IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF TEXAS
 
════════════
No. 06-0875
════════════
 
Ford Motor Company, 
Petitioner,
 
v.
 
Ezequiel Castillo, et al., 
Respondents
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of 
Texas
════════════════════════════════════════════════════
 
 
Argued February 5, 
2008
 
 
            
Justice Johnson delivered 
the opinion of the Court.
            
Justice Wainwright filed a 
concurring opinion.
            
Ford Motor Company and Ezequiel Castillo, the 
plaintiff in a products liability action, settled while the jury was 
deliberating. The settlement occurred after the presiding juror sent a note to 
the judge asking the maximum amount that could be awarded. Based on later 
discussions with jurors, Ford suspected that outside influence may have been 
brought to bear on the presiding juror. After Ford sought, but was refused, 
permission to obtain discovery on the outside influence question, it withdrew 
its consent to the settlement. Castillo sought summary judgment against Ford for 
breach of the settlement agreement. Ford’s response renewed its request for 
discovery, but the trial court rendered summary judgment for Castillo on the 
breach of settlement agreement claim. We hold that the trial court erred by 
refusing to allow discovery on Castillo’s action for breach of contract, 
including whether there was any outside influence on the jury. We reverse the 
court of appeals’ judgment and remand the case to the trial court for further 
proceedings consistent with this opinion.
I. Background
            
Ezequiel Castillo and other occupants of 
Castillo’s 2001 Ford Explorer (collectively, “Castillo”) sued Ford in a products 
liability action arising from an accident. The jury charge contained two 
liability questions: was there a design defect in the roof strength and was 
there a design defect in the vehicle’s handling or stability. The jury began 
deliberating on a Friday, broke for the weekend, then continued deliberating on 
the following Monday. Deliberations were recessed on Tuesday because a member of 
the presiding juror’s family became ill. When the jury resumed deliberations on 
Wednesday morning, the presiding juror sent a note to the court that asked, 
“What is the maximum amount that can be awarded?” The parties promptly 
settled.
            
The judge released the jurors and advised them that they could discuss 
the case with the attorneys and parties. The presiding juror left immediately, 
but other jurors stayed and voluntarily talked to Ford. The jurors told Ford 
that they had decided the first liability question (roof strength) in Ford’s 
favor and were deliberating on the second liability question when the presiding 
juror sent the note. On the second liability question, eight jurors had voted in 
Ford’s favor, two were undecided, and two had voted in Castillo’s favor. Ford 
learned that some of the jurors were unaware of the presiding juror’s note and 
that she sent the note over the objection of other jurors.
            
Ford filed a Motion to Delay Settlement in which it requested “it be 
allowed to take discovery, or that the Court independently undertake discovery, 
on the issue of outside influence in the drafting of this note.” The motion was 
supported by four jurors’ affidavits, which described the course of the jury 
deliberations and the behavior of the presiding juror. At the hearing, Ford’s 
attorney reiterated the discovery request:
 
[I]t is to 
me something that should be of concern to the Court if there was any outside 
influence, and it may be that nothing will show up about it at all, but there’s 
only one way to find out and that’s to have either the Court do its own 
investigation and or the Court allow us to bring the jurors in and have a 
hearing in front of the Court and or to depose them and then come back to the 
Court with our findings and make a determination as to where we go from 
there.
 
The trial 
court denied Ford’s Motion to Delay Settlement. Although the judge encouraged 
Ford’s counsel to conduct its own investigation concerning the matter, he 
refused to “disturb the jury” absent specific evidence of misconduct.
            
Castillo filed a motion to enforce the settlement agreement. At the 
hearing on the motion, Ford’s attorney stated that Ford was willing to proceed 
with the settlement and asked for two weeks to finalize the details. The trial 
court granted Ford’s request for additional time and extended the payment date 
to November 5.
            
