*1 say so and ing product, should trekking seemingly endless back

end this Austin, Austin to

and forth from Dallas to

Dallas, Dallas to Austin. say way

And it should so opinion normally speak through an

courts — admitting mistakes and candidly its own being rewriting that is ac- of our law through highly

complished rather than of an order such as this.

unusual issuance Judge Marshall has the stamina to

I trust through continuation of this

persevere he interference and that will

unwarranted remaining dis-

make full use of whatever judge.

cretion he has as a trial

GAMMAGE,J., opinion. joins in this COMPANY,

REMINGTON ARMS

INC., Relator, CALDWELL, Judge,

The Honorable Neil Martinez, Benjamin

and the Honorable

Judge, Respondents.

No. D-2324.

Supreme Court Texas.

April 1993.

Rehearing April Overruled

Supplemental Dissenting Opinion of Justice

Doggett Rehearing April *2 Clinebell, Houston, Russell H.

Boden McMains, Corpus Christi, Stallings Paul E. Jackson, Houston, and Don for relator. Mitchell, Austin, Longley, Joe K. Joe K. Houston, Angleton, Phillips, Michael M. Brown, Alvin, Roy Tim Rich- Labadie Houston, Colquitt, respondents. P. ard OPINION CORNYN, Justice. opinion February 1993 is with- following is

drawn and the substituted presented therefor. The issue is whether issue to direct the trial mandamus should ' postverdict order court1 to vacate its granting penalty discovery death sanctions and trial based on abusé misconduct. We hold that the trial court its discretion and that Relator has abused thus, remedy by appeal;2 adequate we conditionally grant the and direct the penalty sanc- trial court to vacate its death tion order.

