In re ENERGAS COMPANY, Relator.
No. 07-01-0283-CV.
Court of Appeals of Texas, Amarillo.
Sept. 20, 2001.
Rehearing Overruled Oct. 25, 2001.
63 S.W.3d 50
Before BOYD, C.J., and QUINN and REAVIS, JJ.
REAVIS, Justice.
In this original proceeding, relator Energas Company, seeks a writ of mandamus requesting that we order the Honorable David L. Gleason, Judge of the 47th District Court of Potter County, to vacate his order requiring relator to produce documents covering its pipelines in the entire city of Amarillo for a 12-year period of time and documents relating to the decision to cathodically protect pipelines within Amarillo for the past 30 years. For the reasons set forth, we conditionally grant in part and deny in part the relief requested.
Relator, a public utility, is engaged in the business of supplying natural gas to business and residential customers in the city of Amarillo and elsewhere. Forest Harvey Miller, deceased, resided at an apartment located at 2713 West 9th Street in Amarillo. On September 13, 1999, he was severely injured by an explosion at his apartment and died sixteen days later as a result of burns received in the explosion. Contending that the explosion was caused by a leaking gas main pipeline located approximately 17 feet from the apartment, real party in interest, Mary Miller Speed, Dependent Administratrix of the Estate of Forest Harvey Miller, Deceased (hereinafter real party), filed suit in the 47th District Court of Potter County styled Mary Miller Speed, Dependent Administratrix of the Estate of Forest Harvey Miller, Deceased versus Energas Company, bearing cause number 87-247-A, seeking to recover ordinary and exemplary damages. By her
(A) failing to make sufficient inspections to discover the leaks in the main before harm resulted to the decedent from these conditions.
(B) failing to maintain or properly utilize available monitoring equipment and devices that would have alerted the Defendant of the dangerous gas leakage by showing the existing gas pressure in the main.
(C) operating and maintaining the main in a dangerous and defective condition.
(D) failure to perform proper repair and maintenance of the main.
(E) failure to stop the flow of gas through the main after learning of its leaking condition, until the leaks could be repaired.
(F) failing to repair the main so as to prevent gas leaking from it, after learning of its leaking condition.
(G) failing to warn the decedent of the peril or danger caused by the leaking main, after learning of its leaking condition.
In addition to the allegations of ordinary negligence, real party also alleged that the negligence of Energas was committed with malice and/or gross neglect.
In response to real party‘s third request for production of documents, Energas responded with objections on March 12, 2001.1 Real party filed her motion to compel discovery on April 4, 2001. After a hearing, the trial court signed its order on June 7, 2001, granting real party‘s motion to compel and overruled Energas‘s objections to discovery and prayer for protection. As material here, Energas contends the trial court erred in concluding that real party‘s requests for discovery were narrowly tailored and relevant to issues involved in the underlying case and in ordering Energas to produce documents pertaining to the entire city of Amarillo for a 12-year period of time and documents relating to the decision to cathodically protect2 lines within Amarillo for a 30-year period.
Standard of Review
A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal, and the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig.proceeding). With respect to factual matters committed to the trial court‘s discretion, the appellate court may not substitute its judgment for that of the trial court. Id. However, a review of a trial court‘s determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we “must focus on the record that was before
As is common in original proceedings, the record presented here is not as complete as a record presented after a trial on the merits. The record here consists only of (1) real party‘s original petition, (2) real party‘s motion to compel responses to her third request for production, with eight exhibits attached including Energas‘s answers to some request for admissions, objections to discovery requests, and Energas‘s objections to the 22 requests for production3 that Energas challenges here, (3) Energas‘s response to real party‘s motion to compel, with the affidavit of David Gates, a vice president for Energas attached, (4) a reporter‘s record of the argument of counsel4 upon the presentation of the motion to compel and Energas‘s opposition to the motion, and (5) the trial court‘s order.
By its sole issue, Energas contends the trial court abused its discretion in ordering it to produce documents pertaining to the entire city of Amarillo for a 12-year period of time and documents relating to the decision to cathodically protect lines within Amarillo for a 30-year period of time. In summary, Energas objected to production of the records contending that the requested documents were not relevant, and were overly broad and burdensome.
(b) Documents and Tangible Things. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or video-tape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person‘s possession, custody, or control.
Because the rule requires that documents and tangible things must be relevant to the subject matter of the action, we first address the question of relevance.
Relevance
As summarized above, the underlying action was commenced following a gas explosion at 2713 West 9th Street in Amarillo resulting in fatal injuries to Forest Harvey Miller. By answers to request for admissions, Energas admitted:
- it owned and operated the low pressure steel main located at or near 2713 West 9th Street involved in the lawsuit;
- a leak detection survey performed in August 1998 on the system which included the line at or near 2713 West 9th Street found over 80 leaks over an area of approximately three square miles;
- there was no cathodic protection and no effective external coating on the low pressure steel main located at or near 2713 West 9th Street on September 13, 1999;
that on September 13, 1999, or within a day or two thereafter, the low pressure steel main located at or near 2713 West 9th Street, was found to have active external corrosion with holes and large-scale pitting; and - that soon after September 13, 1999, Energas replaced the low pressure steel main located at or near 2713 West 9th Street with polyethylene pipe.