On November 2, Ford filed a motion asking the court to reconsider its 
order directing Ford to pay the settlement. In its motion, Ford stated that it 
had withdrawn its consent to the settlement. Ford urged that because it had 
withdrawn its consent to the entry of an agreed judgment, Castillo’s only remedy 
would be to plead and sue on a breach of contract claim. Ford also asked the 
court to set aside the Rule 11 settlement agreement and grant a new trial, or in 
the alternative, to grant a mistrial based on juror misconduct. Attached to 
Ford’s motion were transcripts of interviews with ten jurors that had been 
conducted by private investigators.[1] Ford asserted that the settlement 
agreement should be set aside under the theory of mutual mistake because both 
parties acted under the mistaken belief that the presiding juror sent the note 
on behalf of the jury and that the jury had reached the issue of damages. The trial court denied both of Ford’s motions and struck the juror 
interview transcripts on the grounds that they were unsworn and hearsay. The court found no showing of 
juror misconduct, mutual mistake, or other grounds to rescind the settlement 
agreement.
            
Ford did not fund the settlement, so Castillo filed a motion for summary 
judgment for breach of contract. Ford responded and urged that before moving for 
summary judgment, Castillo must first plead a claim for breach of contract and 
then proceed through the traditional course of litigation on that claim. Ford 
asserted that “[g]ranting summary judgment at this juncture, without allowing 
Ford an opportunity to conduct discovery, assert defenses, or have contested 
fact issues tried by a finder-of-fact will deny Ford all its rights as a 
litigant.” Ford urged that it was entitled to conduct discovery to “determine 
the motivation of the presiding juror’s actions and any outside influences that 
possibly swayed her.” In its response, Ford referenced the four affidavits it 
had filed with its motion to delay the settlement agreement and argued that the 
affidavits raised fact issues on Ford’s potential affirmative defenses. Castillo 
objected to the four affidavits on the grounds that they were impermissible 
under Texas Rule of Evidence 606 and Texas Rule of Civil Procedure 327(b) 
because they contained testimony on matters that occurred during jury 
deliberations and portions of them constituted hearsay. The trial court 
sustained Castillo’s objections, ordered the affidavits stricken, and granted 
Castillo’s motion for summary judgment. Ford appealed.
            
The court of appeals affirmed. 200 S.W.3d 217. 
The court held that Ford waived any error regarding both the trial court’s 
denial of its motion to delay and the discovery request in its response to 
Castillo’s summary judgment motion. Id. at 227, 230. The appeals court also concluded that even if 
Ford had not waived error, any error would be harmless because Ford ultimately 
conducted its own investigation and gathered virtually all the evidence it 
sought to discover and failed to identify any evidence it would have uncovered 
through discovery procedures. Id. at 
230-31. Ford disagrees with both holdings.
            
First, Ford asserts that the court of appeals erred by holding that Ford 
waived error as to its discovery requests. Next, Ford urges that the trial court 
erred in denying it the right to conduct discovery because Castillo’s claim for 
breach of the settlement agreement is the same as any other claim for breach of 
contract and is subject to the same procedures, including discovery procedures, that apply to any other breach of contract claim. 
We agree with Ford.
II. Discussion
A. Standard of Review
            
We review a trial court’s actions denying discovery for an abuse of 
discretion. See TransAmerican 
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A 
trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and 
prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 
S.W.3d 150, 161 (Tex. 2004).
B. Preservation of Error
            
The court of appeals held that Ford failed to preserve error regarding 
the discovery requests it made in both its (1) motion to delay the settlement, 
and (2) response to Castillo’s motion for summary judgment. 200 S.W.3d at 227, 230. As for Ford’s request in the motion 
to delay settlement, the court of appeals determined that the trial court did 
not actually deny the requested discovery because it encouraged Ford to conduct 
its own informal investigation, which Ford did. Id. at 229. We conclude, however, that Ford’s presentation and 
the trial court’s response were sufficient to preserve error. The trial court 
clearly understood Ford’s request and just as clearly refused to grant it: the 
court told Ford that it refused to disturb the jurors and offered Ford nothing 
more than encouragement in conducting an informal investigation. See
Tex. R. App. P. 33.1(a). Although Ford 
interviewed most of the jurors, there is a significant difference between 
interviewing witnesses and taking sworn testimony from them as is allowed in 
discovery. One difference is demonstrated by Castillo’s hearsay objection to 
Ford’s juror interview transcripts and the trial court’s granting of it. 
See Tex. R. Civ. P. 
203.6(b) (providing that a deposition may be used for any purpose in the same 
proceeding it was taken). Another difference is if a witness—such as the 
presiding juror—declines to voluntarily give an interview or sworn statement, 
compulsory process is available under discovery procedures to require the 
witness to attend and give testimony under penalty of perjury. See Tex. R. Civ. P. 176.6(a). Because the trial 
court denied Ford’s request, Ford was unable to obtain discovery by compulsory 
process from the presiding juror whose conduct is directly at issue.
            
