                        NUMBER 13-11-00197-CV

                        COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

         IN RE WASTE MANAGEMENT OF TEXAS, INC.
         WASTE MANAGEMENT OF TEXAS, INC. D/B/A
   WASTE MANAGEMENT, PHARR, TEXAS, AND JOHN MARTINEZ


                   On Petition for Writ of Mandamus.


                     MEMORANDUM OPINION
                Before Justices Garza, Vela, and Perkes
                 Memorandum Opinion by Justice Vela

     Relators, Waste Management of Texas, Inc., Waste Management of Texas, Inc.

d/b/a Waste Management, Pharr, Texas, and John Martinez (collectively ―Waste
Management‖), filed a petition for writ of mandamus and a request for temporary stay in

the above cause on April 7, 2011, seeking to compel the trial court to vacate an order

compelling discovery on grounds of relevance, overbreadth, and burdensomeness. On

April 8, 2011, this Court granted the request for temporary stay, stayed the trial court‘s

order compelling discovery, and requested that the real party in interest, Romeo Garza

Jr., file a response to the petition for writ of mandamus, and such response has now been

filed. We deny the petition for writ of mandamus.

                                    I. BACKGROUND

      The underlying litigation concerns a vehicular collision between Garza and

Martinez, who was driving a garbage truck in the course and scope of his employment as

a driver for Waste Management. According to Garza‘s first amended original petition,

Martinez pulled away from a stop sign directly into Garza‘s lane of travel. Garza brought

suit against relators for personal injuries. Garza served various forms of discovery

requests on Waste Management, but the only one at issue in this proceeding is the

following request for production:

      Produce pleadings, discovery (including corporate representative
      depositions, answers to: interrogatories, requests for disclosure, requests
      to produce documents, and requests to admit), on all other lawsuits
      involving incidents in which Waste Management of Texas, Inc. has been
      sued in Texas and in which unsafe driving on the part of a Waste
      Management of Texas, Inc. driver has been alleged and/or in which it is
      alleged Waste Management of Texas, Inc. did not employ proper safety
      and/or was negligent with regard to its policies for the operation of its
      vehicles, the training of its drivers, or in setting safety policies.

Waste Management objected to the request as follows:




                                            2
        Defendant objects that the request is overly broad, not relevant, not
        reasonably calculated to lead to the discovery of admissible evidence and
        not reasonably limited in subject matter, geography or time. . . . Further,
        this request is unduly burdensome and harassing because the burden or
        expense of the proposed discovery outweighs its likely benefits, taking into
        account the needs of the case the amount in controversy, and the
        importance of the proposed discovery in resolving the issues . . . . Finally,
        Defendant objects that this request is compound and confusing.

Waste Management did not otherwise respond to this request for production. 1 Garza

filed a motion to compel regarding this response, stating that the ―[p]arties are currently

working on resolving the discovery dispute; however, court intervention is necessary if the

parties do not reach an agreement.‖                 Attached to the motion to compel was

correspondence from Waste Management‘s counsel stating that ―[a]s we discussed, we

will continue to search for information related to Waste Management litigation in the

South Texas region and beyond.‖

        Waste Management filed a response to the second motion to compel discovery,

supported by the January 26, 2011 affidavit of Carrie Schadle, an attorney for Waste

Management. Ms. Schadle testified as follows:

                 My firm has represented Waste Management since 2001. During
        that time, there have been approximately 100 cases which have gone into
        litigation. In order to determine whether such cases are responsive to
        Plaintiff‘s request, counsel for Defendant will have to identify the existing
        computer files relating to those cases, order whatever files may exist for
        those cases from archives, identify documents which may exist in this
        office, and request a search at Waste Management for documents relating
        to litigated matters.

              After those documents and files have been collected, it will take a
        minimum of 2-2.5 hours per file to determine whether the case falls within
        1
          We note that the rules of discovery required Waste Management to ―comply with as much of the
request to which the party has made no objection unless it is unreasonable under the circumstances to do
so before obtaining a ruling on the objection.‖ TEX. R. CIV. P. 193.2; see also id. R. 193 cmt.2.


                                                   3
      the scope of the request and what, if any documents might be responsive.
      At $300 per hour, the cost of identifying, collecting, searching, evaluating
      and producing responsive documents for the approximately 100 files since
      2001 could easily exceed $70,000.00.

            This cost will not include copying costs, or the costs to Waste
      Management of pulling its employees away from their regular work to
      search for documents.

