                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-10-00354-CV

              IN RE DOROTHEA BAKER AND KEITH BAKER


                                Original Proceeding



                           MEMORANDUM OPINION


       Dorothea Baker and Keith Baker seek mandamus relief on the trial court’s order

sustaining the objections of Chrysler Group, LLC (Chrysler) and Hill County

Automotive Products, LLC d/b/a Mike Craig Chrysler Dodge Jeep – Hillsboro (Craig)

to several of the Bakers’ discovery requests.

                                The Bakers’ Allegations

       The Bakers’ petition in the trial court alleges that Dorothea purchased for Keith a

new 2008 Dodge Ram pickup truck from Craig for approximately $30,000. Five months

and 6,200 miles later, Keith took the truck to the Waco Dodge dealer because of an

engine problem.     Waco Dodge determined that an injector had failed because of

contaminated diesel fuel, and the Bakers were informed that the injector was damaged
because of water in the diesel fuel. They have since learned that it is not uncommon for

diesel fuel to be “contaminated” with water and that there have been “numerous other

instances involving the same complaints with Dodge diesel engines in the most recent

products.”1 The problem is even extensively addressed in the owner’s manual, which

explains the “water in fuel indicator” light and how to drain the fuel/water separator

filter when the warning light comes on.

        The Bakers allege that the injector was replaced at a cost of approximately $2,000,

but DaimlerChrysler, the manufacturer, denied coverage under the warranty.

Furthermore, the truck still did not run properly, and Waco Dodge informed the Bakers

that, in all likelihood, all of the injectors had been exposed to the same contaminated

diesel fuel and would fail in the same way. Waco Dodge also told the Bakers that it

could not guarantee its work unless the remaining five injectors were replaced at a cost

of approximately $10,000. DaimlerChrysler continued to deny warranty coverage, and

the Bakers refused to pay for the repairs and stopped making payments on the truck,

which the lender (Chrysler Financial) then repossessed.

                                          The Bakers’ Claims

        The Bakers sued DaimlerChrysler2 and Craig for breach of contract, breach of

warranty, violations of the Texas Deceptive Trade Practices Act (DTPA), fraud, civil


        1   The owner’s manual states: “Diesel fuel is seldom completely free of water.”

        2 Soon thereafter, DaimlerChrysler filed for bankruptcy, which stayed the proceedings. Chrysler

then purchased substantially all of the assets previously owned by DaimlerChrysler, but it assumed only
certain limited liabilities associated with vehicles manufactured and warranted by DaimlerChrysler.
Accordingly, the Bakers’ live petition now states that they seek no remedies in this action against
DaimlerChrysler and seek only those remedies against Chrysler that it has assumed the obligation to pay,
which includes certain warranty obligations.


In re Baker                                                                                      Page 2
conspiracy, and negligence. The gist of their suit is that DaimlerChrysler and Craig

knew of the problem with this truck’s fuel/water filter and injectors yet sold the truck

anyway without disclosing the problem, while maintaining that injector damage caused

by the problem is not covered by the warranty. They plead:

        It is the routine practice of Craig and other dealers like it to withhold this
        information from its customers and the routine practice of Chrysler to
        refuse to repair the injector problems when they arise under warranty. Of
        course, had such information been provided, the Bakers would never have
        purchased the vehicle in the first place.

        ….

               Craig, in withholding the information about the problem with the
        injectors from the Bakers and other customers, while Chrysler then denies
        warranty service when the problem arises, engages in a civil conspiracy....

                    Discovery Requests and Rulings at Issue

        The Bakers served Chrysler with the following interrogatories and requests for

production:

        INTERROGATORY NO. 5: Identify by customer/purchaser name,
        address, and telephone number and date all reports and/or complaints
        made or received by Chrysler, either directly or through any of its dealers
        or other sources concerning the failure of or problems with the ejectors
        [sic] in engines like that in the vehicle in question resulting from or
        connected with alleged water in the fuel used in said engines.

        INTERROGATORY NO. 6: Identify by name or title and by location any
        and all documents or records of any kind whatsoever, whether created
        and/or stored electronically, manually, or mechanically that constitute or
        tend to evidence each of the reports or complaints made the subject of
        Interrogatory 5 above.

