                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-19-00384-CV
                                __________________

IN RE NORTH HOUSTON POLE LINE, L.P. AND RYAN JAMES NOLAN
__________________________________________________________________

                           Original Proceeding
             58th District Court of Jefferson County, Texas
                       Trial Cause No. A-202961
__________________________________________________________________

                           MEMORANDUM OPINION

      North Houston Pole Line, L.P. (“NHPL”) and Ryan James Nolan, Relators,

seek mandamus relief. They argue the trial court clearly abused its discretion by

excluding certain evidence as a discovery sanction and in denying their request for

an inspection and re-download of data stored in an event data recorder in one of the

vehicles involved in the automobile accident that is the subject of this personal injury

lawsuit. We conditionally grant mandamus relief because we conclude that the trial

court erred and Relators lack an adequate remedy by appeal.




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      The real party in interest, Megan Amber Martinez, sued Relators for injuries

she sustained in an automobile accident. Martinez was driving a 2010 Ford Edge at

the time of the accident. The Ford Edge was owned by Martinez’s mother, Leah Ray

Dawson. Relator NHPL’s employee, James Nolan, was driving a freightliner at the

time of the accident. Martinez alleges that Nolan was driving in the course and scope

of his employment with NHPL, and that the negligence of Nolan and NHPL

proximately caused the accident.

      It is undisputed that on January 15, 2019, Relators had one of their experts

(Nicholas Schlechte) obtain data from the event data recorder in the Ford Edge while

the vehicle was in storage. According to the Relators, the event recorder data from

the Ford Edge shows that Martinez “was going 93 mph approximately four seconds

prior to impact.” Relators did not seek permission or consent from the registered

owner of the vehicle before having their expert download or access the data. Relators

also did not disclose the data extraction to Martinez until April 10, 2019, when

Relators supplemented discovery with a copy of Schlechte’s report. This

supplementation occurred about a week before Martinez’s deposition and after

Relators had deposed an eyewitness to the accident. The eyewitness stated in his

deposition that he believed Martinez “was traveling at a normal speed[].” Relators

asked several questions of the eyewitness in his deposition about whether his opinion

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about the accident would change if the evidence showed Martinez was speeding at

the time of the accident.

      Martinez moved to exclude the evidence and testimony as a discovery

sanction. Martinez argued that Schlechte, Relators’ expert, illegally downloaded

data from the Ford Edge’s event data recorder without first obtaining Dawson’s

consent or a court order and without Martinez’s knowledge. In Martinez’s motion

for sanctions, she complained that Relators had violated state law on the retrieval of

the data from the event data recorder. See Tex. Transp. Code Ann. § 547.615(c).

Martinez also referenced the federal “Driver Privacy Act of 2015”1 and Texas Rule

of Civil Procedure 196.7(d). Relators filed a response to Martinez’s motion. The trial

court held a hearing on the motion for sanctions on August 8, 2019.

      In support of her motion for sanctions, Martinez attached an affidavit from

her expert, April Yergin, that discussed possible spoliation concerns with improperly

downloaded data but stated that it was impossible to determine with any reasonable

degree of engineering certainty whether the data had been downloaded “correctly

and appropriately[.]” Relators countered with affidavits from Schlechte and W.R.

“Rusty” Haight, an accident reconstructionist. In Schlechte’s affidavit, Schlechte



      1
        At the hearing Martinez referenced the “Federal Law Driver Privacy Act of
2015[.]” See Pub. L. No-114-94, § 24302 (2015).
                                        3
described his experience and the procedure he used to access the data. In Haight’s

affidavit, Haight stated his opinion that Schlechte followed the proper procedures

and further that the hypothetical concerns described in Yergin’s affidavit would be

dispelled by reviewing the downloaded information. According to Haight, another

download would establish whether the veracity of the information had been

permanently destroyed.

      Relators’ attorney stated that the unauthorized download had been performed

on a good-faith belief that Relators’ insurer owned the vehicle and had consented to

the inspection. Relators argued that excluding all data from the event data recorder

would prevent the Relators from presenting their defense. The trial court sanctioned

Relators by striking the expert (Schlechte) and the expert’s report as a discovery

sanction.

      Relators also sought a court order compelling an inspection and for a “re-

download” of the data, and the trial court held another hearing on September 24,

2019. In the September 24th hearing, the trial court denied the Relators’ request for

an inspection and re-download of the data and stated that the trial court was “striking

anything related to” the black box or event data recorder because the Relators had

“illegally” downloaded the data and used it during the depositions.



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       The Texas Rules of Civil Procedure authorize trial courts to impose sanctions

for discovery abuses. Tex. R. Civ. P. 215.3. A trial court abuses its discretion by

imposing a sanction that is not just. TransAmerican Nat. Gas Corp. v. Powell, 811

S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). Two measures determine whether

an imposition of sanctions is just. Id. “First, a direct relationship must exist between

the offensive conduct and the sanction imposed.” Id. A sanction must be directed

against the abuse and toward remedying the prejudice caused the innocent party and

against the offender. Id. “Second, just sanctions must not be excessive. The

punishment should fit the crime.” Id. A sanction imposed for discovery abuse should

be no more severe than necessary to satisfy its legitimate purposes. Id. The legitimate

purposes of discovery sanctions are to secure compliance with the discovery rules,

deter other litigants from abusing the discovery rules, and punish parties who violate

the discovery rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992);

Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300

S.W.3d 348, 384 (Tex. App.—Dallas 2009, pet. denied). Generally, courts should

first consider the availability of less stringent sanctions. Cire v. Cummings, 134

S.W.3d 835, 842 (Tex. 2004); Hamill v. Level, 917 S.W.2d 15, 16 n.1 (Tex. 1996);

Chrysler Corp., 841 S.W.2d at 849; TransAmerican Nat. Gas Corp., 811 S.W.2d at

917.