I. Craig filed the lawsuit out of David proceeding against Deb- which this arises Company, Arms bie James and Inc., injuries he when he was sustained thigh by a fired right shot in the bullet Remington Model 700 rifle. from a alleged negligently handled James guilty and that was firearm ordinary gross negligence, as well danger- unreasonably strictly liable for permitted rifle that it to design ous trigger. touching the discharge without disputes eventually led to Re- Discovery $25,000 sanction spondent’s imposition of a against Remington on special master to Austin, appointment of a Kilgarlin, Raymond and the William W. (Gene) Green, to the tri- hear and make recommendations E. B. Lee Ware and Deborah imposes Judge presiding 2. “Whenever a trial court Neil Caldwell as the dispute, adjudicating have the effect which pre- the 23rd Judicial District conducted some dismissing by striking pleadings, whether underlying Judge Ben trial matters in the case. rendering judgment, but action or a default Martinez, however, assigned preside over appeal- result in rendition of an which do not Judge proper respon- is the the trial. Martinez remedy by judgment, the eventual able then in this mandamus dent action. appeal inadequate." TransAmerican Natural Powell, (Tex.1991). Gas negligence liability for issues of ington on discovery disputes.3 al court on all also negligence. Respondent gross trial, Craig his case-in-chief presented At conducting fur- Remington from prohibited and rested. one-half weeks for three and indemnity, seeking discovery, having pre- ther without Remington then rested contribution, upon the any offset based jury returned any evidence. sented *3 any par- of other responsibility comparative Remington of all liabili- exonerating verdict upon that retrial and ordered ty person, Following a hear- or Craig’s injuries. ty for mitigating introduce Remington could Judgment for Motion on damages. punitive of on the issue mis- evidence Verdict, declared a Respondent on the margin the court’s in the forth and We set trial, Remington’s pleadings, struck order.4 support of its sanctions findings in Rem- judgment against rendered a default (10) discovery process Remington abused the "any that future order warned 3. The court’s 6,449 particular submitting pages discovery process" by to in no or failure abuse comply spe- inspection by Special the trial court or the with an order of in camera order for Master; penalty sanc- result in death cial master would tions. (11) discovery process Remington abused the by failing produce photographs taken by to sup- by the trial court in 4. made Craig family Remington's at counsel penalty as follows: port sanctions were of death Judge injury Cald- occurred. ranch where (1) Remington objections in made numerous pro- photographs be these ordered that well interrogato- response Plaintiffs first set of to 31, Remington January stat- duced many request production, of first for ries and 22, response May supplemental 1989 ed in its merit; were frivolous and without which produced discovery all of the that it had to (2) Remington’s objections to Plaintiffs re- Remington attempted to photographs. later 13, 3, 4, 11, 12, quests production for numbers photographs that had not offer at trial 64, 65, 66, 14, 16, 17, 19, 59, 60, 61, 62, 63, 15, produced; 67, 68, 70, 71, overruled and 74 and 96 were (12) Remington abused the Remington produce was ordered to these by attempting C. Hutton to testi- to use James signed by Judge order of Neil Caldwell items dis- fy he was never pro- on matters for which January The deadline for this witness; 3, 1989; February expert duction was closed as (3) Remington (13) attorneys Remington acted in bad faith and abused have violat- and its discovery 21, 1990, process by in violation of Rule 215 of March ed the Court's Order failing pursuant produce documents questions depositions requesting on written order; January providers on Novem- various health care 9, 1989, (4) February Remington or- On 26, 1991; ber Longley pay Plaintiffs counsel & dered to (14) Remington’s B. Lee Ware acted counsel 525,000.00 monetary Maxwell as a sanction discovery process and in bad faith abuses; discovery engaged abuse of the discov- in a callous has 9, 1989, (5) February Remington was or- On ery process; pay Special dered to Master Bert Huebner's (15) Remington's Lee Ware acted counsel B. discovery abuse and fees as a sanction for displayed improper conduct in bad faith and Remington of such order in violation trial; paid; all such fees have not been that (16) Remington and conduct of The bad faith order, (6) February Remington In the in the conduct of its counsel any further abuse of the was warned that process trial of this cause resulted and the process by Remington fail- fair, impartial equitable just, and denial of a comply any order ure of litigants; rights adjudication of Special any request the Court of (17) proved Imposition of lesser sanctions striking in an order Rem- Master would result ineffective; pleadings rendering ington’s a default was, (18) Imposition of sever sanctions against Remington imposi- judgment and the is, justified; may Court of such other sanctions as the tion (19) Remington’s conduct and the conduct justified; find are throughout pro- Ware its counsel B. Lee (7) Remington Operations Commit- withheld discovery pro- ceeding hindrance of the produced stating it had tee Minutes after justified presumption its claims cess all; them merit; lack and defenses (8) Remington Operations Commit- withheld (20) relationship exists between Rem- Court, A direct being after ordered tee Minutes ington’s conduct and the severe 3, 1989, offensive January imposed; and all; produce them (21) Remington’s throughout conduct (9) falsely Remington’s counsel B. Lee Ware flagrant its proceeding has been bad faith and he had not received notice of claimed engaged in a callous abuse of hearing; counsel has November order, Remington urges grounds sup pretrial tions nine concern three port claim for mandamus relief: that of which was aware before trial. We Respondent properly could not sanction any objections hold af abuse by failing request pre these matters place, ter the trial had taken that the sanc hearing alleged supported by tions order cannot coun by requesting preferential trial sett trial, sel’s misconduct at and that the death ing.6 McKinney See v. National Union require sanction does not meet the Co., (Tex.1989); Fire Ins. ments of Natural TransAmerican Gas 3.02(a)(4), Rule Local Rules of Practice of Powell, Corp. the 23rd Judicial Districts of Texas. 