        INTERROGATORY NO. 7: Identify by city, county, state, cause number,
        and /or any dealer in Chrysler products or other party purporting to act
        on behalf or to represent Chrysler in any capacity arising out of or
        connected in any way with the failure of or problems with the injectors in


In re Baker                                                                              Page 3
        engines like that in the vehicle in question resulting from or connected
        with alleged water in the fuel used is [sic] said engines.

        REQUEST NO. 5: Any and all documents identified by defendant in its
        answer to Interrogatory 6 above.

        Chrysler objected to these interrogatories and requests on grounds that each is

“vague, overly broad, unduly burdensome, and seeks information neither relevant nor

reasonably calculated to lead to the discovery of admissible evidence.”         During a

hearing on the objections, the Bakers’ counsel clarified for the trial court: “Our whole

lawsuit is based on the diesel engines in these trucks in 2007 and 2008. And the inquiry

is to vehicles with engines like the one involved in this transaction. That’s what we’re

asking.” Cf. Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex. 1983) (orig. proceeding)

(holding that discovery was to be limited in scope to that represented by plaintiffs’

counsel in trial-court hearing and in mandamus pleading). The trial court sustained the

objections.

        The Bakers also served Craig with the following pertinent interrogatory and

requests for production:

        INTERROGATORY NO. 23: Identify by name or title and by location
        any and all documents of any kind whatsoever, whether created and/or
        stored electronically, manually, and mechanically, that demonstrate or
        tend to evidence by vehicle identification number all 2008 and 2009 Dodge
        vehicles powered by 6.7 liter Cummins diesel engines sold by defendant
        at any time through June 30, 2009.

        REQUEST FOR PRODUCTION NO. 15: All documents identified by
        defendant in its answer to Interrogatory 23 above.

        REQUEST FOR PRODUCTION NO. 16: The warranty and service
        histories on each of the vehicles identified in the documents identified by
        defendant in its answer to Interrogatory 23 above.


In re Baker                                                                           Page 4
        REQUEST FOR PRODUCTION NO. 17: All communications sent or
        received by defendant over its “Dealerconnect” system to or from
        Chrysler Group LLC or any predecessor in interest; any other entity
        purporting to act on behalf of Chrysler Group LLC or any predecessor in
        interest in any capacity; or any other dealer in “Chrysler products
        concerning any problems with injectors in 6.7 liter Cummins diesel
        engines related in any way to fuel contamination between October 1, 2007
        and June 30, 2009.

As to Interrogatory No. 23 and Request Nos. 15 and 16, Craig objected that each is

        vague, overbroad, unduly burdensome and seeks information neither
        relevant nor reasonably calculated to lead to the discovery of admissible
        evidence. The Defendant objects to this [Interrogatory or Request,
        respectively] to the extent it seeks information that would violate the
        Defendant’s customer’s right to privacy, that may be used to annoy,
        embarrass, oppress and harass Defendant’s customers and former
        customers that are not parties to this litigation.

Likewise, Craig objected that Request No. 17 “is vague, ambiguous, overbroad, and

seeks information neither relevant nor reasonably calculated to lead to the discovery of

admissible evidence.”

        The Bakers filed a motion asking the trial court to reconsider its previous order

sustaining Chrysler’s objections and to overrule Craig’s objections to the discovery

requests. After a hearing, the trial court signed an order stating that it was denying the

relief sought by the Bakers in its entirety, that it

        further FINDS that the discovery sought by the Plaintiffs exceeds the
        reasonable scope of discovery given that the burden 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 and the importance of the proposed discovery in
        resolving the issues.

The order also sustained Chrysler’s and Craig’s objections to the discovery requests.



In re Baker                                                                           Page 5
                                   Standard of Review

        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); Walker v. Packer, 827 S.W.2d 833,

839 (Tex. 1992) (orig. proceeding). In making the determination of whether the trial

court abused its discretion, we are mindful that the 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. Colonial, 968 S.W.2d at 941. The rules governing discovery do not require as

a prerequisite to discovery that the information sought be admissible evidence; it is

enough that the information appears reasonably calculated to lead to the discovery of

admissible evidence. See TEX. R. CIV. P. 192.3(a). This broad grant, however, is limited

by the legitimate interests of the opposing party to avoid overly broad requests,

harassment, or disclosure of privileged information. In re Am. Optical Corp., 988 S.W.2d

711, 713 (Tex. 1998) (orig. proceeding).