The court of appeals also held that even if the trial court denied the 
motion, Ford effectively withdrew its discovery complaint by sending the trial 
court “mixed messages” through its statement that it would comply with the trial 
court’s order but then filing a motion to set aside the settlement agreement 
without a request for discovery. 200 S.W.3d at 229. 
However, we need not address the question of whether Ford waived or withdrew the 
requests for discovery it made before withdrawing its consent to the settlement 
agreement because after it withdrew its consent, Ford requested that it be 
allowed discovery in its response to the motion for summary judgment.
            
Finally, the court of appeals concluded that Ford also waived its 
discovery request in its response to Castillo’s motion for summary judgment on 
the breach of a settlement agreement claim because Ford did not file either an 
affidavit explaining the need for further discovery or a verified motion for 
continuance. Id. at 226-27 (citing Tex. R. Civ. P. 166a(g), 251, 252, and Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 
1996)).
            
Texas Rule of Civil Procedure 166a(g) states that if a party opposing 
summary judgment files an affidavit stating that he or she cannot present the 
facts in support of his position, a trial court may order a continuance “to 
permit affidavits to be obtained or depositions to be taken or discovery to be 
had.” In Tenneco, this Court reiterated that “[w]hen a party contends 
that it has not had an adequate opportunity for discovery before a summary 
judgment hearing, it must file either an affidavit explaining the need for 
further discovery or a verified motion for continuance.” 925 
S.W.2d at 646-47. But in the cases requiring a party to file an affidavit 
or a motion for continuance to preserve error, the parties had conducted formal 
discovery and were seeking time to conduct additional discovery. See Joe, 
145 S.W.3d at 160-62; Tenneco, 925 S.W.2d at 
647. Ford is not complaining that it needed more time for discovery—it is 
complaining that the trial court denied it any discovery on the breach of 
contract action. In its response to Castillo’s summary judgment motion, Ford 
pled that granting summary judgment without allowing Ford an opportunity to 
conduct discovery would “deny Ford all its rights as a litigant,” and that 
“[u]nder Texas law, Ford is entitled to conduct . . . 
pretrial discovery before enforcement of the settlement.” A continuance in this 
situation would have served no purpose other than to delay the proceedings. 
Ford’s response referenced the four juror affidavits and clearly notified the 
trial court of Ford’s position: it was the same position Ford took when the 
trial court held a hearing and ruled that it would not allow jurors to be 
disturbed by discovery proceedings unless Ford could first show evidence of 
outside influence. Under these circumstances, Ford was entitled to take the 
trial court’s rulings at face value. It was not required to re-file juror 
affidavits the trial court had already stricken or assert what the record 
demonstrates would have been a useless motion for continuance. By granting 
Castillo’s motions to strike the juror affidavits and for summary judgment, the 
court implicitly denied Ford’s request for discovery in Castillo’s breach of 
contract suit.
            
