Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed November 24, 2015.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-15-00578-CV



            IN RE MICHELIN NORTH AMERICA, INC., Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              152nd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2014-27952

                         MEMORANDUM OPINION

      Michelin North America, Inc. filed a petition for writ of mandamus in this
court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, Michelin asks this court to compel the Honorable Robert
Schaffer, presiding judge of the 152nd District Court of Harris County, to set aside
his April 21, 2015 order granting the motion to compel access to its tire building
machines at its Fort Wayne, Indiana plant in the underlying products liability and
negligence suit. We conditionally grant Michelin’s petition for writ of mandamus.

                                  BACKGROUND

      On August 24, 2014, Beverly Ann Kilpatrick was driving her 2013 Ford
Explorer westbound on Highway 190 in Milam County, Texas. Robert Dwayne
Coleman was driving eastbound on Highway 190 in a 2001 Ford F250 pickup
truck. Coleman’s truck crossed the centerline and hit Kilpatrick’s Explorer after
the left front tire on Coleman’s truck failed. Kilpatrick died at the scene. Robert
Coleman and Blayne Cook and Cameron Cook, who were passengers in the truck,
were seriously injured.

      On October 3, 2014, Kollye Kilpatrick, Individually and as Heir at Law and
Representative of the Estate of Beverly Kilpatrick, Eric Kilpatrick, and Karen
Kilpatrick (the “Kilpatricks”) filed a wrongful death suit. The Kilpatricks alleged
negligence and strict products liability claims against Michelin and a negligence
claim against Robert Coleman. On December 19, 2014, Coleman, Individually,
and Kimberly Coleman, as Next Friend of Blayne Michael Cook and Cameron
Baily Cook (the “Colemans”), filed a petition in intervention in the Kilpatrick’s
suit against Michelin.

      The tire involved was an LT265/75R16 BF Goodrich Rugged Terrain T/A
LRE, which was manufactured at Michelin’s Fort Wayne, Indiana plant during the



                                         2
first week of February 2011.1 The Colemans alleged that the tread peeled off the
left front tire and the tire suffered rapid air loss due to tread belt separation,
causing Coleman’s pickup truck to go out of control and cross into oncoming
traffic.

       Before the Kilpatricks sued, counsel for the Colemans wrote Michelin’s
counsel: (1) advising that he was investigating a potential claim on behalf of the
Colemans; (2) requesting that Michelin preserve evidence, including the tire
building machines; and (3) stating that the Colemans should have access to original
evidence in Michelin’s “possession (such as the tire building and tire inspecting
rooms at the Fort Wayne plant and the tire building machines at that plant used to
build [the] LT 265/75R16 BF Goodrich Rugged Terrain T/A’s in February of 2011
at the Fort Wayne plant).” On December 10, 2014, the Colemans’ counsel wrote
Michelin’s counsel again, stating:

       As I mentioned back in September, I wish to inspect (1) the tire
       inspection room and the final finish tire inspection process at the Ford
       [sic] Wayne tire plant where the tire was made as well as (2) the tire
       building machines which were used to assemble the innerliner and the
       steel belts with their nylon reinforcement into the failed Coleman tire
       bearing DOT No. BFW802110611. Please send me a proposed
       protocol for the inspection of the final finish inspection room, the final
       finish inspection process, and two tire building machines (the first
       stage machine used to assemble the innerliner and the second stage
       machine used to assemble the belt package).




       1
           Michelin owns the BF Goodrich brand.
                                              3
The Colemans served Michelin with discovery on December 19, 2014, when they
filed their petition in intervention. The Colemans asked to enter Michelin’s Fort
Wayne plant to “visually inspect and videographically document the tire building
machines at the plant” subject to certain protocols and limitations. See Tex. R.
Civ. P. 196.7.      This request was more limited than the Colemans’ previous
requests, and it set forth a detailed protocol for visually inspecting and videotaping
the machines for one hour while in use.

         Alternatively, the Colemans asked to observe the most similar tire building
machines if the specific tire building machines on which the subject tire was built
could not be identified. If Michelin refused to allow entry upon land as requested
under Rule 196.7, then the Colemans asked in the alternative that Michelin
videotape the same machines and same processes without Robert Coleman or his
representative being present, and file such videotapes under seal with the trial
court.

         Michelin objected to the Colemans’ request for entry upon land; it claimed a
trade secret privilege and asserted that the requested inspection is overly broad,
would impose an undue burden, is not relevant, is not reasonably calculated to lead
to the discovery of admissible evidence, and is a “fishing expedition.” In response,
the Colemans filed a motion to compel access to the two tire building machines for
observation pursuant to Rule 196.7. Michelin filed a motion for protective order
and a response to the Colemans’ motion to compel. Relying on the affidavit
testimony of Brian Peirano, who had been employed at the Fort Wayne plant since
August 2006, Michelin asserted that an inspection of the tire building machines in
                                           4
2015 would not reveal the conditions of the machines in 2011 because they had
been modified after the subject tire had been manufactured.