             These estimates will not include the time and cost associated with
      documents handled by other attorneys or firms. An inquiry to Waste
      Management revealed that there are approximately 90 other files that may
      represent suits filed against Defendant. The only way to identify
      documents for cases filed before the involvement of the undersigned firm
      would be to query insurance companies that carried policies of insurance
      for the relevant periods of time. Depending on the information available
      from the insurance carriers, the next step would be to seek out those files,
      most likely from attorneys who handled those cases. Those attorneys will
      have to search and will incur attorney‘s fees which will have to be
      reimbursed. While it would be impossible to determine exactly how much
      time such a search would take, the cost will be very high. Tracking down
      these documents will be far more complicated than reviewing those
      handled by this firm and it would be reasonable to assume that the cost of
      tracking down these earlier cases would be double that of the those files
      handled by the undersigned firm.

The text of Waste Management‘s response to the second motion to compel differs in

some respects from Schadle‘s affidavit. The response says, ―Waste Management has

190 cases flagged as ―litigation‖ cases in the claims database,‖ and ―[a]pproximately 100

of these cases have been handled by the undersigned firm since 2001.‖ The response

speculates that ―it is likely the volume of documents will be in the hundreds of thousands

of pages,‖ and further speculates that the costs of copies alone could conservatively

exceed $25,000. The response asserts that these estimates do not take into account the

90 other suits handled by other firms, and speculates that it might cost ―somewhere in the

neighborhood of $75,000 or more‖ to recover those files.


                                            4
        Garza filed a reply to Waste Management‘s response to the motion to compel

contending, among other things, that the discovery sought pertaining to other accidents

involving Waste Management‘s garbage trucks and vehicles was relevant vis-à-vis his

claims for faulty safety practices and training and that there was a direct relationship

between the claims at issue and the discovery sought.2

        The trial court heard the motion to compel at a non-evidentiary hearing on January

27, 2011. At the hearing, the trial court ordered Waste Management to respond to the

request for production, but directed that the response should be limited to those litigation

files relating to garbage trucks in Texas in the past five years. The trial court, however,

agreed to hear a motion to reconsider its ruling the following week.

        After the hearing, Waste Management filed a ―Motion for Reconsideration and

Supplemental Response to Plaintiff‘s Second Motion to Compel Discovery.‖ This motion

was supported by a second affidavit from Schadle, dated February 2, 2011:

              My firm has represented Waste Management since 2001. Since
        2005, there have been thirty-two cases which have gone into litigation in
        Texas where Waste Management was represented by my firm.

               A conservative estimate is that it will take a minimum of 2-2.5 hours
        per file to determine what, if any documents in these files might be
        responsive to Plaintiff‘s request as modified by the Court. At $300 per
        hour, the cost of identifying, collecting, searching, evaluating and producing
        responsive documents could easily be at least $24,000.00. This cost will
        2
            Garza also included an argument which we will characterize as ―what‘s good for the goose is
good for the gander.‖ Apparently earlier in the litigation, the trial court had ordered Garza‘s counsel to
produce medical records from a different lawsuit in which Garza had been represented by the same
attorneys. The trial court had reasoned that since Garza‘s counsel had represented Garza in the previous
litigation, counsel must be in a position to turn over medical records on that case. Thus, Garza contended
that, in this case, where counsel for Waste Management admitted that they are the same lawyers who have
represented Waste Management since 2001, they should have ―intimate knowledge‖ of the litigation files
and their contents.



                                                    5
        not include copying costs, or the cost to pull the files from the archives.

              These estimates will not include the time and cost associated with
        determining whether any cases that may have been handled by other firms
        would contain documents responsive to the request.

On February 3, 2011, the trial court held a non-evidentiary hearing on the motion for

reconsideration. On March 9, 2011, the trial court issued an order granting Garza‘s

motion to compel and requiring Waste Management to:

                Produce pleadings, discovery (including representative depositions,
        answers to interrogatories, requests for disclosure, requests to produce
        documents, and requests to admit), on all other lawsuits involving garbage
        truck accidents in which Waste Management of Texas, Inc. has been sued
        in Texas in the five years preceding the date of this order, and in which
        unsafe driving on the part of a Waste Management of Texas, Inc. driver has
        been alleged and/or in which it is alleged Waste Management of Texas, Inc.
        did not employ proper safety and/or was negligent with regard to its policies
        for the operation of its vehicles, the training of its drivers, or in setting safety
        policies. Any material related to any person‘s healthcare information
        subject to HIPAA[3] is excluded from production and may be redacted by
        Defendants.

The trial court ordered production by March 25, 2011. By letter agreement, the parties

agreed to extend the deadline for production until April 7, 2011. On April 7, 2011, Waste

Management did not produce the documents at issue to Garza, but instead filed this

original proceeding.4




        3
          The trial court‘s order refers to the Health Insurance Portability and Accountability Act of 1996
(―HIPAA‖). See 45 C.F.R. pts. 160 & 164 (2010). Pursuant to HIPAA, an individual‘s protected health
information cannot be disclosed without the individual‘s consent unless disclosure is expressly permitted by
HIPAA. See 45 C.F.R. 164.502.
        4
          We note that the issuance of mandamus relief is largely controlled by equitable principles. See
In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding).