                                           Relevance

        We must first address whether the discovery sought is relevant to the subject

matter of this case.

        In general, a party may 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. It is not a ground for objection
        that the information sought will be inadmissible at trial if the information
        sought appears reasonably calculated to lead to the discovery of
        admissible evidence.

TEX. R. CIV. P. 192.3(a). The phrase “relevant to the subject matter” is to be “liberally



In re Baker                                                                            Page 6
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 Bakers argue that the discovery they request is relevant to the subject matter

of their claims and reasonably calculated to lead to the discovery of admissible evidence

because of the nature of their claims against Craig. The Bakers allege that Chrysler and

Craig knew of numerous complaints by buyers about problems like that experienced by

the Bakers but that Craig did not disclose it to the Bakers when they purchased the

truck.       Although Chrysler assumed only limited liabilities associated with vehicles

manufactured and warranted by DaimlerChrysler and the Bakers seek only those

remedies against Chrysler that it has assumed the obligation to pay, the Bakers have

sued Craig for fraud, conspiracy, and violations of the DTPA laundry list, including

subsections 17.46(b)(7) and (24).3




         3  The elements of fraud by nondisclosure are: (1) the defendant failed to disclose facts to the
plaintiff; (2) the defendant had a duty to disclose those facts; (3) the facts were material; (4) the defendant
knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to
discover the facts; (5) the defendant was deliberately silent when it had a duty to speak; (6) by failing to
disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from
acting; (7) the plaintiff relied on the defendant’s nondisclosure; and (8) the plaintiff was injured as a result
of acting without that knowledge. Bright v. Addison, 171 S.W.3d 588, 599 (Tex. App.—Dallas 2005, pet.
denied).

        To prevail on the DTPA claim, the Bakers must establish: (1) that they were consumers; (2) that
Craig engaged in at least one of the laundry list items; (3) that they detrimentally relied on the false,
misleading, or deceptive act or practice; and (4) that the false, misleading, or deceptive act or practice was
a producing cause of their injury. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996).
Subsections 17.46(b)(7) and (24) of the DTPA provide that “false, misleading, or deceptive acts or
practices” include “representing that goods or services are of a particular standard, quality, or grade, or
that goods are of a particular style or model, if they are of another” and “failing to disclose information
concerning goods or services which was known at the time of the transaction if such failure to disclose
such information was intended to induce the consumer into a transaction into which the consumer would
not have entered had the information been disclosed.” TEX. BUS. & COM. CODE ANN. § 17.46(b)(7), (24)
(Vernon Supp. 2010).


In re Baker                                                                                             Page 7
        Whether trucks similar to the one purchased by the Bakers have had problems

similar to those experienced by the Bakers’ truck is relevant to these pleaded causes of

action for discovery purposes to show Craig’s and Chrysler’s knowledge of the alleged

filter and injector problem and Craig’s alleged concealment of the problem from the

Bakers. And while the Bakers have not sued Chrysler for fraud, DTPA violations, and

conspiracy, the subject matter of the discovery requests to Chrysler is reasonably

calculated to lead to the discovery of admissible evidence on the claims against Craig

for fraud, DTPA violations, and conspiracy.4 In other words, Chrysler may possess

documents and information relating to the alleged DTPA, fraud, and conspiracy claims

against Craig: For example, what Chrysler knew about the alleged filter and injector

problem and what information about it was shared between Chrysler and Craig (as

sought in Request No. 17 to Craig) would be discoverable by a request that is not overly

broad. Furthermore, Chrysler makes no argument why it should not have to produce

discovery that is relevant to the claims that are being asserted only against Craig.5 In

conclusion, the subject matter of the Bakers’ discovery requests is relevant in this case.

See TEX. R. CIV. P. 192.3(a).

        Chrysler and Craig respond in part to the Bakers’ relevancy argument by stating

that the Bakers have not produced any evidence of alleged fraud, conspiracy, or


        4 Fraud is typically proved by circumstantial evidence. See Spoljaric v. Percival Tours, Inc., 708
S.W.2d 432, 435 (Tex. 1986); Chase Comm’l Corp. v. Datapoint Corp., 774 S.W.2d 359, 367 (Tex. App.—Dallas
1989, no writ), abrogated on other grounds by Greathouse v. Charter Nat’l Bank-Southwest, 851 S.W.2d 173 (Tex.
1992). So too is conspiracy. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854,
858 (Tex. 1969) (“proof of a conspiracy may be, and usually must be made by circumstantial evidence”).

