Walker v. Packer

tionship any Thus, time. policy, Id. at 669. an we hold Star Tours cannot re- employment-at-will relationship, damages although cover from Walter3 or Travel valid, not an Masters for the otherwise enforceable tortious interference of the agreement. compete. Id. at 669-70. covenant not to Sterner Co., 686, Marathon Oil 767 S.W.2d judgment We reverse the of the court of (Tex.1989). employment-at-will Because appeals judgment and render that Star upon binding not either employee or the Masters, nothing against Tours take Travel employer and is not an otherwise enforce- Donna Goldsmith and Walter Goldsmith. agreement, able we conclude cove- compete

nant not to executed either at the

inception during of or employment-at- an relationship ancillary cannot be to an

otherwise agreement enforceable and is un-

enforceable as a matter of law. Since Don-

na’s to compete covenant not is not ancil-

lary to an agree- otherwise enforceable

ment, hold we the covenant not to

compete unreasonable restraint of

trade and grounds unenforceable on of

public policy.

II. Mary Charles F. WALKER and Jeanette Travel Masters al., Relators, argue and Walter Walker et that since the compete covenant not to was unenforceable, it cannot form the basis of

an action for tortious interference. PACKER, We Honorable Anne agree. Judge, Respondent. No. C-9403. alleged

Star Tours that Walter willfully and Travel Masters and intention Supreme Court of Texas. ally induced Donna to breach the covenant compete. not to Covenants not compete Feb. 1992. which are unreasonable of restraints trade Rehearing May 6, Overruled 1992. grounds on public unenforceable of Dissenting by Opinion Justice

policy cannot form the basis an action Gammage May 1992. for tortious interference. Juliette Fowler Asso., Homes v. Welch

(Tex.1990). Since the covenant not to com

pete is an unreasonable restraint of trade grounds

and unenforceable on public paid monthly implied parties, will because she However, they was on basis. consent of shall be paid mere fact that Donna was respects as treated in all if had been raised Tours, monthly basis Star without pleadings.” & Basco Co. v. Buchan- Gulf evidence, prove does not she was other an, (Tex.App.-Houston [1st employee-at-will. than an n.r.e.) (affirmative Dist.] writ refd defense contract); ambiguity 67. Tex.R.Civ.P. appeals The court held that Walter waived question illegality not the covenant illegality his affirmative defense of of the cove- compete clearly before court. Conse- by failing compete specifically nant not to objection, quently, of an absence plead Although that defense. did Walter illegality compete the covenant not to con- plead illegality, Donna and Travel Masters did cerning by implied tried consent. Walter was plead illegality the affirmative defense compete. covenant not "When issues not pleadings by express raised are tried Box,

Les Weisbrod Michael S. Dal- las, for relators. Johnson,

Philipa Remington, Stephen W. Williams, Keith, A. J. Martha James Kevin Strother, Gary Sibley, L. W. Dallas and Cain, Austin, respondent. L. Delmar OPINION PHILLIPS, Chief Justice. involves original This mandamus action requests sought by pre-trial discovery two relators, plaintiffs malpractice Hospital in medical Bailey Paul and the law firm of discovery dispute in- and Williams. No such lawsuit. The first statement or plaintiffs taped recording documents which the seek was found. For volves defendants, Casualty Surety from one of the while sec- third time the Aetna Company which seek was asked to check ond involves documents its records nonparty impeachment pur- partially from a and files and a transcribed matter, located, copy we hold poses. As to the first statement was of which is presented recording taped relators have not a sufficient attached. No locat- record to demonstrate that the trial court ed. in failing its clearly abused discretion later, Nearly years two the Walkers filed grant requested them all relief. As to the 215, compel a motion to under Tex.R.Civ.P. second, hold that relators an ade- we asserting respond failed that St. Paul Thus,

quate remedy by appeal. mandamus completely request.1 to the The Walkers deny inappropriate, and we the writ. complained Hospital that “St. Paul did not respond requested in

even what was The St. Paul and Aetna Records is, request production writings, for —that notes, in adjuster’s and notations file or sustained Catherine Johanna Walker attorney’s mentioning, to, alluding file or January In damage 1983. brain at birth tape making reference recorded 1985, F. January parents, Charles and her Nurse At statement of White.” about Walker, Dr. Paul Mary Jeanette sued Cri- time, on Aet- same the Walkers also served der, obstetrician, Hospital, St. Paul Casualty Surety Company, na St. born, and Iris Jean where Catherine insurer, of In- Paul’s an “Amended Notice White, attending delivery. at the nurse Deposition Upon tention to Take Written August In the Walkers served on Tecum,” Questions among seeking, —Duces request production St. Paul their third things, the same documents. Aetna pursuant to 167. of documents Tex.R.Civ.P. quash moved to the notice. request asked for: One judge appointed special mas- documents, notes, writings, Any and all ter Walkers’ motion to com- to review the letters, etc., mentioning, concerning, al- quash. pel motion to After an and Aetna’s (either luding to, making or reference to 5, 1989, evidentiary September hearing on tape directly indirectly), the recorded or findings, prepared the master which given by Nurse White to an statement orders formed the basis two extensive including adjuster, but not limited Aetna September signed by court on the trial any any notes or entries in Aetna order, In the court found 1989. the first file, file, any attorney’s any or adjuster’s “entitled to all docu- that the Walkers were possession em- writing file or sought request] mentation [the agent representative or of St. ployee, attorney files St. Paul or of Defendant request Hospital. This refer- Paul record, from the files of Aetna but not tape to the recorded statement ence except may Company, Insurance locate, you which have been unable to appear in files of Paul the attor- St. requested.... previously but which was neys The court also of record St. Paul.” responded as follows: Paul St. that it “has been advised St. stated request, that is respond supplied to this Paul has all documentation effort to an again responsive request], but that addi- checked with all Defendant this [the be made available and files St. tional documentation will personnel appropriate require- request for the Walkers have failed to establish the that the Walkers' Paul contends St. relief, relief is barred laches since do not reach ments for mandamus we years delayed almost two before seek- Walkers this issue. production. compel Because we find that ing to ly the Court for camera review.” The step cannot take the additional of deter- order, mining incorrect, court therefore mo- that the court’s if sustained Walkers’ constituted clear abuse of compel tion “to on discretion. the extent that Fri- September day, Special 1989 the Master parties seeking relief, As the in the will review Chambers of the 134th Walkers had the providing burden of portions District Court relevant Court awith sufficient record to establish files, St. Paul attorney files and their [sic] right to mandamus relief. Since which in response to Plaintiff’s evidentiary held, hearing was the Walkers request....” court, however, did not had providing us burden produce order St. Paul to documents from petition affidavit, Tex.R.App.P. see Aetna’s files for inspection.2 in camera 121(a)(2)(C) (F), but also a statement of September After the master’s 8 in cam- hearing. See, facts from the e.g., Camer inspection, County Hinojosa, era court ordered (Tex.App. Corpus orig. of three additional documents from the Christi — proceeding); Greenstein, Logan & Co. attorneys, files St. Paul and its which it Inc., Burgess Mktg. found “relate to the sought matters dis- denied); (Tex.App. writ see covery and supplied should be after irrele- — Waco also Casualty Surety Western & Co. portions vant of such documents are strick- Spears, (Tex.App.— en.” 1987, orig. San proceeding).3 Antonio Hav After unsuccessfully seeking relief the ing burden, failed to meet this the Walkers of appeals, court the Walkers moved provided upon have not us with a record petition to leave file a for writ of manda- right which can establish their to man court, mus with arguing that the trial against damus relief St. Paul. clearly court by abused its discretion re- fusing to order St. produce Paul to the The Faculty Obstetrics Records documents from Aetna’s files and order- discovery dispute The second arises portions responsive that of the other out of attempt the Walkers’ to secure docu documents be stricken. The Walkers con- mentary impeach evidence to one of the tend that the order was clear abuse witnesses, expert Larry defendants’ Dr. 1) discretion because St. object- Paul never Gilstrap, faculty member in obstetrics at ed the request to Walkers’ production, University the of Texas Health Science 2) superior right had the to Walkers to (“the Center”). Gilstrap Center Dallas compel production of the documents Aet- deposition expert testified at his wit that 3) possession, na’s and never asked that ness faculty fees earned obstetrics any parts of the documents be excised. deposited members into a “fund” in the The record before us does not include the “billing department”; obstetrics that ob statement of facts evidentiary from the faculty get paid stetrics members “indirect hearing on the motion compel Walkers’ ly” fund; from this that fund the is han production. it, we Without cannot deter- by Judy Wagers, dled employee; a Center on judge mine what basis the trial and the any that he was unaware of obstetrics special master reached conclusions. department policy faculty restricting mem Since we cannot assess whether or the testifying bers for plaintiffs in medi correct, trial court’s order was we cal malpractice obvious- cases. presented,

