                                        In The

                                  Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00106-CV
                           ____________________

                          IN RE CATERPILLAR INC.
_______________________________________________________           ______________

                                  Original Proceeding
________________________________________________________           _____________

                          MEMORANDUM OPINION

      Caterpillar Inc. seeks mandamus relief in a discovery dispute in a product

liability suit. After reviewing the petition, record, and response, we conclude the

requests for production at issue in this proceeding generally seek to discover

relevant information but are overly broad. We conditionally grant relief on that

ground. See Tex. R. App. P. 52.8(c).

      Emery Bowie died while operating a track-type tractor or bulldozer

manufactured by Caterpillar. In the lawsuit filed by the real parties in interest,

plaintiffs allege the bulldozer moved unexpectedly in reverse, and caused Emery to

become entangled in one of the tracks. In the requests at issue in this proceeding,

the Bowie plaintiffs requested:

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      • All records pertaining to the case of Alfonso Lopez v. Caterpillar
        Inc., believed to be No. 2007-CI-15864, 224th Judicial District
        Court of Bexar County, Texas, including but not limited to
        plaintiffs’ pleadings; all deposition transcripts including exhibits,
        signature pages and corrections; all written discovery requests
        (Disclosures, Interrogatories, Requests for Production and
        Requests for Production) directed to Caterpillar Inc. and all of
        Caterpillar’s responses to those discovery requests; all reports of
        all of plaintiffs’ liability experts; and all reports of all of
        Caterpillar’s liability experts.

      • For all Caterpillar products (mobile work machines) using
        electrical systems which are the same as or similar to the D6N
        which is the subject of this suit, all records of reports that the
        machine allegedly shifted into gear by itself or were subject to
        unintended or unexpected movement.

Caterpillar objected to these requests. The trial court overruled the objections and

ordered production.

      Caterpillar contends the Lopez litigation involved a different machine and

the accidents occurred under dissimilar circumstances. According to Caterpillar,

Lopez concerned a wheel tractor scraper, while the equipment here operates on

tracks. The machines use different transmissions, gears, speed controls, steering,

shifting, and engines, and have different functions. In the Lopez litigation, the

scraper allegedly began bucking while Lopez was seated in the scraper’s cab. Here,

Emery was standing on the tractor’s track when the tractor moved in reverse.

Caterpillar contends the two products involved in the two suits are so dissimilar


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that documents from Lopez are not relevant to the subject matter of Bowie’s suit.

See Tex. R. Civ. P. 192.3.

      Caterpillar and Bowie both rely on a report prepared by Ronald Simmons for

the Lopez plaintiffs, and on his report and testimony in Bowie. In the Lopez report,

Simmons states that Lopez’s accident “was caused by an intermittent functional

failure of a key component of the vehicle’s operator control system . . . .” “This

failure caused an ‘incorrect but valid’ action request to be spontaneously sent to the

ECM [Electronic Control Module], which caused the ECM to command an

incorrect machine action, which in turn caused abrupt movements by the machine.”

Caterpillar points to Simmons’s admission that he did not include a medium track-

type tractor in the Caterpillar machines identified as having a similar system in his

report for Lopez, and his admission to that in this case. Testifying for Bowie in a

hearing before the trial court, Simmons also stated that “the system in the D6N

uses the same pulse-width modulated signal communication between sensors and

the ECM.” In Simmons’s opinion, “[g]iven that the method of communicating

signals is the same, then it’s going to be subject to the same defects. If you have a

single wire communicating a signal, then an interruption in that single wire will

interrupt the signal.” “One of the manifestations of the defect of this type of a

system is that the lever can be in a given position and not move, but the signal that

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gets to the transmission will be something completely different.” Simmons

acknowledged that there are obvious differences between the Lopez and Bowie

machines, but any differences between the electronic control systems are not

significant. In Simmons’s opinion, a number of aspects of the electronic control

systems are “substantially similar[,]” and it is “very reasonable to expect that the

defects would be the same or very similar.”

      The trial court has considerable discretion in determining the scope of

discovery in a particular case. In re Colonial Pipeline Co., 968 S.W.2d 938, 941

(Tex. 1998). In this case, the trial court had information that allowed the trial court

to determine that discovery from the Lopez lawsuit concerning the electronic

control module in that case could lead to the discovery of admissible evidence in

Bowie. See Tex. R. Civ. P. 192.3(a).

      The trial court must make an effort to impose reasonable discovery limits. In

re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009). When a party objects to overly

broad discovery requests, the trial court must either sustain the objection or tailor

the request to include only matters relevant to the case. In re Mallinckrodt, Inc.,

262 S.W.3d 469, 472-74 (Tex. App.—Beaumont 2008, orig. proceeding).

“[R]equiring document production from an unreasonably long time period or from




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distant and unrelated locales” is impermissibly overbroad and subject to correction

by mandamus. In re CSX Corp., 124 S.W.3d 149, 152-53 (Tex. 2003).

      Bowie’s request for the Lopez file asked for “[a]ll records.” The request is

not limited to those documents designated and following “including” in the

request. The request did not limit the requested Lopez documents to those

containing discovery information about the electronic control module that

Simmons stated is the same or similar to the electronic control system involved in

this case. See Mallinckrodt, 262 S.W.3d at 473-74; In re TIG Ins. Co., 172 S.W.3d

160, 167 (Tex. App.—Beaumont 2005, orig. proceeding).

      The other document request at issue here is also overbroad. Bowie requests

“all records of reports that the machine allegedly shifted into gear by itself or were

subject to unintended or unexpected movement” for any Caterpillar mobile work

machines “using electrical systems which are the same as or similar to the D6N

which is the subject of this suit[.]” The request provides no time restriction. From

one of the records provided to this Court in this proceeding, it appears that at one

point the trial court may have decided to limit certain discovery to track-type

tractors manufactured from 2000 to the present, but the record is unclear with

regard to the particular discovery issue under consideration then. Neither Bowie’s

discovery requests nor the trial court’s orders provide any limit on the scope of the

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production required other than that the electronic control module be the same or

“similar,” without further clarifying the documents being sought. Caterpillar

objected that the term “similar” is vague. Bowie argues they do not know when

Caterpillar began using this particular electronic control module, and Caterpillar

should be required to demonstrate that the document production would be too

burdensome. But the proponent of discovery covering a long period of time and

large number of products must “make a threshold evidentiary showing to

demonstrate how the discovery will result in the production of relevant evidence.”

Mallinckrodt, 262 S.W.3d at 473. The trial court must require a threshold

demonstration of a reasonable time limit for those documents relating to the

electronic control module at issue, and require a definition of similarity calculated

to lead to the discovery of admissible evidence.

      We conditionally grant the petition for writ of mandamus. We are confident

the trial court will vacate its orders of December 19, 2012, and February 28, 2013.

With respect to the relief granted herein, the writ will issue only if the trial court

fails to act promptly in accord with this opinion.

      PETITION CONDITIONALLY GRANTED.

                                                      PER CURIAM




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Submitted on April 9, 2013
Opinion Delivered May 9, 2013

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




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