Petition for Writ of Mandamus Granted and Majority and Dissenting
Opinions filed July 14, 2016.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-16-00058-CV



  IN RE FIRST TRANSIT INC. AND LATOSHA R. EMANUEL, Relators


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              133rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2013-08649

                     DISSENTING OPINION

      The respondent prohibited the relators from offering or eliciting any
evidence at trial from their only retained expert on negligence and causation — a
“death penalty” sanction under this court’s precedent. To the extent the respondent
trial judge based the sanction on Texas Rules of Civil Procedure 215.2 and 215.3,
the respondent abused her discretion by failing to explain that she considered lesser
sanctions before imposing the death-penalty sanction. To the extent the respondent
based the sanction on Texas Rule of Civil Procedure 193.6, the respondent abused
her discretion because the prescribed sanction under that rule would not be a
prohibition against eliciting any evidence at trial from the relator’s expert. Though
the majority concludes otherwise, the record shows that the relators did not violate
the respondent’s order compelling production of documents by producing certain
documents one or two days after the relators’ expert created them. Because the
relators have no adequate appellate remedy, they are entitled to mandamus relief
compelling the respondent to vacate the sanctions order.

The respondent orders the relators to produce documents their expert generated.
      Relators First Transit Inc. and Latosha R. Emanuel (the “First Transit
Parties”) designated Dr. Mike James as their expert.        In February 2015, the
respondent the Honorable Jaclanel McFarland, presiding judge of the 133rd
District Court of Harris County, ordered the First Transit Parties to produce Dr.
James’s entire file. Nine months later, on November 2, 2015, the respondent
granted the motion to compel filed by real parties in interest Ilda Garcia and José
Dore Caballero, individually and on behalf of the Estate of José Caballero (the
“Parents”) and ordered the First Transit Parties to provide an exact and complete
color copy of Dr. James’s file to the Parents’ counsel, including all reports, memos,
emails, and documents of any type outlining Dr. James’s opinions, impressions, or
communications with any lawyer for the First Transit Parties, all reconstruction,
animation, and accident depictions generated or created by Dr. James, and any and
all documents or tangible things that have been provided to, reviewed by, or
prepared by Dr. James. The respondent ordered the First Transit Parties to produce

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these items within five days of the court’s order (the “Production Deadline”).
Under the unambiguous language of the November 2, 2015 order, the respondent
did not instruct Dr. James to create any documents.

      On January 8, 2016, three days before the date set for Dr. James’s deposition
and twenty-three days before the date of the trial setting, the First Transit Parties
produced to the Parents forty pages of documents Dr. James prepared one or two days
before (the “Documents”). On the same day the First Transit Parties produced the
Documents, counsel for the Parents cancelled Dr. James’s deposition and informed the
First Transit Parties that the Parents would be “seeking relief from the Court regarding
conduct with regard to the items/documents produced and lack of compliance with the
Court’s Order of 11/2/2015.”

The respondent sanctions relators by preventing their expert from testifying at
trial.
      The Parents filed a motion for discovery sanctions, asking the respondent to
exclude Dr. James’s testimony at trial. The respondent granted the sanctions
motion and as its first sanction, prohibited the First Transit Parties from offering or
eliciting any evidence at trial from Dr. James, their only retained expert on
negligence and causation.

            The relators seek mandamus relief for a death-penalty sanction.

      The First Transit Parties ask this court to grant mandamus relief compelling
the respondent to vacate her January 14, 2016 sanctions order. They argue that, in
the respondent’s prior discovery orders, the respondent did not order Dr. James to
create any documents and that they disclosed the Documents shortly after Dr.

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James created them. The First Transit Parties assert that the sanctions are death-
penalty sanctions and that the respondent did not satisfy the requirements for
imposing such sanctions.

         Under this court’s binding precedent, it is a “death penalty” sanction to
prohibit the First Transit Parties from offering or eliciting any evidence at trial
from their only retained expert on negligence and causation. 1                Death-penalty
sanctions are harsh and may be imposed as an initial sanction only in the most
egregious and exceptional cases,2 that is “when they are clearly justified and it is
fully apparent that no lesser sanctions would promote compliance with the rules.”3
Before a court may assess death-penalty sanctions because of discovery abuse, the
court must determine that a party’s hindrance of the discovery process justifies a
presumption that the party’s claims or defenses lack merit.4
The respondent abused her discretion to the extent she based the sanction on
Rule 193.6.
         In their motion for sanctions, the Parents alleged that, despite orders that the
First Transit Parties produce all of Dr. James’s file, the First Transit Parties did not
do so, although the Parents acknowledge that the First Transit Parties produced
some items. The Parents also complained that the First Transit Parties had asserted
that they were going to rely on an accident-reconstruction animation and that Dr.