2. The also sustained Aetna’s 3. no motion Even if evidence had been the filing quash, holding would had requested Walkers the burden of that was stating. Whittington, so See Barnes v. affidavit improper investigation exemption, under ("The (Tex.1988) undisput- attorney-client privilege, work-prod- and the any testimony ed fact no was adduced privilege. complain uct The do not Walkers hearings, affidavit of set forth ruling. us about this counsel, burden relator’s satisfies relator’s 121.”). under Rule Thereafter, Although noting Wagers’ noticed that some doc- Walkers deposition, provide she all be requesting that uments “would relevant this cause (1) regarding operation action,” documents the court nevertheless denied dis- “fund” from 1985 covery above-mentioned such documents are because “all 1988; (2) placed upon ob- limitations by the controlled Russell decision.” faculty relating members to their stetrics Russell, party sought wholesale dis- testimony malpractice cases. in medical potential covery of financial records of a Center, Wagers, moved behalf expert a par- who was not medical witness notice, arguing request quash the request- ty to the lawsuit.4 The documents “vague overly for documents directly subject ed not relate to the did production would be “cost- and that broad” suit, sought solely matter of the but were ly and burdensome.” potential attempt impeach in an wit- later, in an unrelated law- Two months showing prejudice. ness bias suit, deposed Dr. Al- the Walkers’ counsel witness, however, credibility of the had not Brekken, faculty another vin L. obstetrics put in Under these cir- yet been doubt. at the Center. Dr. Brekken testi- member cumstances, held that the documents we department’s fied that obstetrics offi- discoverable, and we directed the were not policy, writing to all fac- cial distributed allowing trial court to vacate order members, ulty requires a doctor obtain requested at 435. faculty from other members authorization “[tjhere a limit We reasoned ... plaintiff in a testifying for before pre-trial should not beyond which on this malpractice medical case. Based allowed.” Id. at sought or- testimony, the Walkers a court distinguishable. is present case re- depose Wagers and obtain the der to Here, presented to the trial the Walkers quested documents. specific of circumstance— court evidence a Gilstrap reviewing and Brekk- After the restricting faculty’s policy the the Center’s counsel, of the depositions pleadings and en testify plaintiffs raising to freedom — produce the to trial court ordered Center Gilstrap Dr. possibility that biased. the by for in camera review the documents Thus, engaged glob- in the are not Walkers Subsequently, in her master. special the type discovery disapproved al 20, order, judge the September 1989 trial rather, Russell; narrowly infor- they seek stating discovery, part: the denied potential sug- regarding mation the bias improper requested [S]uch deposition own testi- gested by the witness’ Supreme pursuant Rulings to the of his col- mony professional and that of Young v. Court of Texas Russell [452 league. (Tex.1970)], potential as the S.W.2d 484 the fed- procedure, civil and Our rules of party the suit and is not witness based, are man- upon which eral rules subject mat- not relate to the records do discovery. A approach date a flexible suit, sought solely are ter of the but “ap- information which party may any seek according impeachment, of purpose to the reasonably lead pears calculated pleadings. Plaintiffs’ to the cash, included, by by 4. The records among or other check sought either in Russell 1969; during [by expert physician] means others: (6) or for ser- of account bills All statements (2) appointment maintained [the All books physician] dur- [by expert vices rendered 1969; during expert physician] 1969; statements, (3) ledgers, listings, or other All ledgers, journals or (7) accounting All showing receivable of [the the accounts books expert physician] [the of of books account 1969; during physician] expert (4) 1969; during and maintained (8) showing depos- deposit slips or All tickets showing income All financial statements expert physi- [the into accounts of bank during expert physician] expenses of 1969; [the during cian] statements, journals, (5) listings, ledgers, All showing receipt payments, at 435. 452 S.W.2d or other books

839 509, (1990); Comment, Tex. admissible evidence.” L.Rev. 510 The Ex- 166b(2)(a). panding Use Mandamus to Review Tex- R.Civ.P. Evidence bias witness is relevant and admissible. See Court Discovery District An Orders: 613(b).5 Appeal Available, Is Tex.R.Civ.Evid. Immediate 32 Sw. 1283, (1979). L.J. 1288 apply The trial court failing erred foregoing rules 1950’s, however, to determine whether Since the this Court has Instead, the documents were discoverable. used the writ to correct “clear abuse trial Russell simply court read as an discretion” committed the trial court. See, Chambers, discovery, though absolute bar to e.g., v. even Joachim 815 quite 234, distinguish- circumstances here Jampole (Tex.1991); 237 doing, able. In so Touchy, 673 S.W.2d misap- 569, (Tex.1984); Solito, plied Russell holding. West v. expressly 240, We disapprove 1978); such a Berry, approach 50, mechanical Womack 156 Tex. rulings.6 (1956). generally, Byron David & Keeling, W. Holman C. Having concluded that the trial court Entering the Thicket? Mandamus Re erred in denying solely based view Texas District Court Dis Witness Russell, we now must determine wheth- Orders, closure 23 Mary’s St. L.J. remedy er the appropriate lies by writ of (1991); Cassidy, 510; 31 S.Tex.L.Rev. at mandamus. “Mandamus issues Note, The Use Mandamus Review correct a clear abuse of discretion Discovery Orders in Texas: An Extraor duty violation of imposed by law when dinary Remedy, Rev.Litig. 326-27 adequate there no other remedy law.” (1981); Comment, 32 Sw.L.J. at 1290. Johnson v. Fourth Court Appeals, (Tex.1985).7 We A clearly therefore trial court abuses its discretion examine whether if the trial error in “it reaches a decision arbitrary so present case constituted a clear abuse unreasonable as to amount a clear and, so, of discretion if prejudicial error Johnson v. whether there is an law.” adequate remedy by appeal. Appeals, Fourth Court 700 S.W.2d at of standard, however, 917. This has different 1. Clear Abuse Discretion of applications in different circumstances. Traditionally, the writ is- mandamus only compel performance sued to the of a respect With to resolution of factual ministerial See v. duty. act or Wortham issues or matters committed to the trial Walker, 255, 277, 133 Tex. discretion, 128 S.W.2d example, the review 1138, Beavers, Arberry (1939); v. 1150 may 6 judgment court not substitute its (1851); Tex. 457 Cassidy, Helen A. for that of the trial court. Flores v. See Instant Freeze-Dried Guide to Manda- 38, Appeals, Fourth Court 777 S.W.2d Courts, mus Procedure in Texas (Tex.1989) 31.S.Tex. 41-42 (holding that determina- 5. 608(b). Evidence of bias is (“Specific not admissible if the wit- R.Civ.Evid. instances of the "unequivocally ness such or admits bias inter- conduct of witness criminal than con- [other date, 613(b). at est” however, trial. To Tex.R.Civ.Evid. victions], purpose attacking for the ... his bias, Gilstrap Dr. has not admitted credibility, may by proved not be ... extrinsic situation, flatly but rather has it. In denied this evidence.”). such should evidence be discoverable. 7.Additionally, grant this Court will not manda- 6. We do not decide the whether documents mus unless relief we determine that error is discoverable, properly only were importance jurisprudence such denying discovery solely court erred in based require sought state as to correction. Tex.Gov't Russell. If the Walkers the documents Cf. 22.001(a)(6); 140(b). solely Tex.R.App.P. credibility Code Gilstrap by This § attack of Dr. issue, however, showing deposition testimony properly deciding that his was un- in resolved true, instance, proba- grant information would petition, to file whether to leave not in bly reasonably not be calculated to to the lead disposition. its discovery of admissible evidence. Tex. 840 approach previous proceed- discoverability

tion under Tex.R.Civ.P. mandamus ings arising 166b(3)(d) out of trial court’s inter- discretion of trial was within legal Axelson, pretation of rules. Johnson, (hold- Inc. court); at 918 700 S.W.2d Cf. 550, (Tex. Mcllhany, v. 798 S.W.2d 555 ing that trial court was within discretion 1990); Whittigton, Barnes v. 751 S.W.2d granting “in interest of a new trial 493, (Tex.1988); Lawrence, v. Terry 495-96 fairness”). justice The relator must 912, (Tex.1985). 700 S.W.2d 913-14 Under that the trial court could reason- establish analysis, trial court’s erroneous only at ably have reached one decision. Id. interpretation of the law constitutes a clear reviewing Even if the court would 917. abuse of discretion. differently, cannot have decided the issue it is the trial court’s decision unless disturb arbitrary and unreasonable. shown Remedy Appeal Adequate by

