Petition for Writ of Mandamus Conditionally Granted in Part and Denied in
Part and Opinion filed August 30, 2013.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-13-00224-CV



                       IN RE JOAN E. JARVIS, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              10th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CV1457

                                   OPINION

      On March 15, 2013, relator Joan E. Jarvis filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R.
App. P. 52. In her petition, relator asks this Court to compel the Honorable Kerry
L. Neves, presiding judge of the 10th District Court of Galveston County, to vacate
his order signed January 30, 2013, ordering discovery of certain medical records
and insurance contracts. We conditionally grant mandamus relief in part because
we conclude that medical billing records for procedures unrelated to the injury at
issue in this suit are protected by the physician-patient privilege. We deny the
remainder of the requested relief.

                                     BACKGROUND

       Relator Joan Jarvis alleges a dog owned by real party in interest Michael
Parkan bit her right hand. In July 2012, Jarvis sued Parkan for damages in relation
to her hand injury. Jarvis initially had surgery on her hand at Clear Lake Regional
Hospital. Seven months later she had another surgery performed by Dr. Charles
Polsen of South Shore Plastic Surgery at a surgery center owned by Dr. Polsen.
Jarvis’s medical insurer is Anthem Blue Cross Blue Shield (BCBS).

       In his answer to Jarvis’s suit, Parkan alleged: “The amount [Jarvis] was
allegedly billed for the medical treatment claimed to have been received by [Jarvis]
for the post-accident medical treatment is in excess of the amounts actually paid or
incurred.”

       In September 2012, Parkan noticed the depositions by written questions of
South Shore/Dr. Polsen, Clear Lake Regional Medical Center, and Bay Area Hand
Institute/Dr. Alfred Mitchell. In the subpoena duces tecum directed toward the
custodian of records for these entities, Parkan requested “the entire billing record
file dated 04/09/2011 to present” pertaining to Jarvis. From South Shore and Dr.
Polsen specifically, Parkan also sought “the entire medical records file” pertaining
to Jarvis.

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      Jarvis filed a motion to quash and requested a protective order restricting
access to and dissemination of the medical and billing records. Jarvis alleged that
the requests were “not reasonably limited in time or scope to the events or issues
related to this litigation.”   She further alleged the requests sought privileged
information. It does not appear from the record that the trial court ruled on this
initial motion to quash or the discovery to which it was directed.

      In November 2012, Parkan noticed the deposition by written questions of
BCBS, requesting: “[a]ll managed care contracts, other contracts regarding patient
billing, payments, adjustments, write-offs, correspondence and notes relating to
services provided to Joan Jarvis” by Dr. Polsen; “[a]ll managed care contracts [by
South Shore or S.T.A.E.C. (an ambulatory surgical center)] to accept BCBS
payments as full payment for services provided Joan Jarvis”; and “[a]ll payments
made” to any of these entities “for services rendered to Joan Jarvis.” In January
2013, Parkan noticed new depositions by written questions of South Shore, Dr.
Polsen, and S.T.A.E.C., requesting, among other things: “[a]ll billing records
relating to Joan Jarvis”; “[a]ll contracts and agreements relating to you [sic] bills
and/or payment for your services, including managed care contracts, you had in
effect with [BCBS] when Joan Jarvis received treatment and/or services from
you;” and “[a]ll letters, emails and notes of communications with [BCBS]
regarding billing for services provided to Joan Jarvis.”

      Jarvis filed similar motions to quash each deposition. Jarvis argued that all
the requests were “not reasonably limited in time or scope to the events or issues
related to this litigation,” sought privileged information, and were overbroad. In
addition, she asserted that the January 2013 deposition requesting contracts and
                                          3
communications with BCBS “for treatment unrelated to the dog bite incident at
issue” violated the collateral source rule.

      Parkan responded to Jarvis’s motions to quash. Parkan argued the discovery
was relevant to the following issues:

           The accurate amount of Jarvis’s medical bills.

           The proper identity of the providers of services.

           The amount of insurance payments and/or adjustments.

           The existence of any managed care contracts between the
            providers and BCBS including any contracts/agreements
            relating to the effect of the provider accepting insurance
            payments.

           The total amount of medical expenses “actually paid or
            incurred” by or on behalf of Plaintiff.

