 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-17-00423-CV
                              _________________


            IN RE TINA FONTAINE AND GERALD FONTAINE

________________________________________________________________________

                              Original Proceeding
              284th District Court of Montgomery County, Texas
                       Trial Cause No. 17-08-09496-CV
________________________________________________________________________

                          MEMORANDUM OPINION

      Tina Fontaine and Gerald Fontaine seek mandamus relief from an order that

denied all discovery from the real party in interest, Charles Michael Glaze, during

the pendency of any criminal proceeding against Glaze. We conditionally grant

mandamus relief.

                                    Background

      Glaze is under indictment for the aggravated robbery and aggravated

kidnapping of Tina Fontaine. The Fontaines filed a civil personal injury suit against

Glaze and made requests for disclosure and discovery. Glaze moved for protection

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from discovery until the criminal charges against him are resolved. The trial court

granted Glaze’s motion on October 26, 2017, protecting Glaze from all discovery,

oral and written, until the criminal charges against him have been resolved.

                      Standard for Granting Mandamus Relief

      Mandamus will issue if the relators establish a clear abuse of discretion for

which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). “[A] denial of discovery going

to the heart of a party’s case may render the appellate remedy inadequate.” Walker

v. Packer, 827 S.W.2d 833, 843 (Tex. 1992).

                   Invoking the Fifth Amendment in a Civil Case

      Generally, the scope of discovery is within the trial court’s discretion. In re

Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding).

A person from whom discovery is sought may move for a protective order, but he

should not move for protection when an objection to written discovery or an

assertion of privilege is appropriate. Tex. R. Civ. P. 192.6(a). “Generally, if a party

resists discovery based on a privilege the party must assert the privilege in response

to specific discovery requests or questions.” In re Edge Capital Group, Inc., 161

S.W.3d 764, 767 (Tex. App.—Beaumont 2005, orig. proceeding). In particular, the

protection afforded by the Fifth Amendment “is not against the propounding of the

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question but is the right to refuse to answer if he claims that privilege.” Meyer v.

Tunks, 360 S.W.2d 518, 521 (Tex. 1962) (orig. proceeding). “Upon a party’s

assertion of the Fifth Amendment privilege to a discovery request, the trial court

reviews the discovery request, applies the law of privilege, discovery, and protection

to the request, and determines how best to protect the privilege, the right to proceed

with the case, and the right to defend the suit.” Edge Capital, 161 S.W.3d at 768.

“Blanket assertions of the Fifth Amendment privilege generally are not permitted in

civil cases.” Id.

              Glaze argues that Rule 192.6 and the trial court’s inherent power to control its

docket grant the trial court discretion to stay all discovery from him until his criminal

case is resolved because allowing discovery to proceed against him in the civil case

would force him to choose between prejudicing his defense in the criminal

proceeding and fully defending himself in the civil suit. See Tex. R. Civ. P.

192.6(b).1 The trial court may exercise discretion in considering whether a

                                                            
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                To protect the movant from . . . invasion of . . . constitutional . . .
              rights, the court may make any order in the interest of justice and
              may--among other things--order that: (1) the requested discovery not
              be sought in whole or in part; (2) the extent or subject matter of
              discovery be limited; (3) the discovery not be undertaken at the time or
              place specified; (4) the discovery be undertaken only by such method
              or upon such terms and conditions or at the time and place directed by
              the court; (5) the results of discovery be sealed or otherwise protected,
              subject to the provisions of Rule 76a.
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deposition should be stayed. See Meyer, 360 S.W.2d at 523. But, that discretion is

confined by the provisions of the rules concerning the proper assertion of a privilege,

such as the privilege against self-incrimination. See Tex. R. Civ. P. 192.6(a); Edge

Capital, 161 S.W.3d at 767. If Glaze claims the protection of the Fifth Amendment

in his responses to discovery or in a deposition, the trial court may consider the

appropriate action on a question-by-question basis. See Edge Capital, 161 S.W.3d

at 767. A blanket stoppage of discovery, such as the trial court ordered as to the

Fontaines’ discovery from Glaze, is impermissible in a civil case. See In re R.R., 26

S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding). We conclude that the

trial court abused its discretion.

              The trial court’s order prevents the Fontaines from developing the evidence

for their case by obtaining discovery from the defendant. Under these circumstances,

the appellate remedy is inadequate. See Edge Capital, 161 S.W.3d at 767. Therefore,

we conditionally grant the petition for a writ of mandamus.

              We are confident that the trial court will follow this opinion and vacate its

order of October 26, 2017, which stayed all discovery sought from Charles Michael



                                                            

Tex. R. Civ. P. 192.6(b).

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Glaze by Tina and Gerald Fontaine. The writ will issue only if the trial court fails to

comply.

      PETITION CONDITIONALLY GRANTED.

                                                            PER CURIAM


Submitted on November 20, 2017
Opinion Delivered December 14, 2017

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




 

 

 

       




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