Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part
and Memorandum Opinion filed November 8, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                   NO. 14-12-00933-CV

                          IN RE THERESA MOOR, Relator


                             ORIGINAL PROCEEDING
                              WRIT OF MANDAMUS
                                 412th District Court
                               Brazoria County, Texas
                             Trial Court Cause No. 67568


                            MEMORANDUM OPINION

      On October 9, 2012, relator Theresa Moor filed a petition for writ of mandamus in
this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the
petition, relator asks this court to compel the Honorable W. Edwin Denman, presiding
judge of the 412th District Court of Brazoria County to vacate his order denying relator’s
motion to quash the September 17, 2012 deposition subpoena to AT & T Mobility. We
conditionally grant partial mandamus relief.

                                        I. Background

      On March 13, 2012, relator’s 13-year-old son, Jules Moor, and his friend, Braxton
Lovings, another 13-year-old boy, were driving a go-cart in their neighborhood. They
pulled the go-cart off of the road to permit a vehicle to pass when they were allegedly hit
head-on by Deanna Gibson Johnson who was driving a Jeep. Johnson alleged that she
pulled off the road to warn the boys that they had been driving dangerously when the go-
cart hit her vehicle. On March 20, 2012, Lovings sued Johnson for injuries sustained in
the collision. On May 14, 2012, Johnson filed a third-party complaint in which she
complained that relator, Theresa Moor, “negligently entrusted a go-cart vehicle to her son
who was an unlicensed, reckless and incompetent driver.” The pleadings are specific as
to the acts of recklessness and incompetence and do not include any allegation that the
driver of the go-cart was using a mobile phone at the time. Relator answered Johnson’s
suit and filed a cross-claim alleging Johnson was responsible for her son’s injuries,
among other things. On April 2, 2012, Johnson received a threatening voicemail message
from a female caller.

       On August 20, 2012, Johnson served a deposition subpoena on AT & T Mobility,
relator’s mobile phone provider. Johnson initially requested “all calls/text messages
pertaining to” relator’s and her son’s phone numbers “from March 13, 2012 through May
25, 2012.” Relator objected on the grounds that:

       Defendant’s attempt to acquire Theresa Moor’s mobile phone and text
       messages would unnecessarily invade her privacy rights, compromise the
       attorney/client privilege, is outside the scope of discovery, irrelevant, and
       sought solely for the purpose of harassment.

       In her response, Johnson averred that a lawyer known as “Pink,” known to “Mr.
Moor,”1 arrived at the scene of the accident. According to Johnson, although the Moors
“disavowed any knowledge” as to Pink’s arrival, Pink was seen “orchestrating events”
that led to an ambulance being called to the scene of the accident. Johnson alleged that
Pink influenced the boys to exaggerate their injuries.

       1
         It is not clear from the record, but it appears the “Mr. Moor” to whom Johnson refers is Jules
Moor’s father, not Jules Moor.
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         Johnson further requested that the trial court conduct an in camera inspection of
the phone records to determine whether relator phoned Johnson on April 2, 2012.
Johnson alleged the information is reasonably calculated to lead to the discovery of
evidence that will be admissible with regard to “any future amendment of Ms. Johnson’s
third-party action to include a claim for damages against Theresa Moor.” Johnson further
alleged that the phone calls around the time of the accident were necessary to determine
whether Jules Moor was instructed to phone a lawyer.

         The trial court narrowed Johnson’s original request to include only the period of
time from 4:30 to 7:00 p.m. on the date of the accident, and 8:00 to 9:00 a.m. on the
morning Johnson received the threat. In her petition for writ of mandamus, relator
contends the discovery requests are irrelevant and outside the scope of discovery.

                                    II. Mandamus Standard

         Mandamus relief is appropriate only if a trial court abuses its discretion and no
adequate appellate remedy exists. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003).
The heavy burden of establishing an abuse of discretion and an inadequate appellate
remedy is on the party resisting discovery. Id. The scope of discovery is largely within
the trial court’s discretion. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.
1998).     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.

         An order that compels overly broad discovery is an abuse of discretion for which
mandamus is the appropriate remedy. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491,
492 (Tex. 1995). Because discovery is limited to matters that are relevant to the case,
requests for information that are not reasonably tailored as to time, place, or subject

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matter amount to impermissible “fishing expeditions.” See CSX Corp., 124 S.W.3d at
152; Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).              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).