           Whether the billed amounts are reasonable charges.

      Parkan alleged that Jarvis received medical bills from two surgical facilities
and the bills are dated four days apart, while the two surgeries on her hand were
seven months apart. Parkan stated he had learned through discovery that Dr.
Polsen performed other plastic surgery on Jarvis. He sought Jarvis’ billing records
for “surgeries during the same time frame as her services for the dog bite at issue.”
Parkan alleged the billing records were necessary to sort out exactly what medical
expenses had been paid or incurred in the course of fixing Jarvis’s hand. Parkan
further argued that he was entitled to discovery of the managed care contracts
between BCBS and either Dr. Polsen or the surgery centers to determine “the
existence of any agreement or contract with BCBS relating to services provided to
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Plaintiff which affected the ability or right of the facilities and/or Dr. Polsen to
seek payments from Plaintiff for their services.”

      At the hearing on Jarvis’s motions to quash, she argued that Parkan’s
requests (1) were overbroad, (2) violated the Health Insurance Portability and
Accountability Act (“HIPAA”), and (3) violated an antitrust provision with regard
to insurance contracts. Parkan responded by stating his need for billing records of
other surgeries and the contracts with BCBS.        According to Parkan, he has
received billing records for the hand surgery from Dr. Polsen, South Shore
Surgicenter, and S.T.A.E.C. The bills from South Shore Surgicenter and Dr.
Polsen add up to $143,483.97. The bills from the two surgical centers appear to be
for the same surgery, but are for different amounts.       Parkan contends he is
requesting the billing records and the insurance contracts in an effort to learn why
the surgeries are being billed from two different facilities and why BCBS will not
cover much of the cost.

      At the conclusion of the hearing, the trial court signed an order overruling
the motions to quash and requiring production of the discovery sought in the
November deposition by written questions of BCBS and the January deposition by
written questions of South Shore Plastic Surgery, Dr. Polsen, and S.T.A.E.C.

      In this mandamus proceeding, Jarvis argues that: (1) the billing records for
other procedures are privileged and not subject to discovery; (2) the trial court
abused its discretion in ordering production of healthcare contracts and other
insurance information; (3) many of the discovery requests are overly broad; and (4)
the January deposition of her healthcare providers is duplicative and burdensome.
We address each argument in turn.
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                              MANDAMUS STANDARD

      Mandamus relief is appropriate if a trial court clearly abuses its discretion
and no adequate appellate remedy exists. In re CSX Corp., 124 S.W.3d 149, 151
(Tex. 2003).    The burden of establishing a clear abuse of discretion and an
inadequate appellate remedy is on the party resisting discovery. Id. The scope of
discovery is largely within the trial court’s discretion. In re Colonial Pipeline Co.,
968 S.W.2d 938, 941 (Tex. 1998). Texas Rule of Civil Procedure 192.3 permits a
party to “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.” Tex. R. Civ. P. 192.3.

      If a trial court erroneously orders privileged matters to be disclosed or
compels overly broad discovery, it has clearly abused its discretion and mandamus
is the appropriate remedy. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492
(Tex. 1995). Because discovery is limited to matters that are relevant to the case,
requests for information that are not reasonably tailored as to time, place, or
subject matter amount to impermissible “fishing expeditions.” See CSX Corp., 124
S.W.3d at 152; Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
Requests for production must be “reasonably tailored to include only matters
relevant to the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998).




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                                     ANALYSIS

I.    The medical billing records for unrelated procedures are privileged.

      Jarvis seeks to quash discovery of billing records related to procedures other
than those directly related to her hand injury. Specifically, she points to the
following items. Items 1 and 2 of Parkan’s January deposition notice ask Dr.
Polsen, South Shore, and S.T.A.E.C. for “[a]ll billing records relating to Joan
Jarvis.” In addition, items 4 through 9 of his November deposition notice ask
BCBS for records of “[a]ll payments made to [those entities] for services rendered
to Joan Jarvis.” Jarvis argues the billing records unrelated to the hand injury are
protected by the physician-patient privilege. We agree.