Johnson, at 918. 700 S.W.2d the writ order determine whether issue, however, we must further should hand, review a trial On the an ade- decide whether the Walkers have legal principles court’s determination of remedy appeal. quate by less controlling ruling is much defer no A trial court has “discretion” ential. where Mandamus will issue applying or determining the law is what remedy adequate “a clear and there is Thus, clear failure the law the facts. law, appeal.” such as normal State v. analyze apply the trial court to Walker, (Tex.1984). 485 correctly will constitute an abuse law an extraordi Mandamus intended to be discretion, appellate re may result in nary remedy, limited cir available extraordinary writ. See Joachim versal “only in cumstances. The writ will issue Chambers, v. 815 S.W.2d urgent involving situations manifest (trial 1991) by mis court abused discretion grievances necessity and not for Conduct); interpreting of Judicial Code by other remedies.” Hollo be addressed Coker, v. Texas National Bank NCNB way Appeals, Court of Fifth (trial (Tex.1989) court Sales, (Tex.1989) (quoting James failing apply proper abused discretion Supreme Original Jurisdiction disqualify coun legal standard motion Appeals Civil Court and Courts sel); Logue, Eanes ISD Texas, Appellate Texas in Procedure (trial (Tex.1986) abused discretion 1979)). (2d ed. re § 1.4[l][b] by erroneously finding constitutional viola seeking persons quirement tion). adequate an the lack of relief establish remedy is a “fundamental tenet” appellate trial determining In whether the Holloway, 767 practice. of mandamus present in the court abused its discretion at 684. S.W.2d case, erroneous we treat the trial court’s discovery requested on the requirement denial of the Our adequate legal a conclusion is an as not issue there sole basis of Russell will where On a remedy appeal is well-settled.8 limited deference be reviewed with occasions, however, not have fo- we our few is consistent with the trial court. This Textron, Inc., nonsuit); v. Walk See, Helicopter Corp. v. Bell e.g., Gas Natural 8. TransAmerican 954, (refusal er, (Tex.1990) 913, (Tex.1991) Powell, (imposi 955 787 S.W.2d 811 S.W.2d 919 jurisdiction); subject-matter sanctions); of discovery dismiss for lack v. of tion Schultz Fifth Ap Corp. Court Champion Int'l v. Appeals, 810 S.W.2d District Court Judicial of Twelfth 898, (Tex.1988) (grant (refusal 738, (Tex.1991) peals, 762 S.W.2d 899 to enforce n. 4 739 Ap trial); Stringer Court v. Eleventh by contempt); new v. Cham Joachim turnover order 801, (Tex.1986) (impo (refusal (Tex.1991) bers, peals, S.W.2d 801-02 720 815 240 S.W.2d sanction); discovery v. Fourth Johnson testifying expert sition of judicial officer from bar (Tex. Appeals, 917 witness); Appeals, 808 Court v. Court Hooks Fourth (Tex.1991) Black, 1985) trial); 695 (refusal (grant Abor v. grant of new 59-60 S.W.2d

841 requirement on applying traordinary cused this when compel writ of mandamus to discovery mandamus review of orders. discovery which had been denied Dunham, example, For Barker v. 551 Allen, trial court. Unlike Barker (Tex.1977), S.W.2d 41 the trial court re- however, the Court in Jampole addressed to compel fused representative defendant’s whether relator an adequate appellate had deposition to answer certain questions, and remedy. underlying in Jampole suit plaintiff applied to this for a Court writ action, products liability and the of mandamus. We concluded that disputed discovery materials included alter- discretion, court had abused its and or- design assembly nate documents. The conditionally dered that the writ issue. We Court held that relator did not require- never discussed well-settled adequate remedy appeal because denial inadequate remedy ment of by appeal. effectively prevented rela- tor proving allegations material later, A few months in Allen v. Hum- of his lawsuit. 673 S.W.2d Reme- (Tex.1977), phreys, 559 S.W.2d 798 dy by appeal in a mandamus is again conditionally Court issued a writ of not adequate party required where a “to mandamus to correct a abuse lawsuit, try his by the debilitated denial considering without whether the relator proper discovery, only to have that lawsuit adequate remedy by had an appeal. The nullity appeal....” rendered certain party real in interest in Allen raised this Id. argument, but the Court avoided the issue by citing Barker. Id. at 801. Although Jampole recog Court nized the need to address whether relator quickly Commentators criticized the adequate had an remedy by appeal, ex Barker opinions. and Allen See James pressly refused to overrule Barker Sales, Texas, Discovery Pre-Trial 31 Perhaps this, Allen. Id. because we (1977); Comment, Sw.L.J. 1033 have on several occasions Jampole since Expanding Use Mandamus to Review used mandamus to correct errors Texas District Discovery Court Orders: considering without whether relator Appeal Available, An Immediate Is 32 adequate appellate remedy. had an (1979) (In Sw.L.J. 1300 most cases Martin, (Tex. v. “forcing 145 party to await the completion of Loftin 1989); Barnes v. Whittington, the trial in order to seek review (Tex.1988); Morris, endanger v. his substantial Lunsford Note, (Tex.1988); rights....”); S.W.2d 471 Turbodyne Corp. May Mandamus Issue Compel Heard, (Tex.1986); v. Judge Terry To A S.W.2d 802 District Dis- Order covery, (1978) Lawrence, (man- (Tex.1985); Tex.Tech L.Rev. 782 O’Neill, damus Lindsay should not be a ap- substitute 689 S.W.2d 400 peal). 1985). Jampole v. Touchy, many occasions, however, 673 S.W.2d 569 On we

(Tex.1984), again the Court used the ex- required showing inadequate have still 564, 1985) (denial 648, (1958) (bifurcation trial); plea S.W.2d 566 in S.W.2d 652 Walker, abatement); 484, 1,1, State v. 679 S.W.2d Thompson, Harrell v. 140 Tex. 165 S.W.2d (refusal (Tex.1984) temporary 485 to reinstate 81, (1942) (restriction gas produc 81 of oil and Johnson, injunction); Co. Pat Walker & v. 623 Commission); tion Railroad Ben C. Jones & 306, (Tex.1981) (refusal S.W.2d 309 to extend 130, 957, Wheeler, 128, Co. v. 121 Tex. 45 S.W.2d facts); filing time for statement of State Bar of (1932) (refusal judgment pro 958 enter nunc Heard, 829, (Tex.1980) Texas v. 603 S.W.2d 833 Ward, 1, 14, tunc); Tex. 285 Cleveland v. 116 (refusal suspend attorney); Ferguson, Pope v. 1063, (1926) (refusal judg S.W. 1068 enter 950, (Tex. 1969) (refusal 445 S.W.2d 953 to dis 376-77, Clark, 375, ment); Aycock 60 v. 94 Tex. relator), pending against miss criminal case 665, (refusal (1901) injunc S.W. 666 to enter 997, denied, 1138, cert. U.S. 397 90 S.Ct. 25 Benson, tion); Ass’n v. Screwmen’s Benevolent (1970); Tunks, v.

L.Ed.2d 405 Crane 160 Tex. 552, 555, 379, (1890) (expul 76 Tex. S.W. 13 380 182, 190, 434, (1959) (discovery 328 S.W.2d 439 corporation). sion of member charitable order); 362, 367-68, Hughes, Iley v. Tex. 158 311 842

remedy by appeal proceed- justified only parties mandamus ence when stand ings involving pre-trial rights.” types other or- lose their 158 Tex. at substantial ders, involving See, 368, even those 311 S.W.2d at 652. Corp. e.g., TransAmerican Natural Gas used, occasions, some Court has On this Powell, 913, (Tex.1991); v. 811 S.W.2d 919 mentioned, or at least the more lenient Appeals, v. Hooks Fourth Court of v. standard first articulated Cleveland 56, (Tex.1991); Helicop- Bell 59-60 Ward, 1, 14, 1063, 116 Tex. 285 S.W. Textron, Walker, Inc., ter v. 787 S.W.2d (Tex.1926), remedy by appeal must that the 954, (Tex.1990); Stringer v. Eleventh convenient, beneficial, ef- “equally be Appeals, 720 S.W.2d 801-02 Court of See, e.g., Jampole fective as mandamus.” Hooks, (Tex.1986). example, for we re- (Tex.1984); Touchy, v. delay having affirmed that the “cost or Tunks, 182, 190, 160 Tex. Crane go through appellate trial and the standard, (Tex.1959). This

process remedy does make the law applied, literally justify would mandamus inadequate.” 808 S.W.2d at 60. appeal arguably review whenever an would or delay involve more cost than mandamus. requirement that mandamus unworkable, This is both individual adequate no rem issue where there is Man- system cases and for the as whole. sound, edy by appeal is and we reaffirm it disrupts proceedings, the trial forc- damus has today. No mandamus case ever ex appellate parties to address an pressly requirement, this or of rejected might have issues that otherwise any explanation why fered mandamus discovery progressed and been resolved as ex review orders should be developed at the evidence was trial. More- empt from “fundamental tenet” of this over, expense delays of mandamus practice. this limita mandamus Without tion, may pro- appellate proceedings them be substantial. This courts would “embroil unnecessarily pre-trial example, involving rulings on ceeding, selves incidental rulings matters, mandamus delayed the trial courts” and collateral extraordinary an “would soon cease years. for over two the trial the merits Downey, writ.” Braden v. appellate courts must impact on the (Tex.1991). party hold that a We thus We in Braden also be considered. stated seeking review of order system afford cannot judicial that “[t]he rem must demonstrate that the every sanc- immediate review of edy ordinary appeal is inade offered It follows tion.” 811 S.W.2d Barker, Allen, quate. disapprove We system afford immediate that the cannot authorities to the extent general.9 every discovery order in review of abolishing relaxing might be read as Cleveland, disapprove of We therefore rule. Crane, any other authorities Jampole and remedy they imply that a extent that an We further hold merely it inadequate because by appeal inadequate merely remedy is not because delay than man- or cost might involve more delay than expense or involve more damus. extraordinary As we obtaining an writ. be- argues that Doggett’s dissent Justice “delay in Hughes, Iley observed often constitute discovery errors cause through ap questions getting decided Tex.R.App.P. under harmless errors justify interven process will not pellate ... relief 81(b)(1), denied mandamus parties through the ex by courts appellate tion the any remedy since deprived of will be of mandamus. Interfer traordinary writ remedy does not 9. We extraordinary of mandamus recently that a mandamus action held appeal. right complain party’s to preserve required prejudice error on or waive a never to (Tex.1990). Pope Stephenson, 787 S.W.2d 953 appeal." at on Id. pursue explained: the "The decision not We appellate provide erroneously error will not a basis issued the order would be of nothing reversal. This is more than a thin- small in protecting comfort to relators disguised ly papers.” attack on the harmless error Tex. 328 S.W.2d Avoiding interlocutory rule. appellate may discovery re- 439. It a also occur where that, analysis, compels view errors in the production patently final order the harmless, prove duplicative documents, will to be one the irrelevant or such principal reasons that mandamus should be that it constitutes or clearly harassment imposes restricted. producing party a burden on the proportion far to any out benefit Doggett’s suggests Justice dissent also See, may requesting obtain to the party. develop that we will be unable to coher a Sears, Ramirez, e.g., Roebuck & Co. v. body discovery ent law without unre (1992) (de Tex.Sup.Ct.J. stricted mandamus We do not review. returns); for tax General Motors mand think, however, losing parties will be Lawrence, Corp. v. (Tex. 651 S.W.2d 732 perceived discovery reluctant to raise er 1983) (demand for all information about appeal, appellate rors on nor will an court years). vehicles for all writing discovery be foreclosed from issues, even when the may error be harm Second, appeal an will not be an See, e.g., Lovelace v. Sabine Consol less. adequate remedy party’s ability where the Inc., idated, (Tex. 652-53 present a claim or viable defense at trial App. 1987, writ de [14th Dist.] — Houston severely compromised or by vitiated nied). discovery trial court’s error. It is not impressed