                                                     6
       In this original proceeding, Waste Management contends by three issues that the

trial court abused its discretion in overruling Waste Management‘s objections to the

request for production because the request is: (1) not likely to lead to the discovery of

admissible evidence; (2) overly broad; and (3) unduly burdensome.

                                  II. STANDARD OF REVIEW

       Mandamus will issue if the relator establishes a clear abuse of discretion for which

there is no adequate remedy by appeal. 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 (Tex.

1992) (orig. proceeding). With regard to discovery rulings, a party will not have an

adequate remedy by appeal when: (1) the appellate court would not be able to cure the

trial court‘s discovery error; (2) the party‘s ability to present a viable claim or defense at

trial is vitiated or severely compromised by the trial court‘s discovery error; or (3) the trial

court disallows discovery and the missing discovery cannot be made a part of the

appellate record or the trial court, after proper request, refuses to make it part of the

record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding);

Walker, 827 S.W.2d at 843.

       As stated more recently by the supreme court, mandamus may be appropriate to

correct alleged discovery errors when, for instance, the order complained of requires

disclosure of privileged information or trade secrets that materially affect the rights of the

relator; when discovery imposes a burden that is disproportionate to any benefit received

by the requesting party; and when the trial court‘s discovery order compromises the

relator‘s ability to present a viable claim or defense. In re McAllen Med. Ctr., Inc., 275


                                               7
S.W.3d 458, 468 (Tex. 2008) (orig. proceeding). An order that compels overly broad

discovery is an abuse of discretion for which mandamus is the proper remedy. In re

Deere & Co., 299 S.W.3d 819, 820–21 (Tex. 2009) (orig. proceeding) (per curiam).

Stated otherwise, mandamus relief is proper when a trial court signs an order compelling

discovery that is outside the proper bounds of discovery. In re Am. Optical Corp., 988

S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).

                                       III. RELEVANCE

         In its first issue, Waste Management contends that the request at issue is a ―fishing

expedition‖ that is not likely to lead to the discovery of admissible evidence. ―Fishing‖ for

evidence is impermissible. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.

1996).     In examining Waste Management‘s contention, we note that ―the ultimate

purpose of discovery is to seek the truth, so that disputes may be decided by what the

facts reveal, not by what facts are concealed.‖ In re Colonial Pipeline Co., 968 S.W.2d

938, 941 (Tex. 1998) (orig. proceeding) (quoting Jampole v. Touchy, 673 S.W.2d 569,

573 (Tex. 1984) (orig. proceeding)); see In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180

(Tex. 1999) (orig. proceeding).

         Our procedural rules define the scope of discovery to include 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 sought is ―reasonably calculated to lead to the discovery of

admissible evidence.‖ TEX. R. CIV. P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152

(Tex. 2003) (orig. proceeding); see also Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160

(Tex. 1993). Information is relevant if it tends to make the existence of a fact that is of


                                               8
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)

(quoting Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990)).

        Although the scope of discovery is broad, discovery requests must nevertheless

show a ―reasonable expectation of obtaining information that will aid the dispute‘s

resolution.‖ In re CSX Corp., 124 S.W.3d at 152; see In re Am. Optical Corp., 988

S.W.2d at 713. Thus, discovery requests must be ―reasonably tailored‖ to include only

relevant matters. In re CSX Corp., 124 S.W.3d at 152; In re Am. Optical Corp., 988

S.W.2d at 713. Therefore, the preemptive denial of discovery is proper if there exists no

possible relevant, discoverable testimony, facts, or material which would support or lead

to evidence that would support a claim or defense. Ford Motor Co., 279 S.W.3d at 664.

        Waste Management asserts that the request for production at issue seeks

irrelevant information and is a mere fishing expedition. 5                   We first address Waste

Management‘s contention that Garza should not be permitted to ―distract attention from

        5
           We note that Waste Management‘s petition for writ of mandamus places the burden of proof on
Garza to ―explain how the production of pleadings and discovery from ‗similar‘ lawsuits is reasonably
calculated to lead to the discovery of admissible evidence and how the request relates to the elements of
his causes of action, which he should be required to do, ‗as relevancy is the cornerstone of admissibility.‘‖
We note that this Court and others have placed the burden of proof regarding relevance, or lack thereof, on
the party seeking to avoid discovery. See e.g., In re Frank A. Smith Sales, Inc., 32 S.W.3d 871, 874 (Tex.
App.—Corpus Christi 2000, orig. proceeding) (―Generally, the party resisting discovery has the burden to
plead and prove the basis of its objection.‖); Valley Forge Ins. Co. v. Jones, 733 S.W.2d 319, 321 (Tex.
App.—Texarkana 1987, orig. proceeding) (holding that, as a general rule, the burden of pleading and
proving the requested evidence is not relevant falls upon the party seeking to prevent discovery). We need
not further address Waste Management‘s allegation herein because it is not necessary to the disposition of
this proceeding. See TEX. R. APP. P. 47.1, 47.4.



