Delgado v. Kitzman

MIRABAL, Justice,

concurring.

I agree that Delgado is entitled to pretrial discovery of relevant net worth information about Langner. I disagree, however, with the majority’s conclusion that Langner waived his objections by failing to produce evidence in the trial court.

Delgado filed suit to recover for personal injuries suffered in an April 15, 1985 automobile accident with Langner. Because Delgado alleged facts that, if proven, would show that Langner is liable for punitive damages, Delgado is entitled to discover information regarding Langner’s net worth, because such information is relevant to the question of the extent of his ability to pay punitive damages. A defendant’s ability to pay bears directly on the question of adequate punishment and deterrence. Lunsford v. Morris, 746 S.W.2d 471, 472 (Tex.1988). However, a trial court still has discretion to preclude discovery if a request for production involves “unnecessary harassment or invasion of personal or property rights." Lunsford at 473.

Unlike the defendants in two cases relied on by the majority, Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex.App.—Fort Worth 1987, orig. proceeding), and Miller v. O’Neill, 775 S.W.2d 56, 57 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding), Langner did not object on the grounds that the requested information is unduly burdensome, costly or harassing to produce. Rather, Langner objected on the grounds that the request for production “invades his privacy,” “is beyond the scope of permissible discovery,” and “is not limited to a reasonable period of time.”

In Miller, this Court held that financial statements covering a 10-year period before trial were discoverable, but that does not mean 10 years’ worth of financial records are always discoverable. In response to the defendant’s claim that the plaintiff’s requests were overbroad in Miller, a suit alleging a willful breach of fiduciary duty, we noted that the parties had been partners in a business for 11 years, starting 20 years earlier; the requested financial records could have been relevant to the issue of punitive damages; and, therefore, the absence of evidence to show that the request was overbroad was fatal to the defendant’s claim of entitlement to protection.

In my opinion, the present case is more in line with Inwood West Civic Ass’n v. Touchy, 754 S.W.2d 276 (Tex.App.—Houston [14th Dist.] 1988, orig. proceeding). There, the court held that the trial court *335properly sustained the defendant’s objections to discovery based on claims of privilege and lack of relevance, even though the defendant presented no evidence substantiating its claims. 754 S.W.2d at 278.

In the present case, the suit arises out of a 1985 automobile accident. There was no “relationship” between Delgado and Lang-ner prior to that time. In my opinion, based on the pleadings alone, the trial court could have concluded, in the proper exercise of its discretion, that Delgado’s request for 10 years of Langner’s financial records was overbroad, and therefore that it was made for the purpose of harassment.

The problem with the trial court’s order in this case is that it protects Langner from having to disclose any financial information. In my opinion, the order could have properly limited the required production to financial records covering a period of less than 10 years, based strictly on the record before the court, without the necessity of evidence; however, the court could not properly deny Delgado access to any financial information, including that which might reasonably be relevant to Langner's ability to pay punitive damages.

For this reason, I concur in conditionally granting Delgado’s petition for writ of mandamus.