Fred MASINGA, et al., Relators, v. The Honorable Mark WHITTINGTON, Judge, et al., Respondent.
No. C-9579.
Supreme Court of Texas.
June 20, 1990.
792 S.W.2d 940
SPEARS, Justice.
Les Weisbrod, Virginia W. Patrizi, and Michael S. Box, Dallas, for relators. Thomas L. Cox, Dallas, Dorothy Prengler, and Richard Bernays, Dallas, for respondent.
SPEARS, Justice.
This mandamus proceeding involves a pretrial discovery ordеr permitting a deposition to be taken only by stenographic recording and not by videotape recording. We conclude that the trial judge abused his discretion in so ordering and conditionally grant the writ of mandamus.
In an attempt to prevent the videotaping of his deposition, Nadim Nasir, Jr., M.D., a defendant in the underlying suit, sought a protective order based solely on the following unverified objection:
Dr. Nasir objects strenuously to the videotaping of his oral deposition for the reason that the presence of the video camera аnd technician and the bright lights and atmosphere associated with it will be unnecessarily distracting and stressful to him, and will detract from his ability to give clear and precise answers to the Plaintiffs’ attorneys’ questions.
A visiting judge, Hon. Thomas H. Crofts, granted the protective order after hearing оnly the arguments of counsel and without Nasir presenting any evidence that the videotaping would cause him unnecessary distraction or stress. Plaintiffs in the underlying suit, the Masingas, filed a motion for reconsideration which was denied by the presiding judge of the 160th District Court, Hon. Mark Whittington.
Under
We conditionally grant the writ of mandamus. The writ will issue only if the trial judge refuses to act in accordance with this opinion.
DOGGETT, J., concurs with an opinion.
DOGGETT, Justice, concurring.
In modern litigation the videotaping of depositions is becoming the norm rather than the exception. This practice was recognized with the adoption оf a specific rule authorizing “videotape recordings” of oral depositions upon five days notice to all parties.
The Masingas contend that granting a mоtion for protective order without any supporting evidence constitutes an abuse of discretion. They argue that the videotaping of depositions should be controlled by Rule 166b(4) as well as this court‘s holding in Peeples v. Hon. Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985), outlining the procedure to be followed by parties seeking еxclusion of documents from discovery. In 1988, we promulgated Rule 166b(4) which “codifie[d] Peeples in part, but also modifie[d] it by allowing either party to request a hearing on objections to discovery.” McKinney v. National Union Fire Ins. Co., 772 S.W.2d at 75. Rule 166b(4), in part, provides:
In responding to an appropriate discovery request ... a party who seeks to exсlude any matter from discovery on the basis of an exemption or immunity from discovery, must specifically plead the particular exemption or immunity from discovery relied upon and produce evidence supporting such claim in the form of affidavits or live testimony рresented at a hearing requested by either the requesting or objecting party.
Tex.R.Civ.P. 166b(4) .
Although this portion of Rule 166b(4) requires a party to produce evidence only when seeking to avoid discovery on the basis of an exemption or immunity from discovery, the Masingas argue that a рarty seeking protection from discovery for other reasons, such as undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional or property rights, should also be required to produce evidence in support of the objection. I agree.
Although the claims in Peeples v. Hon. Fourth Supreme Judicial District concerned relevancy and a party‘s privacy rights, we have held that the same procedure applies to claims of privilege. In Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (1986), we stated that “[u]nder certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof.” The court of appeals in Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex. App.—Fort Worth 1987, orig. proc.), held that because the relators had presented no evidence to the trial court about the work necessаry to comply with discovery requests, they had not carried the burden of proving that the discovery was unduly burdensome and harassing. Accord Mole v. Millard, 762 S.W.2d 251, 254 (Tex. App.—Houston [1st Dist.] 1988, orig. proc.). In Street, the court analyzed the appropriate burden to be placed upon a party seeking рrotection during discovery, stating:
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. Otherwise, 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. Failure to follow this procedure constitutes a waiver of any complaint of the trial court‘s action. In reaching this hоlding, we are extending the ruling made by the Supreme Court in the Peeples case. Peeples did not deal with the allegations of unduly burdensome, costly or harassing discovery. However, the rationale of the Peeples opinion applies to the instant case. Any party seeking to limit discovery has the burden of pleading and proving that contention. 722 S.W.2d at 802.
I agree that the moving party must plead the basis for seeking protective relief under Rule 166b(4) and produce evidence for the underlying contentions.
A similar burden for parties seeking protective orders under Rule 166b(5) was mandated by this court in Garcia v. Peeples:
While Texas courts have not written on the proof necessary to obtain a Rule 166b-4 [now
Rule 166b(5) ] protective order, federal courts have dealt with the issue pursuant toFed.R.Civ.P. 26(c) . In United States v. Garrett, 571 F.2d 1323 (5th Cir.1978), the court noted that a movant must show “a particular and specific demonstration of fact as distinguished from stereotyped conclusory statements.” 571 F.2d 1323, 1326 n. 3 (citations omitted). Sweeping predictions of injury and “[b]road allegations of harm, unsubstantiated by specific examples of articulated reasoning,” do not justify a protective order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir.1986). Though the Texas and federal rules are not identical, these requirements of a particular, articulated and demonstrable injury, as opposed to conclusory allegations, apply to motions for protective orders underRule 166b-4 .
In evaluating the evidence, the trial court must be particularly demanding of a movant who seeks to block the videotaping of a deposition of a witness, such as Dr. Nasir, who resides outside the one hundred mile range of its subpoena power. See
As declared long ago in United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958), the modern discovery rules were promulgated to “make a trial less a game of blindman‘s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” The objective of Rule 202(1) allowing videotaped depositions is no different. Reading written depositions to the jury fails to convey the demeanor or appearance of the witness to the jury. By contrast, videotaped testimony conveys to the jury non-verbal messages important to its evaluation of a witness’ credibility. Boudreaux, Is It Time For Texas To Amend Rule 215c To Adopt Guidelines For Taking Videotape Depositions?, 24 So.Tex.L.Rev. 225, 226-27 (1983). The combined audio and visual impact of a videotaped deposition easily “surpass the written trаnscript when it comes to [a jury‘s] analysis of a witness.” United States v. LaFatch, 382 F.Supp. 630, 632 (D.C. Ohio 1974). As noted in C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2115 (1988 Supp.), videotaped depositions
have a further advantage in that the finder of fact at trial often will gain greater insight from the manner in which an answer is delivered and recorded by audio-visual devices. Moreover, a recording, a video tape, or a motion picture of a deposition will avoid the tedium that is produced when counsel read lengthy depositions into evidence at the trial.
See also Note, Videotape Depositions: An Analysis of Use in Civil Cases, 9 Cumb.L.Rev. 195 (1978).
Rule 202(1) allows litigants in this state to take full advantage of the benefits recent advances in technology have bestowed uрon us. No trial court should limit a litigant‘s right to take videotaped depositions under this rule unless the opposing party has pleaded and produced evidence that a “particular, articulated and demonstrable injury” will result from the use of this new and valuable tool. Beсause Dr. Nasir failed to offer any evidence in sup-