1991).5 agree Respondent We hand, if On the other dis each these errors and con committed covery until after abuse is revealed *4 alleged clude that none of the instances of trial, begun, trial has or even after support penalty abuse the death sanctions cannot be said to have waived a claim for ordered the trial court. Craig argues that one of sanctions. II. supporting penalty incidents death sanc Remington’s attempt to have one tions was Remington contends that no trial experts, had called to the of its who been may impose discovery post- court sanctions by Craig, testify stand on matters for trial for abuse. can We had not disclosed as an which he absolutely agree. Such a rule would that, expert Craig witness. asserts at least imposition bar of sanctions for justi in part, the trial court’s sanction was first time abuse revealed Remington attempted to fied because have do, however, agree after the trial. We designated expert testify firearms pretrial ruling the failure to obtain allegedly subject unrelated of ballistics. discovery disputes that exist com before lawyer objected Craig’s mencement of trial constitutes a waiver of subject anticipat failure to disclose this of any claim for sanctions based on that con testimony and the trial court excluded ed duct. Olney Savings See Loan Ass'n v. & testimony Unquestion all on ballistics. Odessa, Inc., Farmers Market 764 of power during 869, 1989, ably, the trial has the (Tex.App. S.W.2d 871 Paso — El of denied); McDonald, trial to sanction nondisclosure informa Roy writ 3 W. Texas Here, during discovery in requested tion Civil Practice 17.9. of the twelve § 215(5); manner. See also Al incidents of misconduct cited sanc Tex.R.Civ.P. Therefore, discovery process. begun during period, pass and to on mo- preclude presentation grow- which of the merits of new and all other matters tions for appropriate pursuant Judge the case are in this case here and out cases tried of Co., Koepp assigned during period. (Emphasis v. Utica Mutual Ins. S.W.2d 833 add- (Tex.1991); ed). 514 (22) imposed clearly Judge The sanctions are not excessive assignment order authorized light by Reming "growing of the abuses committed posttrial Martinez to act on matters ton and the Court finds that such sanctions case. sanctions order and the out of' this just appropriate pursuant stan are to the judgment certainly growing are matters default dards set forth in TransAmerican Natural Gas scope out of the trial of this case within Powell, Corporation v. 811 S.W.2d 913 Judge assignment. Martinez’ 1991). proposition cases for the 6. cites two Judge also contends that Martinez’ should be allowed to consider the the trial court visiting judge assignment as a did not order Remington through entirety of the conduct of granted authorize him to act further after he litigation deciding process out the when assign- disagree. mistrial. We The order of posttrial motion for sanctions. See Downer ment states: Inc., 238, Aquamarine Operators, 701 S.W.2d Glanz, (Tex.1985); Medical Protective Co. v. begin- assignment period This is for the ... 1986, (Tex.App. Corpus Christi ning day January, provided the 10th — However, 'd). assignment writ ref both of these cases dealt that this shall continue after the specifies period may necessary sanction orders and thus do not as be for the assigned Judge complete trial of control this case. case Co., that such would not demonstrated Mfg. varado v. Farah 830 S.W.2d (Tex.1992); future, pun tolerated in Volkswagen likely Ramirez v. Am., Inc., (Tex.App.— by denying it the benefit ished denied). Corpus writ The Re testimony. Chrys Christi of the undisclosed See spondent power also had the to assess oth ler, 841 S.W.2d at 849. sanctions, singularly or in er suitable com process Finally, consistent with due bination, Alvarado, within limitations. See guarantees, penalty death sanctions should 915; at 830 S.W.2d Ramirez v. Otis Eleva only party’s be used when the sanctioned Co., (Tex.App.— tor “justifies presumption denied). Dallas claims or defenses lack merit.” Id. However, argues because record, jury’s evidenced ver- nondisclosure, in that this instance of com dict, supports rebuts rather than such with the trial court’s other find bination inference. sanction, ings, supports penalty the death The court also based the sanctions we must consider whether such nondisclo finding Remington at order on the justifies sure the court’s ultimate sanction tempted to introduce into evidence an aerial under TransAmerican standards. As we photograph produced that had not been reiterated, recently for a death during discovery. ex Remington’s counsel just sanction to be there must be a direct *5 plained response objection that he had relationship between the offensive conduct opposing sup it to counsel and had shown imposed, and the sanction and the sanction plied phone the name and number of the imposed must not be excessive. Chrysler photographer plaintiff so that could order Blackmon, Corp. v. 841 S.W.2d 844 copy Apparently if desired. satisfied with 1992). Death sanctions for this explanation, Respondent admitted the single discovery incident of abuse fails to Respondent If photograph into evidence. meet the TransAmerican standard in sev expla was not satisfied with ways. eral nation, proper sanction have would First, relationship no direct exists be- photograph to exclude the from evi failing designate tween the witness as a 215(5) (requiring the dence. Tex.R.Civ.P. expert striking ballistics and the pro not exclusion of evidence was

