CONDITIONALLY GRANT; and Opinion Filed July 19, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00734-CV

        IN RE: TOYOTA MOTOR SALES, U.S.A., INC., AND TOYOTA MOTOR
                         CORPORATION, Relators

                  Original Proceeding from the 134th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. DC-16-15296

                              MEMORANDUM OPINION
                           Before Justices Francis, Evans, and Schenck
                                   Opinion by Justice Schenck
        In this mandamus proceeding, relators, Toyota Motor Sales, U.S.A., Inc. and Toyota Motor

Corporation (collectively, “Toyota”) seek relief from the trial court’s June 25, 2018 Second

Amended Order on Plaintiffs’ Motion to Compel (the “Order”) in this products liability case. After

reviewing the parties’ briefs and the mandamus record, we have determined Toyota is entitled to

relief from portions of the Order. We therefore conditionally grant the writ in part and deny it in

part.

                                           BACKGROUND

        In the underlying proceeding, real parties in interest, Benjamin and Kristi Reavis,

individually and as next friends of their two minor children, allege Toyota defectively designed

front seats that are susceptible to failure in rear-impact collisions. The rear-end collision occurred

while the Reavises were traveling in their 2002 Lexus ES300. The Reavises claim that upon
impact the vehicle’s front seats, which were occupied by Benjamin and Kristi, failed with the result

that the seatbacks collapsed into the back seat, striking their minor children with force sufficient

to cause skull fractures and traumatic brain injuries, among other severe and permanent injuries.

       After initial discovery was propounded and responded to, the Reavises asked the trial court

to overrule Toyota’s objections to their discovery requests and order Toyota to supplement its

discovery responses. On November 2, 2017, the trial court entered an order (the “November

discovery order”) overruling various objections of Toyota, defining the scope of discovery, and

ordering Toyota to diligently search for and produce documents relating to front seats and restraint

systems, seatback failures, and vehicle crash-worthiness in rear collisions for the “relevant class

of vehicles,” defined as 1997-2001 model year U.S.-bound Lexus ES300, 2002-2006 model year

U.S.-bound Lexus ES300/ES330, and 2007-2012 U.S.-bound Lexus ES350. Toyota filed a

petition for writ of mandamus seeking relief from that order. We denied Toyota’s request. See In

re Toyota Motor Corp., No. 05-17-01293-CV, 2017 WL 5589602, at *1 (Tex. App.—Dallas Nov.

21, 2017, orig. proceeding).

       Thereafter, the Reavises filed a motion to compel, claiming Toyota failed to reasonably

search its electronic information systems for documents as required by the November discovery

order. The trial court held hearings on the motion on February 5 and March 1, 2018. On March

5, the trial court entered an order requiring Toyota to prepare and tender for deposition one or more

corporate representatives to testify about “Toyota Motor Corporation and/or its subsidiaries[’]”

information systems and requiring the parties to discuss a search protocol and jointly produce a

plan for conducting searches for information responsive to the court’s November discovery order.

Toyota did not seek mandamus relief from that order.

       Pursuant to the March 5 order, the Reavises deposed Toyota employees concerning the

company’s electronic information systems. The Reavises were dissatisfied with the information

                                                –2–
they received and went back to the trial court with another motion to compel seeking further

depositions and a protocol governing further discovery, as the parties had failed to develop a joint

plan. On May 4, 2018, the trial court signed an order granting Plaintiffs’ Motion to Compel,

ordering, in part, that Toyota disclose information concerning its databases and technical library,

and setting forth a comprehensive protocol for search queries. Toyota filed a petition for writ of

mandamus seeking relief from that order. We conditionally granted Toyota partial mandamus

relief and ordered the trial court to vacate certain portions of the May 4 order.1 See In re Toyota

Motor Corp., No. 05-18-00582-CV, 2018 WL 2979855 (Tex. App.—Dallas June 14, 2018, orig.

proceeding).

            On June 19, 2018, the trial court entered an Amended Order that included a provision we

had ordered vacated.2 On June 22, we notified the trial court of the issue, and on June 25, the trial

court entered a Second Amended Order in order to comply with our June 14 order. In the Second

Amended Order, the trial court added disclosure provisions the trial court apparently believed

cured the problems with the May 4 order.