The court of appeals also reasoned that if Ford had filed a motion for 
continuance, the trial court could have revisited its prior ruling and perhaps 
would have ordered a continuance to permit discovery. 200 S.W.3d at 227 n.4. However, as we have noted above, the trial court 
had made its position clear, Ford restated its request for discovery on the new 
contract action in its response to Castillo’s motion for summary judgment, there 
is no indication the trial court did not understand Ford’s request, and 
requesting a continuance so the trial court can revisit a prior ruling is not 
required to preserve error. See Tex. R. App. P. 33.1(a) (providing that 
to preserve error, a party must present a timely request, motion, or objection 
to the trial court stating the grounds to make the trial court aware of the 
complaint and obtain a ruling). The trial court had already ruled that discovery 
was not going to be allowed on the question of outside influence on the jury. 
Ford’s response to Castillo’s motion for summary judgment, in light of Ford’s 
prior filings and presentations to the trial court and the trial court’s 
rulings, sufficiently preserved Ford’s complaint that the trial court improperly 
denied it the opportunity to conduct discovery.
C. Availability of Discovery in the Claim for Breach of 
Settlement Agreement
            
Written settlement agreements may be enforced as contracts even if one 
party withdraws consent before judgment is entered on the agreement. Padilla v. LaFrance, 907 S.W.2d 
454, 461 (Tex. 
1995). When consent is withdrawn, however, the agreed judgment that was 
part of the settlement may not be entered. Id. at 462. The party seeking enforcement of the settlement 
agreement must pursue a separate claim for breach of contract. Id.
            
Castillo urges that his motion to enforce the settlement agreement was 
sufficient as a pleading to support a judgment for breach of contract. 
See Tex. R. Civ. P. 301 
(“The judgment of the court shall conform to the pleadings, the nature of the 
case proved and the verdict, if any . . . .”). Ford does not contend otherwise. 
Rather, Ford asserts that it was entitled to conduct discovery and develop its 
defenses regarding Castillo’s breach of contract claim just as it would have 
been allowed to do for any breach of contract claim. We agree.
            
Like any other breach of contract claim, a claim for breach of settlement 
agreement is subject to the established procedures of pleading and proof. 
Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. 
proceeding) (per curiam). Parties are “entitled to 
full, fair discovery” and to have their cases decided on the merits. Able 
Supply Co. v. Moye, 898 S.W.2d 766, 773 
(Tex. 1995) (orig. proceeding); see State v. 
Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (“Only in certain narrow 
circumstances is it appropriate to obstruct the search for truth by denying 
discovery.”). A trial court abuses its discretion when it denies discovery going 
to the heart of a party’s case or when that denial severely compromises a 
party’s ability to present a viable defense. Able, 898 
S.W.2d at 772. The validity of a settlement agreement cannot be 
determined without “full resolution of the surrounding facts and circumstances.” 
Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 
(Tex. 
1983). Because the trial court denied discovery, Ford was unable to 
develop facts relevant to the presentation of its defense. Therefore, the trial 
court abused its discretion by denying Ford the right to conduct discovery on 
the breach of settlement agreement claim.
            
Castillo further argues that Ford’s request to conduct discovery was an 
insufficient reason to require the trial court to lift the agreed discovery 
deadlines. However, the discovery deadlines Castillo refers to pertain to 
Castillo’s tort action against Ford, not his breach of contract claim. Because 
the claim for breach of a settlement agreement is a separate cause of action 
that arose subsequent to the deadlines Castillo references, the discovery 
deadlines pertaining to Castillo’s tort action have no bearing on the breach of 
contract cause of action. See Padilla, 907 S.W.2d at 
461-62.
D. Did Ford Seek Discoverable Information?
            
Castillo asserts that the trial court did not abuse its discretion in 
denying Ford’s discovery request because the evidence Ford sought to develop was 
immaterial as it did not bear on any proper defense to the breach of contract 
action.[2] Ford offers mutual mistake as one such 
potential defense. The parties disagree as to whether mutual mistake is 
applicable in this case, but a party is not required to demonstrate the 
viability of defenses before it is entitled to conduct discovery. Rather, a 
party may obtain discovery “regarding any matter that is not privileged and is 
relevant to the subject matter of the pending action.” Tex. R. Civ. P. 192.3. The phrase 
“relevant to the subject matter” is to be “liberally construed to allow the 
litigants to obtain the fullest knowledge of the facts and issues prior to 
trial.” Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). The 
trial court’s preemptive denial of discovery could have been proper only if 
there existed no possible relevant, discoverable testimony, facts, or material 
to support or lead to evidence that would support a defense to Castillo’s claim 
for breach of contract. This record does not demonstrate such a situation.
            