                                                     9
the incident at hand‖ by including a gross negligence and exemplary damages claim.

Waste Management asserts that Garza‘s gross negligence claim is based on his

allegation that Waste Management acted with conscious indifference to the rights,

welfare and safety of others by hiring a safety director for its Houston office, but by failing

to hire a safety director for its Rio Grande Valley office or other areas, thus ignoring safety

training and policies in the Rio Grande Valley and other areas. Waste Management thus

contends that Garza should ―at most‖ be entitled to discovery of lawsuits involving

accidents with garbage trucks and drivers who worked out of the Pharr, Texas office.6

Waste Management essentially argues that Garza amended his pleadings to include a

claim for gross negligence in order to justify the breadth of his discovery request. We

note in this regard that, based on the record before us, Waste Management neither

attacked Garza‘s pleadings through motions for sanctions, by special exceptions, or by

motion for summary judgment.

       Garza‘s original petition, unlike his amended petition, did not include claims

against Waste Management pertaining to the lack of a safety director in Pharr, the proper

training of its drivers, the scheduling of its drivers, or gross negligence. Garza amended

his petition to include these claims after deposing Martinez and a corporate

representative for Waste Management, and after receiving some of Waste

Management‘s responses to discovery. In Waste Management‘s First Amended and

Supplemented Responses, Answers, and Objections, Waste Management revealed that

it does not have a safety manager whose specific area of responsibility is the Rio Grande
       6
          Waste Management did not produce information within this unilaterally proposed scope of
discovery under rule 193.2(b). See TEX. R. CIV. P. 193.2(b).


                                               10
Valley District of Waste Management; Chuck Haraf is the area safety manager whose

responsibility includes Pharr, Texas, and his office is located in Houston, Texas; Haraf

visited the Pharr region of Waste Management in January, August, and September 2010;

and two other safety professionals for the company visited the Pharr region of Waste

Management in 2010.

       Based on the foregoing, the trial court may have reasonably concluded that

Garza‘s request for production is not a fishing expedition because it is not based on

speculation, but is instead based on Waste Management‘s own responses to discovery.

See In re Sears Roebuck & Co., 123 S.W.3d 573, 578 (Tex. App.—Houston [14th Dist.]

2003, orig. proceeding) (stating that a fishing expedition is one aimed not at supporting

existing claims but at finding new ones). This is not a case where Garza is attempting to

justify an overbroad discovery request by proving a general corporate strategy regarding

unspecified safety laws, but a discovery request specifically targeted to the safety policies

and practices as they relate to the circumstances involved in this lawsuit, and as

evidenced in previous discovery responses.          See Texaco, Inc. v. Sanderson, 898

S.W.2d 813, 815 (Tex. 1995) (orig. proceeding).

       Waste Management argues that the discovery request does not lead to the

discovery of admissible evidence of ―reasonably similar‖ accidents:

       In this case, Garza alleges that Defendant Martinez pulled away from a stop
       sign into his line of travel. . . Even if this were true . . . this is not a case
       involving training, safety policies, or some esoteric application of
       complicated rules to a complex set of facts. This is a simple negligence
       case—the alleged failure to comply with a basic traffic law about which no
       licensed Texas driver or holder of a Texas Commercial Driver‘s License is
       unfamiliar. To suggest that an alleged failure to stop at a stop sign is the


                                              11
          result of negligent training or failure to follow a safety policy by Waste
          Management is ludicrous.

Waste Management thus asserts that a ―more reasonable‖ discovery limitation ―would be

a limitation to those cases in which plaintiffs allege a Waste Management driver ran a stop

sign.‖7

          In the instant case, the request for production seeks pleadings and discovery from

lawsuits:

          involving incidents in which Waste Management of Texas, Inc. has been
          sued in Texas and in which unsafe driving on the part of a Waste
          Management of Texas, Inc. driver has been alleged and/or in which it is
          alleged Waste Management of Texas, Inc. did not employ proper safety
          and/or was negligent with regard to its policies for the operation of its
          vehicles, the training of its drivers, or in setting safety policies.

