                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-08-269-CV


IN RE U.S. HOME CORPORATION                                         RELATORS
D/B/A LENNAR CORPORATION
AND DONNY HENDRIX

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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1

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      This mandamus proceeding arises out of an employment discrimination

dispute pending in the 67th Judicial District Court of Tarrant County, the

Honorable Don Cosby presiding (“Respondent”). Relator U.S. Home Corp. d/b/a

Lennar Corp. and Real Party in Interest Keri Fields each filed motions to compel

with regard to the order in which depositions would be taken and when

audiotape recordings made by Fields would be produced. Respondent denied



      1
          … See Tex. R. App. P. 47.4.
U.S. Home’s motion and granted in part and denied in part Fields’s motion.

U.S. Home has filed this original proceeding to request that we determine “as

a matter of state law, whether a party might be denied access to his own

surreptitiously recorded statements during discovery and forced to sit for his

deposition nonetheless.” We divine 2 that U.S. Home has also filed this original

proceeding to request that we order Respondent to allow U.S. Home’s

employees to review Fields’s tape recordings, which allegedly contain

conversations between Fields and U.S. Home’s employees that were

surreptitiously recorded by Fields, before Fields takes their depositions. 3 We are

constrained to deny the petition for writ of mandamus.

      Mandamus will issue to correct a discovery order if the order constitutes

a clear abuse of discretion and there is no adequate remedy by appeal. In re

Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding);



      2
      … Unlike in the previous original proceeding discussed in note 3, this one
does not contain a prayer to inform this court of the exact relief sought. See
Tex. R. App. P. 52.3(i).
      3
        … This is not the first time U.S. Home has sought a writ of mandamus
involving essentially the same issue—its previous petition involved an order by
the 153rd Judicial District Court of Tarrant County allowing Fields to take U.S.
Home’s employees’ depositions pursuant to Texas Rule of Civil Procedure 202.
See In re Lennar Corp., No. 02-06-00454-CV, 2006 WL 3844167, at *1 (Tex.
App.—Fort Worth Dec. 28, 2006, orig. proceeding [mand. dism’d]). When
Fields filed this lawsuit, the Texas Supreme Court dismissed the earlier petition
as moot.

                                        2
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial

court clearly abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Walker, 827

S.W.2d at 839. With respect to the resolution of matters committed to the trial

court’s discretion, we may not substitute our judgment for that of the trial court

unless the relator establishes that the trial court could reasonably have reached

only one decision and that the trial court’s decision is arbitrary and

unreasonable. Id. at 839–40. This burden is a heavy one. In re CSX Corp.,

124 S.W.3d 149, 151–52 (Tex. 2003) (orig. proceeding).

      U.S. Home sought production of tape recordings that Fields secretly made

prior to the termination of her employment with U.S. Home, and sought this

production prior to the depositions of three of its employees. Fields sought to

take U.S. Home’s employees’ depositions prior to her own deposition and prior

to her production of “an audio taped conversation between herself and [U.S.

Home’s] Human Resources representative.”          After a hearing on this issue,

Respondent denied U.S. Home’s motion and granted in part and denied in part

Fields’s motion. Respondent set out in his order that Fields’s deposition would

be taken first and that, upon completion of all four depositions, “no later than

72 hours after time has expired [for U.S. Home’s three employees] to make

corrections to their written deposition transcript[s] . . . [Fields’s] counsel shall

                                         3
deliver to counsel for [U.S. Home] a copy of the tape(s) at issue as well as a

transcribed copy of the tape(s).” Respondent also ordered Fields to make a

copy of the “tape(s) at issue as well as a transcript of such tape(s)” to submit

to Respondent within ten days of receiving the order. Respondent indicated

that he would treat the copy as an in camera submission and that “[n]o copy

of the tape(s) shall be submitted to [U.S. Home] at this time.”

      Discovery matters are principally within the discretion of the trial court.

See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989) (orig.

proceeding). Further, although a failure by the trial court to apply the law

correctly constitutes an abuse of discretion, the law on whether a party is

entitled to production of his recorded statement prior to any effort to take his

deposition is unsettled. See Tex. R. Civ. P. 192.3(h); compare Costa v. Afgo

Mech. Servs., Inc., 237 F.R.D. 21, 25 (E.D.N.Y. 2006) (holding, on facts

similar to this case, that when the facts on the recording are substantive and

they were recorded in a “less than forthright manner,” the recording should be

disclosed prior to a deposition on it, to prevent the risk of “sandbagg[ing]”),

with Poppo v. AON Risk Servs., Inc., No. 00-Civ-4165(HB), 2000 WL

1800746, at *1 (S.D.N.Y. Dec. 6, 2000) (counting cases, observing that

“[s]ince biblical times the prospect of tailoring testimony and its ramifications




                                       4
has been understood and condemned,” and ordering that depositions should

proceed first, before the plaintiff would be required to disclose the audiotapes). 4

      On the record before us, we cannot say that Respondent reached a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law. See Colonial Pipeline Co., 968 S.W.2d at 943 (“A trial court has

discretion to schedule discovery.”); Robert S. Shwarts, The Age of the

Electronic Workplace, 762 PLI/Lit 625, 707 (2007) (“In the end, because courts

are invested with significant latitude to control the ‘timing and sequence of

discovery’ . . . courts will have wide discretion to resolve disputes concerning

the timing of production of prior recorded statements.”). Therefore, because

the timing of discovery is within the trial court’s discretion, we are constrained

to deny U.S. Home’s petition for writ of mandamus.




                                                   BOB MCCOY
                                                   JUSTICE

PANEL: CAYCE, C.J.; WALKER and MCCOY, JJ.

CAYCE, C.J. concurs without opinion.

DELIVERED: September 11, 2008


      4
       … The provisions of federal rule of civil procedure 26(b)(3)(C) are similar
to Texas rule 192.3(h). See Fed. R. Civ. P. 26(b)(3)(C). However, neither rule
sets out when such a statement must be disclosed, or whether it must be
before or after the deposition of the statement’s maker.

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