                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00449-CV


IN RE TEXAS FARMERS INSURANCE                                       RELATORS
COMPANY, FARMERS INSURANCE
EXCHANGE AND FARMERS TEXAS
COUNTY MUTUAL INSURANCE
COMPANY




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                          ORIGINAL PROCEEDING

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                       MEMORANDUM OPINION1
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                                  I. Introduction

      In a single issue, Relators Texas Farmers Insurance Company, Farmers

Insurance Exchange, and Farmers Texas County Mutual Insurance Company

ask this court for relief from Respondent the Honorable Patrick Ferchill’s order

requiring them to produce documents in response to Real Party in Interest (RPI)
      1
      See Tex. R. App. P. 47.4.
James Holiday’s discovery requests.2          We conditionally grant relief, vacating

Respondent’s order to provide information in response to requests for production

Nos. 4, 6, 9, 10, 11, 12, and 13 to allow RPI the opportunity to tailor the requests

for production as discussed at the hearing on the motion to compel, to allow

Relators to file a privilege log for the documents that they claim are privileged,

and to allow Respondent the opportunity to then review the documents in camera

to determine which, if any, are not privileged.

                                  II. Background

      In 2010, on the way home from drinking alcohol at Railhead Smokehouse,

Jeffery Herron fell off an all-terrain vehicle (ATV) owned and operated by Todd

Jarvis, who had a homeowner’s policy, a personal umbrella policy, and a

personal automobile policy with Relators.         Herron sued Jarvis and Railhead;

Railhead countered against Jarvis for negligently causing Herron’s injuries.

Relators agreed to provide a defense to Jarvis under the homeowner’s and

umbrella policies, under a full reservation of their rights and defenses, but not

under the automobile policy. Relators then filed for declaratory relief, seeking a

declaration that they had no duty to defend or indemnify Jarvis under any of the

policies. They attached the policies to the petition.

      Jarvis counterclaimed, seeking a declaration that Relators had a duty to

defend and indemnify him, arguing that the ATV fell within the “lawn, garden, or


      2
       Holiday is the successor guardian of the estate of Jeffery Herron.

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farm equipment” exception to the motor vehicle exclusion in the homeowner’s

policy and claiming that Relators had violated insurance code chapter 541 by

asserting their reservation of rights and attempting to avoid contractual liability.

RPI filed a cross-action, seeking the same declaration and relief as Jarvis. RPI

sent his first request for production to Relators, and Relators responded and

objected to the following requests that are at issue here:

      Request No. 4: Please produce complete copies of all claims
      manuals or training materials, or other materials that address the
      handling of liability claims under homeowners policies.

      Response: Objection, work product privilege. Objection, not
      reasonably calculated to lead to the discovery of admissible
      evidence. Plaintiffs[] object to this request for production because
      this matter has been abated. Plaintiffs[] also object because the
      probative value, if any, is outweighed by the burden of producing this
      information. Plaintiffs[] object to this request because it is a request
      for confidential and proprietary information.

            ....

      Request No. 6: Please produce all documents pertaining to the
      “Motor Vehicle” exclusion in the homeowners policy issued to the
      Jarvis[] family.

      Response: Objection, work product and attorney client privileges.
      Objection, not reasonably calculated to lead to the discovery of
      admissible evidence. Plaintiffs[] object to this request for production
      because this matter has been abated. You already have a copy of
      the policy.    Subject to these objections, a disk containing
      photographs, depositions and other documents has been produced.

            ....

      Request No. 9: Provide all documents pertaining to any and all
      liability claims for which a defense was provided with reservations to
      one of your insureds because of the exceptions to the “Motor


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Vehicle” exclusion in the homeowners policy with the language used
in the policy issued to the Jarvis[] family.

Response: Objection, work product privilege and attorney client
privilege. Objection, not reasonably calculated to lead to the
discovery of admissible evidence. Plaintiffs[] object to this request
for production because this matter has been abated. Plaintiffs[] also
object because the probative value, if any, is outweighed by the
burden of producing this information. Plaintiffs[] object to this
request because it is a request for confidential and proprietary
information.

Request No. 10: Provide all documents pertaining to any and all
liability claims for which a defense was provided without reservation
to one of your insureds because of the exceptions to the “Motor
Vehicle” exclusion in the homeowners policy with the language used
in the policy issued to the Jarvis[] family.