Garza‘s first amended original petition asserts that the ―Pharr office of Waste

Management does not have any safety director, and this is a policy which emanates from

corporate headquarters of Waste Management.‖ The petition continues that ―Drivers

such as Defendant Martinez are not properly trained in safety and/or their work schedule

is such that it promotes unsafe driving.‖

          All of the cases cited by Waste Management in connection with its arguments

pertaining to relevance concern the admissibility of evidence, not the discovery of

evidence.       According to Waste Management, there is a ―nexus‖ between the

admissibility of evidence and the discoverability of information, and ―courts often use both


          7
          We note that this argument conflicts with an offer made to the trial court that Waste Management
would ―agree to produce for the last five years all automobile accidents that occurred in Hidalgo County, or
even the Rio Grande Valley.‖ Moreover, as stated previously, Waste Management did not produce any
discovery pursuant to this unilaterally selected scope of discovery. See TEX. R. CIV. P. 193.2(b).



                                                    12
types of cases when discussing discoverability.‖ Waste Management‘s arguments are,

to some extent, correct. The two concepts are related and courts often use both types of

cases when discussing discovery. For example, in rejecting discovery as overbroad and

irrelevant, the Texas Supreme Court has explained that:

       [T]he plaintiffs‘ requests and the trial court‘s order reflect a
       misunderstanding about relevance. 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. See, e.g.,
       TEX. R. EVID. 404 (barring proof of other crimes, wrongs, or acts ―in order to
       show action in conformity therewith‖). While such evidence might be
       discoverable in some cases (e.g., to prove motive or intent, see id.), it is
       hard to see why reneging on some other settlement offer makes it more or
       less probable that the insurer reneged on this one. TEX. R. CIV. P. 192.3;
       TEX. R. EVID.401.

In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 669–70 (Tex. 2007) (orig.

proceeding).

       Nevertheless, Waste‘s contentions herein essentially assume that the standards

for discovery and standards for admissibility are wholly congruent. That is incorrect.

Discovery is not limited only to information that will be admissible at trial. TEX. R. CIV. P.

192.3(a); Eli Lilly & Co., 850 S.W.2d at 160 (Tex. 1993); Jampole, 673 S.W.2d at 573.

―To increase the likelihood that all relevant evidence will be disclosed and brought before

the trier of fact, the law circumscribes a significantly larger class of discoverable evidence

to include anything reasonably calculated to lead to the discovery of material evidence.‖

Jampole, 673 S.W.2d at 573; see Allen v. Humphreys, 559 S.W.2d 798 (Tex. 1977)

overruled on other grounds, Walker v. Packer, 827 S.W.2d 833 (Tex. 1992); In re Nolle,

265 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding).



                                             13
       Based on the foregoing, the trial court may have concluded that the information

sought in the request for production is relevant and discoverable because it has a

tendency to make the existence of a fact that is consequential to the determination of the

action—that is, whether or not the accident was caused because the Pharr region of

Waste Management did not properly train its drivers in safety matters, or improperly

scheduled them, or because the Pharr region of Waste Management did not employ a

safety director when other Waste Management locations did—more probable or less

probable than it would be without the evidence. See TEX. R. EVID. 401. An examination

of the state-wide distribution of litigation files in comparison to Waste Management‘s

regional safety offices would be relevant to Garza‘s claim that the Pharr office of Waste

Management is deficient in its safety training and management. Waste Management‘s

first issue is overruled.

                                    IV. OVERBREADTH

       Waste Management contends in its second issue that the discovery request is

overly broad because the scope of discovery is not limited to the subject matter of the suit,

that is, whether Martinez was negligent or Waste Management acted negligently toward

Martinez in training him or scheduling him, thereby causing the accident.             Waste

Management contends that the request is not limited in scope to documents concerning

Martinez‘s training and is not limited in time to the years that Martinez was employed by

Waste Management.

       Discovery orders requiring document production from an unreasonably long time

period or from distant and unrelated locales are impermissibly overbroad. See In re CSX


                                             14
Corp., 124 S.W.3d at 152; see In re Am. Optical Corp., 988 S.W.2d at 713; Dillard Dep’t

Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); Texaco, 898 S.W.2d at 815. A

central consideration in determining overbreadth is whether the request could have been

more narrowly tailored to avoid including tenuous information and still obtain the

necessary, pertinent information. See In re CSX Corp., 124 S.W.3d at 153; In re Am.

Optical Corp., 988 S.W.2d at 713. Overbroad requests for irrelevant information are

improper whether they are burdensome or not, so evidence is not necessary to support

an objection if the discovery requests themselves demonstrate overbreadth as a matter of

law. See In re CSX Corp., 124 S.W.3d at 153; In re Union Pac. Res. Co., 22 S.W.3d 338,

341 (Tex. 1999) (orig. proceeding); In re Mem’l Hermann Healthcare Sys., 274 S.W.3d

195, 202 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).          However, a

reasonably tailored discovery request is not overbroad merely because it may include

some information of doubtful relevance, and the ―parties must have some latitude in

fashioning proper discovery requests.‖ In re Am. Optical Corp., 988 S.W.2d at 713;

Texaco, 898 S.W.2d at 815.