      On March 16, 2015, the trial court held a hearing on the Colemans’ motion
to compel. The trial court signed an order on April 21, 2015, in which it granted
the Colemans’ motion to compel access to the two tire building machines at
Michelin’s plant in Fort Wayne. The order states, in relevant part:

             Claimants shall be provided only one hour of limited access to
      particular tire building machines at Michelin’s Fort Wayne, Indiana
      facility . . . . Claimants’ representatives allowed to attend the
      observation are limited to Claimants’ attorneys, Claimants’ tire failure
      experts, and a videographer selected by Claimants’ counsel, and all
      such Claimants’ representatives shall be subject to Michelin’s
      proposed method of ensuring confidentiality provided that the
      Claimants’ counsel and their experts have the videos for use in this
      case. Each side will bear its own costs.

             Observation and videotaping of the machines is limited to one
      hour. The observation will include the machines used to place the
      innerliner on the tire building drum and to assemble the belts and
      nylon reinforcement into the pre-cured tire (sometimes referred to as
      first and second stage tire building machines) on which LT265/75R16
      BF Goodrich Rugged Terrain T/A LRE tires were built in the 6th
      week of 2011 at Michelin’s Fort Wayne plant. The access will
      include visually observing and videotaping the machines while they
      are in use building light truck tires, and the scope of the observation
      should not include any sampling or testing or measurements and
      should include nothing more than observation and videotaping. The
      hour will include (a) 15 minutes of observation of the first stage tire
      building process conducted in a manner as near as is practical to the
      first stage tire building processes implemented in building
      LT265/75R16 BF Goodrich Rugged Terrain T/A LRE tires built in the

                                         5
6th week of 2011 at Michelin’s Fort Wayne plant, (b) 15 minutes of
observation of the second stage tire building process conducted in a
manner as near as practical to the second stage tire building processes
implemented in building LT265/75R16 BF Goodrich Rugged Terrain
T/A LRE tires were [sic] built in the 6th week of 2011 at Michelin’s
Fort Wayne plant, (c) 15 minutes of observation of the second stage
tire building process where a jointless nylon strip spirally wound over
the belts in at least two layers and covering a greater portion of the
belt package as compared to the portion of the belt package covered
by nylon in the LT265/75R16 BF Goodrich Rugged Terrain T/A LRE
tires built in the 6th week of 2011 is [sic] being applied to a light truck
tire [as] similar as practical to LT265/75R16 BF Goodrich Rugged
Terrain T/A LRE tires built in the 6th week of 2011 at Michelin’s Fort
Wayne plant, and (d) 15 minutes of observation of the second stage
tire building process where Filament at Zero is being applied to a light
truck tire as similar as practical to a [sic] LT265/75R16 BF Goodrich
Rugged Terrain T/A LRE tires were [sic] built in the 6th week of
2011. The videotaping will occur while these machines are in normal
use.
       Claimants’ attorneys, Claimants’ experts, and the videographer
shall identify themselves before the observation, shall wear visitor
badges the entire time they are observing the machines (if Michelin
requests), shall be accompanied and escorted by Michelin’s personnel
at all times (if Michelin requests), shall wear hardhats and safety
glasses and ear protection and steel toed boots (if Michelin requests),
shall not interrupt or interfere with the equipment or the normal
operations of the machines or employees, and shall not attempt to
speak with any personnel except for their escorts. Claimants’
attorneys, Claimants’ experts, and the videographer shall not be
allowed to videotape any machines or processes other than those set
forth in this order and shall not bring to the observation recording or
videotaping devices other than the videographer’s equipment.



                                    6
            Michelin may take whatever steps it deems appropriate to limit
      access so that access only includes access to the particular machines
      and processes to be videotaped as set out above. . . .
      In this mandamus proceeding, Michelin claims the trial court abused its
discretion by compelling Michelin to permit the Colemans access to the tire
building machines used to manufacture the subject tire.

                                STANDARD OF REVIEW

      To be entitled to mandamus relief, a relator must demonstrate (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). The
party resisting discovery bears the heavy burden of establishing an abuse of
discretion and an inadequate remedy by appeal. In re CSX Corp., 124 S.W.3d 149,
151 (Tex. 2003) (orig. proceeding) (per curiam). A trial court clearly abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law or if it clearly fails to analyze the law correctly or
apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164
S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). A discovery order
that compels production beyond the rules of civil procedure is an abuse of
discretion. In re Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig.
proceeding) (per curiam).