Response: Objection, work product privilege and attorney client
privilege. Objection, not reasonably calculated to lead to the
discovery of admissible evidence. Plaintiffs[] object to this request
for production because this matter has been abated. Plaintiffs[] also
object because the probative value, if any, is outweighed by the
burden of producing this information. Plaintiffs[] object to this
request because it is a request for confidential and proprietary
information.

Request No. 11: Provide all documents pertaining to any and all
liability claims for which indemnity payments were paid on behalf of
your insured because of the exceptions to the “Motor Vehicle”
exclusion in the homeowners policy with the language used in the
policy issued to the Jarvis[] family.

Response: Objection, work product privilege and attorney client
privilege. Objection, not reasonably calculated to lead to the
discovery of admissible evidence. Plaintiffs[] object to this request
for production because this matter has been abated. Plaintiffs[] also
object because the probative value, if any, is outweighed by the
burden of producing this information. Plaintiffs[] object to this
request because it is a request for confidential and proprietary
information.



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      Request No. 12: Provide all documents pertaining to the types of
      vehicles for which liability coverage was provided because of the
      language of the exceptions to the “Motor Vehicle” exclusion in the
      homeowners policy with the language used in the policy issued to
      the Jarvis[] family.

      Response: Objection, work product privilege and attorney client
      privilege. Objection, not reasonably calculated to lead to the
      discovery of admissible evidence. Plaintiffs[] object to this request
      for production because this matter has been abated. Plaintiffs[] also
      object because the probative value, if any, is outweighed by the
      burden of producing this information. Plaintiffs[] object to this
      request because it is a request for confidential and proprietary
      information.

      Request No. 13: Provide all documents pertaining to any [sic] and
      motor vehicles included as an exception to the “Motor Vehicle”
      exclusion in the homeowners policy since the vehicle was lawn,
      garden or farm equipment.

      Response: Objection, work product privilege and attorney client
      privilege. Objection, not reasonably calculated to lead to the
      discovery of admissible evidence. Plaintiffs[] object to this request
      for production because this matter has been abated. Plaintiffs[] also
      object because the probative value, if any, is outweighed by the
      burden of producing this information. Plaintiffs[] object to this
      request because it is a request for confidential and proprietary
      information.

      RPI filed a motion to compel, complaining that he had agreed to maintain

confidentiality of any proprietary information and arguing that he sought

information regarding the insurance policy and its procedural handling as

determinative of the defense in the suit and his counterclaim. He also argued

that he had a substantial need for the information that Relators claimed was

subject to work-product privilege and that he would be unable to obtain the

substantial equivalent of it by other means without undue hardship.


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      Relators responded by arguing that their claims manual and the

documents underlying the coverage determination were not reasonably

calculated to lead to the discovery of admissible evidence, were confidential and

proprietary information, and were subject to attorney-client and work-product

privileges. Relators argued that the action was a coverage action with no bad

faith asserted by any party, making No. 4 irrelevant. Relators argued that the

documents requested in Nos. 6, 9, 10, 11, 12, and 13 were germane to the

issues being litigated and were therefore subject to attorney-client and work-

product privileges. They did not attach any affidavits or other evidence besides

their responses to the requests for production.

      At the hearing on the motion to compel, Relators argued that No. 4 was

overbroad, irrelevant, unduly burdensome, a fishing expedition, and violated

attorney-client privilege but said that if it were tailored to the facts of the case,

they would answer it. RPI’s counsel said that he would limit No. 4, and Relators

said that if the request were resubmitted or the order rewritten to include the

limitation, they would respond to it without further objection. Prior to granting the

motion, Respondent indicated that he would be amenable to No. 4 being refined

and encouraged the parties to refine it; however, in his order, Respondent

granted No. 4 without limiting it.

      Relators argued at the hearing that attorney-client privilege applied as to

Nos. 6, 9, 10, 11, 12 and that work-product privilege applied to Nos. 6 and 9–13.

At the conclusion of the hearing, Respondent overruled Relators’ objections and

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required production of responsive information and documents by December 20,

2013. This court issued a stay of Respondent’s order compelling production to

consider Relators’ mandamus petition.