      In analyzing the discovery request at issue, we are guided by numerous cases

which have addressed overbroad discovery requests. See, e.g., In re Allstate County

Mut. Ins. Co., 227 S.W.3d at 670 (holding that requests for transcripts of all testimony

ever given by any Allstate agent on the topic of insurance; every court order finding

Allstate wrongfully adjusted the value of a damaged vehicle; personnel files of every

Allstate employee a Texas court has determined wrongfully assessed the value of a

damaged vehicle; and legal instruments documenting Allstate‘s status as a corporation


                                          15
and its net worth were overbroad); In re CSX Corp., 124 S.W.3d at 153 (stating that

request to identify all safety employees who worked for defendant over a thirty-year

period qualifies as a ―fishing expedition‖); In re Am. Optical Corp., 988 S.W.2d at 713

(stating that request for production of all documents the defendant had ever produced on

any of its products over the course of its fifty years in business was overbroad and of

questionable relevance); K Mart Corp., 937 S.W.2d at 431 (stating that request for

information relating to all criminal activity on all K Mart property over last seven years was

overbroad); Dillard Dep’t Stores, Inc., 909 S.W.2d at 492 (stating that a request requiring

a 227-store search in twenty states for documents over a five-year period was overly

broad); Texaco, Inc., 898 S.W.2d at 814–15 (stating that request for ―all documents

written by [defendant‘s safety director] that concerned safety, toxicology, and industrial

hygiene, epidemiology, fire protection and training‖ was overbroad); Gen. Motors Corp. v.

Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (stating that requests concerning fuel filler

necks in every vehicle ever made by General Motors were overbroad); see also

Fethkenher v. Kroger Co., 139 S.W.3d 24, 30 (Tex. App.—Fort Worth 2004, no pet.)

(concluding that discovery request was overbroad where it asked store to describe, in

detail, any previous incidents pertaining to automatic door malfunctions at all 188 stores

in southwest region; court noted that appellant ―failed to narrow the request in a manner

that would heighten its relevancy‖); In re Lowe’s Cos., 134 S.W.3d 876, 880 (Tex.

App.—Houston [14th Dist.] 2004, orig. proceeding) (holding that discovery order was

overbroad where it allowed plaintiffs to access computer data without any limitation as to

time, place, or subject matter and print data concerning falling merchandise accidents for


                                             16
an unlimited period of time preceding the accident in this case and for an unlimited

geographic area).

        In examining the appropriate breadth of discovery, it is fundamental that each

lawsuit concerns a specific claim arising from a specific set of facts. Those seeking

discovery, however, are often interested in learning about related accidents, products, or

claims culminating in litigation.   Such requests might be appropriate or might be

overbroad depending on the relationship between the request for production and the

claims at issue in the lawsuit. See, e.g., In re Oncor Elec. Delivery Co. LLC, 313 S.W.3d

910, 910 (Tex. App.—Dallas 2010, orig. proceeding) (holding discovery order requiring

relator to produce every document from every lawsuit in which it has been involved for the

past five years, with no limitations as to subject matter, was overly broad as a matter of

law.); see also In re Valvoline Co., No. 01-10-00208-CV, 2010 Tex. App. LEXIS 3696, at

**20–21 (Tex. App.—Houston [1st Dist.] May 14, 2010, orig. proceeding) (mem. op.)

(granting mandamus relief where ―benzene-related lawsuits‖ was undefined in the

discovery requests and the request was not limited to suits containing claims similar to

that suit).

        It is clear that, under certain circumstances, parties are entitled to discover

information about other lawsuits. See, e.g., Chrysler Corp. v. Blackmon, 841 S.W.2d

844, 850 (Tex. 1992) (referencing Chrysler‘s failure to ―disclose all similar lawsuits,‖ but

concluding that plaintiff was not harmed by the omission); Humphreys v. Caldwell, 881

S.W.2d 940, 945 (Tex. App.—Corpus Christi 1994, orig. proceeding) (concluding that

relator failed to meet burden to show that responding to interrogatory ―regarding all


                                            17
lawsuits in Texas within the last five years involving similar claims in which State Farm

had been a party‖ was overbroad or unduly burdensome); State Farm Mut. Auto. Ins. Co.

v. Engelke, 824 S.W.2d 747, 751 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding)

(compelling answer to interrogatory about lawsuits for five-year period). Thus, discovery

as to other lawsuits has been allowed when the information sought is relevant, that is,

when the other lawsuits have a material connection to an issue in the case, or present the

same or similar issues, or are factually similar. See, e.g., Allen, 559 S.W.2d at 803