Nor are we with the dissen- enough merely delay, show inconven ters’ claim that strict adherence expense appeal. Rather, to tradi- ience or of an signal tional mandamus standards will an relator must establish effective denial interlocutory end effective opportunity review for of a develop reasonable parties or litigants. case, some classes of There merits his or her so that the trial many party situations where a judicial not would be a waste resources. We adequate an appellate remedy recently from a impos held that when a trial court clearly ruling, appellate erroneous es which ef sanctions have the courts will continue to issue the extraordi- precluding decisión on mer fect of nary alone, a party’s claims —such as writ. context strik action, at least three come to mind. ing pleadings, dismissing an or ren dering judgment party’s remedy default —a First, party will not have ade appeal inadequate, eventual unless remedy quate by appeal when the imposed simultaneously the sanctions are court would not be able to cure the trial final, appealable with the rendition of error. This occurs when judgment. TransAmerican Natural Gas erroneously the trial court orders the dis Powell, Corp. v. privileged

closure of information which will 1991). Similarly, discovery go a denial of materially rights aggriev affect the of the may party’s heart of a case party, ed such as documents covered inadequate. the appellate remedy render Solito, attorney-client privilege, West v. (Tex.1978), Finally, by appeal

563 S.W.2d 240 or trade remedy secrets adequate protections maintain trial inadequate without where the court information. Au confidentiality missing of the and the dis disallows Miller, Drilling tomatic Machines covery part appel made cannot be (Tex.1974). record, proper As we noted in late S.W.2d 256 after [privileged request part Crane: “After the refuses to make documents] repro record, reviewing inspected, had been examined and and the court is unable holding error duced the court had the effect of the trial court’s ... evaluate Therefore, Scott, covery matter. deny the record it. See Tom L. we the before petition for Walkers' writ of mandamus. McIlhany, Inc. 1990) (“[MJandamus only remedy is the be protective order shields the wit cause the GONZALEZ, J., an concurs and files pre deposition thereby from

nesses opinion. being part from of the vents the evidence record.”); Jampole, 673 generally see DOGGETT, J., files dissents and an (“Because the ex at 576 evidence S.W.2d MAUZY, opinion, joined by J. not in empted appear from would record, the courts would find the GAMMAGE,J., dissents and files impossible denying it to determine whether opinion. harmful.”). proce If

the was the GONZALEZ, Justice, concurring. 166b(4) followed, Tex.R.Civ.P. dures of only rarely If this situation should arise. agree disposition I with the court’s does, however, it the court must and when disagree with the court’s this cause but circum carefully consider all relevant Faculty opinion regarding the “Obstetrics stances, and defenses such as the claims disagree I Specifically, with the Records.” asserted, discovery sought, type the attempt distinguish Russell v. pres prove, and the what it is intended to (Tex.1970). Never- Young, 452 S.W.2d discovery, to deter ence lack of other theless, I concur the result. appropriate.10 mine mandamus is whether discovery of Russell holds that wholesale private non-party records witness the case, In present Walkers for permitted purpose if the sole not to im seek documents from Center impeach credibility discovery is expert witness. peach one defendant’s at 435. The non-party.1 privileged, This information is not burden apply policy still considerations of Russell harassing, nor does vitiate or some or as “a today. By disapproving Russell ability severely compromise Walkers’ rulings,” approach to fact, mechanical present a In as we viable claim. get forces trial courts to the court noted, already the trial court matters. further involved it is not admissible ultimately conclude that backlog, delay, cost This although increases Finally, or even discoverable. more litigation by creating the need for us, they are not before were con materials hearings. below, and we no reason sidered know appeal. available on why they would case, sought plaintiffs In the instant Therefore, our traditional standards under University from documents to discover review, by the as measured of mandamus to confirm Health Science Center of Texas above, the Walkers mention factors we policy restricting of a written the existence remedy by appeal and adequate have an plain- faculty testifying members inappropriate. This malpractice cases. tiffs medical impeaching reasons, policy sought for use we conclude For the above witness, Gilstrap. Dr. expert have not established their defendant’s the Walkers con- discovery, the trial court refusing on either dis- right relief mandamus asked, [might be in- determining responsive answer approach use a similar 10. Courts States, 341 properly criminating].” invoked United whether witness Hoffman 814, 818, privilege against 479, 487, self-incrimi- L.Ed. 1118 Fifth Amendment 71 S.Ct. U.S. impossible for a witness to nation. It often (1951). might him prove incriminate that an answer answering thereby forfeit- actually without apart from their If the records have relevance Therefore, requir- ing than privilege. rather however, Russell impeachment, potential privilege, proof courts sustain actual Shepperd, Ex Parte not bar does implica- privilege is "evident from the if it (Tex.1974). setting in which it is question, in the tions of the eluded that the subject relevance this material late the pending matter of the such, impeachment. limited to was As the action.

requested documents squarely fell within Implicitly, the court concludes that the prohibition the of Russell. credibility non-party of a witness alone is a

Despite and, thus, the court’s mischaracterization relevant avenue of inquiry is a Russell, type the issues properly open and of evidence discovery matter under sought here in new, Russell identical. some of relevancy. broader definition Russell, as in Just the sought records agree I While the definition rele- directly the instant did case not relate vance in Rule 401 of the Texas Rules of subject the matter of the suit. The bearing Civil Evidence includes on matters difference present between the case and credibility, explain this alone does not is identity party seeking Russell the distinguish A credibility Russell. witness’ Russell, the In information. a defendant always has a been relevant matter. As the sought evidence to impeach plaintiffs’ the Supreme United States Court has said: here, expert; plaintiff sought the evidence “[p]roof of always bias almost relevant impeach a expert. Surely, defendant’s jury, because the as finder of fact and we cannot a changes rule that weigher credibility, historically has been application depending on whether the rela- entitled to all might assess evidence which plaintiff tor is a or a defendant in the on accuracy bear truth of a wit- court. testimony.” Abel, ness’ United States v. my opinion, the court strains to distin 465, 469, 469 U.S. 105 S.Ct. guish suggests Russell. The court (1984). Russell, L.Ed.2d 450 Yet in said we trial judge made a ruling mistake in her a trial court “authority” lacked by failing to read in conjunction Russell order from discovery non-party solely procedure with rules of civil evi purposes impeachment. However, dence. adopted when we at 435. We chose to withdraw all discre- Evidence, new Texas Rules of Civil there particular discovery. tion area that, was no discussion whatsoever impeachment Russell concedes that evi- adoption, reject we intended to the settled may dence be relevant and admissible rule that sought information solely for im trial, but holds that it cannot be discovered peachment of non-party is not discover non-party from a prior its own sake Russell, 435; able. 452 S.W.2d at see also trial. 452 Rodgers W.W. & Sons Produce Co. fact that matter have some Johnson, 294-95 yet subject relevance not be App. orig. proceeding). Fur — Dallas hardly thermore, concept. premise novel The basic scope has not changed weigh of the rules of is to twenty years in the since Russell legitimate litigation against on the needs been books. When was Russell decided, rights scope irrep- other and values that would be was codified arably in Texas Rule of Civil Procedure It 186a. harmed unfettered provided pertinent part proper pro- that: Russell strikes balance tecting non-party witnesses indiscrim- [pjarties may discovery regarding obtain private into their lives inate invasions any matter which is sub- relevant sought not where the information would

ject matter in the pending action whether light appreciably shed on the issues of it relates to the claim or defense of case. party seeking discovery or the claim or