      Under rule 509 of the Texas Rules of Evidence, “[c]onfidential
communications between a physician and a patient, relative to or in connection
with any professional services rendered by a physician to the patient are privileged
and may not be disclosed.” Tex. R. Evid. 509(c)(1). Likewise, “[r]ecords of the
identity, diagnosis, evaluation, or treatment of a patient by a physician that are
created or maintained by a physician are confidential and privileged and may not
be disclosed.” Id. 509(c)(2). The privilege is not limited solely to records held by a
physician, but may extend to those held by certain persons acting at the direction of
a physician or who are involved in the patient’s consultation, examination, or
interview. Id. 509(a)(3). The purposes of the privilege are to: (1) encourage
communications necessary to effective medical treatment, and (2) prevent
unnecessary disclosure of highly personal information.        R.K. v. Ramirez, 887
S.W.2d 836, 840 (Tex. 1994) (orig. proceeding).


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      Parkan argues that an exception applies to the privilege because he is only
requesting billing records, not medical records, and Texas Rules of Evidence
509(e)(3) and (4) provide an exception to the privilege Jarvis claims. Under those
sections, there is no physician-patient privilege:

      (3) when the purpose of the proceedings is to substantiate and collect
      on a claim for medical services rendered to the patient, and
      (4) as to a communication or record relevant to an issue of the
      physical, mental or emotional condition of a patient in any proceeding
      in which any party relies upon the condition as a part of the party’s
      claim or defense.

      Parkan first argues that this case falls under subsection (3) because Jarvis is
seeking to “collect on a claim for medical services rendered to the patient.”
Jarvis’s claim against Parkan is one for personal injuries, however. Her claim is
not directed toward her surgeon, nor is the surgeon attempting to collect for
medical services. Therefore, the exception described in subsection (3) does not
apply. Cf. In re Collins, 286 S.W.3d 911, 916 (Tex. 2009) (orig. proceeding)
(information relevant to medical malpractice claim not subject to privilege).

      With regard to the exception described in subsection (4), Parkan argues that
billing records, unlike medical records, are not privileged under Rule 509. The
supreme court analyzed the patient-litigant exception to the physician-patient
privilege in R.K. v. Ramirez. The court held that this exception applies when: (1)
the records are relevant to the condition at issue in the litigation, and (2) the
condition contained in the records is relied upon as a “part” of a party’s claim or
defense. 887 S.W.2d at 840. Whether a plaintiff’s condition is a “part” of a claim
is determined from the pleadings, without reference to the evidence that is

                                           8
allegedly privileged. R.K., 887 S.W.2d at 843 n. 7; In re Doe, 22 S.W.3d 601, 609
(Tex. App.—Austin 2000, orig. proceeding). To be a “part” of a claim or defense,
the condition itself must be a fact that alone carries legal significance under the
substantive law. R.K., 887 S.W.2d at 842–43 (“Because relevance is defined so
broadly, virtually any litigant could plead some claim or defense to which a
patient’s condition could arguably be relevant and the privilege would cease to
exist. We reject this alternative as well.”).     The supreme court observed that
“[c]ommunications and records should not be subject to discovery if the patient’s
condition is merely an evidentiary or intermediate issue of fact, rather than an
‘ultimate’ issue of a claim or defense, or if the condition is merely tangential to a
claim rather than ‘central’ to it.” Id. at 842.

       Parkan cites no authority distinguishing between medical billing records and
medical records for purposes of application of the physician-patient privilege. At
least one of our sister courts of appeals has included medical billing records within
the privilege as contemplated by Rule of Evidence 509. See In re Dolezal, 970
S.W.2d 650, 653 (Tex. App.—Corpus Christi 1998, orig. proceeding) (concluding
billing records were privileged under Rule 509). We need not decide, however,
whether all medical billing records are covered by the privilege. Because the
medical bills at issue here record the identity, diagnosis, evaluation, or treatment of
Jarvis, they are covered by the privilege. Tex. R. Evid. 509(c)(2).

       Billing records are also covered by HIPAA, upon which Jarvis relies.
HIPAA defines the term “health information” as including any information that
“relates to the . . . past, present, or future payment for the provision of health care
to an individual.”     42 U.S.C. § 1320d(4).      HIPAA permits protected health
                                             9
information to be revealed in response to a discovery request if the parties agree to
a protective order and have presented it to the court, or if they have asked the court
for a protective order (as Jarvis did). 45 C.F.R. § 164.512(e)(1). The HIPAA
provisions do not create a privilege against production or admission of evidence;
they merely create a procedure for obtaining protected medical records in
litigation. Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925-926 (7th Cir. 2004);
see also Fed. R. Evid. 501. Thus, HIPAA does not alter our privilege analysis.