(approving a request for the production of ―all complaints, lawsuits, or inquiries, including

all correspondence, documents, investigative reports, or any paper by which the

defendant responded to these complaints, claiming that persons have contracted cancer

as a result of breathing fumes,‖ because party could establish pattern of disease and

because that information was ―unavailable from any other source‖); In re Rogers, 200

S.W.3d 318, 324 (Tex. App.—Dallas 2006, orig. proceeding) (noting that requests for

documents from and information concerning other lawsuits were ―not irrelevant on their

face to the issues at hand‖ but the trial court abused its discretion in ordering production

because some of the documents ordered produced were subject to confidentiality

agreements or protective orders in the other lawsuits); see also In re Ernst & Young,

L.L.P., No. 05-02-00352-CV, 2002 Tex. App. LEXIS 2986, at **4–5 (Tex. App.—Dallas

April 30, 2002, orig. proceeding) (not designated for publication) (requiring the production

of pleadings where the defendant was sued for audit or review work, professional

negligence, or accounting malpractice where ―[t]hese are the same or similar matters at

issue in this case‖ because it was ―permissible discovery‖). Cf. In re Colonial Pipeline


                                             18
Co., 968 S.W.2d at 942 (―While the plaintiffs may be entitled to production of any relevant

discovery from the related cases ‗as they are kept in the usual course of business,‘

relators cannot be forced to prepare an inventory of the documents for plaintiffs.‖). As

recently stated by the First District Court of Appeals, when discovery of material related to

other lawsuits and complaints is allowed, the information sought has a ―direct, material

connection to the instant litigation.‖ In re Nolle, 265 S.W.3d at 495–96.

       In the instant case, the trial court‘s order limits the request for production to the

temporal period of five years, the geographical region of Texas, and the subject matter of

litigation files concerning garbage truck accidents where the case involved unsafe driving,

and negligent or improper policies regarding vehicle safety, training, or operation. The

cases cited by Waste Management do not support the proposition that any of these

limitations is per se overbroad. The litigation files sought are factually similar to the case

at hand, are closely related in temporal proximity, and concern similar legal issues.

Accordingly, the trial court may have concluded that the request for production at issue

was relevant and not overbroad.

       We note that Waste Management asserts that the litigation files may include

documents which contain private or confidential information, such as medical and

financial information about third parties, including, for instance, social security numbers,

and orders pertaining to child support obligations. Waste Management also asserts that

certain files may be subject to confidentiality agreements. In this regard, we note that the

trial court expressly ordered that ―[a]ny material related to any person‘s healthcare

information subject to HIPAA is excluded from production and may be redacted.‖ In this


                                             19
proceeding, Waste Management has not identified any specific private or confidential

information in its litigation files that would be subject to production.

       Waste Management‘s argument is well-taken insofar as the production of

documents in one lawsuit does not necessarily mean the documents may be produced

without restriction in an entirely different lawsuit.     Some of the documents ordered

produced may contain confidential data or may be subject to confidentiality agreements

or protective orders in the other lawsuits. See In re Rogers, 200 S.W.3d at 324. As

stated by the Texas Supreme Court:

       [W]e are mindful that resolution of this discovery dispute may affect more
       than the immediate parties to this litigation. The possibility exists that the
       rights of CI Host‘s customers and others may be detrimentally affected or
       even abrogated by disclosure of some information on the tapes; these third
       parties may have other legal bases for objecting to disclosure of the
       information on the tapes. Our discovery rules do not require notice to third
       parties so that they might have an opportunity to be heard on their own
       objections. Yet, we are loath to allow CI Host to unilaterally waive its
       customers‘ privacy rights by its failing to adhere to the discovery rules. Cf.
       Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (taking into
       account compelling public interests in determining scope of discovery in
       products-liability suit). It therefore falls upon the trial court to give serious
       consideration to these interests. A protective order forbidding disclosure of
       any trade secrets on the tapes is already in place, and we are confident that
       the trial court will give due consideration to any other privacy interests at
       stake as this case progresses.

In re CI Host, 92 S.W.3d 514, 517 (Tex. 2002) (orig. proceeding). When a party asserts

that only part of a request is protected in such circumstances, the party must produce

what is discoverable, must assert any applicable privileges, and must segregate and

produce to the court in camera the materials that it seeks to protect from disclosure. See

id. Accordingly, Waste Management should produce all documents in the lawsuits listed



                                              20
in the request for production that do not contain private data and that are not subject to a

confidentiality agreement or protective order in the other lawsuits, and should request an

in camera hearing regarding those other documents containing allegedly confidential or

privileged matter in order for the trial court to give due consideration to the privacy

interests at issue in the requested documentation. See id.