Although the first 11 of the challenged production requests expressly reference
Overly Broad and Burdensome
The discovery rules do not contemplate the exclusion of relevant evidence unless the evidence sought is unfairly prejudicial, privileged, or incompetent. Further, discoverable information is also limited by legitimate interests of opposing parties such as avoiding harassment or overly-broad requests. Kern v. Gleason, 840 S.W.2d 730, 736 (Tex.App.--Amarillo 1992, no pet.). While discussing the new discovery rules, in In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.1999), the Court held:
A party resisting discovery, however, 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.
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.
The affidavit of David Gates is the only evidence provided by Energas to support its objections to the requested discovery. As material here, the affiant states:
(a) In the City of Amarillo, Energas has approximately 5,062,906 total feet, or 958.88 miles, of gas mains.
(b) Energas performs leak surveys on its pipe in the City of Amarillo as frequently as twice per year ranging to a maximum time of five years between surveys. The frequency of leak surveys depends upon the type of pipe and the area being surveyed.
(c) Energas, in responses to discovery, has provided Plaintiff with documents relating to leak surveys, leaks found and repaired reports, and cathodic protection in an area with a 500 yard radius from 2713 West 9th Street, Amarillo, Texas, which is the site of the incident in question. To require Energas to respond to Plaintiff‘s requests aimed at the City of Amarillo as a whole would burden Energas and its personnel, in that Energas would incur travel expenses plus work time that is lost, in addition to the expense of locating and copying thousands of pages of documents.
(Emphasis added). Significantly absent from the affidavit is any evidence that the requested records are cumulative or duplicative or supporting the grounds for limiting discovery set forth in
(a) Each pipeline that is under cathodic protection must be tested at least once each calendar year, but with intervals not exceeding 15 months . . . . At least 10 percent of these protected structures, distributed over the entire system must be surveyed each calendar year, with a different 10 percent checked each subsequent year, so that the entire system is tested in each 10-year period.
It is significant to note that the regulation contemplates that “the entire system,” or as presented here, the entire city of Amarillo, be inspected at least every ten years.
The fact that a discovery request is burdensome is not enough to justify protection; “it is only undue burden that warrants nonproduction.” ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 568 (Tex.App.--Houston [1st Dist.] 1996, no pet.). See also In re Alford Chevrolet-Geo, 997 S.W.2d at 181 (requiring demonstration of undue burden or harassment). Accordingly, we conclude the trial court did not abuse its discretion in directing that the records be produced covering the entire system of Energas in Amarillo.
We now turn to the question regarding the period of time for which record production should be required. Most of the requests for production were tailored to require production of records ten years prior to the explosion and from the date of the explosion to the time of record production. However, requests 4, 17, and 24 did not contain any time limitation for record production.7 As to requests 4 and
In Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995), the plaintiffs sought to prove a general “corporate strategy to ignore safety laws.” Although acknowledging the plaintiffs’ rights to discover evidence of safety policies and practices, the Court held that a request for records “without limitation as to time, place or subject matter, is overbroad.” Then, in In re American Optical Corp., 988 S.W.2d 711, 713 (Tex.1998), the Court held that requiring production of records for a 50-year period was an abuse of discretion. Although the court recognized that parties must have some latitude in fashioning discovery requests, the right is not unlimited and “[the trial court must make an effort to impose reasonable discovery limits.” (Emphasis added). Id.
Considering that the trial court set a pattern of limiting record production to the ten years prior to the explosion, and that
Accordingly, the writ of mandamus is conditionally granted in part and denied in part. Although we have jurisdiction to direct the trial court to proceed to make an effort to impose reasonable discovery limits, we may not tell the court what limits it should enter. In re Martinez Ramirez, 994 S.W.2d 682, 684 (Tex.App.--San Antonio 1998, no pet.). The trial court is directed to consider and determine, in the exercise of its discretion, the need for reasonable discovery limits as to requests for production 24; otherwise, the writ is denied. The writ will issue only if the trial court fails to comply with these instructions.
QUINN, J., concurring.
QUINN, Justice, concurring.
I concur in the opinion and judgment of the majority but write separately to clarify my position regarding the absence of adequate legal remedy. That is, to win mandamus, the applicant must generally prove that 1) the trial court clearly abused its discretion and 2) the applicant lacks an adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). Here, we found that the trial court abused its discretion in permitting discovery with regard to request for production No. 24. This was so because the time period encompassed by the request was unrestricted. Having found that Energas Company satisfied the first prong of Packer, we normally would be required to consider the second prong, i.e. the lack of adequate legal remedy. However, the Supreme Court in In re American Optical Corp., 988 S.W.2d 711 (Tex.1998) granted mandamus under factual circumstances similar to those before us without first considering whether the applicant had an adequate legal remedy. Instead, it merely concluded that the trial court abused its discretion because the requests there at issue were not tied to