            Toyota now seeks relief from the June 25 Order claiming it exceeds the bounds of

permissible discovery by imposing a burden on Toyota to produce documents that are irrelevant

and disproportionate to the needs of this case. The Reavises urge that Toyota cannot show where

it preserved its disproportionate and undue burden objections. We examined the record to

determine whether Toyota raised the issues in the trial court, as Toyota’s briefing does not respond

to the waiver point and the rules of appellate procedure do not require a party to identify where it


     1
        More particularly, we ordered the trial court to “vacate the second sentence in paragraph 1.b. [which presumed that the Reavises’ proposed
search queries would be used without narrowing the queries to the “relevant class of vehicles” or limiting the time period] and the entirety of
paragraph 2 [which required Toyota to provide to the Reavises the entire result of every search and access to the substantive contents of any
responsive documents] of the protocol incorporated into its May 4, 2018 Order (“Order”), and the portions of the Order that require relators: (1) to
produce a table of contents identifying the folders and subfolders of the enumerated databases and that require Toyota to produce an index, ledger,
bibliography, or other compilation of information by which the papers that are maintained in Toyota’s technical library can be identified; and (2)
to identify all engineers who have had any responsibility related to designing or testing vehicles, seats or restraint systems.”
     2
         The amended order included paragraph 2 of the protocol that we had ordered the trial court to vacate.



                                                                       –3–
preserved its argument,. See TEX. R. APP. P. 33.1. Having done so, we conclude Toyota

sufficiently presented its concerns to the trial court, with the exception of Toyota’s complaint

concerning the search, which is premature as detailed hereafter.3

                                          AVAILABILITY OF MANDAMUS REVIEW

          Mandamus is an extraordinary remedy that is available only in limited circumstances.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Mandamus relief is

available when the trial court abuses its discretion and there is no adequate remedy by appeal. In

re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding) (per curiam).

          “Generally, the scope of discovery is within the trial court’s discretion, but the trial court

must make an effort to impose reasonable discovery limits.” Id. (quoting In re Graco Children’s

Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam)). An order that

compels discovery well outside the bounds of proper discovery is an abuse of discretion. In re

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

          Whether a clear abuse of discretion can be adequately remedied by appeal depends on a

careful analysis of costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275

S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). If an appellate court cannot remedy a trial court’s

discovery error on appeal from final judgment, then an adequate appellate remedy does not exist.

In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). An appellate court may

not be able to cure a trial court’s error, and a party would have no adequate remedy by appeal if it

is forced to disclose “patently irrelevant” information or imposes a burden on the producing party

far out of proportion to any benefit that may obtain to the requesting party. Walker, 827 S.W.2d

at 842.




   3
       See Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 112 (Tex. 1999).

                                                                     –4–
                                            DISCUSSION

       Generally, discovery is permitted into any matter, not privileged, that is relevant to the

subject matter and is “reasonably calculated to lead to the discovery of admissible evidence.” TEX.

R. CIV. P. 166b(2)(a); see also Lindsey v. O’Neill, 689 S.W.2d 400, 402 (Tex. 1985) (orig.

proceeding) (per curiam). This broad grant, however, is limited by the legitimate interests of the

opposing party to avoid overly broad requests, harassment, or disclosure of privileged information

in keeping with the understanding that discovery is a means to an end, rather than an end in

itself. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (orig. proceeding). Discovery, even

of potentially relevant or admissible evidence, may not be used as a fishing expedition. See K

Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996).                Rather, requests must be

“reasonably” tailored to include only matters relevant to the case and must be limited to the

relevant time. See Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995); In re Zeller, 6

S.W.3d 618, 626 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding). In a products liability

case, discovery should be tied “to the particular products the plaintiffs claim to have used.” In re

American Optical Corp., 988 S.W.2d 711, 712 (Tex. 1998) (orig. proceeding). A discovery order

is overbroad if it could have been more narrowly tailored to avoid including superfluous

information. See CSX Corp., 124 S.W.3d at 153. A discovery order places a disproportionate

burden on the producing party if the effort or expense of the discovery likely outweighs its benefit.

See TEX. R. CIV. P. 192.4; In re State Farm Lloyds, 520 S.W.3d 595, 605 (Tex. 2017) (orig.

proceeding). Where, or to the extent, the request is likely to yield information of negligible,

nonexistent, or merely speculative probative value, the expense attendant to it is undue. See State

Farm Lloyds, 520 S.W.3d at 608. In such circumstances, quantifying or estimating time and

expenses would not be critical, as it may be when benefits clearly exist. Id.

