as that term is used in Rule 166b(3)(d), and a pre-hearing report prepared after the receipt of notice of a worker's compensation claim is not considered to have been prepared in anticipation of litigation. Flores, 777 S.W.2d at 39-40. A relator's receipt of a letter from the claimant's attorney notifying it of claimant's representation by counsel does not constitute an objective manifestation that litigation is imminent. American Home Assurance Co. v.Cooper, 786 S.W.2d 769 (Tex.App. — El Paso, 1990). An unusual or catastrophic accident does not, without more, constitute an outward manifestation that a lawsuit is imminent; nor do severe injuries or death. Stringer v. EleventhCourt of Appeals, 720 S.W.2d 801 (Tex. 1986).
In my view, the trial judge was confronted with an extremely close question. The scope of discovery and the admission of evidence is principally within the discretion of the trial court. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). A writ of mandamus will issue only to correct a clear abuse of discretion. The relator must establish that the facts and the law permit the trial court to make but one decision; that the trial court either had no discretion in the matter, or that the court's action has exceeded that discretion. *Page 345 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). An appellate court may not substitute its discretion for that of the trial court. Davis v.Huey, 571 S.W.2d 859, 862 (Tex. 1978).
Discovery and the admission of evidence are, as noted, subjects peculiarly within the province of the trial court. Its decision in this case is entitled to deference, because it was not arbitrary or capricious nor so contrary to law or reason as to amount to an abuse of discretion. By conditionally granting the writ, the majority has disregarded the proper standard of review, and substituted its discretion for that of the trial court. Therefore, I dissent.