        5In their motion to reconsider, the Bakers stated that Chrysler has agreed to indemnify and
defend Craig in this case. Chrysler and Craig are represented by the same counsel.


In re Baker                                                                                            Page 8
concealment and are attempting to engage in “an unnecessarily expansive fishing

expedition.” The Bakers are not required to produce such evidence as a prerequisite to

obtaining discovery from Chrysler and Craig. Furthermore, the case relied upon by

Chrysler and Craig, Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex. 1995), is

distinguishable because there the plaintiff sought discovery on several unpleaded

claims, thus rendering the discovery request overly broad. The Bakers’ case is not “a

simple warranty denial case,” as Chrysler and Craig argue. Rather, the Bakers have

already sued Craig for fraud, DTPA violations, and conspiracy. Thus, the Bakers’

discovery requests to Chrysler and Craig are not “fishing expeditions” like that

prohibited in Dillard.

                                      Overbreadth

        Chrysler and Craig also argue generally that the Bakers’ discovery requests are

vague and overly broad because they include phrases like “any and all,” “documents or

records of any kind whatsoever,” “any problems,” “in any way,” “that constitute,” and

“tend to evidence.”      Chrysler and Craig point specifically to Interrogatory No. 5,

arguing that it contains numerous vague terms, is unlimited in time frame, is not

limited to the model and year of the Bakers’ truck, and is not limited to any geographic

area or to Craig.

        Having reviewed the discovery requests, we cannot conclude that the trial court

abused its discretion in sustaining Chrysler’s vagueness objection to Interrogatory No. 7




In re Baker                                                                        Page 9
because it is vague and unclear as worded.6 As for the other discovery requests at issue,

and irrespective of our relevance discussion, we find that the Bakers’ counsel essentially

admitted that the discovery requests at issue are overly broad. He told the trial court:

“Our whole lawsuit is based on the diesel engines in these trucks in 2007 and 2008. And

the inquiry is to vehicles with engines like the one involved in this transaction. That’s what

we’re asking.” [Emphases added.] Because the discovery requests exceed the scope

stated by counsel, and because they can be redrawn to more narrowly request what

counsel claims is needed, we cannot say that the trial court abused its discretion in

sustaining the overbreadth objections.

         Accordingly, we deny the petition without prejudice to the Bakers’ ability to

redraw more narrowly the discovery requests at issue in accordance with any new

scheduling order or discovery control plan entered by the trial court. See TEX. R. CIV. P.

190.5.


                                                      REX D. DAVIS
                                                      Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Petition denied
Opinion delivered and filed May 4, 2011
[OT06]

     *(Chief Justice Gray concurs in the judgment denying the Petition for Writ of
Mandamus. A separate opinion will not issue. He notes, however, that he joins only

         6Interrogatory No. 7, as worded, is from Chrysler’s discovery responses. Because the Bakers’
served version of this interrogatory is not in the mandamus record, we cannot discern if the
unintelligibility is the result of typographical errors.


In re Baker                                                                                  Page 10
the section of the opinion entitled “Overbreadth” and thus would find it unnecessary to
elaborate further. But to the extent that the opinion implies that the interrogatories and
request for production seek relevant information Chief Justice Gray notes that certainly
as to the allegations of fraud and violations of the DTPA, vehicle problems that the
defendants became aware of after the April 2008 date of purchase of the pick-up would
be irrelevant. Further, it is unclear to Chief Justice Gray whether the “overbreadth”
section includes in its consideration that the request as drafted and ruled upon would
have required the production of personal consumer information for purchasers from all
over the world and which may be subject to some of the other proper objections that
were made and sustained even if the discovery is more narrowly drawn. And since the
Bakers have disavowed that they are seeking anything other than warranty damages
against Chrysler, information that only Chrysler knew about such complaints or
problems would not be relevant to their fraud and DTPA claims against Craig. Thus,
while Chief Justice Gray agrees that the Bakers have the opportunity to pursue their
discovery by redrawing their discovery request, those request must, nevertheless, be
written in such a manner as to limit them to their proper scope with regard to the claims
being made against each defendant and which redrawn discovery request, if made, will
be subject to the full panoply of objections.)




In re Baker                                                                        Page 11
