in Re: The Goodyear Tire & Rubber Company
moot. We overrule West Fork‘s third issue.
Conclusion
We affirm the trial court‘s judgment.
John Christopher Ramsey, Justin A. Hill, Heidi O. Vicknair, Jason Charles Webster, Houston, for Appellees.
Before Justices MOSELEY, FILLMORE, and EVANS.
OPINION
Opinion by Justice FILLMORE.
Relator, Goodyear Tire & Rubber Company (Goodyear), filed this petition for writ of mandamus challenging the trial court‘s order requiring Goodyear to grant plaintiffs’ counsel, expert witness, and videographer access to its plant in North Carolina to demonstrate and videotape the manufacture of two types of tires. We conditionally grant relief.
FACTUAL AND PROCEDURAL CONTEXT
This mandamus proceeding arises in a wrongful death case following an automobile accident the plaintiffs contend was caused by a defective tire manufactured by Goodyear. The plaintiffs maintain that Goodyear was grossly negligent with respect to its tire manufacturing practices at its Fayetteville, North Carolina plant at the time the tire was produced and that the design of the tire was defective because it failed to include a nylon cap ply, which the plaintiffs contend is a safer design. The tire that is the subject of this lawsuit was a P265/75R16 114S Kelly Safari Trex SL OWL manufactured in March 2007.
The plaintiffs initially sought a four-hour tour of large sections of the plant, but subsequently limited their request. The plaintiffs explained that instead of being allowed to tour and videotape any part of the plant where any component of the tire at issue had been processed, they wished to view and record the operation of only the “first stage” and “second stage” tire manufacturing machines “because those are the two machines that were used to build our tire.” They stated that if the actual machine used to manufacture the tire at issue was not available for this purpose, they would agree to view “a substantially similar tire building machine.” They further explained that they believed anomalies their tire expert had identified in the tire at issue “were caused by the person or equipment that was involved in that process” and that they hoped to use their recording of the tire manufacturing demonstration to “try to prove the correla-tion between what was going on in the
The trial court ordered Goodyear to allow plaintiff‘s counsel, expert witness, and videographer to enter the facility where the tire was manufactured for a period of one hour to document the manufacturing process. According to the trial court‘s order:
The inspection may only include the inspection, photography and videography of the tire building machines used to place the inner liner on the tire building drum and to assemble the 1st and 2nd steel belts into the pre-cured tire (sometimes referred to as the first and second stage tire building machines) on which the subject tire was manufactured, or in the alternative, inspection of the most similar tire building machines to be identified by Goodyear at the time of the inspection, if the specific tire building machines on which the subject tire manufactured in the 12th week of 2007, cannot be identified;
The trial court‘s order divided the demonstration into two thirty-minute segments. During the first segment, Goodyear was required to permit observation and recording of a “tire building machine that manufactures tires of the same size as the subject tire with a nylon overlay or ‘cap ply.‘” During the second segment, Goodyear was required to permit observation and recording of a “tire building machine that manufactures tires of the same size as the subject tire without a nylon overlay or ‘cap ply.‘”
The undisputed1 affidavit evidence before the trial court established that two months after the tire at issue was manufactured, Goodyear changed the design of the tire, and the equipment that had been used to manufacture the tire had been removed from the plant. As of the date of the hearing before the trial court, one such machine had been returned to the plant, but it was being used to manufacture a different size tire. The affidavit evidence also established that no tire of the same size as the subject tire, whether with or without a nylon cap ply, is currently manufactured on the type of machine that produced the subject tire.
At a subsequent hearing, Goodyear provided additional affidavit evidence as follows:
Sometime after May 7, 2007, Goodyear removed from service all BBR-2 machines at the Fayetteville plant. Recently, one of the BBR-2 machines was returned to operation at the Fayetteville plant. The tire that is currently being constructed on the BBR-2 is not built to either the same specification as the Subject Tire or the Subsequent Specification. Indeed, among other things, it is neither the same size nor aspect ratio as tires built to either specification. Furthermore, Goodyear cannot confirm this machine was used to construct the Tire at Issue.
Appropriateness of Mandamus Review
Standard for Granting Mandamus Relief
Mandamus is an extraordinary remedy that is available only in limited circumstances. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding)). “Mandamus is appropriate ‘only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.‘” Id. (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)). To obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding); Walker, 827 S.W.2d at 839.
Adequacy of Appellate Remedy
We turn first to the question of whether appeal is an adequate remedy when a trial court erroneously allows discovery that should not be permitted under
STANDARDS FOR ALLOWING ENTRY ONTO PROPERTY OF ANOTHER
Standard of Review
The scope of discovery largely rests within the discretion of the trial court. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985) (orig. proceeding). “[T]he ultimate 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) (per curiam) (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984) (orig. proceeding)).
