                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-16-00132-CV
                             _________________


                                  IN RE R.C.K.

________________________________________________________________________

                              Original Proceeding
                317th District Court of Jefferson County, Texas
                          Trial Cause No. F-225,237
________________________________________________________________________

                         MEMORANDUM OPINION

      In this mandamus proceeding, Relator R.C.K. (Husband), contends the 317th

District Court of Jefferson County abused its discretion in making certain

discovery orders in a divorce suit where Husband is a practicing physician and the

division of the marital estate is an issue. We granted a temporary stay of the

production of the records and requested a response from the Real Party in Interest,

N.L.K. (Wife). After reviewing the mandamus petition, the amended mandamus

petition, the objections and responses, and all other appellate filings of both



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parties,1 we conclude that the discovery requests relating to R.C.K.’s personnel,

medical, and pharmacy records are overly broad and that the trial court erred in

ordering the production of the documents. We also conclude the trial court erred by

ordering the third party production of cell phone logs that contain protected health

information. We conclude the remaining complaints made by R.C.K. are

premature. Accordingly, we conditionally grant partial relief.

                             Arguments of the Parties

      R.C.K. argues that the trial court abused its discretion by: (1) denying

R.C.K.’s motion for a protective order regarding R.C.K.’s personnel, medical, and

pharmacy records; (2) denying R.C.K.’s motion for a confidentiality order

regarding his personnel, medical, and pharmacy records; (3) indicating an intention

to order R.C.K. to turn over the cell phone he uses for personal and business

communication, which contains his patients’ confidential and privileged protected

health information (PHI), to the opposing party’s forensic examiner; (4) denying

R.C.K.’s motion for a protective order regarding his cell phone logs from a cell

phone provider; (5) denying R.C.K.’s request to inspect the cell phone logs in



      1
         We do not consider [Relator’s Appendix Exhibit AD] attached to Relator’s
Brief filed in support of the Amended Petition for Mandamus because, the affidavit
was not part of the record presented to the trial court below. See Axelson, Inc. v.
McIlhaney, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding).
                                         2
camera; and (6) failing to grant R.C.K.’s motion to compel production of

documents from N.L.K.

      N.L.K. argues that: (1) she seeks evidence that is relevant to support her

pleadings for a disproportionate division of the marital estate; (2) her requests are

not overbroad but include only matters relevant to property division issues; (3) it is

proper to order in camera review of R.C.K.’s medical and pharmacy records and

the cell phone data and logs; (4) a litigation exception to state and federal patient

privacy laws provides the trial court with authority to order the disclosure of the

PHI of R.C.K.’s patients; (5) the cell phone call logs do not contain PHI or

privileged communications; (6) evidence of adultery is not protected by privacy

laws; and (7) the trial court has not abused its discretion by not ruling on R.C.K.’s

motion to compel.

                              The Mandamus Standard

      Mandamus will issue only when the petition and record establish a clear

abuse of discretion for which the relator has no adequate remedy at law. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.

proceeding). A trial court abuses its discretion when it acts without reference to

any guiding rules or principles or when it acts in an arbitrary or unreasonable

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manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). “[An] order that compels overly broad discovery ‘well outside the bounds

of proper discovery’ is an abuse of discretion for which mandamus is the proper

remedy.” Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)

(orig. proceeding). Also, “appeal is inadequate when a trial court erroneously

orders the production of confidential information or privileged documents.” In re

Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (orig. proceeding). There is no

adequate remedy by appeal when an appellate court cannot remedy a trial court’s

discovery error. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding).

                          Discovery Rules and Principles

      Texas Rule of Civil Procedure 192.3 permits a party to “obtain discovery

regarding any matter that is not privileged and is relevant to the subject matter of

the pending action, whether it relates to the claim or defense of the party seeking

discovery or the claim or defense of any other party.” Tex. R. Civ. P. 192.3(a).

Requests for production must be “reasonably tailored to include only matters

relevant to the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998)

(orig. proceeding). “A central consideration in determining overbreadth is whether

the request could have been more narrowly tailored to avoid including tenuous

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information and still obtain the necessary, pertinent information.” In re CSX Corp.,

124 S.W.3d 149, 153 (Tex. 2003) (orig. proceeding). “Overbroad requests for

irrelevant information are improper whether they are burdensome or not[.]” In re

Allstate Cty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding).

“It is the discovery proponent’s burden to demonstrate that the requested

documents fall within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co.,

172 S.W.3d 160, 167 (Tex. App.—Beaumont 2005, orig. proceeding).

                    Personnel, Medical, and Pharmacy Records

      N.L.K. served notices of the intention to obtain documents from certain non-

parties through Depositions upon Written Questions wherein she sought R.C.K.’s

complete medical and pharmacy records, regardless of date, and R.C.K.’s

personnel file from his employer. See generally Tex. R. Civ. P. 200.1. The trial

court denied R.C.K.’s motion for protective order after a hearing. See generally

Tex. R. Civ. P. 192.6.