      The adequacy of an appellate remedy must be determined by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends

                                           7
heavily on circumstances, it must be guided by analysis of principles rather than
simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 275
S.W.3d 458, 464 (Tex. 2008) (orig. proceeding).        In evaluating benefits and
detriments, we consider whether mandamus will preserve important substantive
and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We also consider whether
mandamus will “allow the appellate courts to give needed and helpful direction to
the law that would otherwise prove elusive in appeals from final judgments.” Id.
Finally, we consider whether mandamus will spare the litigants and the public “the
time and money utterly wasted enduring eventual reversal of improperly conducted
proceedings.” Id. An appeal is not adequate if the discovery error could not be
cured on appeal. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.
proceeding) (per curiam).

                                      ANALYSIS

      Rule 196.7 governs discovery involving the entry onto land or property of
another party to inspect, measure, survey, photograph, test, or sample the property
or any designated object or operation. In re Kimberly-Clark Corp., 228 S.W.3d
480, 486 (Tex. App.—Dallas 2007, orig. proceeding). Rule 196.7 provides, in
relevant part:

      (a) Request or Motion. A party may gain entry on designated land or
      other property to inspect, measure, survey, photograph, test, or sample
      the property or any designated object or operation thereon . . . .

                                  *      *       *

                                         8
      (d) Requirements for Order for Entry on Nonparty’s Property. An
      order for entry on a nonparty’s property may issue only for good
      cause shown and only if the land, property, or object thereon as to
      which discovery is sought is relevant to the subject matter of the
      action.

Tex. R. Civ. P. 196.7(a), (d) (emphasis added).

      Information is relevant if it tends to make the existence of any fact that is of
consequence to the determination of the action or defense more or less probable
than it would be without such information. Tex. R. Evid. 401. A party’s requests
must show a reasonable expectation of obtaining information that will aid in the
resolution of the dispute. 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); 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.”). The
Texas Supreme Court has repeatedly admonished that discovery may not be used
as a fishing expedition. In re Ford Motor Co., 427 S.W.3d 396, 397 (Tex. 2014)
(orig. proceeding) (per curiam); In re Alford Chevrolet-Geo, 997 S.W.2d 173,
180−81 (Tex. 1999). The trial court may limit discovery if (1) the “discovery
sought is unreasonably cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive;” or (2) the
burden outweighs the benefit of obtaining discovery. Tex. R. Civ. P. 192.4.



                                          9
      Because Texas precedent interpreting Rule 196.7 is “sparse,” one court of
appeals looked to federal law regarding requests for entry onto land. See In re
Goodyear Tire & Rubber Co., 437 S.W.3d 923, 928 (Tex. App.—Dallas 2014,
orig. proceeding) (citing Kimberly-Clark Corp., 228 S.W.3d at 486). Federal Rule
of Civil Procedure 34(a)(2) “permit[s] entry onto designated land or other property
possessed or controlled by the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the property or any
designated object or operation on it.” Fed. R. Civ. P. 34(a)(2). Because entry onto
premises may entail greater burdens and risks than mere production of documents,
a greater inquiry into the necessity for inspection is required than just the general
relevancy standard. Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908
(4th Cir. 1978). Instead, “the degree to which the proposed inspection will aid in
the search for truth must be balanced against the burdens and dangers created by
the inspection.” Id.

      Although a request for entry onto land must satisfy the general requirement
of relevance, “mere relevance is not sufficient to justify a request for entry upon
the property of another” under Rule 196.7. Goodyear Tire & Rubber Co., 437
S.W.3d at 298. Entry onto the property of another for discovery purposes includes
risks of confusion and disruption of the defendant’s business and employees. Id.
Therefore, the determination of whether entry onto land should be compelled must
balance the need presented by the party seeking entry against the burdens and
dangers created by the inspection. Kimberly-Clark Corp., 228 S.W.3d at 489
(citing Belcher, 588 F.2d at 908).

                                         10
      The Dallas Court of Appeals considered similar facts in a case involving a
request for entry onto land. Goodyear Tire & Rubber Co. involved a wrongful
death action in which the plaintiff alleged that a fatal automobile accident was
caused by a defective tire manufactured by Goodyear. 437 S.W.3d at 925. The
plaintiff requested to view and record the first stage and second stage tire building
machines used to build the tire at issue. Id. The trial court ordered Goodyear to
allow the plaintiff’s counsel, expert witness, and videographer to enter the North
Carolina facility for one hour to document the manufacturing process. Id. at 926.

      The demonstration ordered by the trial court in Goodyear Tire & Rubber Co.
involved more than inspecting the machine that produced the tire to determine
whether the condition of the machine caused the production of a defective tire. Id.
Instead, the trial court required “Goodyear to provide demonstrations of the
manufacture of completely different products with the intention that the plaintiffs
will use those demonstrations as a visual aid to illustrate their theories regarding
the manner in which the manufacture of the subject tire may have been deficient
and how an alternate design that they deem simple and inexpensive could have
avoided the accident.” Id. The recording would not document the process used in
making the actual tire at issue or the condition of the plant at the time the tire was
manufactured. Id. Instead, seven years after the tire was made, the recording
would document work performed by different workers, using either a different
machine or making a different tire, under different conditions. Id. For these
reasons, the trial court’s order went beyond the type of inspection, measurement,
surveying, photographing, testing, or sampling contemplated by Rule 196.7. Id.