      In deciding whether the subsection (4) exception to the privilege applies, we
must look to Jarvis’s pleadings to determine whether billing records for surgeries
other than her hand surgery are a “part” of her claim or Parkan’s defense. Jarvis’s
pleadings are limited to allegations of negligence, negligence per se, and strict
liability with regard to the dog bite she received on her hand. Jarvis has stated that
she is only seeking recovery for damage to her hand. Applying the R.K. standards
to this case, billing records for plastic surgery other than surgery performed on
Jarvis’s injured hand are not a “part” of either Jarvis’s claims or Parkan’s defense.
While Parkan alleges a need for the bills to “sort out” discrepancies, that is an
evidentiary issue that can be explored in other ways, not an ultimate issue of a
claim or defense. Accordingly, the exception to the privilege does not apply to
those bills. See R.K., 887 S.W.2d at 842.

      For these reasons, we hold that the billing records for procedures unrelated
to Jarvis’s hand injury are protected by the physician-patient privilege and are not
discoverable under the exceptions to that privilege raised by Parkan. The trial
court clearly abused its discretion by ordering their production in response to items


                                         10
1 and 2 of the January deposition notice and items 4 through 9 of the November
deposition notice.

II.    The collateral source rule does not bar discovery of the BCBS contracts.
       Parkan also seeks discovery from BCBS, Dr. Polsen, South Shore, and
S.T.A.E.C. of their contracts and communications relating to payment for the
services rendered to Jarvis. The particular requests are quoted above and appear in
items 3 through 5 of the January deposition notice and 1 through 3 of the
November deposition notice. Parkan argues this information is calculated to lead
to the discovery of relevant evidence because the contracts are necessary to aid in
determining what expenses were reasonable and whether the medical providers
accepted payments for less than amounts billed based on contracts with insurance
carriers.

       Jarvis argues these requests run afoul of the “collateral source rule.” This
argument does not comport with Jarvis’s motions to quash below, which only
argued the collateral source rule in response to the January notice, and even there
argued only that producing the contracts and correspondence “for treatment
unrelated to the dog bite incident at issue” would violate the collateral source rule.
Yet even if Jarvis had preserved her argument regarding the collateral source rule
with respect to both depositions and all contracts (whether related or unrelated), we
hold that the trial court did not clearly abuse its discretion in rejecting that
argument.

       Section 41.0105 of the Texas Civil Practice and Remedies Code provides
that “recovery of medical or health care expenses incurred is limited to the amount
actually paid or incurred by or on behalf of the claimant.” The supreme court has
                                         11
determined that section 41.0105 limits recovery, and consequently the evidence at
trial, to expenses that the provider has a legal right to be paid. Haygood v. De
Escabedo, 356 S.W.3d 390, 391 (Tex. 2012). The court specifically determined
that “the collateral source rule continues to apply to such expenses, and the jury
should not be told that they will be covered in whole or in part by insurance. Nor
should the jury be told that a health care provider adjusted its charges because of
insurance.” Id. at 400.

      In Haygood, the court further discussed the collateral source rule and section
41.0105 in determining whether a plaintiff could recover full “list” prices for
medical services in cases when a health care provider has agreed to accept payment
of lower reduced rates by virtue of contracts with insurance carriers and Medicare
and Medicaid regulations. The court first made clear that Texas law allows a
plaintiff to recover “reasonable medical expenses.” Determining what expenses
are “reasonable” in a given case, however, has become difficult given the modern
practice of requiring medical providers—by virtue of contracts with insurance
carriers or applicable regulations—to accept payments of far less than the amounts
billed. The court held that limiting a plaintiff to recovery of these reduced fees did
not violate the collateral source rule. Id. at 397–98.