      N.L.K. argued to the trial court that R.C.K. lacked standing to object to the

production by third parties of R.C.K.’s own medical records. The trial court agreed

with N.L.K. and indicated on the record that the court was overruling R.C.K.’s

motion for a protective order concerning R.C.K.’s medical records because R.C.K.

lacked standing to object to the production of the records. We disagree. R.C.K. is a

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“person affected by the discovery request[ ]” and therefore he possesses a right to

seek the trial court’s protection from the discovery sought. See Tex. R. Civ. P.

192.6(a). Furthermore, any party may object to the direct questions to be

propounded to a witness in a deposition on written questions. See Tex. R. Civ. P.

200.3(b).

      R.C.K. complained that N.L.K. requested all of R.C.K.’s medical and

pharmacy records, not just those that might in some manner lead to admissible

evidence, and that the requests amounted to nothing more than a fishing

expedition. N.L.K. argued that her request for R.C.K.’s medical records was not a

fishing expedition because N.L.K. was already aware of “some situations

contained therein” that would relate to N.L.K.’s counter-suit in the divorce. In

N.L.K.’s response to the petition for writ of mandamus, N.L.K. suggests that

R.C.K.’s records might reveal evidence of health conditions that the trial court

could consider in the division of marital property. We agree with R.C.K. that the

request for R.C.K.’s complete medical and pharmacy records was facially

overbroad because it was not tailored to include only evidence relevant to the case.

See In re GMAC Direct Ins. Co., No. 09-10-00493-CV, 2010 WL 5550672, at *2

(Tex. App.—Beaumont Dec. 30, 2010, orig. proceeding) (mem. op.). A trial court

abuses its discretion when it orders compliance with overly broad discovery.

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      Likewise, N.L.K.’s request to R.C.K.’s employer for R.C.K.’s personnel file

is also overbroad. N.L.K. suggested that there might have been disciplinary actions

in the employment file that may relate to her claim that she is entitled to an

unequal distribution of the marital estate. N.L.K.’s request is not narrowly tailored

to items relevant to the case. Id. We conclude the trial court abused its discretion

by denying R.C.K.’s motion for a protective order relating to the requests to third

parties regarding R.C.K.’s medical, pharmacy, and personnel records.

                          Request for Confidentiality Order

      In his mandamus petition, R.C.K. complains that the trial court misconstrued

his motion for a confidentiality order as a request to seal the record under Rule

76a.2 The mandamus record includes the trial court’s order denying the motion

and a brief discussion of R.C.K.’s motion for a confidentiality order in the hearing

before the trial court, but R.C.K.’s motion was omitted from the mandamus record.

It is the relator’s burden to provide a sufficient record to establish that he is entitled

to relief. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
      2
        From the discussion in the hearing before the trial court, it appears Robert
was asking the trial court to limit the use of documents produced in discovery to
this case. Nancy argued that Robert was asking for his records to be sealed without
complying with Rule 76a. Rule 76a does not apply to a Family Code case, to
documents filed in camera for the purpose of obtaining a ruling on their
discoverability, or to documents to which access is otherwise restricted by law. See
Tex. R. Civ. P. 76a(2). The trial court may order that the results of discovery be
sealed or otherwise protected. See Tex. R. Civ. P. 192.6(b)(5).
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proceeding). We cannot determine whether the trial court properly addressed

R.C.K.’s motion because it is not included in the mandamus record. Furthermore,

we need not address R.C.K.’s complaints regarding the confidentiality order

because the discovery ordered by the trial court exceeds the proper scope of

discovery. See In re Xeller, 6 S.W.3d 618, 626-27 (Tex. App.—Houston [14th

Dist.] 1999) (orig. proceeding).

                             Production of Cell Phone

      R.C.K. also sought a protective order regarding the cell phone that is owned

by R.C.K.’s employer and used by R.C.K. for both personal and business

communication with other healthcare providers, staff, and patients of the medical

practice. In his petition, R.C.K. argues that subjecting the cell phone to a forensic

examination by N.L.K.’s expert would violate the guiding rules and principles

established for discovery of electronic information, as well as the physician-patient

privilege, and privacy laws. See In re Weekley Homes, L.P., 295 S.W.3d 309, 322

(Tex. 2009) (summarizing the proper procedures for discovery of electronic

materials). However, in his reply to N.L.K.’s response, R.C.K. concedes the trial

court has not yet ruled on whether the phone should be turned over to a forensic

examiner and he states the issue is not currently before this Court. Accordingly, we




                                         8
express no opinion regarding the production and forensic examination of the cell

phone and the cell phone data.