defense of party. Furthermore, the decision Russell credibility of grounded whether This same text now codified in Rule 166b(2)(a). In- Clearly, placed in impeachment the witness had been doubt. evidence stead, regarding highlighted re- the fact that collateral matters would not the court testimony the witness had not offered at ular case will henceforth receive deposition nor into official nod and wink from the Texas Su- trial was his introduced preme Court. evidence at trial. court said: yet Relator has not taken the witness legal is Mandamus tool which deposition stand nor his been intro- promptly courts can correct arbi- duced into there has evidence because trary capricious rulings by judges. trial trial; yet relator’s been a records Today’s opinion that this announces reme- possibly impeachment cannot value dy support will be available to concealment nothing yet impeach there because of the truth but not its Manda- disclosure. may anything never to im- street, and there be officially one-way mus is declared a upon peach, depending the contents of judiciary help in the can Texas courts—our testimony, any, if is introduced which to hide but not to detect. during the trial the lawsuit. Despite a determination that a “clear Russell, Thus, it is abuse discretion” has occurred this today evident that the court has reinter- case, particular all relief is denied. gain nothing to preted Russell with little or wrong Finding denying remedy way proper in a that further obscures the logic majority’s of the recent echoes the scope conclusion that a tax unconstitutional paid anyway. but must be See Carroll I am concerned that as result to- Indep. Sch. Dist. v. ton-Farmers Branch non-parties be day’s ruling, some sub- Dist., Indep. Edgewood Sch. jected into to harassment and intrusion III) (1992) (Doggett, (Edgewood private lives, and that trial courts will J., correcting the dissenting). Rather than hearings on collateral be inundated with abuse, gives the simply the court Walkers issues far afield from the merits of the message gave taxpay the same it Texas cause of action or defense. The court has Only jury full ers—wait. after a trial something attempted to fix that was not upon incomplete will the based reinterpretation broken. This of Russell judiciary any possibility of even consider judicial will further tax our overburdened relief. benefiting system appreciably without litigants the system. sought previously For those who have specific guidelines for the use of man- more Finally, expressed for the reasons Joa orders, concerning discovery damus Chambers, chim one two majority responds with not but (Gonzalez, J., dissenting), I (Tex.1991) reviewing court action: trial standards for agree with clarification stan imme- compelling orders dards for the issuance of mandamus. corrected; of denied dis- diately review indefinitely a man- covery postponed Justice, DOGGETT, dissenting. meaningful relief will that no ner to ensure forthcoming. ever be get got Them that’s shall Them that’s not shall lose I.

—God Bless The Child1 path this court now different What a standard, majority With a double recently proclaimed in pursues than so devastating most di- blow at the strikes a its unanimous decision judicial curbing method abuses rect linchpin beyond Discovery is Many judicial far ... excesses power. truth, “a less as makes anything alleged partic- search for scope of (Okeh Holiday). zog, Holiday, Jr. Billie & God Bless Child 1. Billie (words 1941) and music Arthur Her- Records game wrong blind man’s and more a of bluff from the files the perpe- fair contest with the issues and facts trator. such situations denial of dis- practicable effectively covery disclosed to the fullest ex- means denial of all re- reality go lief. That unrecognized tent.” does not by today’s majority. (Tex. Lowry, State 1991) (quoting United States v. Proctor begin litigation & Entities that of in control Go., 677, 682, 356 U.S. Gamble 78 S.Ct. most the can of relevant evidence often 983, 986, (1958)). Similarly 2 L.Ed.2d 1077 simply by denying defeat their adversaries recent, ignored writings are our power unanimous them of the information: Axelson, McIlhany, Inc. v. [Tjhose positions with of established 550, 553, (Tex.1990, orig. proceeding) power likely are more to ... win (“[Discovery provide] should the fullest preventing pro- their adversaries from knowledge of the facts prior and issues evidence; ducing likely are less trial_ of purpose ultimate dis [T]he position having be in the of to extract truth_”); covery is ... to seek the and opponents evidence from their to make Scott, McIlhany, Tom L. Inc. v. out their case. (Tex.1990, (“The orig. proceeding) Wright 23 Charles A. & W. Kenneth Gra- primary policy discovery behind is to seek ham, Jr., Federal Practice & Procedure disputes may truth so that be decided (1980). separate With its § facts that are revealed rather than con unequal litigants, and treatment of the ma- cealed.”). Without mandamus review to jority gives yet edge already another to the meaning laudatory expres add to these advantaged. Providing immediate review sions, they just are hollow The new words. for orders that start the flow informa- signal is clear—circumvent refusing tion but consider those that conceal information. it, stop again expresses the majority once Today’s opinion reflects the radical preference powerful helping change philosophy which has taken firm seemingly over powerless. op- Those longer hold this is no a posing meaningful discovery court— truth, merely search for it is game a tend be institutions rather than indi- hide longer may and seek. No viduals, among and tend to the more through courts intercede mandamus even wealthy segments powerful of socie- for the complete trial court’s abuse dis- ty. system gives priority A that review data; denying cretion in access to vital un- (that is, review) immediate to the com- newly-announced standard, der the double holders, plaints privilege but which can, however, intervention be accorded for consigns complaints parties seek- persevere those who evasion. ing discovery judgment, until after final gives advantage wealthy in- to those defrauded, When a local is business litigants. They pow- stitutional dangerous a community exposed when er to achieve more favorable results dur- wastes, ignores toxic when a manufacturer pretrial process; opponents reports safety design change would wait. must injuries, a monopoly reduce user when ex- gain public, torts unfair when Thornburg, Interlocutory G. Re- Elizabeth loss, job discrimination results in and in Discovery view Orders: An Idea Whose circumstances, Come, numerous burden Time Has Sw.L.J. wrongdoing proving exceedingly (1990)(hereinafter Discovery diffi- Review Or- omitted).2 satisfy obtaining ) (footnote way cult to without evidence ders rarely litigant appears pre- 2. These entities need information Even when an institutional as, suing plaintiff an individual defendant vail: example, corporation sues an indi- when jus- majority required rules have ensures scales of continual re- litigation cope ways tice—which at onset of vision to with the newest invent- reality subverting bal- often uneven—never achieve ed those intent on process. ance. Each revision of the Texas Rules during of Civil Procedure the last decade this court included orders Until attempted has included clarification and im- review, scope very within provement of discovery procedures. This reported opinions impor- few addressed this produced body of law “com- subject. judges effectively Trial tant were plex rapidly evolving.” David W. Hol- “re- accorded unlimited discretion with a Byron Keeling, man Entering & C. sulting atmosphere very hostile [that] Thicket? Mandamus Review Texas practical discovery.” Id. at 1071. As a Orders, District Court Witness Disclosure matter, battles, discovery com- often both (1991) (herein- Mary’s 23 St. L.J. time-consuming, plex and were shunned. Orders). after Mandamus Disclosure of controlling party When the vital data exer- it, withholding power fighting of cises creativity Given the of those who would important request, judicial com- every discovery, procedure rules thwart of cannot “go it to a mand work out” often amounts provide guidance every to be drawn clear meaningful discovery. denial of The mud- situation; judicial interpretation is essen- wrestling frequently ensues in such rule, complicated tial. The more discourage from may judge contests a trial necessary more the construction acting fairly who determining who is greater misinterpretation. the likelihoodfor fight. If mandamus is not started the (“Erroneous interpretations id. at 386 hasty available to correct ill-considered changes likely of these ... are with the denials, hope justice ultimate significant precedent.... prior of absence complex litigation prematurely crushed. effect on the could have a substantial [and] majority’s today marks a re- decision lawsuit.”). subsequent of a This course ages turn to those dark when responsibility not and cannot does path least regularly denied as the of promulgated end when the of amend- text greatest for the resistance and convenience appears ments in the Texas Bar Journal. judiciary. Rather, duty the court has a both to make them. interpret

the rules and to system jurisprudence II. Our American great precept is of founded nature, discovery By very its involves body of case law benefit to have a written largely for what is unknown search from controlling construing legal principles and to may someone have an incentive who particular applying them to facts. This long as that search as and tortuous make approach undeniably in the dis- desirable possible. prevent Efforts covery context: only limited the boundless have been system In a where trial court decisions legal in Amer- imagination top of the talent unreported precedential no are Requests too ica. are either too broad or value, reported body the creation narrow; produced are mini- records either regarding case law voluminous, disorganized or in mal such law on dis- has substantial value. Case locating form as to make relevant informa- interpretation difficult; covery promotes uniform tion most vital documents vanish and, time, de- pro- rules document destruction” “routine opportunity for individual grams misplaced. Accordingly, our creases or are debt, Discovery litigant at 1070 n. 162. Orders the institutional Review They vidual on likely require also less information are already needed have the information tends opponent de- affirmative establish prove its case. Id. fenses. judge’s shape discovery affecting truly biases to out- vital for appellate matters Reported through comes. examination develop decisions clear mandamus auto- matically staying rules, possible, where orders. Refusal of rules and nar- prompt appellate review not denies a range judicial row the discretion in party may rights deprive its but also a trial by providing simply areas numer- guidance. desired finding ous cases that the did trial court or did not abuse its discretion. Such Today’s opinion appropriately recognizes helpful case law can be particularly in a grant “this not Court will mandamus jurisdiction recently that has amended relief unless we determine that error is time, discovery rules. Over the exist- importance jurisprudence of such ence of discovery case law even require state correction.” At 839 clarify sufficiently the rules so as to announced, 7.n. But under the standard disputes decrease in the number questions importance concerning judi- trial court. cially-approved concealment of facts will significance never be considered. The (foot- Review Discovery Orders at 1080 jurisprudence state’s ruling of a should omitted). Appellate more consistency accuracy and more tri- in al court decisions. 1077.3 See id. at III.