      In reaching its decision, the court noted that the purpose of the collateral
source rule is to prevent a windfall to the defendant when the plaintiff’s costs are
paid by a third party for the benefit of the plaintiff. See id. at 395. The court first
specifically noted that the reduced rates were either determined to be “reasonable”
under Medicare or other programs or were reached by agreement between willing
providers and willing insurers. Id. at 394–95. Thus, the defendant was still
                                          12
required to pay for reasonable expenses and received no windfall. On the other
hand, the court stated that allowing a plaintiff to recover for elevated expenses that
a provider could not legally recover would create a windfall to the plaintiff. See id.
at 395. The court concluded that “the common-law collateral source rule does not
allow recovery as damages of medical expenses a health care provider is not
entitled to charge.” Id. at 395.

      Parkan contends that “whether Blue Cross Blue Shield is a ‘collateral
source’ is of no consequence to the determination of the discovery issues in this
case.” Parkan further argues that “the Texas Supreme Court in Haygood made it
clear that insurance payments, adjustments and contracts affecting the legal right of
the healthcare provider to be paid are the very issues that are relevant at trial.” We
agree. Parkan is entitled to discovery of the insurance contracts between BCBS
and Jarvis’s healthcare providers to aid in determining whether the providers are
required to accept payments of less than the amounts billed. Jarvis has failed to
meet her burden to show that production of the insurance contracts will not lead to
information relevant to Parkan’s defense.

      Jarvis further contends that Parkan seeks “to interpret the contract between
the Healthcare Providers and BCBS, find that the Healthcare Providers are in
breach and then reduce the paid/incurred amount based upon their findings.”
Jarvis argues that Parkan seeks to bring a breach of contract claim against either
BCBS or Jarvis’s healthcare providers and argues that Parkan has failed to show
privity of contract or that he is a third-party beneficiary.

      Parkan is entitled to discovery of the insurance contracts to aid in
determining whether the providers are required to accept payments of less than the
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amounts billed. The record does not reflect that Parkan is attempting to bring a
breach of contract action, nor is he required to do so to be entitled to discovery of
the insurance contracts. Accordingly, Jarvis has not shown that the trial court
clearly abused its discretion in ordering their production.

III.   The requests for health insurance contracts are not overly broad.
       Jarvis next contends that “[t]he requests in this case are overbroad as to the
time period and relevancy to the matter at hand.” Discovery is limited to matters
relevant to the case. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex.1995)
(orig. proceeding); see also Tex. R. Civ. P. 192 cmt. 1 (“While the scope of
discovery is quite broad, it is nevertheless confined by the subject matter of the
case and reasonable expectations of obtaining information that will aid resolution
of the dispute.”). A party’s requests must show a reasonable expectation of
obtaining information that will aid in the resolution of the dispute. In re CSX
Corp., 124 S.W.3d at 152. Therefore, discovery requests must be reasonably
tailored to include only matters relevant to the case. In re Am. Optical Corp., 988
S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam). “A reasonably
tailored discovery request is not overbroad merely because it may include some
information of doubtful relevance,” however. Id.

       The Texas Supreme Court has rejected on overbreadth grounds discovery
requests that encompass time periods, products, or activities beyond those at issue
in the case. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (in
case involving plaintiff’s abduction from defendant’s parking lot, request for
description of all criminal conduct at the location during the preceding seven years
held overbroad); Dillard Dep’t Stores, 909 S.W.2d at 492 (in case of false arrest at
                                          14
Houston department store, request for every claims file or incident report from
every store in the company’s chain involving false arrest, civil rights violations, or
use of excessive force held overbroad); Texaco, 898 S.W.2d at 814–15 (in case
involving exposure to toxic chemicals that allegedly caused asbestos-related
disease, request for “all documents written by [defendant’s safety director] that
concern[ed] safety, toxicology, and industrial hygiene, epidemiology, fire
protection and training” held overbroad); General Motors Corp. v. Lawrence, 651
S.W.2d 732, 734 (Tex. 1983) (in case involving allegedly defective fuel filler
necks in particular model truck, requests concerning fuel filler necks in every
vehicle ever made by General Motors held overbroad).