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       The analysis from Goodyear Tire & Rubber Co. applies with equal force to
the present case. Michelin submitted the affidavit of Brian Peirano, who had been
employed at Michelin’s Fort Wayne plant since August 2006, in support of its
response to the Colemans’ motion to compel.2 Peirano’s affidavit established that
the two tire building machines used to make the subject tire have been “modified
substantially since 2011 to provide the capability to fabricate larger, more complex
tires.” Moreover, “the tire building machines, as well as the processes for which
the machines are used, are very different today than when the Subject Tire was
manufactured.” There is no factual dispute on this record that the first and second
stage tire building machines are currently producing different tires than those
manufactured in 2011.

       The relevance of the actions required of Michelin under the order is not
apparent on this record because observing the first and second stage tire building
machines in use today will not reflect the manner in which the subject tire was
built on those machines. See id. at 929 (holding the recording that the plaintiffs
wanted to make would not document the process used in making the actual tire at
issue or the condition of the plant at the time the tire was manufactured seven years
previously, but would only document work performed by different workers, using

       2
          The Colemans objected to Peirano’s affidavit in the trial court on grounds that it failed
to show personal knowledge. The mandamus record does not reflect that they obtained a ruling
on this objection, and the Colemans do not state in the record where they obtained a ruling. “[A]
litigant must object and obtain a ruling from the trial court to preserve a complaint that an
affidavit fails to reveal the basis for the affiant’s personal knowledge of the facts stated therein.”
Washington DC Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d 723, 736 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (en banc). Therefore, we do not consider the Colemans’
contention that Peirano’s affidavit fails to show personal knowledge. See id.
                                                 12
either a different machine or making a different tire, under different conditions,
going beyond what was contemplated by Rule 196.7); see also Murphy v. Cooper
Tire & Rubber Co., No. 5:08cv40/RS/EMT, 2008 WL 3926715, at *3 (N.D. Fla.
Aug. 21, 2008) (holding that the information the plaintiffs sought by a Rule 34
inspection was not relevant because the subject tire had been manufactured more
than seven years earlier, Cooper Tire no longer manufacture the tire at the Findlay,
Ohio plant, and the plant did not reflect the manufacturing conditions and
processes that existed in 2001).

      Moreover, allowing the videographing of the two tire building machines
would disrupt operations at Michelin’s Fort Wayne plant. Peirano stated in his
affidavit that the subject machines are located in the tire building area, which is in
the center of the plant. Michelin would need to hang drapes to conceal everything
other than the two machines to be inspected. The presence of the drapes will
disrupt the flow of product to surrounding machines because certain aisle ways
would have to be shut down.

      Peirano further testified that it is also likely that a total of twelve machines,
including the two machines for which inspection is requested, will be required to
become idle. Michelin would have to restart the two machines for inspection and
ensure that there is enough material in the machines to restart them and run them
for the specified amount of time. Product to build the tires will not be delivered
via the main aisle in the area during the inspection.

      Peirano further explained that a manager will be taken away from his usual
responsibilities in order to accompany the Colemans, their expert, photographer,
                                          13
and videographer the entire time they are in the plant. The estimated cost of the
labor and materials to hang the drapes is $2,000. As a result of having to shut
down a number of machines in preparing for and during the inspection, Michelin
will also lose the production of 1,000 tires and tens of thousands of dollars. The
burden of the inspection imposed on Michelin outweighs any benefits to the
Colemans that could be derived from the inspection.

                                          CONCLUSION

       We conclude that (1) the trial court abused its discretion by ordering
Michelin to allow the Colemans access to the two subject tire machines at its Fort
Wayne plant; and (2) the error cannot be cured by appeal. See Goodyear Tire &
Rubber Co., 437 S.W.3d at 927(holding no adequate remedy by appeal exists in a
Rule 196.7 case when the court compels production beyond the permissible bounds
of discovery). Accordingly, we conditionally grant Michelin’s petition for writ of
mandamus and order the trial court to vacate its April 21, 2015 order granting the
motion to compel access to Michelin’s tire building machines at its Fort Wayne
plant. The writ will issue only if the trial court fails to act in accordance with this
opinion.3




                                    /s/     William J. Boyce
                                            Justice
       3
         Because we have decided this proceeding on the issue of relevance under Rule 196.7,
we need not address Michelin’s assertion that the information requested in the inspection is a
trade secret.
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Panel consists of Justices Boyce, McCally, and Donovan.




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