pleadings. certainly While there are occa- discovery); during duced see also First In sions anticipated when nondisclosure of evi- 277, Bland, 810 S.W.2d terstate Bank v. expert dence prejudice could cause (Tex.App.—Fort 287-88 Worth opposing party, that was the case writ). Respondent here. Because did not admit testimony jury, ballistics before the III. prejudice record reveals no as a result of the nondisclosure. remaining findings deal with The improper and faith of Rem

Second, conduct striking Remington’s pleadings Craig alleges ington’s at trial. excessive, counsel plainly especially after the Remington’s attorney im during trial court excluded the undisclosed testi- remarks, displayed properly made sidebar mony. legitimate purposes of discov- court, contempt made frivolous ob ery sanctions—securing for the compliance with jury.7 discovery, deterring discovery jections, and communicated with abusive however, cannot, practices, punishing and violators—were sanctions order misconduct, accomplished by supported by findings the court’s refusal to al- of trial addressed to simply low the benefit of the undis- because Rule 215 is only. testimony. pretrial discovery closed ballistics Exclusion misconduct testimony v. Tex ballistics alone enforced our American Central Insurance Co. (Tex.1966), disclosure, Stores, requiring rules full homa 14, 1990, inscription: Remington’s attorney 7. On he had drawn a valentine with the large jury." page “Hang jury showed a chart to the in there on which jected to the sidebar comments that Texas Rules of this court declared trial,8 predeces Respondent overruled some of the Procedure 167 and Civil Likewise, applica are rules to current Rule sustained others. objections sor and only, matters gave jury lengthy ble instruc- occurring of the trial. in the course concerning improper conduct tion counsel’s commu- Clarke, 784 S.W.2d Lehtonen v. Day See also jury on Valentine’s nication with (Tex.App. 947-48 Remington’s attorney [14th to hold but refused — Houston denied) (forbidding the urged by contempt Dist.] court as was trial as a striking of a motion for new however, Craig’s Respondent, counsel. sanction). sup The trial conduct basing justified was not order porting the court’s sanctions attorney Rule 215 on sanction under mis- discovery, nothing case had to do at the trial.9 sanc cannot form the basis for language of Texas plain tion under the IV. Procedure 215. Rule of Civil reasons, conditionally grant we For these does, however, The trial court Respon- of mandamus and direct the writ statutory comprehensive have inherent strik- part of his order dent to vacate discipline for im power to errant counsel granting a de- ing Remington’s pleadings, of its proper trial conduct the exercise is- judgment against fault Pryor, contempt powers. parte Ex See gross negligence liability sues (Tex.1990); see also Remington from negligence, prohibiting 21.002. Trial counsel are Tex.Gov’t Code § contribution, any off- seeking indemnity, or im subject disciplinary action for also upon comparative responsibil- set based Tex.Disciplinary conduct. proper trial See pro- person, ity other (Fairness Adjudica 3.04 R.Prof.Conduct mitigat- offering hibiting Remington from tory Proceeding), (Maintaining Integri 3.06 *6 puni- of retrial on the ing evidence at issue (1992), ty Jury System) reprinted un- damages. The writ will not issue tive app. tit. subtit. G Ann., Tex.Gov’t Code the sanc- fails to vacate less Respondent (Vernon Supp.1993) Bar Rules art. (State 21, 1990, in accor- March tions order Indeed, 9). obligat the court itself is § opinion. this dance with appropriate authori lawyer ed to refer a unprofessional conduct ties to answer for Justice, DOGGETT, dissenting. judge is of which the aware. Tex.Code of stay of announced a previously 3(B)(3). Having Canon Conduct, Judicial execution,1 grants a full majority now the and in may also admonish counsel the trial court for what judicial improper com jury disregard pardon the struct Observing capital a offense. counsel, found by which oc arguments ments or parties in this conduct of the attorney the Craig’s ob- curred here. When first-hand February the governs and was thereafter trial in 8. Texas Rule of Civil Procedure subject sanctions order. March improper of a conduct of this nature. sought re- first mandamus The manufacturer April was order sup- view of the sanctions if trial conduct could somehow 9. Even this granted sanction, appeals in the court but discovery denied port such sanction relief day sought stay mandamus Reming- it attorney, should be directed at immediate was this just June 1991 explained Not until that a here in ton. In TransAmerican we June offender,” instructing finally by the trial upon the matter decided "should be visited sanction Arms attempt Remington to deter- its order. that the trial court must court to reconsider (Tex.1991, orig. Caldwell, S.W.2d 762 the offensive conduct referable mine whether Co. v. curiam). judge party, the trial attorney, proceeding) (per or both. 811 After or to the sanctions, Reming- punished imposition of "A should not be S.W.2d at 917. reaffirmed the implicat- again sought relief. The court in which it mandamus for counsel's conduct ton Remington’s request on apart having appeals ed from entrusted to counsel overruled day following legal representation." it received April Id. court, and stay this another immediate conditionally granted in was mandamus relief proceeding oc- 1. This concerns conduct years the first trial. after jury three lengthy curred reflected in a disregard responsibilities case, hearings, re- callous for its multiple after and after viewing lengthy report by special mas- therein will not be tolerated matters, appointed to hear ter Court.” judge that: the trial determined “Chrysler’s lengthy and continuous (cid:127) “Remington’s throughout (cid:127) discovery ef- of Plaintiffs’ obstruction flagrant proceeding has been bad presumption clearly justifies forts engaged in a faith and its counsel has its defenses to Chrysler ... believes discovery process.” callous abuse of allegations lack merit.” Plaintiffs’ “Remington’s counsel B. Lee Ware (cid:127) intervened, Again, majority overturn acted in bad faith ing the trial court’s efforts to curb extreme process engaged in a callous Chrysler and offensive abuse. discovery process.” abuse of the Blackmon, Corp. v. “The bad faith conduct of (cid:127) 1992, orig. proceeding).2 and its counsel the conduct The word “sanction” has two distinct and discovery process and the trial of this opposite meanings. A sanction can be fair, just, cause resulted denial of a punishment designed encourage compli- equitable impartial adjudication of law, approv- ance with the or it can indicate rights litigants.” By repeated- al or ratification of conduct.3 “Remington’s conduct and the con- (cid:127) ly overturning imposed the sanctions through- duct of its counsel B. Lee Ware judges punish trial abuse of the discov- proceeding out this the hindrance of ery process, has chosen to discovery process justified pre- underlying ratify sanction—or —the sumption that its claims and defenses disarming faith conduct. In courts trial lack merit.” denying them an effective mechanism to counsel,