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      Relators argued Martinez can have her own experts obtain the same data and

that they did not destroy any data because the data still remains in the event data

recorder. Martinez argues the trial court acted within its discretion because Relators’

counsel acted in bad faith and used illegally obtained information to contradict the

testimony of the eyewitness. Martinez also argues that Relators corrupted the

integrity of the process in that Martinez cannot know whether the data was

intentionally hacked or altered because she was not present for the original

download.

      The trial court could have disbelieved counsel’s explanation of why Relators’

counsel believed he did not need to secure the owner’s consent or a court order, but

the trial court should have imposed a sanction upon only the offender (the attorney)

and should have considered and explained that it considered lesser sanctions before

imposing sanctions that severely preclude a party’s ability to present the merits of

its claims. See Primo v. Rothenberg, No. 14-13-00794-CV & 14-13-00997-CV,

2015 WL 3799763, at *24 (Tex. App.—Houston [14th Dist.] June 18, 2015, pet.

denied) (mem. op.). “[A] trial court either must impose lesser sanctions first or must

clearly explain on the record why the case is an exceptional case where it is fully

apparent that no lesser sanctions could promote compliance.” Knoderer v. State



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Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136, at *11 (Tex. App.—

Texarkana Sept. 19, 2014, no pet.) (mem. op.).

      While we cannot say it would have been an abuse of discretion for the trial

court to strike portions of Schlechte’s report or possibly even all of the report—to

the extent it is based on the unauthorized downloaded data—or for the trial court to

have disallowed the offending party’s use of the improperly downloaded data,2 the

trial court’s ruling did much more than that because the trial court struck the report,

the expert witness, and “anything related to” the event data recorder, and then the

trial court also denied any further inspection or re-download of the data. The trial

court did not consider or explain why a lesser sanction would not accomplish the

same goal, nor is it apparent from the record that the trial court directed the sanction

against the specific offender. Therefore, we conclude that the trial court erred. See

TransAmerican Nat. Gas Corp., 811 S.W.2d at 917.

      Martinez argues the harsher sanctions are justified because the original

extraction was insufficiently documented to exclude any possibility of tampering.

She suggests the initial download may have constituted a destructive inspection

tantamount to spoliation. A party’s intentional destruction of evidence may, absent



      2
       Nothing in the record before us indicates that the time for designating experts
has passed, nor do the parties address this issue.
                                          7
evidence to the contrary, be enough by itself to support a finding that the spoliated

evidence is both relevant and harmful to the non-spoliating party, but negligent

spoliation could not be enough to support such a finding without some proof about

what the destroyed evidence would show. Brookshire Bros., Ltd. v. Aldridge, 438

S.W.3d 9, 22 (Tex. 2014). A finding of bad-faith spoliation requires evidence that

the party acted with the subjective purpose of concealing or destroying discoverable

evidence. Id. at 24.

      Martinez’s expert opined that possible scenarios exist in which data on an

event recorder can be corrupted, but Martinez did not present evidence that any of

the possible scenarios occurred nor evidence that the download was conducted with

the subjective purpose of concealing or destroying discoverable evidence. Both

would be required before punishment for destroying evidence would be just or

proportionate. Id. Evidence that would be sufficient to support a finding that

Relators’ counsel intentionally had the Relators’ expert conduct an unauthorized

download is insufficient to support a harsher sanction for intentional spoliation

absent evidence that the purpose for conducting the download without consent or

without a court order was to conceal or destroy the data. Such a finding is not

reasonably inferable from the mandamus record presented here.



                                         8
      We find that the trial court abused its discretion when it imposed a sanction

striking Schlechte’s Report, Relators’ expert (Schlechte), and “anything related to”

the event data recorder, and in denying the request for further inspection and re-

download of the data. To obtain mandamus relief, Relators must also show that they

have no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135-36 (Tex. 2004) (orig. proceeding). Martinez argues Relators have an

adequate remedy by appeal because they will be able to present a defense using

eyewitness testimony or they can make a bill in the trial court and preserve the issue

for appeal.

      An appeal is an inadequate remedy if “a party’s ability to present a viable

claim or defense at trial is either completely vitiated or severely compromised.” In

re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding). In Garza, mandamus

relief was an appropriate remedy for a discovery sanction that was less than a case-

determinative “death penalty” because the trial court’s ruling severely compromised

the relator’s ability to present their case. See id. at 843. The record before us

establishes that Relators’ ability to present a defense will be severely compromised.

We conclude that appeal is not an adequate remedy.

      We lift the stay imposed by our order of November 4, 2019, and we

conditionally grant Relators’ mandamus petition. We are confident that the trial

                                          9
court will vacate its orders. The writ shall issue only if the trial court fails to act in

accordance with this Court’s opinion.

      PETITION CONDITIONALLY GRANTED.


                                                              PER CURIAM

Submitted on November 21, 2019
Opinion Delivered January 9, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.




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