Castillo further asserts that Ford’s suspicion that discovery 
might uncover relevant evidence is insufficient to render the trial 
court’s denial of discovery an abuse of discretion. We agree that in some cases 
the denial of more time to conduct discovery is not an abuse of discretion when 
the discovery “might have” raised a fact question. Tenneco, 925 S.W.2d at 647; Nat’l Union Fire Ins. Co. v. 
CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). But in such cases, the 
parties had not been completely precluded by the trial court from conducting 
discovery to begin with. See Tenneco, 925 S.W.2d at 
647. Rather, the facts in those cases were “sufficiently developed” and 
“all the relevant information [was] at hand.” Id. In this case, facts and matters 
relevant to the question of outside influence were not developed and the 
question of whether follow-up discovery on the issue should be undertaken was 
foreclosed.
            
Castillo also cites Texas Co. v. State, 281 S.W.2d 83, 91 (Tex. 
1955), as support for the argument that discovery under these circumstances was 
immaterial, asserting that Ford was not entitled to rescind the contract as 
rescission is only allowed when the party seeking cancellation can restore the 
original status. Id. (“[O]ne 
seeking a cancellation of an instrument, with certain exceptions not pertinent 
here, must restore the original status . . . .”). 
Castillo argues that restoring the original status in this case—the original 
jury deliberating toward a verdict—is impossible. But the cases requiring a 
party to restore the original status refer to returning money or property 
received pursuant to the contract. See, e.g., 
id. at 91 (“[I]t was not beyond the power of the trial court to 
require Duval to do equity by returning the money it had received . . . .”); 
Tex. Employers Ins. Ass’n v. Kennedy, 143 
S.W.2d 583, 585 (Tex. 1940) (“The general equitable rule is that a plaintiff in 
a suit for the rescission or cancellation of a contract to which he is a party 
must return, or offer to return, any consideration which he has received under 
the contract.”); Gibson v. Lancaster, 39 S.W. 1078, 1079 (Tex. 1897) 
(“[I]f any part of the purchase price has been paid, in order to [obtain] a 
rescission the money so paid must be tendered by the seller to the purchaser.”). 
The rule is one of justice, designed to ensure that parties do not repudiate an 
agreement while retaining benefits received by reason of the agreement. See 
Tex. Co., 281 S.W.2d at 91. We decline to extend 
the rule to a case such as this. First, Ford has not unfairly benefitted by receipt of tangible benefits that in equity 
should be returned in order for it to assert an equitable remedy. Any benefits 
Ford received could just as well be said to have been received by Castillo. 
Neither party knows whether the jury would have eventually found for Ford or 
Castillo and, if for Castillo, what amount of damages would have been awarded. 
Both parties were at risk by allowing the jury to continue deliberating—that is 
why they settled. Further, the rule is an equitable one. Kennedy, 143 S.W.2d at 585. Equitable rules by necessity are flexible 
and adaptable. See Johnson v. Cherry, 726 S.W.2d 4, 
8 (Tex. 
1987). In this instance, facts have been disclosed that raise a legitimate 
question about the integrity of the trial process. It would be an anomalous 
application of the Court’s equitable powers for those powers to be exercised to 
preclude inquiry into possible outside influence on jurors deliberating a 
verdict. We refuse to so apply an equitable doctrine.
E. Discovery as to Jury Deliberations
            
Castillo next cites Texas Rule of Civil Procedure 327(b) and Texas Rule 
of Evidence 606 in support of his position. Rule 327 is found in the “New 
Trials” subchapter of the Rules of Civil Procedure and is entitled “For Jury 
Misconduct.” It provides:
 
a. When 
the ground of a motion for new trial, supported by affidavit, is 
misconduct of the jury or of the officer in charge of them, or because of any 
communication made to the jury, or that a juror gave an erroneous or incorrect 
answer on voir dire examination, the court shall hear 
evidence thereof from the jury or others in open court, and may grant a new 
trial if such misconduct proved, or the communication made, or the erroneous 
or incorrect answer on voir dire examination, be 
material, and if it reasonably appears from the evidence both on the hearing of 
the motion and the trial of the case and from the record as a whole that injury 
probably resulted to the complaining party.
 