1
 See In re RH White Oak, LLC, 442 S.W.3d 492, 501 (Tex. App.—Houston [14th Dist.] 2014,
orig. proceeding [mand. denied]); In re Alere Women’s & Children's Health, LLC, 357 S.W.3d 809,
814-15 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding).
2
    Cire v. Cummings, 134 S.W.3d 835, 842 (Tex. 2004).
3
  GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). See Cire, 134 S.W.3d
at 840–41.
4
    GTE Commc’ns Sys. Corp., 856 S.W.2d at 730.

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James would create and produce this animation by a certain date, but the First
Transit Parties never produced any animation. According to the Parents, the First
Transit Parties later said that no animation existed and that they would not be using
an animation at trial. The main focus of the Parents’ sanctions motion was the
production of the Documents on January 8, 2016, which the Parents argued was
“late and untimely.” In addition to relying on Rule 215.2 and Rule 215.3 as a basis
for sanctioning the First Transit Parties’ conduct, the Parents also relied upon Rule
193.6.5

          Rule 193.6(a) provides in pertinent part that “[a] party who fails to make,
amend, or supplement a discovery response in a timely manner may not introduce
in evidence the material or information that was not timely disclosed, . . . unless
the court finds that: (1) there was good cause for the failure to timely make,
amend, or supplement the discovery response; or (2) the failure to timely make,
amend, or supplement the discovery response will not unfairly surprise or unfairly
prejudice the other parties.”6 Even presuming that the respondent had discretion to
find there was no good cause and to find that the failure to timely respond would
unfairly surprise or prejudice the Parents, the sanction prescribed in Rule 193.6(a)


5
  See Tex. R. Civ. P. 215.2, 215.3. A discretionary sanction imposed under Rule 215.2 or under
Rule 215.3 must be just. See Tex. R. Civ. P. 215.2, 215.3; TransAmerican Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). Whether a sanction is just is
measured by two standards. First, a direct relationship must exist between the offensive conduct
and the sanctions imposed. Id. “Second, just sanctions must not be excessive. The punishment
should fit the crime. A sanction imposed for discovery abuse should be no more severe than
necessary to satisfy its legitimate purposes.” Id. Courts must consider the availability of less
stringent sanctions and whether such lesser sanctions would fully promote compliance. Id.
6
    Tex. R. Civ. P. 193.6.

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would be the exclusion of the material or information not timely disclosed.7
Therefore, presuming for the sake of argument that there was evidence that the
First Transit Parties failed to timely respond to the Parents regarding the
Documents, the animation, or other parts of Dr. James’s file, the sanction under
Rule 193.6 would be to exclude the material in question rather than to exclude all
evidence from Dr. James.8 Therefore, the respondent abused her discretion to the
extent she based the sanction on Rule 193.6.9

The respondent failed to explain that she considered lesser sanctions before
imposing a death-penalty sanction.
          To the extent the respondent based the sanction on Rule 215.2 and Rule
215.3, the respondent was required to consider whether lesser sanctions would
fully promote compliance, before imposing the death-penalty sanction of
prohibiting any evidence from Dr. James.10 Under this standard, a trial court need
not test the effectiveness of each available lesser sanction by imposing the lesser
sanction on the party before imposing the death-penalty sanction. But, the trial
court must analyze the available sanctions and offer a reasoned explanation as to
the appropriateness of the sanction imposed.11 The respondent did not do so.