The actions of and its rules, compliance ensure opinion judge, of the trial warranted majority second-guesses judges by re- striking an order Remington’s pleadings, trying sanctions in this court and conse- granting it, judgment against pro- a default quently encourages discovery condones and hibiting contribution, seeking it from in- delay. abuse and offset, demnity or barring mitigating punitive granting today’s pardon, evidence on damages. Rather according than ignores Remington’s long history deference to this trial of discov- by upholding the abuse, death fol- ery many procedures and the *7 imposed, majority grants Remington a prior ordering lowed the trial court to pardon full for its bad faith conduct. severe it found to be conduct underlying callous in faith. The and bad In a sanctioning Chrysler similar Cor- in the litigation concerns whether a defect poration, County a trial in Nueces Remington injury to Model 700 rifle caused findings chronicling repeated issued false- by discharg- David in court, November hoods to the or- violations of court ing trigger being pulled.4 Pre- ders without the delay and obstructions and of the dis- covery process, place and trial took over a fourteen- concluded that: period hotly month and times dis- was at “Chrysler’s long standing and fla- (cid:127) puted, requiring appointment spe- a

grant discovery in this case can Determining “Remington cial master. only be described as a wilful failure to in has acted bad faith and has abused comply responsibilities with its of discov- ery discovery process” by failing produce to under our state’s Rules of Civil Pro- required by cedure and orders of this court. Such a the court’s order documents as joined Mauzy Gammage regarding I Justices and in dis- the Model 700 are at 4.Similar claims case; senting in that underlying litigation Chapa Justice Gonzalez noted his v. issue in the rehearing. dissent on 841 S.W.2d at 853. Garcia, (Tex.1992,orig. proceed- 848 S.W.2d 667 Canales, ing), Remington Dictionary 3. Webster’s Third New International (Tex.1992, orig. proceeding). (1976).' 2008-009 agreement counsel, hearing, the trial court After a November February Remington pay to ordered previous imposi- court reaffirmed its $25,000 Reming- monetary as a sanction. order, signed tion of sanctions. The De- directed, ton was further as “additional repeated referenced cember violations of sanction,” pay to the master’s fees and orders, orders, including discovery expenses. Mandating compliance with the the court’s earlier determination of Rem- production agreement order and no later ington’s faith bad and abuse of the discov- master, than a date set the order ery process, previous sanctions and “any warned that future of the dis- warning, findings and the con- master’s covery process” comply failure to counsel, Remington’s duct of as well special order of the trial court or hearings filings throughout pen- imposition master would result of dency of the case. The trial court conclud- Following death sanctions. contin- ed, TransAmerican, under that there was abuse, alleged discovery two-day ued relationship Remington’s a direct between hearing special held master was before the offensive conduct and the sanction im- Craig’s motion to strike posed; proved lesser sanctions had pleadings May parties pre- 1989. Both ineffective and that severe sanctions were sented evidence and examined witnesses as Remington justified; the conduct of discovery procedures; no sanctions justified presumption and its counsel were, however, imposed at that time. merit; its defenses lack and that the bad proceeded The case to trial in Remington its counsel faith conduct of that, jury, 1990 before a which determined during discovery in a denial of had resulted although Remington had failed to warn of hearing litigants. The trial a fair to the potential misfiring, the rifle’s such fail- findings court’s order set forth of miscon- Craig’s injuries. ure did not cause counsel, by Remington and its includ- duct requested sought a new trial and further prior numerous violations of orders as Remington’s discovery sanctions for abus- discovery, misrepresentations several motions; hearing es. A held on both court, interjection of frivolous and un- request, special at the court’s master objections discovery, and ob- meritorious report concerning filed a the conduct of discovery process in the struction of the Remington during pretrial and its counsel provided were manner which documents discovery. report That condemned the con- special for the master to review. The trial duct of and its counsel for ob- court found that both and its structing discovery process by failing faith and had counsel had acted cooperate, by engaging delaying tac- discovery process. These are abused the by making misrepresentation tics and that the now effec- special master. tively overturns. judge granted The trial new trial. In a place pattern A well-defined is now 21, 1990, separate order on March he demonstrating majority’s determination Remington’s pleadings, struck rendered a *8 pos- courts that to meddle with those trial judgment, prohibited Remington default penalties fortitude to utilize sess the conducting from further against objective of those who thwart the offering liability, evidence to contest search contribution, and denied indem —the joined I in this truth. the consensus effort nity comparative offset based in TransAmerican Natural Gas responsibility other for the (Tex.1991, Powell, Corp. v. 811 S.W.2d 913 injuries. Although declining to review appel- orig. proceeding), recognizing that order, previously sanctions we directed its required sometimes when late review is light the trial court in reconsideration potent trial courts their sanctions misuse TransAmerican Natural Corp. Gas powers. judge Yet the trial who because Powell. Arms Co. v. Cald well, (Tex.1991, has witnessed first-hand the conduct orig. pro curiam). ceeding) parties clearly position (per is the best however, approach This, precisely the as of bad faith involved assess level pun- begun regularly to appropriate majority means of as the most well ishment, must ac- Examining reasonable discretion minute de- employ. the most corded, making factual de- particularly quoting Chrysler, record in tails of the deference, Affording no terminations. bench, discussing at remarks from clearly converted the majority has now disputes length particular discovery —then expressed in Trans- constraints broad favor, Chrysler’s five resolving all facts routine de novo review American into judges in Austin chose to become substi- sanctions. majority The overturned tute factfinders. correct- opinion Chrysler majority imposed by a trial who inquiry under scope ly set forth findings factual as to made extensive TransAmerican: had Chrysler’s bad faith conduct who the trial mark the bounds of