b. A juror 
may not testify as to any matter or statement occurring during the course of the 
jury’s deliberations or to the effect of anything upon his or any other juror’s 
mind or emotions as influencing him to assent to or dissent from the verdict 
concerning his mental processes in connection therewith, except that a juror 
may testify whether any outside influence was improperly brought to bear upon 
any juror. Nor may his affidavit or evidence of any statement by him concerning 
a matter about which he would be precluded from testifying be received for these 
purposes.
 
Tex. R. Civ. P. 327 (emphasis added). 
Rule of Evidence 606(b) is entitled “Competency of Juror as a Witness” and 
provides:
 
Upon an 
inquiry into the validity of a verdict or indictment, a juror may not 
testify as to any matter or statement occurring during the jury’s deliberations, 
or to the effect of anything on any juror’s mind or emotions or mental 
processes, as influencing any juror’s assent to or dissent from the verdict or 
indictment. Nor may a juror’s affidavit or any statement by a juror concerning 
any matter about which the juror would be precluded from testifying be admitted 
in evidence for any of these purposes. However, a juror may testify: (1) 
whether any outside influence was improperly brought to bear upon any juror; or 
(2) to rebut a claim that the juror was not qualified to serve.
 
Tex. R. Evid. 606(b) (emphasis 
added).
            
Noting that both rules provide jurors may not testify about matters or 
statements made during jury deliberations, Castillo urges they apply to protect 
the jury’s deliberations from all discovery. But, by their plain language, the 
rules apply to motions for new trials, reasons jurors voted for or against 
verdicts, and inquiries into the validity of verdicts or indictments. Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b). Even 
when those types of issues are involved, the rules specifically allow jurors to 
testify about outside influence brought to bear on any of them. Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b).
            
In this case, there was no verdict. Ford is not seeking discovery to 
impeach a verdict or to take testimony of jurors as to their votes on a verdict. 
And although the net effect of Ford’s success in having the settlement agreement 
set aside will be a new trial, Ford is not asserting error in the trial court’s 
denial of discovery as to a motion for new trial. So, although rules 327(b) and 
606 do not strictly apply here, the policies inherent in those rules are 
implicated by this record and the positions of the parties. We have previously 
articulated some reasons underlying the prohibition of unfettered probing into 
jury deliberations: (1) keeping jury deliberations private to encourage candid 
discussion of a case, (2) protecting jurors from post-trial harassment or 
tampering, (3) preventing a disgruntled juror whose view did not prevail from 
overturning the verdict, and (4) protecting the need for finality. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 366-67 (Tex. 2000). Not 
all these reasons apply when no attempt is being made to impeach a verdict, but 
the overarching principles are the same any time discovery is sought as to what 
occurred during jury deliberations. Jurors are summoned to court to do public 
service and they should not be subjected to unfettered post-trial proceedings 
regardless of whether their deliberations resulted in a verdict. Discovery 
involving jurors will not be appropriate in most cases, but in this case there 
was more than just a suspicion that something suspect occurred—there was some 
circumstantial evidence that it did.
            
Once the trial court discharges them, jurors are not prohibited from 
discussing what took place during deliberations. But there is a difference 
between jurors choosing to talk about their service and their being compelled to 
do so in discovery depositions and court hearings. We believe the better policy, 
in general, is to conform discovery involving jurors to 
those matters permitted by Rule of Civil Procedure 327 and Rule of Evidence 606. 
That is, discovery involving jurors should ordinarily be limited to facts and 
evidence relevant to (1) whether any outside influence was improperly brought to 
bear upon any juror, and (2) rebuttal of a claim that a 
juror was not qualified to serve.[3] And although we have determined that the 
trial court abused its discretion by entirely depriving Ford of discovery on the 
breach of contract claim, it remains within the trial court’s discretion to 
reasonably control the limits of discovery and the manner in which the discovery 
may be obtained. In re CSX Corp., 124 S.W.3d 149, 152 
(Tex. 2003) 
(per curiam).
III. Exclusion of Juror Affidavits
            