                   Production of Cell Phone Call and Text Logs

      The trial court also denied R.C.K.’s motion for a protective order and

ordered that the medical practice’s cell phone provider produce “any and all text

message logs for incoming and outgoing [texts] and any and all phone call logs for

incoming and outgoing calls from January 1, 2013” for the cell phone that R.C.K.

uses for personal and professional communication, including communications with

his patients in his medical practice. The trial court ordered AT&T to produce any

and all text message logs and any and all phone call logs for incoming and

outgoing texts and calls. The trial court’s order does not allow R.C.K. to make a

privilege log and does not allow R.C.K. to have the objectionable items ruled upon,

and responsive information inspected in camera before it is released to N.L.K.

      In his motion, R.C.K. complained the cell phone logs disclosed his patients’

PHI when N.L.K. was seeking information relating to communication with a

particular person already known to her. R.C.K. complained that N.L.K.’s discovery

request was a fishing expedition. In the hearings, N.L.K. repeatedly argued to the

trial court that she is not seeking information about R.C.K.’s patients, and she




                                        9
represented to the trial court that she was looking for the phone numbers of

particular people known to her.

      In her response to R.C.K.’s mandamus petition, N.L.K. argues that the cell

phone logs “do not carry the same issues of PHI and therefore would not require an

in camera inspection by the trial court.” To support her argument, N.L.K. refers

this Court to the federal agency’s posted guidance, which describes PHI, in part, as

follows:

      The relationship with health information is fundamental. Identifying
      information alone, such as personal names, residential addresses, or
      phone numbers, would not necessarily be designated as PHI. For
      instance, if such information was reported as part of a publicly
      accessible data source, such as a phone book, then this information
      would not be PHI because it is not related to [health] data (see above).
      If such information was listed with health condition, health care
      provision or payment data, such as an indication that the individual
      was treated at a certain clinic, then this information would be PHI.

Protected Health Information, U.S. Dept. of Health and Human Services,

http://www.hhs.gov/hipaa/for-professionals/privacy/special-topics/de-

dentification/index.html (last visited May 31, 2016). N.L.K. argues a telephone

number would not constitute PHI because it is not sufficiently related to health

data. We disagree. It is undisputed that R.C.K. uses the cell phone to communicate

with his patients concerning their medical care. Text messages and telephone

numbers contained in the call and text logs of the cell phone that relate to

                                        10
communications with or about patients would constitute PHI. See id. (“If such

information was listed with . . . an indication that the individual was treated at a

certain clinic, then this information would be PHI.”). We conclude the trial court

erred in ordering the production of PHI.

      The incoming and outgoing calls and texts for R.C.K.’s patients or relating

to PHI fall outside the scope of discovery because they lack any relevance with

regard to the issue in the case. See TIG Ins. Co., 172 S.W.3d at 164 (“Requests

must be tailored to include only matters relevant to the case.”); Xeller, 6 S.W.3d at

626; see also Tex. R. Civ. P. 192.3(a). The trial court abused its discretion in

ordering the production of the documents because the request was overly broad.

See GMAC Direct Ins. Co., 2010 WL 5550672, at *2.

                            Ruling on Motion to Compel

      R.C.K. contends the trial court “effectively” denied his motion to compel

N.L.K. to respond to his requests for production. R.C.K. presented his motion to

the trial court but the trial court deferred a ruling. R.C.K. complains that not ruling

on his motion to compel is the equivalent of denying it, but he has not shown that

he renewed his request after the additional time granted by the trial court expired.

R.C.K. has not shown that the trial court explicitly refused to act on his motion to

compel. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig.

                                           11
proceeding). R.C.K. has not shown that the trial court abused its discretion by

delaying its ruling on his motion to compel.

                                     Conclusion

      In summary, we hold that the discovery requests requiring non-parties to

produce R.C.K.’s personnel record, medical records, pharmacy records, and cell

phone logs are overly broad and that the trial court abused its discretion by failing

to grant the protective order. We conditionally grant mandamus relief in part, and

we lift our stay of the proceedings in the trial court. We are confident that the trial

court will withdraw its order denying the motion for protection and its order

requiring the production of the relator’s medical records, pharmacy records,

personnel record and cell phone logs. The writ shall issue only if the trial court

fails to comply.

      PETITION CONDITIONALLY GRANTED IN PART.



                                                            PER CURIAM


Submitted on May 25, 2016
Opinion Delivered June 9, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.




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