The role of this im- particularly court is portant answering significant in novel or limited, severely With mandamus now questions discovery of law. Manda- many important issues will not re- be (“[P]re- mus Disclosure 376 Orders at of generally viewed. See Review Dis- of appellate [important trial of review dis- 1056; covery at Orders Use Manda- of covery] questions could lend critical guid- at & n. of judicial mus 337 94. Abuses development ance to the discovery of Texas power go will forever uncorrected when practice.”). avoiding Rather than re- party discovery, realizing disallowed sponsibility, this court should utilize man- difficulty proving of a case with less damus review reduce the of judi- abuse uphill than full information and of task power cial when unique question “a dis- a maintaining appeal, successful is either covery” presented. West, law is forgoes costly David forced to or settle a and Note, following appeal The Use extended defeat on the Mandamus to Review improper rulings entire case. Nor Discovery ever Orders in An Texas: Extraor- discovery, be reviewed where one denied dinary Remedy, Rev.Litigation 325, 1 327 although severely handicapped, nonetheless (1981) (hereinafter The Use Manda- prevails at trial. mus). occur, appeals Where do remedies will be Most trial court denying mistakes dis- egregious pretrial rulings. rare even for covery result from the need to re- make endeavor, To succeed in this one must show peated, quick upon decisions based limited Recognizing information. this circum- stance, judges actually trial en- sometimes complained of amounted to the error litigants courage rulings raise disputed rights appellant such a denial of as appellate opinions setting ap- With 3. no forth review ... out inconsistencies [Such] even[s] discretion, propriate upon rulings, in limitations trial court trial and allows trial court ... “litigants may rulings widely divergent judges operate a receive with more accurate under- judges, geo- standing meaning even different same of the consistent, graphical Proper appellate location.” at Id. use rules.... If the court is discourages shopping disparities inequities produced mandamus ob- forum can fix and consistency judge likely promote provide a tain more a more the trial courts and ruling among greater favorable and allows for consist- the trial level decisionmakers. omitted). (footnotes ency accountability: and at Id. tests, reasonably surveys complaints was calculated to cause probably im- by similarly persons. did cause rendition of an This affected court case, proper judgment granted such found an abuse of discretion and appellant writ, probably prevented despite argument as from the making proper presentation plaintiff of the case adequate remedy had “an via the appellate appellate process.” to the court. normal Id. at 801. It perceive, light argu this difficult 81(b). Tex.R.App.P. This uni- standard is subsequent grant ment versally regarded hur- “more difficult relief, majority mandamus how the can dle” than abuse of discretion. Helen A. now claim that “we not focused” on [had] Freeze-Dried, Cassidy, The Instant Guide requirement inadequate remedy of an Courts, to Mandamus Procedure in Texas on, appeal admittedly, Allen and (1990). As anoth- S.Tex.L.Rev. At “few occasions.” 840-841. [other] concluded, aptly er has commentator opinions, Following these two this court an unusual would order not consider hesitated to and correct enough dispositive harm- to show the wrongful discovery. By denial of issu- jurisdictions require most ful error that rectify an erroneous trial Many appellants, reversal. ruling refusing Jampole court therefore, not dis- would even raise the (Tex.1984, Touchy, orig. covery points appeal. recognized proceeding), ap- 1056; Discovery see Review Orders peal adequate remedy: also Mandamus Disclosure Orders lawsuit, [Requiring party try his that, (observing 376 n. because of the proper denial of dis- debilitated rule, many discovery harmless rul- error covery, only to have that lawsuit ren- ings pursued appeal). deny- not In on nullity appeal, on dered a certain falls ing today, majority mandamus closes by remedy appeal well short of a that is appellate and locks the courthouse door to convenient, beneficial, and “equally ef- meaningful consideration numerous fective as mandamus.” significant matters. Tunks, (quoting

Id. 576 Crane v. 160 190, (1959) 182, 434, Tex. 439 IV. omitted)); (citation v. see also Cleveland tragic change in Only with the recent 1, 1063, Ward, 14, 285 116 Tex. S.W. 1068 by majority court’s such course has (Tex.1926). acceptable. become Previ denial access unwillingness A to order the ously this court and the courts of trial court’s both photographs scene appeals employed power production had their writ of accident by Terry in necessary mandamus v. to correct the abusive refusal was overturned (Tex.1985, Lawrence, orig. Among S.W.2d 912 discovery. providing those cases 700 O’Neill, v. proceeding). Lindsey In 689 appropriate the foundation for mandamus (Tex.1985, Dunham, orig. proceed 402 is v. 551 S.W.2d review Barker S.W.2d curiam), by (Tex.1977, (per the court overturned orig. proceeding), ing) 41 in which limiting scope of a a motion to mandamus an order the trial court had overruled accompanying quashing the deposition deposition complete expert witness’s pro request. A blanket order compel pa his document production of work and to similarly interceded, tecting hospital is records was va pers. stating that: “It We by Whitting in v. mandamus Barnes that writ of mandamus cated settled (Tex.1988, orig. pro ton, discovery proceeding to 751 S.W.2d 493 issue in a correct Morris, v. 746 ceeding). by judge.” a trial clear abuse of discretion Lunsford (Tex.1988, orig. proceeding), Similarly, 42. in Allen v. Hum S.W.2d 471 Id. at to rem (Tex.1977, orig. again granted mandamus this court phreys, S.W.2d disallowance court’s erroneous edy to order a trial proceeding), the trial court refused See also v. They of relevant contrary? can be of in disposed Loftin Martin, (Tex.1989, orig. precedent.5 Today’s mass execution fir- proceeding) (correcting ing squad only announces that it is answer- Turbodyne wrongful discovery); ing denial of the command of Jim Sales two law Heard, Corp. v. (Tex.1986, separately students who criticized the court orig. curiam) (mandamus proceeding) (per during period 1977-79. At 840-841. It directing trial court deny thereby constructing to rescind order rationalizes so distort- ing discovery of documents from insurer in ed a on corpses many standard so Ginsberg action); subrogation prior authorities. Fifth Appeals, Court 686 S.W.2d 105 significant One of the most casualties (erroneous orig. proceeding) bar of Jampole Touchy, which formed the has deposition by court of appeals cured centerpiece litigation in for over mandamus).4 products defective and toxic substances It is after only years repeated fifteen majority, almost a in a decade. mas- Barker Allen in judicial upon understatement, Jam- reliance “disapproves” sive pole opinions issuance implies] numerous that we “to the extent that reme- [it precedents learn dy these of our court are by appeal inadequate merely because good law. This is all strange might the more delay involve more or cost than explicitly we had Although refused to overrule At leaving mandamus.” 842. very them. request urged When prior untouched now this writ- in Jampole, our scope answer proper discovery, was unmistakable: “We decline to majority do so.” fact overruled that land- But majority’s simple: precedent new answer mark entirety. Despite up against “Line them gross the wall.” What denying abuse of discretion in critical Jampole, does it matter a dozen or more majority’s Texas Supreme cases Court and countless deci- correction mandamus would re- appeals sions of the courts of quire are to the disputed inclusion materials recog orig. (writ proceeding) granted Intermediate have also courts Dist.] importance quashing deposition); nized the correct trial court's order of mandamus to avoid Haberman, (Tex. improperly limiting deny Velasco v. 700 730 trial court abuse in S.W.2d or 1985, App. orig. See, proceeding) Antonio e.g., Kentucky Fried Chicken — San (mandamus appropriate “not where the Tennant, Mgmt. Nat'l Co. v. 782 S.W.2d 318 improperly grants discovery, trial court order 1989, (Tex.App. orig. pro [1st Dist.] — Houston may but the writ also issue the trial where (writ ceeding) granted discovery plain when of improperly discovery.”); or limits denies Aztec denied); psychiatric tiffs records Foster v. Dellana, Ins. Co. v. 667 S.W.2d 911 Heard, Life (Tex.App. 757 S.W.2d 464 [1st — Houston 1984, (manda App. orig. proceeding) — Austin (mandamus orig. proceeding) issued Dist.] against against denying mus issued trial court for dis discovery post- trial court’s denial of of files). covery of claims investigation Super report); Syndicate, accident Salazar, (Tex.App.— 762 749 Ltd. v. S.W.2d majority 5. The identifies five cases name 1988, orig. proceeding) Houston Dist.] [14th today’s writing, declaring conflict with that: against (granting mandamus trial court’s denial Allen, disapprove any “We of Barker and files); investigator’s discovery of of claims authorities,” disapprove at other and “[we] Street, Goodspeed (Tex.App.— v. Cleveland, Crane, any Jampole, of other (trial orig. proceeding) Fort Worth court's authorities,” to the extent conflict hospital of based on denial of records with the new Walker standard. Subsumed with- privilege presentation of evidence over without designation great in the “other" are a number of Black, turned); Estate Gilbert v. of from and the additional cases this court courts 1987, orig. (Tex.App. proceed appeals grant would Walkers of to the relief — Austin (denial ing) of insurer’s internal clearly court has abused when the trial its dis- mandamus, de overturned on communications denying discovery. cretion in ingness will- proper only spite argument is that "mandamus sweepingly unidentified erase whole privileged improperly categories precedent exemplified by ordered [for] of recent is material, signing "any has denied not when the trial court a blank other au- their thorities,” check: authorities, Corp. meaning discovery.”); v. all Essex Crane Rental Kitz man, endangered. (Tex.App. now [1st S.W.2d 241 — Houston 259,6 itself, record, Drilling, mean- 515 S.W.2d at the rule to await a deferred and (trade ingless pro- appellate review. Tex.R.Civ.Evid. 507 secrets not tected when nondisclosure conceals fraud Sales, Mr. injustice), or works and even V. writing purportedly whose warranted to- prior affording the relief that Instead day’s excep- brash action.7 does this Nor announces, demand, rulings majority availability in some cases tion consider gymnastics, that after considerable mental interlocutory appeal pro- mechanism [discovery “at come least three situations] 76a(8) vided Tex.R.Civ.P. to address the justified, is to mind” where mandamus adequacy protective order. Eli 843; strangely proceeds it describe then Marshall, Granting Lilly & Order Co. three reme- six. The first instances where Writ of Leave File Petition for Manda- dy by appeal inadequate is stem from J., (Doggett, dissenting), 829 mus wrongful dis- trial court’s allowance of (Tex.1991). First, covery. if “dis- mandamus will issue requiring mandamus third situation privileged closure of information ... production compels is an “order [that] aggriev- materially rights affect the patently duplicative doc- irrelevant or requisite easily party.” At 843. This ed uments, clearly such that constitutes in- discovery objections that fulfilled with imposes a burden on the harassment or privilege, clude an the violation assertion proportion far producing party out of necessarily impinges of which on the ob- request- to the any benefit that obtain rights. jecting party’s ing party.” At 843. This “catch-all” ex- Second, issue a tri- mandamus will when extraordinary makes ception indeed “trade al court orders the disclosure of ordinary one. writ protections to adequate secrets without any litigation, the complex almost claim confidentiality of informa- maintain the objection to essentially a form burden discussion, (citing, tion.” At 843 without perceive dis- discovery. It is difficult to Miller, Machs., Drilling Automatic Inc. seeking to pute party in which the obstruct (Tex.1974, orig. proceed- and, process today’s not after could problems, ing)). Posing numerous decision, impo- or will not claim harassment exception no hastily-drawn relevance See, Sears, e.g., of an burden. sition undue by the the instant case and was concocted Ramirez, 824 S.W.2d 558 Roebuck & Co. v. briefing argument majority without (Tex.1992) curiam) (granting (per manda- privilege thereby un- by counsel. One preclude corporate tax disclosure of mus More- all others. justifiably elevated above of undue burden returns the basis over, pro- writing implies an absolute expense, privilege).8 unnecessary tection of trade secrets exception, on Trans- A fourth based is privilege this most definite- when in fact Powell, v. Cory. Natural Gas qualified, recognized as Automatic american ly se, not, per exempt from Drilling not Trade ... citing do secrets 6. The few cases Automatic suggested expand holding obligated court to to the The trial court ("We today. Jampole, 574-75 discovery against weigh the inter- the need discovery be denied because hold that cannot protect secrecy.... the The need ests requested proprietary interest in the an asserted confidentiality does not consti- of documents protective suffi order would documents when discovery.... an bar to tute absolute interest.”); ciently preserve that Firestone Photo Lamaster, graphs, Inc. Corp. 8.Although citing Motors also General (“[T]he writ) (Tex.Civ.App. no Lawrence, (Tex. orig. pro- — Texarkana S.W.2d 732 necessarily does trade secrets ... claim of allowing ceeding), relief from discovery.”). right defeat discovery allegedly or- trial court burdensome der, very expansive majority fails note Sales, Discovery Texas Pretrial 7. James B. discovery The efforts of permitted in that case. Analysis Com- and Under Amended Rules: discovery results (1986), to limit General Motors mentary, 345-46 27 S.Tex.L.Rev. type of particular performed on the from tests stating that: (Tex.1991, orig. proceed- 811 S.W.2d 913 the expressway resisting discovery ing), previous is described when the trial im- in the excep- four constructed poses “discovery possible tions. Mandamus is precluding sanctions ... when decision on the party’s merits of a claims missing discovery cannot be made ... unless the imposed sanctions are simul- part appellate record, of the or the trial taneously final, ap- with the rendition of a proper request court after refuses to pealable judgment.” (emphasis At de- record, part make it and the re- leted). majority The falsely suggests that viewing court is unable to evaluate the today’s symmetry standard creates a with effect of the trial court’s error on the Transamerican, Transamerican. Unlike record before it. striking which treated petition of a At 843-844. fix quick including the same manner entry as the of a default appellate materials record is both judgment, ruling this creates a double stan- ingenious ingenuous. and It has the imme- Transamerican, dard. Unlike which in- excluding great diate “benefit” of num- readily-perceptible wrong volved a such as discovery ber of errors in the area from dismissal, an order of a determination of majority mandamus review. As the in fact “go whether hidden documents to the heart recognizes, “this situation should rare- case,” party’s signifi- involves ly does, arise.” At 844.9 And if it ever cant uncertainties. majority guarantees that no relief will be forthcoming, by directing that the review- importantly,