                  III. Scope of Discovery in a Negligent Entrustment Case

       Generally, the scope of discovery includes any unprivileged information that is
relevant to the subject of the action, even if it would be inadmissible at trial, as long as
the information is reasonably calculated to lead to the discovery of admissible evidence.
Tex. R. Civ. P. 192.3; CSX Corp., 124 S.W.3d at 152. Information is relevant if it tends
to make the existence of a fact that is of consequence to the determination of the action
more or less probable than it would be without the information. Tex. R. Evid. 401. The
phrase “relevant to the subject matter” is to be “liberally construed to allow the litigants
to obtain the fullest knowledge of the facts and issues prior to trial.” Ford Motor Co. v.
Castillo, 279 S.W.3d 656, 664 (Tex. 2009).

       The elements of a negligence cause of action are a duty, a breach of that duty, and
damages proximately caused by the breach of duty. Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). To establish causation in a personal injury
case, a plaintiff must prove the conduct of the defendant caused an event and that this
event caused the plaintiff to suffer compensable injuries. See Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 731 (Tex. 1984). Second, the plaintiff must put on evidence
about the amount of the damages the plaintiff may recover. Id. at 732.

       To establish liability for negligent entrustment, there must be a showing of (1)
entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless
driver; (3) that the owner knew or should have known to be unlicensed, (4) that the driver
was negligent on the occasion in question and (5) that the driver’s negligence

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proximately caused the accident.     See Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 758 (Tex. 2007).

                            IV. Discovery Requests at Issue

      Relator complains of the trial court’s order requiring AT & T Mobility to release
her telephone records and her son’s records for the two and one-half hours surrounding
the accident and one hour on the morning of April 2, 2012, when Johnson allegedly
received the threatening voice message. Relator objected that the evidence is not relevant
to Johnson’s personal injury or negligent entrustment causes of action. Johnson responds
alleging the phone records are necessary to identify a witness, the lawyer “Pink,” and to
determine whether relator was the person who threatened Johnson.

      A. Records immediately before and after the collision

      Johnson initially sought relator’s and her son’s mobile phone records from March
13, 2012 through May 25, 2012. The trial court narrowed the scope of this request to the
time immediately before and the time immediately after the accident. A party may obtain
discovery of the name, address, and telephone number of persons having knowledge of
relevant facts, and a brief statement of each identified person’s connection with the case.
Tex. R. Civ. P. 192.3. A person has knowledge of relevant facts when that person has or
may have knowledge of any discoverable matter.          Id.   The person need not have
admissible information or personal knowledge of the facts. Id. A witness’s identity is
generally discoverable. In re Hinterlong, 109 S.W.3d 611, 624 (Tex. App.—Fort Worth
2003, orig. proceeding). In seeking the phone records from the period immediately
before and immediately after the accident, Johnson seeks to discover the identity of the
lawyer who was called to the scene of the accident.

      As narrowed, the trial court could have reasonably concluded that the phone
records from the two and one-half hour window immediately before and after the

                                            5
accident are reasonably calculated to lead to the discovery of admissible evidence to
support the pleadings. Thus, the trial court did not abuse its discretion in ordering
production of the phone records from 4:30 p.m. to 7:00 p.m. on the date of the accident.

       B. Records from April 2, 2012

       Johnson’s request and the trial court’s order requiring production of relator’s
telephone records from 8:00 a.m. to 9:00 a.m. on the date of the alleged voicemail threat
go beyond the scope of the pleadings before the court. Johnson has not plead a cause of
action regarding the alleged voicemail threat. Therefore, telephone records designed to
discover whether relator made the phone call are not calculated to lead to the discovery of
admissible evidence.

       Discovery of the phone records from April 2, 2012 appears to be an impermissible
fishing expedition designed to paint relator and her son in an unfavorable light.
“American jurisprudence goes to some length to avoid the spurious inference that
defendants are either guilty or liable if they have been found guilty or liable of anything
before.” In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 669–70 (Tex. 2007).
Whether relator made threats to Johnson does not make it more or less probable that
relator negligently entrusted the go-cart to her son, or that her son was negligent in
driving the go-cart. See Tex. R. Civ. P. 192.3; Tex. R. Evid. 401.

                                           Conclusion

       For the foregoing reasons, we conditionally grant partial mandamus relief with
regard to the portion of the order requiring production of phone records from 8:00 a.m. to
9:00 a.m. on April 2, 2012, and direct the trial court to vacate its order requiring
production of those records. We deny mandamus relief with regard to the portion of the
order requiring production of phone records from 4:30 p.m. to 7:00 p.m. on March 13,


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2012. We are confident the trial court will act in accordance with this opinion. The writ
will issue only if the trial court fails to do so.

                                                     PER CURIAM



Panel consists of Justices Seymore, Boyce, and McCally.




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