Two factors each of the consid- appropriately examined in order for sanctions court’s discretion dictated TransAmerican. erations first, relationship a direct just: to be single in a findings rejected were These conduct and the between the offensive sentence: exist; second, imposed sanction must rec- find evidence Nor do we imposed must not be exces- the sanction faith or counsel’s flagrant ord of words, punishment sive. In other “the obligations of disregard for the callous [TransAmerican, should fit the crime.” discovery. at S.W.2d 917.] method of review at 850. This S.W.2d should, permissible A sanction there- long restriction on observed violates fore, required to be no more severe than ability original proceeding in an this court’s satisfy legitimate purposes. means disputed facts.5 to resolve relatively less that a court must consider stringent sanctions to determine first majority’s approach Remington, For fully pro- whether will lesser sanctions First, most of the slightly different. deterrence, compliance, dis- mote disregarded are trial court’s courage further abuse. Id. remainder, Then the grounds. technical performing S.W.2d separately analyzed and are Chrysler, review, there is tension between accord sanctions. not to warrant severe found ing proper deference to the trial court’s of the dis- Remington’s bad faith abuse ensuring factual determinations and determines, covery process, the no abuse of discretion has committed. basis for sanctions cannot serve as the While free to examine the entire record to complain: right his because TransAmerican, compliance ensure pretrial ruling on to obtain a “the failure indepen this court should not undertake com- discovery disputes that exist before factfinding. spe dent We do not examine of trial constitutes waiver mencement one, cific instances of conduct one but on that con- any claim for sanctions based proceedings look at the as a whole to deter justifi- As Majority Opinionat 170. duct.” propriety mine im of the sanctions rule, unprecedented new and cation for this posed. While we stated in Braden v. Dow misleading scholar- relies (Tex.1991, orig. ney, the record. ship and materials outside proceeding), judicial system can “[t]he commentary, opinion cites one case and one every not afford immediate review of dis sanctions and sanction,” neither of which addresses covery neither can it afford to exclusively concerned every both of which are engage in de novo review of case *9 special ruling involving severe sanctions. with the need to obtain Packer, 4, Garcia, (Tex. ceeding). S.W.2d Davenport also Walker v. 827 5. v. S.W.2d 24 See 834 833, 1992, ("With 1992, (Tex. orig. proceeding) orig. proceeding); Hooks v. Fourth Court 839-40 (Tex.1991, orig. respect of factual issues ... Appeals, S.W.2d 60 to resolution 808 of proceeding); Brady reviewing may judgment Ap court not substitute v. Fourteenth Court of court.”). (Tex.1990, orig. pro peals, of the trial 795 S.W.2d 714 for that (1993). exceptions prior Sanctions at 21 then to trial.6 The waiver theo- How can the ry is then with the buttressed declaration party disempower conduct of the victimized that: imposing the court from it sanctions that any objec-