7
    See id.
8
    See id.
9
    See id.
10
     See Cire, 134 S.W.3d at 839–40.
11
     Id. at 840.

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       Neither in the sanctions order, nor elsewhere in the record, did the
respondent explain that she considered lesser sanctions before imposing the death-
penalty sanction the First Transit Parties now challenge on mandamus. Under
these circumstances, the death-penalty sanction cannot stand.12                       Thus, the
respondent abused her discretion to the extent she based the sanction on Rule 215.2
or Rule 215.3.13

The relators did not violate the November 2, 2015 order by producing the
Documents.
       The majority concludes that the relators violated the respondent’s November
2, 2015 order by not having Dr. James create the Documents and by not producing
the Documents before the Production Deadline.                   The record shows that this
conduct did not violate the court’s order. In the order, the respondent instructed
the First Transit Parties to produce certain documents by the Production Deadline.
Notably, the respondent did not order the First Transit Parties or Dr. James to
create any documents.14          The Documents did not exist when the respondent
ordered the First Transit Parties to produce Dr. James’s entire file or when the


12
  See Low v. Henry, 221 S.W.3d 609, 620 (Tex. 2007); Citibank, N.A. v. Estes, 385 S.W.3d 671,
676 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
13
  See Low, 221 S.W.3d at 620; Citibank, N.A., 385 S.W.3d at 676; Gunn v. Fuqua, 397 S.W.3d
358, 373–75 (Tex. App.—Dallas 2013, pet. denied).
14
   See In re Jacobs, 300 S.W.3d 35, 46–47 (Tex. App.—Houston [14th Dist.] 2009 [mand.
dism’d], orig. proceeding) (holding that a trial court cannot properly order a party to create a
document for the sole purpose of complying with a request for production). There was an
agreement between the parties that Dr. James would create an animation that he was going to use
at trial, but the First Transit Parties and Dr. James later decided not to use an animation, and no
animation is in issue regarding these sanctions. The Documents are not an animation.



                                                7
Production Deadline passed. The record reflects that neither Dr. James’s creation
of the Documents nor the First Transit Parties’ production of the Documents
violated the November 2, 2015 order.

Any failure by the relators to comply with Rule 194.2(f)(3) does not affect this
court’s analysis.
       The Parents argue in this court that mandamus relief should be denied as to
the respondent’s exclusion of all evidence from Dr. James because the record
shows that the First Transit Parties did not comply with Rule 194.2(f)(3), which
required the First Transit Parties, in their response to the request for disclosure, to
divulge the general substance of Dr. James’s mental impressions and opinions, as
well as provide a brief summary of the basis for those opinions and impressions.
See Tex. R. Civ. P. 194.2(f)(3). Neither in their written motion nor in their
arguments at the sanctions hearing did the Parents assert that the respondent should
exclude all evidence from Dr. James based on the First Transit Parties’ alleged
failure to comply with Rule 194.2(f)(3). The record reflects that the respondent did
not grant sanctions sua sponte; rather, the respondent granted the Parents’
sanctions motion.       Neither in open court nor in the sanctions order did the
respondent state that she was basing the discovery sanction on the First Transit
Parties’ failure to comply with Rule 194.2(f)(3). On this record, the respondent did
not impose the discovery sanction based on any alleged failure to comply with
Rule 194.2(f)(3).15 Therefore, any such failure to comply does not affect this


15
  See Sprague v. Sprague, 363 S.W.3d 788, 803 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied) (determining nature of sanctions based on the requests and conduct at issue in the motion
for sanctions); Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690, 699 (Tex. App.—Eastland

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court’s analysis as to whether the respondent erred in assessing the death-penalty
sanction.16

                                         Conclusion
         The respondent clearly abused her discretion in assessing the death-penalty
sanction against the First Transit Parties. Whether based on Rule 215.2, Rule
215.3, or Rule 193.6, the sanction cannot be sustained. Though the majority
concludes that the relators violated the November 2, 2015 order by not having Dr.
James create the Documents and by not producing the Documents before the
Production Deadline, the record shows that this conduct did not violate the order.
Because the relators have no adequate appellate remedy, they are entitled to
mandamus relief compelling the respondent to vacate the sanctions order, but this
court should not direct the respondent to consider whether imposing a lesser
sanction would achieve the relators’ compliance with the November 2, 2015 order
because the record shows that neither Dr. James’s creation of the Documents nor
the First Transit Parties’ production of the Documents violated the November 2,
2015 order.
                                             /s/       Kem Thompson Frost
                                                       Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown. (Donovan,
J., majority).



2014, pet. denied) (determining the “offensive conduct” and the conduct that was sanctioned
based on the conduct mentioned by the movant in the movant’s request for sanctions).
16
     See Sprague, 363 S.W.3d at 803; Galindo, 429 S.W.3d at 699.

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