Ford asserts that the trial court erred by sustaining Castillo’s 
objections and striking the four juror affidavits it initially filed in 
conjunction with its motion for new trial and which it referenced in its 
opposition to Castillo’s motion for summary judgment. Ford was entitled to 
discovery on Castillo’s separate breach of contract claim regardless of the 
admission or contents of the affidavits. See Quintero, 
654 S.W.2d at 444 (noting that when a settlement agreement is enforced in a new 
action for breach of contract, the validity of the settlement agreement cannot 
be determined without “proper pleadings and full resolution of the surrounding 
facts and circumstances”). The affidavits might be useful to the trial 
court in setting parameters and procedures for discovery, but because Ford did 
not need the affidavits to be entitled to at least some type of discovery on the 
breach of contract claim, we do not reach the issue of whether the trial court 
erred by excluding the affidavits.
IV. Harmful Error
            
If the trial court abuses its discretion in a discovery ruling, the 
complaining party must still show harm on appeal to obtain a reversal. 
See Tex. R. 
App. P. 44.1(a). Harmful 
error is error that “probably caused the rendition of an improper judgment” or 
“probably prevented the appellant from properly presenting the case to the court 
of appeals.” Id.
            
The court of appeals determined that even if the trial court erred, its 
error was harmless because Ford collected virtually all the evidence it sought 
to discover and failed to identify what type of evidence it would have obtained 
and presented if the trial court had granted its motion to delay. 200 S.W.3d at 230-31. It held that these considerations 
indicate the trial court’s denial of Ford’s request for discovery did not harm 
Ford. Id. at 
231. We disagree.
            
First, while Ford interviewed some of the jurors, it did not have the 
opportunity to question the presiding juror while she was under oath and 
required to respond under penalty of perjury. See, 
e.g., Tex. R. Civ. P. 176.6, .8 (requiring a nonparty to comply with a 
discovery subpoena subject to being held in contempt of court); 
Tex. R. Civ. P. 199.5(b) (requiring a person whose deposition is 
taken to be placed under oath); Tex. Penal 
Code § 37.02 (providing that it is a criminal 
offense to make a false statement under oath). 
Additionally, when discovery is denied and because of the denial the evidence 
sought does not appear in the record, determining harm from the denial is 
impossible and the party is prevented from properly presenting its case on 
appeal. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 
(Tex. 1990) 
(orig. proceeding) (“[T]he protective order shields the witnesses from 
deposition and thereby prevents the evidence from being part of the record. 
Therefore, it would be impossible to determine on appeal if the denial were 
harmful error.”); Jampole v. Touchy, 673 
S.W.2d 569, 576 (Tex. 1984) (orig. proceeding). The lack of 
direct evidence about whether the presiding juror was subjected to outside 
influence probably prevented Ford from properly presenting its case on appeal. 
Accordingly, the trial court’s abuse of discretion in denying discovery was 
harmful. See Tex. R. App. P. 
44.1(a).
V. Conclusion
            
The trial court committed harmful error by denying Ford the opportunity 
to conduct discovery on Castillo’s claim for breach of the settlement agreement. 
We reverse the court of appeals’ judgment and remand the case to the trial court 
for further proceedings consistent with this opinion.
 
            
            
            
            
            
            
________________________________________
            
            
            
            
            
            
Phil Johnson
            
            
            
            
            
            
Justice
 
OPINION DELIVERED: April 3, 2009






[1] 
Ford ultimately submitted affidavits from four jurors and transcripts from 
interviews with ten jurors. None of these involved the presiding 
juror.

[2] 
Castillo also asserts that the trial court properly denied Ford’s discovery 
request in its motion to delay settlement because Ford had not withdrawn its 
consent to settle at that time so any discovery would have been an improper 
“fishing expedition.” However, Ford reasserted its request for discovery after 
it withdrew its consent to the settlement.

[3] 
We express no opinion about discovery or matters involving the breach of 
contract claim other than discovery involving 
jurors.