      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00477-CV



                            In re Jose C. Padilla and CCJK d/b/a
                           Hill Country Site Supply, LLC, Appellant


                     ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


               Relators Jose C. Padilla Alvarez1 and CCJK d/b/a Hill Country Site Supply, LLC filed

a petition for writ of mandamus alleging that the district court abused its discretion by issuing a

discovery order compelling relators to produce company and personal cell-phone records. We

conditionally grant mandamus relief and order the trial court to vacate its order.


                                            Background

               On August 10, 2015, Alvarez and Ortiz were involved in an auto accident. Alvarez,

who was driving a truck for his employer Hill Country Site Supply, had stopped on the southbound

access road of IH-37 in George West, Texas, after he had missed the right turn on to US-59. When

Alvarez began backing the truck up to negotiate the exit on to US-59, he collided with Ortiz’s

vehicle, which was stopped immediately behind Alvarez on the access road.



       1
           Although relators used “Jose C. Padilla” in the style of their original proceeding, we will
refer to him as “Jose C. Padilla Alvarez” to maintain consistency with the parties’ briefs and court
documents.
                Ortiz sued relators for injuries sustained in the collision, asserting causes of action

for negligence, gross negligence, and negligent entrustment. Ortiz’s live pleadings are specific as

to the acts of negligence, gross negligence, and negligent entrustment—i.e., that Alvarez “failed to

keep . . . an outlook,” failed to avoid the collision, reversed too fast, reversed illegally, failed to honk,

failed to brake, and drove too fast. Ortiz’s pleadings do not include any allegation that the use of cell

phones caused or contributed to the accident.

                During the course of litigation, Ortiz served discovery requests on relators seeking,

relevant here, production of relators’ company and personal cell phone records covering thirty days

before and thirty days after the accident. Relators objected to the requests as overly broad, unduly

burdensome, and harassing, but agreed to produce telephone records for Alvarez’s cell phone for one

hour before and one hour after the time of the accident. Ortiz refused and filed a motion to compel,

arguing that the information was relevant to establishing, in support of her gross-negligence claim,

a “knowing and repeated pattern of unsafe conduct and cell phone usage on the part of both Relators”

and whether Hill Country Site Supply had “changed its corporate practices in light of this incident.”

The district court granted Ortiz’s motion, ordering relators to provide “phone records for 14 days

prior to and 14 days after August 10, 2015.”


                                                Discussion

                Relators seek mandamus relief from the district court’s order, urging that the district

court abused its discretion by granting discovery requests that seek information not supported by

Ortiz’s live pleadings, information that is not relevant, and information that violates third-party rights

to privacy.

                                                     2
                “A discovery order that compels production beyond the rules of procedure is an

abuse of discretion for which mandamus is the proper remedy.” In re National Lloyds Ins. Co.,

449 S.W.3d 486, 488 (Tex. 2014). “Our procedural rules define the general scope of discovery as

any unprivileged information that is relevant to the subject of the action, even though it would be

inadmissible at trial, as long as the information sought is ‘reasonably calculated to lead to the

discovery of admissible evidence.’” In re National Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex.

2016) (quoting In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Tex. R. Civ. P. 192.3(a)); see

also In re National Lloyds Ins. Co., 532 S.W.3d 794, 808 (Tex. 2017) (orig. proceeding) (“The

discovery guideposts [under the rules] can be summarized as follows: [1] only relevant evidence is

discoverable; [2] relevant evidence that is privileged is not discoverable; [3] relevant evidence that

is not privileged is discoverable when (i) it is admissible or (ii) it is inadmissible but reasonably

calculated to lead to the discovery of admissible evidence. . . .”). “The phrase ‘relevant to the subject

matter’ is to be broadly construed,” but “even these liberal bounds have limits.” “Evidence is

relevant if ‘(a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.’” In re National Lloyds Ins.

Co., 532 S.W.3d at 808 (quoting Tex. R. Evid. 401). Thus, “[a]lthough the scope of discovery is

broad, a request for information ‘must show a reasonable expectation of obtaining information that

will aid the dispute’s resolution.’” Id. (quoting In re CSX Corp., 124 S.W.3d at 152). Likewise,

discovery requests must be “reasonably tailored to include only matters relevant to the case”—i.e.,

they “must not be overbroad”—and such a flaw renders requests improper independently from

whether they are also burdensome or harassing. In re National Lloyds Ins. Co., 449 S.W.3d at 488.



                                                   3
               The district court’s order requiring production of the driver’s and the company’s

cell-phone records from fourteen days before and fourteen days after the date of the incident go

beyond the scope of the pleadings before the district court. There is no fact of consequence in

Ortiz’s claims that the cell-phone information has any tendency to make a fact that is of consequence

to her claims more or less probable than it would be without the evidence. See In re National Lloyds

Ins. Co., 532 S.W.3d at 808. Ortiz has not pleaded that cell-phone usage by Alvarez or anyone else

had anything to do with the accident on August 10, 2015. Nor has she pleaded that Hill Country Site

Supply engaged in conduct or had espoused some corporate policy related to cell-phone usage. As

such, the order compelling production of twenty-eight days’ of cell-phone records from Alvarez,

Hill Country Site Supply, and others is overly broad.

               Ortiz argues that the requested cell-phone information is relevant because her claims

of negligence, negligent entrustment, and gross negligence broadly encompass and justify discovery

of any distractions, including cell-phone usage, that might have affected Alvarez. Relatedly, Ortiz

contends that the requested information is relevant to her negligence claim because it relates to

whether Hill Country Site Supply failed to create and enforce a policy prohibiting the use of cell

phones while operating company vehicles and whether it failed to train Alvarez and other drivers to

refrain from using cell phones while operating company vehicles. Both of these assertions, which

again are nowhere to be found in Ortiz’s pleadings, presuppose and depend on the use of the cell-

phone by Alvarez at or near the time of the incident, at best, while her discovery request seeks

information well beyond that timeline and scope.




                                                 4
                                             Conclusion

               We conditionally grant mandamus relief and direct the trial court to vacate its order

requiring relators to produce the requested phone records. 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.



                                               _________________________________________
                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Filed: August 28, 2018




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