More Transamerican was ing court issued at a time policy when the announced of this court was to deter abuses of discre carefully consider all relevant circum- regard

tion without whether stances, such as the claims and defenses granted spectrum or denied. A wide asserted, type sought, arising of sanction orders prove, what it is intended to and the rulings are immediately appealable. See presence or lack discovery, of other Downey, Braden v. 811 S.W.2d 922 appro- determine whether mandamus is 1991, orig. proceeding). Superimposing priate. today’s Transamerican and Braden on constraints, At 844. Within these there message double standard sends a clear always readily be a excuse to available the rare trial impose sig court that would deny both and mandamus. penalties nificant on those who obstruct In most cases materials can be boxed discovery with deceit delay and care —be up, file-stamped, appellate sent danger ful. There is no real of immediate accomplish anything court. How this will genuine appellate examination of an cluttering judicial more than chambers denying order discovery, but there is a quite given clue another matter. No appellate constant threat of review of an as to how to resolve the difficulties obvious granting discovery order imposing determination, inherent in with- meaningful sanctions on obstructionists. argument analysis by out effective again majority provides Once an incen counsel, of whether each item would have tive for concealment. Moreover, ap- affected the result. remaining two situations address the proach improperly requires ap- courts wrongful discovery, denial of consti- peals juries denying to act as while to the path in compared may high- tute a narrow the woods true fact-finder evidence that be particular type impact truck and the involved 9. If the trial court "refuses to make dis- [the 843, record,” subject rejected, covery] presumably part incident were and it At today’s supply impact directed to all test results for all accorded under standard relief 23-year directing types inclusion of trucks manufactured over a would be issuance of a writ period. of these materials. ly proceeding. relevant to misapplication This distrust cludes that the trial court’s juries resolving deprive ordinary people fac- of the law to them of relevant —of disputes increasingly severely tual reflected in evidence “does vitiate or [not] —is compromise ability majority’s present decisions.10 the Walkers’ ironically, a viable claim.” At 844. Most only hope The for review of a trial today’s imposes type announcement one denying upon court’s order top alleged double standard on of another proof that a claim has been “vitiated or double standard. The Walkers claim severely compromised by the trial court’s uncovered a double standard at a discovery error.” At 843. It must be taxpayer-financed institution that encour- shown “that the trial would be a waste of ages faculty to defend those accused of resources,” judicial and that “a de- malpractice discouraging pro- medical while discovery [goes] nial of to the heart of a alleged fessional advice on behalf of the party’s At 843. It far case.” from clear It victim. is the merits of this revelation encompass whether these one or three dif- majority eagerly away so seals ferent standards. What is clear is that few public. from both the Walkers and the cases, any, satisfy if will whatever stan- impact Fully expert aware of the cred- applied. dard is ibility on the outcome of much medical example majority offers no of a case malpractice litigation, majority denies party heavy in which a has ever met such a very the Walkers the information that Apparently applicant burden. for man- perhaps could demonstrate bias of that, damus in this court must confess blessing An is thus key witness. official discovery sought, the trial without provided for trial court action that contrary court should and must direct a material, effect on have a adverse Any of a chance at verdict. semblance Having ability present a viable case. prevailing prevents a determination that impeach- the denial of now learned that judicial the trial would be a “waste of susceptible ment evidence is never to man- resources” or that denied damus, it remains to seen what other be goes party’s “to the heart of a case.” similarly critical information will next be may theoretically While this situation arise unimportant majority. viewed as to this future, unlikely. in the be most Nor will standard While the nature of double any explanation party is there of how a can writing requires approved by today’s expected probability to show such denials, wrongful I this dissent focus on having without of the materials wrong every recognize that the can be bit recognized question. previously We have improper grants as real from hardship showing need for inherent practical probably matter there is less As a are un- documents when their contents capriciously danger judge that a trial Lowry, 802 S.W.2d known. State v. objections and ignore properly established (Tex.1991)(“It is difficult for the [rela- too much information privileges to accord particularized make a more show- tors] Nevertheless, I favor instead of too little. documents, for these the con- of need mandamus to control abuse with- the use of them.”). tents of are unknown to which regard to how it occurs whom out today’s deplore font of mandamus I is the discrimina- Application helped. What officially majority re- substi- to the Walkers’ situation is most tion which law view- Scholars majority summarily con- tutes for even-handedness. vealing. J., dissenting); Tractor Co. v. Publishing tt, Truck & Crim Caller Times Co. v. Triad Com 10. See munications, (Tex. Co., & Transp. 597-608 Navistar Int'l J., 1992) dissenting) (addressing J., (Doggett, 1992) dissenting); Reagan (Mauzy, 1n. predatory evidence of (Tex.1990) court's refusal to allow (Dog Vaughn, intent); Transp. Co. v. also Houston see Greater J., dissenting). concurring gett, (Do (Tex.1990) gge Phillips, solely justice delayed denied or stan- should be ing the so-called mandamus “Walker appellate judges. recognize is not a to accommodate should dard” ignoring wrong- an excuse for standard but myth have debunked the Recent studies doing. explosion. The of the mandamus Joachim dissent, Justice Gonzalez once to which decision, discovery disputes today’s After pride today, is again points with based longer play- a level will no be resolved on analysis segregate that fails to upon an I that mandamus should ing field. believe A arising discovery disputes. filings from court abuse available to correct Supreme ex- study of Court more detailed concerning subject important that is during period of more than ten perience jurisprudence of the state and which years correctly concluded that: rights aggrieved substantially affects satisfied, requisite If this relief party. or- [I]nterlocutory review regard should be accorded without positive effect- has ders ... [had] de- granted the trial court has whether appellate The increase caseloads] [in manageable nied extremely small and been an

one....