                                                –5–
        Toyota urges the trial court abused its discretion in ordering it to provide to the Reavises

“any existing documents which details, describes, or identifies the folders and sub-folders [within

various database folder structures] that relate to Toyota vehicles built on the same platform as

Plaintiff’s Lexus, the platforms immediately before and after that system, or any other Toyota

vehicles which utilize the same seating and restraint system that was deployed in that platform,”

because it is not tied to the particular products at issue in this case—driver and right front passenger

seats, seatbelts, and rear-end crashworthiness of the 2002 Lexus ES 300 and requires the

production of documents identifying irrelevant folders and sub-folders. As to Toyota’s contention

the relevant class of vehicles should be limited to the 2002 Lexus ES 300, we have previously

denied Toyota’s petition concerning the scope of the November discovery order, which defined

the relevant class of vehicles to include 1997-2001 model year U.S.-bound Lexus ES300, 2002-

2006 model year U.S.-bound Lexus ES300/ES330, and 2007-2012 U.S.-bound Lexus ES350, and

we will not further revisit this argument here. See Toyota Motor, 2017 WL 5589602, at *1.

        As to Toyota’s contention that, as written, the trial court’s Order will require Toyota to

produce documents identifying many irrelevant folders and sub-folders, we agree. As written, the

Order requires the production of documents concerning all design aspects of the relevant class of

vehicles. It is not limited to the scope of the November discovery order which required the

production of documents relating to seatback failures, restraint systems, and vehicle crash-

worthiness in rear collisions for the “relevant class of vehicles.” As written, the Order will require

Toyota to identify many irrelevant folders and sub-folders, such as folders concerning fuel lines,

engines, wheels, and other aspects of design that have no bearing on the alleged injury-causing

defect. The benefit of producing such information is nonexistent. The expense attending the

requirement is undue. See State Farm Lloyds, 520 S.W.3d at 608.




                                                  –6–
        Toyota contends there are similar problems with the Order with respect to the MIK

investigation reports, the index or ledger for the technical library, the report tracking number

system and the SMART teams. We agree. The Order as to production of this information, like

the production of folder and sub-folder information, contains a limiting phrase tethered to the

“relevant class of vehicles” but it does not limit the scope of production to the design aspects at

issue in this case.

        The Order should have been limited to folders and sub-folders, portions of the MIK

investigation reports, the index or ledger for the technical library, the report tracking number

system and the SMART teams that concern the design aspects at issue in this case in addition to

being tethered to the “relevant class of vehicles.” We would abuse our discretion, however, if we

modified the discovery request and directed compliance as modified. See In re Master Flo, 485

S.W.3d 207, 214 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). We therefore direct

the trial court to vacate the portions of the Order that require Toyota to produce: (1) documents

identifying the folders and subfolders of the enumerated databases; (2) documents identifying the

titles or subject matter of the design investigation reports within MIK; (3) an index, ledger,

bibliography, or other compilation of information by which the papers that are maintained in

Toyota’s technical library can be identified; (4) a listing of tracking numbers; and (5) a listing or

descriptions of the SMART teams.

        Toyota also contends the trial court abused its discretion in requiring it to identify all

engineers who have had responsibility for designing seats, seating systems, or seating restraint

systems relating to the “relevant class of vehicles.” We disagree. This requirement is limited to

the scope of the November discovery order.

        To the extent Toyota complains about the Reavises’ role in coordinating the search

protocol, we reject its complaint as contrary to Weekley Homes. In re Weekley Homes, 295 S.W.3d

                                                –7–
309, 317 (Tex. 2005) (orig. proceeding). As we stated in our last opinion, we disagree with the

Fourteenth District Court of Appeals’ decision in Master Flo insofar as it would treat inclusion of

the requesting party’s search terms as tantamount to allowing “direct access” in light of the

Supreme Court’s guidance in Weekley Homes. Master Flo, 485 S.W.3d at 220. To the extent

Toyota complains about the extent and effect of a presumption concerning the search logic and

terms, the presumption in the Order at issue is conditioned on the search query being reasonably

calculated to lead to the discovery of admissible evidence within the scope of the November

discovery order. More to the point, the Order first requires the parties to negotiate search queries

in good faith and, thereafter, allows Toyota to seek an order from the trial court limiting the scope

of the search, by, for instance, modifying the search terms. At this juncture, Toyota has not

approached the trial court seeking to establish the presence of an improper search query in

accordance the Order’s directive to bring such issues to the court’s attention. Consequently, this

complaint is premature and will not be addressed further.

                                            CONCLUSION

       We conditionally grant Toyota partial mandamus relief. A writ will issue only in the event

the trial court fails to vacate the portions of the Order as directed herein within fifteen days of the

date of this opinion. Because we assume the trial court will comply with this opinion, we direct

our clerk not to issue the writ of mandamus unless information is received that the district court

has not so complied. We deny Toyota’s petition for writ of mandamus on its arguments concerning

the identification of engineers and the conditional presumption that the Reavises’ search queries

will be used. We lift the stay issued by this Court on June 27, 2018.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
180734F.P05                                         JUSTICE
                                                 –8–