        Jarvis alleges that the requests for BCBS to produce all managed care
contracts and other specified items relating to services provided to Jarvis by Dr.
Polsen, as well as all contracts for South Shore and S.T.A.E.C. to accept BCBS
payments as full payment for services rendered to Jarvis, are not limited in time or
scope and are overly broad on their face. These requests are quoted above and
appear in items 1 through 3 of the November deposition notice.1

        We disagree with Jarvis’s argument that these requests are overbroad. As
we explained above, Parkan is entitled to discovery of the insurance contracts
between BCBS and Jarvis’s healthcare providers to aid in determining whether the
providers are required to accept payments of less than the amounts billed.
Moreover, the requests do not include contracts other than those at issue. Rather,

        1
          Jarvis also argues that items 4, 6, and 8 of the November deposition notice and items 1 and 2 of
the January deposition notice are overbroad. We need not address this argument, however, because we
have held in Part I that production of those particular items cannot be compelled because they are
privileged.
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they are specifically limited to contracts that relate to “services provided to Joan
Jarvis” by Dr. Polsen, South Shore, and S.T.A.E.C. In her mandamus petition,
Jarvis does not explain how she believes the requests should be further limited.

      For these reasons, Jarvis has not met her burden to show the trial court
clearly abused its discretion in ordering production of the health insurance
contracts. Parkan’s stated need for the health insurance contracts certainly does
not rise to the level of a “fishing expedition.” Parkan is entitled to review the
documents to determine whether Jarvis’s healthcare providers accepted payments
of less than the amounts billed. In that regard, the information may lead to
evidence relevant to Parkan’s defense. Therefore, we hold the trial court did not
clearly abuse its discretion in concluding that the requests in items 1 through 3 of
the November deposition notice are not overly broad.

IV.   Jarvis’s arguments that the depositions on written questions are
      duplicative or burdensome were not raised in the trial court.
      Finally, Jarvis contends that the January deposition notice to Dr. Polsen,
South Shore, and S.T.A.E.C. is duplicative because it includes questions that have
already been answered by these healthcare providers. According to Jarvis, the only
distinguishing feature is the request for the health insurance contracts and added
questions regarding insurance billing.

      In her motion for protective order filed in the trial court, Jarvis argued that
the deposition sought privileged material, that it was overbroad and not reasonably
limited in time or scope, and that copies of the health insurance contracts and
billings were not discoverable because their production would violate the collateral


                                         16
source rule. Jarvis did not request a protective order from the trial court on the
grounds that the January deposition was duplicative or burdensome.

      Equity generally is not served by issuing an extraordinary writ against a trial
court judge on a ground that was never presented in the trial court and that the trial
judge thus had no opportunity to address. See In re Le, 335 S.W.3d 808, 814 (Tex.
App.—Houston [14th Dist.] 2011, orig. proceeding). Accordingly, a request for
action by the trial court and a refusal of that request is generally a predicate to
mandamus relief.      In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.
proceeding). The requirement of a predicate request and adverse ruling is excused,
however, when such a request would have been futile and the trial court’s refusal
little more than a formality. In re Brown, 277 S.W.3d 474, 482–83 (Tex. App.—
Houston [14th Dist.] 2009, orig. proceeding). To determine whether a request
would have been futile, appellate courts examine whether the request would have
added anything for the trial court’s consideration. Id.

      If Jarvis had sought protection from the trial court based on the duplicative
nature of the requests, the court could have narrowed the requests to include only
those matters that were not potentially duplicative, thus obviating the need to grant
mandamus relief. Voicing these complaints in the trial court would have drawn the
court’s attention to the issue and added relevant information for its consideration.
We see no indication that it would have been futile for Jarvis to have raised the
duplicative nature of the requests in the trial court. Because Jarvis did not satisfy
the requirement of a predicate request and refusal by the trial court, she is not
entitled to mandamus relief on her duplication argument. See Le, 335 S.W.3d at


                                          17
815 (relator not entitled to mandamus relief because she failed to raise deficiency
in sanctions order with the trial court).

                                     CONCLUSION

      For the foregoing reasons, we conditionally grant partial mandamus relief
and direct the trial court to vacate the portions of its order that require production,
in response to items 1 and 2 of the January deposition and items 4 through 9 of the
November deposition, of billing records related to procedures other than those
directly related to Jarvis’s hand injury. 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.

      With regard to the other arguments raised by Jarvis, we deny her petition for
writ of mandamus. We lift the stay ordered by this Court on March 18, 2013.




                                            /s/    J. Brett Busby
                                                   Justice



Panel consists of Justices Frost, Brown, and Busby.




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