       Waste Management‘s second issue is overruled.

                                 V. UNDULY BURDENSOME

       In its third issue, Waste Management contends that the discovery request is

unduly burdensome given the likely benefits of the discovery.          Waste Management

supports this contention by reference to Schadle‘s affidavits and the estimated cost of

almost $25,000, ―without even considering the extra added burden‖ of making sure that

Waste Management redacts the responsive documents to comply with HIPAA.

       Under the rules of civil procedure, discovery should be limited if it is unreasonably

cumulative or duplicative, or is obtainable from some other source that is more

convenient, less burdensome, or less expensive. See TEX. R. CIV. P. 192.4(a); In re

Stern, 321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding). Further,

discovery should be limited if the burden or expense of the proposed discovery outweighs

its likely benefit, taking into account the needs of the case, the amount in controversy, the

parties‘ resources, the importance of the issues at stake in the litigation, and the

importance of the proposed discovery in resolving the issues.          See TEX. R. CIV. P.

192.4(b); In re Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex. 2009) (orig.

proceeding).


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       The fact that a discovery request is burdensome is not enough to justify protection;

―it is only undue burden that warrants nonproduction.‖ ISK Biotech Corp. v. Lindsay, 933

S.W.2d 565, 568 (Tex. App.—Houston [1st Dist.] 1996, no pet.); see In re Alford

Chevrolet-Geo, 997 S.W.2d at 181 (requiring demonstration of undue burden or

harassment); In re Energas Co., 63 S.W.3d 50, 55 (Tex. App.—Amarillo 2001, orig.

proceeding).    A discovery request will not result in an undue burden when the

burdensomeness of responding to it is the result of the responding party's own

―conscious, discretionary decisions.‖ ISK Biotech Corp., 933 S.W.2d at 569; see In re

Whiteley, 79 S.W.3d 729, 734–35 (Tex. App.—Corpus Christi 2002, orig. proceeding). A

party resisting discovery cannot make conclusory allegations that the requested

discovery is unduly burdensome but must instead produce some evidence supporting its

request for a protective order. In re Alford Chevrolet-Geo, 997 S.W.2d at 181; In re

Energas Co., 63 S.W.3d at 55.

       Waste Management provided a specific time and cost estimate for the discovery

via testimony that the request would require the production of thirty-two files at

approximately two and a half hours per file and its counsel would charge $300 per hour for

the production. According to the testimony, the production did not include the costs of

copying or recalling the files from archives. In the instant case, the trial court may well

have determined that the alleged costs were excessive given that the trial court

specifically referred to these estimates as ―guestimates.‖ Moreover, the trial court may

have determined that the charge of $300 hourly was excessive.




                                            22
       Further, given the paucity of information before trial court and this Court, it is

difficult to conclude that the trial court abused its discretion in refusing to limit the

discovery on grounds that it causes an undue burden. Waste Management asserts that

Garza could more easily and less expensively obtain the same information by deposition;

however, Waste Management does not assert or provide evidence that any specific

person could provide the requested information. There is no information in the record

regarding the amount in controversy or the parties‘ resources. We do not know how

Garza was injured, although counsel asserted in hearing that his incurred medical

expenses approximated $60,000, nor do we know what compensation Garza is seeking

in this lawsuit. Moreover, Waste Management did not provide testimony pertaining to

how many litigation files that might be responsive had been handled by other firms,

although, based on arguments at the trial court‘s hearings in this matter and the text of the

petition itself, the parties may have chosen to focus solely on the thirty-two files handled

by its current firm. See BASF Fina Petrochemicals L.P. v. H.B. Zachry Co., 168 S.W.3d

867, 875 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that nonparties do

not recover their attorneys‘ fees incurred in complying with a subpoena).            Without

objective data, such as information regarding the foregoing matters, it is difficult to

evaluate the extent of the burden involved for Waste Management and balance that

burden against Garza‘s legitimate interests in obtaining that information, and even more

difficult to conclude that the trial court abused its discretion. Accordingly, it was at least

within the discretion of the trial court to determine that Waste Management failed to carry

its burden of proving burdensomeness as a justification for refusing to produce.


                                             23
       Waste Management‘s third issue is overruled.

                                      VI. CONCLUSION

       Based on the record presented, the trial court did not abuse its discretion by

ordering Waste Management to produce the discovery at issue herein. We lift the stay

previously imposed in this matter. See TEX. R. APP. P. 52.10(b) (―Unless vacated or

modified, an order granting temporary relief is effective until the case is finally decided.‖).

We deny the petition for writ of mandamus.




                                                   ROSE VELA
                                                   Justice

Delivered and filed the
31st day of August, 2011.




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