We hold that overwhelmingly finds so deserved? tions to these matters when he certified Having handily eliminated most of the pleadings to the trial court that his were findings, majority pro- trial court’s then in order and that com- conquer ceeds to divide and remain- those plete. ing beginning Reming- with the conduct of Nothing at record Id. 170. indicates ton’s counsel at trial. Even if misconduct any made certification. such beyond scope at trial is of Rule Unfortunately, concept appel that an certainly trial should be entitled to strictly late court’s review is limited to the consider what occurred at trial evaluat- ignored again being by record is once ing the extent and effect of abuse. majority. Speer Presbyterian See Chil Remington’s Two tri- addressed to Agency, dren’s Home and Service clearly by al conduct are viewed the trial (Tex.1993) (avoiding merits of revealing comply a failure to employment claim discrimination declar Although orders.7 entirely upon alleged cause moot based majority recognizes that not all post-trial developments for which no record apparent very abuse is at the moment of offered). kind was occurrence, may, under some circum- Additionally, today’s improperly action stances, only by be revealed events by judicial explicit pro opinion amends trial, 170,8 Opinion Majority or after the at cedural rule. See Alvarado v. FarahM anu Reming- painfully it nonetheless retries Co., facturing 830 S.W.2d wanting it ton’s trial conduct and finds (“Nor 1992) should we revise 215] [Rule under TransAmerican. opinion.”). delineating type con sanctions, duct that can serve as a basis for however, Upon study, majority close Rule 215 authorizes no restriction opinion that the issues of faith reveals timing imposition. requiring of their While or abuse of the are irrele- punishable during pre conduct occur may vant to whether sanctions be levied discovery, way trial the rule man focusing against party. Rather than prior dates that the sanctions levied be by the trial litany of abuses recorded trial commencement. judge, weighs the ulti- instead waiver, imagined, Nor is real or relevant liability underlying mate issues of determining Remington whether should litigation: punished be for its bad faith conduct. record, jury’s as evidenced Nothing procedural requires in our rules liability [attributing verdict causative response that sanctions the motion Remington], re- Debbie James and not 215.3, party. of a Rule Under 215.2 supports an infer- rather than such buts impose [may] “the court sanctions sua ence claims or defens- sponte, Report if motion filed.” even no [that Supreme of Texas Court Task Force on es lack merit]. Mkt., Inc., Olney produced Sav. & Loan Ass'n v. Farmers trial it had not (Tex.App. Paso misrepresented in fact had to the court had — El denied) ("The exhibiting record the lack of produced, and that failed to filing showing exceptions evidence of testimony scope proposed disclose the 'ready' an affirmative announcement of without expert Majority, Opinion witness. at 169-170 n. ruling requesting a constitutes a waiver of possible Donald, by Appellant.”); Roy error W. Mc (1992) (sec Civil Practice § Texas 17:9 determining 8.The standard for which “Special Exceptions"). tion entitled by announcing ready has been waived unclear. Is the standard whether one left findings,

7. The set out in a footnote in abuse or is opinion, should have known included the de- trial court’s knowledge? termination that it actual offered materials *10 Packer, by majority. See Walker v. egregious No Id. at 171. matter how Rem- (Tex.1992, concludes, orig. proceeding) conduct, ington’s majority the timely (making it more difficult to obtain ultimate sanctions be unwarranted. would discovery). denying decisions Employing precisely the same tactic review of meaningful orders a the a But if the trial court Chrysler, majority the noted fact that sanction, court is novo trial in this proximate full de drunk driver was one cause a (cid:127) overturning In guaranteed. and that: the accident concluded the trial this one which cases such as fact, conclusively In the refutes record conduct, highly egregious found has Chrysler’s any suggestion such [that will judges that trial majority ensures claims or defenses lack merit]. discouraged taking the be further 841 S.W.2d at 850 & n. 12. punish time and bad faith behav- trouble approach beyond recogni- distorts ior. tion statement in TransAmerican that here by made trial court “Discovery sanctions cannot be used to ad- disregard its establish a continued for both judicate party’s the merits a claims un- orders and the sufficient party’s less a hindrance of the support presumption that a justifies process presumption that its defenses lack merit. Lesser sanctions claims or defenses lack merit.” imposed were ineffective to curb were TransAmerican, at 918. Under the sole these abuse. Under circumstances inquiry is conduct of the sanctioned record, having the entire the trial reviewed party during discovery, and whether that impos- court did not abuse its discretion judicial conduct is so to the obstructive ing Remington’s request severe sanctions. process that a party should not be entitled relief denied. mandamus should be proceed. The fact that a valid defense may may or is exist factor to be GAMMAGE, J., dissenting joins Otherwise, party considered. like Rem- opinion. ington Chrysler, only may par- be accident, tially liable for an could never FOR REHEARING ON MOTION subjected to severe sanctions no matter partic- Rehearing how callous abuse. It overruled. is ularly unfair to vindicate jury may basis of a very verdict that well SUPPLEMENTAL DISSENTING directly by have been affected the discov- OPINION ON REHEARING ery bad faith found the trial Justice, DOGGETT, dissenting. court. response dissenting opinion, to the Today’s far-reaching decision has effects. majority longer practical In the judiciary, Texas numerous objection hold[s] discourage imposition considerations he cer- when [to abuse] always say harsh sanctions—it easier pleadings tified trial court his to the out,” “go work it to dissuade counsel from and that were in order bringing heated discovery battles that are complete. difficult to sort the busy out before (Feb. 10, 1993). IAs Tex.Sup.CU.