                                 III. Discovery

      Relators complain that the trial court abused its discretion by overruling

their objections to requests for production Nos. 4, 6, 9, 10, 11, 12, and 13

because the requests were irrelevant, overbroad, and unduly burdensome and

violate the work product and attorney-client privileges and that they have no

adequate remedy by appeal.3

A. Standard of Review and Applicable Law

      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

Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding);

In re Kings Ridge Homeowners Ass’n, Inc., 303 S.W.3d 773, 778 (Tex. App.—

Fort Worth 2009, orig. proceeding). When determining 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. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998)

(orig. proceeding).    The rules governing discovery do not require as a


      3
      In his response to Relators’ petition, RPI argues that Relators failed to
reassert these objections at the hearing, but the record reflects—as set out
above—that Relators raised these objections at the hearing.

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prerequisite to discovery that the information sought be admissible; 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). But this broad grant 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).

      Appellate courts will not intervene to control incidental trial court rulings

when an adequate remedy by appeal exists. In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). An appeal is inadequate

when a party is in danger of losing substantial rights, such as when the appellate

court would not be able to cure the trial court’s discovery error, when 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 when 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 Van Waters & Rogers, Inc., 145 S.W.3d 203, 210–11 (Tex. 2004)

(orig. proceeding).    Appellate courts must consider whether the benefits of

mandamus review outweigh the detriments when determining whether appeal is

an adequate remedy. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.

2008) (orig. proceeding).

      A clear abuse of discretion warranting correction by mandamus occurs

when a trial court’s decision is without basis or guiding principles of law. Kings

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Ridge, 303 S.W.3d at 778.        A trial court abuses its discretion by ordering

discovery that exceeds that permitted by the rules of procedure.         In re CSX

Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding).

      Rule 193.3 requires that a party who claims that material or information

responsive to written discovery is privileged state in the response to discovery or

in a separate document:       (1) that information or material responsive to the

request has been withheld; (2) the request to which the information or material

relates; and (3) the privilege or privileges asserted. Tex. R. Civ. P. 193.3(a).

The party seeking discovery may then serve a written request that the

withholding party identify the information and material withheld, and within fifteen

days of service of that request, the withholding party must serve a response that

(1) describes the information or materials withheld that, without revealing the

privileged information itself or otherwise waiving the privilege, enables other

parties to assess the privilege’s applicability, and (2) asserts a specific privilege

for each item or group of items withheld. Tex. R. Civ. P. 193.3(b). Rule 193.4

provides for a hearing with regard to assertions of privilege and for in camera

review if determined necessary by the trial court. Tex. R. Civ. P. 193.4. A trial

court abuses its discretion when it fails to conduct an adequate in camera

inspection of documents when such a review is critical to evaluation of a privilege

claim. In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 261 (Tex. 2005) (orig.

proceeding). Trial courts “‘must make an effort to impose reasonable discovery



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limits.’” In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex. 2007) (orig.

proceeding) (quoting CSX, 124 S.W.3d at 152).

B. Analysis

      RPI’s counsel never requested a privilege log, and the trial court granted

the motion to compel despite Relators’ offer at the motion hearing to produce a

privilege log and to submit documents for in camera inspection. See Tex. R. Civ.

P. 193.3. Respondent therefore had nothing to review to base his decision to

overrule Relators’ objections based on the attorney-client and work-product

privileges. Further, although all of the parties agreed at the hearing to narrow

request for production No. 4, Respondent’s written order does not reflect this

modification.   And, as set out above and argued by Relators, the discovery

requests at issue, which seek “all” documents without regard to any limitation as

to time, are facially overbroad as to breadth and scope.         See Allstate, 227

S.W.3d at 669 (noting that discovery requests that are overbroad as to time,

location, and scope and that can easily be more narrowly tailored to the dispute

at hand are improper); see also In re Deere & Co., 299 S.W.3d 819, 821 (Tex.

2009) (orig. proceeding).

      Therefore, we sustain Relators’ sole issue and vacate Respondent’s order

to allow RPI the opportunity to tailor the requests for production as discussed at

the hearing on the motion to compel, to allow Relators to file a privilege log for

the documents that they claim are privileged, and to allow Respondent the



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opportunity to then review the documents in camera to determine which are not

privileged.

                                   IV. Conclusion

      Having sustained Relators’ sole issue, we conditionally grant relief. The

stay will be lifted after the parties notify this court that RPI has tailored his

requests for production at issue here, Relators have produced a privilege log,

and Respondent has had an opportunity to review Relators’ documents to

determine whether the attorney-client or work-product privileges apply. The writ

will issue only in the event that the parties and Respondent fail to comply within

thirty days of the date of this opinion.

                                                    /s/ Bob McCoy

                                                    BOB MCCOY
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: January 30, 2014




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