In considering whether a trial court has clearly abused its discretion with regard to a discovery order, the reviewing court may not substitute its judgment for that of the trial court and the relator must establish that the trial court could reasonably have reached only one decision. Walker, 827 S.W.2d at 839-40. “Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court‘s decision unless it is shown to be arbitrary and unreasonable.” Id. at
Requirements for Granting Entry onto Property Under Rule 196.7
The purposes for which a person is permitted entry onto the property of an adversary are limited. Id. at 487. Although a request for entry upon land must satisfy the general requirement of relevance, mere relevance is not sufficient to justify a request for entry upon the property of another. See id.; Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir.1978) (rejecting the contention that the requests for entry onto land are governed by the general relevance standard). Discovery involving entry onto the property of another involves unique burdens and risks including, among other things, confusion and disruption of the defendant‘s business and employees. In re Kimberly-Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588 F.2d at 910). Thus, the trial court should conduct a “greater inquiry into the necessity for the inspection, testing, or sampling.” Id. at 487. In conducting such an inquiry, the court must balance the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection. Id. at 486.
The plaintiffs argue generally that the demonstration of the tire manufacturing process permitted by the trial court will enable the plaintiffs to show “how the sloppy tire manufacturing process resulted in the defects presented in the tire.” It is the plaintiffs’ theory that the tire was defectively manufactured, allegedly because of the dilapidated condition of the plant, because the tire manufacturing equipment was not working properly, and because Goodyear‘s employees were not properly trained and were often “not sober.” They argue that because tire production is a partially automated and partially manual process, “it is unrealistic to expect the jury to fully understand how drug impairment of the tire builder will lead to the sort of steel belt misplacement and splicing errors noted in the failed tire at issue without seeing the process” and that “[d]ocumentation of the tire building process is the critical link between the conditions at the plant, the defects observable in the failed tire, and the tire builders’ training that such defects were known by Goodyear to result in tread separations.” They conclude that “[a]ccess to these tire building processes is essential to showing the jury how the types of conduct described by the eyewitnesses resulted in the types of defects visible in the tire” and question how they can “show the link between a drug-impaired, overly rushed, or otherwise careless tire builder‘s substandard job per-formance
The plaintiffs’ explanation of the materiality of the recording shows that the video is intended for demonstrative purposes. See 36 Tex. Jur.3d Evidence § 462 (2010) (” ‘Real’ evidence should be used to refer to evidence directly involved in the incident giving rise to the litigation, while ‘demonstrative’ should be reserved for evidence offered for purposes of illustration.“).
The term “discovery” suggests the existence of the information being sought. The various rules governing the discovery process in Texas show that the process is intended for the gathering of relevant information within the control or knowledge of others. There is nothing in the rules that suggests that the “discovery” process is intended to provide for the “creation” of new evidence for the purpose of trial presentation. Amis v. Ashworth, 802 S.W.2d 374, 376 (Tex.App.-Tyler 1990, orig. proceeding [leave denied]) (footnote omitted).
In Amis the plaintiff sought entry onto the defendant‘s property to make a videotape recreating the plaintiff‘s version of the incident giving rise to the lawsuit. Noting that the rules of civil procedure limit “photographing to recording the existing conditions on the property,” the court concluded that a property owner has no obligation to “relinquish his property for the creation of evidence designed and staged to portray his opponent‘s version of the occurrence in its most favorable light.” Id.
The video the plaintiffs seek to record falls into the category of “new evidence.” The demonstration the trial court has ordered does not involve merely inspecting the machine that produced the tire at issue to determine whether the condition of the machine may have caused the production of a defective tire. Instead, it requires Goodyear to provide demonstrations of the manufacture of completely different products with the intention that the plaintiffs will use those demonstrations as a visual aid to illustrate their theories regarding the manner in which the manufacture of the subject tire may have been deficient and how an alternate design that they deem simple and inexpensive could have avoided the accident. The recording the plaintiffs want to make does not attempt to document the process used in making the actual tire at issue in the case nor does it document the condition of the plant at the time that the tire was manufactured. See In re Kimberly-Clark, 228 S.W.3d at 489 (noting that proposed environmental testing in 2007 would not prove whether defendant knew of environmental contamination in 2006 when it entered into contract for sale of property). Rather, seven years after the fact, it will document work performed by different workers, using either a different machine or making a different tire, under different conditions. In this respect the trial court‘s order goes beyond the sort of inspection, measurement, surveying, photographing, testing, or sampling contemplated by
CONCLUSION
For all of these reasons, we conditionally grant relator‘s petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its April 8, 2014 “Order on Plaintiffs’ Motion for Entry Upon Land.”