judge. In the unusual situation where the written, “[n]othing in re- had the record strug- takes trial court an interest such a flects made such certifica- TransAmerican, gle, finally follows Dissenting Opinion (Doggett, tion.” at 176 says “Enough!,” majority has im- now J., cor- dissenting). Now the posed another disincentive. The trial facts, rected but not the law. nothing who does about abuse or key slight slap rewriting offers While contain- at most the wrist sentence Doing holding, need never fear here. too its leaves unal- review extraordinary that an little to ensure that the search tered conclusion truth meaningful justify innocent found will not harmed involvement *11 a trial to encouraged “judicious be callous and bad faith sanctions but has right against whatsoever to sanctions use of once who those would trial Continuing has commenced. rely discovery process.” abuse Id. on addressing two irrelevant authorities Reliance on local rule a to conclude that only ruling special the need to obtain on a Craig impositions waived the of sanctions exceptions prior trial,1 at- is particularly troublesome. While local tempts quick fix: a County provide party rules for Brazoria We hold that any [now] discovery complete in certification that objections to by failing these matters to requesting setting,3 something a request pretrial hearing alleged a there any party is no indication that —even discovery by requesting abuse and a Remington case, making in this of —did preferential trial setting. See McKinney such a certification should no effect have Co., v. National Union Fire Ins. impose power the court to sanc- of (Tex.1989); 3.02(a)(4), Rule tions for callous bad faith of the Local Rules of Practice of 23rd Judi- discovery process. made cial Districts of Texas. quite such “may clear that local not rules be with” Rules of inconsistent the Texas (footnote Majority Opinion at omit- .170-171 Civil Procedure. 3a. Tex.R.Civ.P. ted). great A deal is accomplishedwith the right could not have forfeited a to sanc- sentence, single sweeping revision of this tions based on a he never certification finding A trial judge’s considered —that made local under a rule that not and does callously and in bad provisions cannot Rule alter the of vanishes, faith suddenly be- obstructed— governing imposition. their coming merely “alleged discovery abuse.” Next, a completely mandates for in this law written requirement timing way imposed new in no encourage only cause can and others to it recognized by Rule 215 nor any ever obstruct and the for truth. search Finally, Texas court or commentator. deprives party sentence a of substantive J., GAMMAGE, joins rights based a local rule. supplemental dissenting opinion on timing requirement Rule 215 contains no rehearing. hearings. sanctions motions and As concluded, one commentator has “Motions may any sanctions ... made time Keltner, proceeding.” E. David Discovery (1992).

Texas 12-1 12:8 at §

McKinney National Fire Union Ins. imposition timing

Co. did not involve the Rather,

of party sanctions. it held that a

objecting did waive its

objections by failing obtain Moreover,

hearing. 772 S.W.2d at 75.2 imposition

McKinney did restrict the Mkt., Inc., Olney & prior Sav. Loan Ass’n v. trial on Farmers to obtain ruling (Tex.App. protective Paso objection or motion for — El ("The denied) exhibiting record the lack of objection order or motion.” does not waive such filing exceptions showing evidence ‘ready’ an affirmative announcement of without 3.02(a)(4) 3.Rule of the Local of Practice Rules requesting ruling a waiver constitutes 149th, 23rd, 239th & Dis- 300th Judicial possible Donald, by Appellant.”); Roy error W. Mc Texas, provides "Requests tricts of for set- (1992) (sec Texas Civil Practice 17:9 § ting plead- will ... ... Certification that contain "Special Exceptions”). tion entitled order, ings request- complete, are in ing attorney conflicting settings Additionally, and that has no expressly this situation is cov- 166b(4), stating attempted.” ered Rule “The settlement has been failure