VI. numbers, then, suggest that while opinion, supporting today’s Justice availability interlocutory review insists that must stem what Gonzalez we ap- cases to the discovery orders added alarming is an increase he claims docket, interlocutory review has pellate filings. At 844-846 number of mandamus number large or burdensome added J., (Gonzalez, concurring). The view that of cases. sky falling” in the “the is best reflected gruesome and conclusions of his statistics 1047, 1059. Discovery at Review Orders dissenting opinion Joachim v. Cham- de- petitions most are The fact is that bers, (Tex.1991). See nied, granted us with fewer than 3% (Barrow, Jampole, also of these during year 1991. Most fiscal J., Yogi dissenting); Ray & M.R. C.L. cf. expeditiously, over half handled with were Explosion, 28 McKelvey, The Mandamus filing. More- one month of resolved within (1987). 413-14 S.Tex.L.Rev. ignored over, completely Gonzalez Justice requests in this mandamus ever-increasing caseload for the fact that

Blaming an the last three actually decreased over on the of the dis- the Texas courts advent in fiscal 202 of these wholly years. There were covery insupportable. mandamus is respectively, from 257 and present most often emer- down petitions These Although the and 1990. requiring expedited re- in fiscal 1989 gency situations expanding, and, overall workload consequently, frequently view filings is certain- contribution of as a thorn in the side of viewed deciding “In uncontrollable.11 ly not Discovery Orders courts. See Review of interlocutory permit courts should agree But I cannot that whether at 1059 n. 99. 1058-59; figures are Discovery 1989 and 1991 Interlocutory Orders Review of filings. my of court review derived 856 cases, specific judges and com- trial court directing production order of

review emphasize mentators tend to relating drug Prozac); the needs of information to the (Order court administration Granting over the needs of the see id. at 189 Leave to File litigants.” cutting Mandamus) Id. at 1049. While off Petition (Doggett, for Writ of right J., to mandamus dissenting); Valley Baptist review when dis- Medical covery Bennett, D-1193, denied reduce the Center v. No. 34 Tex. workload, (June 18, significant 1991) the result (stay will be a S.Ct.J. 668 issued quality justice. protect hospital decline in the of The incon- from disclosure of materi venience unexpected relating policy informing patients caused arrival als of petition treatment), of a that often demands immediate of risk of and 35 Tex.S.Ct.J. price paid (Feb. 12, 1992)(motion action is the “to assure that ... 452 for leave to file proceedings equitable granted). are fair and verifying One interested in parties_ meaning all concerned majority’s carefully must not true of the ‘[W]e justice upon expedi- the altar chosen words will do well to observe how sacrifice ” ency.’ actually disposes Mandamus Review Disclosure the court each of these at 422 (quoting Orders David W. Holman & matters. Byron Keeling, C. Disclosure Witnesses Application in Texas: The Evolution and VIII. CONCLUSION 166b(6) 215(5) Rules the Texas apparent attempt cope In Procedure, an with a Baylor Rules Civil L.Rev. explosion,” today’s opin false (1990)) added). “mandamus (emphasis explosion

ion has offered us an of another type reverberating detonation of this —a VII. prior rulings. majority True the majority experience disregarding announces here not a stan- has considerable dard, pseudo-standard. reality, precedent merely thing but a lifeless III, past. the rule is little more than can we 826 S.W.2d at Edgewood “how J., help help?” (Doggett, dissenting); those whom we want to Terra zas, J., precedent (Mauzy, true for this dissent is Terrazas v. 829 S.W.2d at 739 Ramirez, (Tex.1991), ing); Guaranty 829 S.W.2d 712 where v. Ster Stewart Title Co. Republican (Tex.1991) redistricting (Doggett, relators in were ling, J., Supreme dissenting). accorded relief in the never But a dozen or more Texas Court sought “triple Supreme other forum. This R Court authorities and even more mandamus,” appeals exception rulings at 760-61 from the courts of cut id. J., (Mauzy, dissenting), only presages the down at one time is not a modest accom goal. Precedent, pursuit plishment. continued of this no matter how volu well-established, clearly minous or how If doubts remain as to the one-sidedness accomplish majority restrain today, appli of the standard announced its policy objectives. preconceived social currently pending cation to cases should word, See, Remington Through resolve them. deed and now e.g., Arms both Canales, D-1867, explosion in manda- majority Co. v. No. 35 Tex.S.Ct.J. invites a true (Dec. 13, 1991) (trial filings. attorney whose court order which mus What does judgment relating safety possibility found documents to firearm client faces the production significant damages to lose from required relevant and accepting majority of a stayed despite timely response objec no the beneficence made); being willing protector this court to serve as Lilly, tion Eli & Co. v. Mar ever D-1827, shall, deposition site privileged? No. 354 of the Tex.S.Ct.J. Will (Dec. 3, 23, 1992) trial court (stays 1991 and other than that ordered Jan.

857 costly provided mandamus relief to correct a be more and inconvenient to stay wrongful discovery, claimant? Get a from the Texas Su- denial and labors Court, appeal hard to conclude that is an ade- preme your petition even if is still too quate remedy party for a who is denied pending appeals. the court of Con- See D-2015, adequate discovery. Wittig, v. No. 35 tinental Can Co. (Jan. 17415

Tex.S.Ct.J. WL I hold that mandamus is available would 1992) directing (stay of trial court order nega- correct a trial court error which liability engineering employee products right of tively materially and affects the deposed in rather defendant to be Houston present aggrieved parties adequately Chicago though peti- even than cases, particular party their whether pending appeals). Did tion was court of resisting seeking discovery Iley it. See deposi- the trial court resolve a conflict 362, 368, Hughes, v. 158 Tex. unacceptable schedules in a manner tion (1958); see also Elizabeth G. company? worry, an insurance Don’t the Thornburg, Interlocutory Review Dis- Supreme stay proceedings Court Texas will An Idea Time Has covery Orders: Whose bothering get response even without Come, (1990). In the case Sw.L.J. judge. Corp. Cigna affected us, court’s denial of dis- the trial before D-2069, Spears, No. Tex.S.Ct.J. covery has a material and adverse effect (Feb. 19, 1992). Any attorney whose client case. ability present Walkers’ desires to make more difficult access to they impugn seek could information jeopardize information that will its credibili- credibility key expert witnesses at suggest liability ty, or defeat its defens- malpractice trial. Because their medical accept es would be foolish to a trial court claim, claims, likely like all such will stand A majority order. of the Texas credibility expert or fall wit- on the Supreme ready willing Court is and to in- nesses, I would hold that Walkers asking. terfere for the seek, entitled to the information and by appeal inadequate. that relief ripple by today’s effect created re- pre- fusal accord mandamus review to Discovery “linchpin is the of the search orders will swell to tidal- truth,” “[ajffording parties and full dis- proportion, sweep wave it before covery promotes the fair resolution of dis- hope application of fair and consistent putes by judiciary.” Lowry, State many our Texas rules. cases (Tex.1991). Today the any possibili- will leave buried the sand disposes of that “linch- court removes ty of trials directed the full and truthful enforcement of fair and pin” and abandons underlying revelation of the facts. Juries I adequate discovery. Because believe disputes forced to resolve critical be readily should avail- mandamus relief upon not on truths but rather what- based much a court allows either too able when ever half-truths can be discovered. Left in discovery, I dissent. or too little wreckage on the beach will be the many prior tattered remains of the deci-

sions of this court and others that viewed

litigation a search for truth in which fair of an order prompt review vital.

denying

MAUZY, J., dissenting joins in this

opinion. Justice,

GAMMAGE, dissenting. departs from Today’s

I dissent. decision

previous instances where this court notes opinions proper- certainly controlled whether the then, ly applying produce, both granted order or denied

Case Details

Case Name: Walker v. Packer

Court Name: Texas Supreme Court

Date Published: May 7, 1992

Citation: 827 S.W.2d 833

Docket Number: C-9403

Court Abbreviation: Tex.