                                  NO. 12-19-00417-CV
                          IN THE COURT OF APPEALS
              TWELFTH COURT OF APPEALS DISTRICT
                                     TYLER, TEXAS


 IN RE: HYUNDAI MOTOR COMPANY                     §

 AND HYUNDAI MOTOR AMERICA,                       §      ORIGINAL PROCEEDING

 RELATORS                                         §

                                  MEMORANDUM OPINION
       Hyundai Motor Company and Hyundai Motor America (collectively Hyundai) filed a
petition for writ of mandamus challenging the trial court’s order defining the scope of discovery,
which stemmed from a motion to compel filed by Real Party in Interest Randale Case, as
representative of the Estate of Vonda Wynette Case, Deceased, for and on behalf of all those
entitled to recover for her death under the Texas Wrongful Death and Survival Acts, and as next
friend of XXXXXXX XXXX, minor and Lillie Jean Craig, individually (Case). The respondent
is the Honorable J. Clay Gossett, Judge of the 4th District Court in Rusk County,
Texas. We conditionally grant the petition.


                                         BACKGROUND
       Case sued Hyundai after a 2014 Hyundai Elantra was involved in a single vehicle incident,
which resulted in a rollover, and in which the vehicle’s passenger, Vonda Case, perished. In
conjunction with a notice of deposition for Hyundai’s corporate representative, Case requested
documents from Hyundai related to the following vehicle safety component systems: (1) center
mounted airbags; (2) reverse geometry seatbelts; (3) rollover activated seatbelt pretensioners; and
(4) rollover activated side curtain airbags. Hyundai moved to quash the deposition notice
and objected to the requests as overly broad and unduly burdensome. Case filed a motion to
compel, to which Hyundai responded. Hyundai also moved for a protective order.
       The trial court conducted a hearing on the matter and considered competing expert affidavit
testimonies offered by the parties. Ultimately, the trial court entered an order, in which it set forth
the scope of discovery as follows:

                The Court finds and orders that the scope of discovery that shall govern the discovery at
       issue before the Court that pertains to the Hyundai Defendants shall be as follows:

                1.        All vehicles worldwide sold or manufactured as Hyundai vehicles or Kia vehicles
       for model years 2006–2016 and will include production, prototype, experimental[,] or concept
       vehicles within the time frame of 2006–2016. This will include subsidiaries responsible for
       designing or testing Hyundai and Kia branded vehicles, including Hyundai Mobis;

               2.       This Order relates to the following:

                        a.       Center mounted airbags;
                        b.       Reverse geometry seatbelts for the front or rear seat positions;
                        c.       Rollover activated seatbelt pretensioners; and
                        d.       Rollover activated side curtain airbags.

                 3.       The Hyundai defendants are ordered to search for all testing (including testing
       that may not be related to a specific Hyundai or Kia platform), patents, and technical or research
       papers authored or co-authored by any Hyundai or Kia engineer (including subsidiaries noted above)
       for the following:

                        a.       Center mounted airbags;
                        b.       Reverse geometry seatbelts for the front or rear seat positions;
                        c.       Rollover activated seatbelt pretensioners; and
                        d.       Rollover activated side curtain airbags.



Thereafter, Hyundai filed this petition for writ of mandamus.


                                     AVAILABILITY OF MANDAMUS
       Mandamus relief is available if the relator establishes a clear abuse of discretion for which
there is no adequate remedy by appeal. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009)
(orig. proceeding). “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)). A trial court abuses
its discretion if it orders discovery exceeding the scope permitted by the rules. In re CSX Corp.,
124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding); K Mart Corp. v. Sanderson, 937 S.W.2d
429, 431 (Tex. 1996) (orig. proceeding); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.
1995) (orig. proceeding); In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 WL 890970,
at *4 (Tex. App.–Dallas Mar. 9, 2016, orig. proceeding) (mem. op.).

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       Whether a clear abuse of discretion adequately can be 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). Because this balance depends heavily on the
circumstances, it must be guided by analysis of principles rather than simple rules that treat cases
as categories. Id. An appeal is inadequate when the parties are in danger of permanently losing
substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004)
(orig. proceeding). “Such a danger arises when the appellate court would not be able to cure the
error, when the party’s ability to present a viable claim or defense is vitiated, or when the error
cannot be made part of the appellate record.” Id. For this reason, mandamus relief is available
when the trial court compels production beyond the permissible bounds of discovery. See In
re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding). “Intrusive
discovery measures . . . require, at a minimum, that the benefits of the discovery measure outweigh
the burden imposed upon the discovered party.” Id.; see In re CSX Corp., 124 S.W.3d at 153
(holding relator lacked adequate remedy by appeal where discovery order compelled production
of “patently irrelevant” documents); Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex. 1996)
(orig. proceeding) (mandamus relief may be justified when burden on producing party is far out of
proportion to any benefit to requesting party).


                                      SCOPE OF DISCOVERY
       In its petition, Hyundai argues that the trial court’s order is overly broad and unduly
burdensome. Discovery is overly broad in products liability cases when the order covers products
not relevant to the case and the order is not reasonable in its scope. In re Deere, 299 S.W.3d at
820; see also TEX. R. CIV. P. 192.3 (discovery should be limited to information “reasonably
calculated to lead to the discovery of admissible evidence”). Discovery orders requiring
production from an unreasonably long period are impermissibly overbroad. See In re CSX, 124
S.W.3d at 152 (citing In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig.
proceeding) (concluding that discovery order was overly broad by requiring production of
“virtually all documents regarding its products for a fifty-year period”)). A central consideration
in examining overbreadth is “whether the request could have been more narrowly tailored to avoid
including tenuous information and still obtain the necessary, pertinent information.” In re CSX,
124 S.W.3d at 153. An order that compels overbroad discovery is an abuse of discretion for which

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mandamus is the appropriate remedy. See In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex.
2016) (orig. proceeding); In re Sun Coast Res., Inc., 562 S.W.3d 138, 146 (Tex. App.–Houston
[14th Dist.] 2018) (orig. proceeding). The party objecting to discovery “must present any evidence
necessary to support the objection.” TEX. R. CIV. P. 193.4(a).
        The supreme court often has granted mandamus relief in product liability cases when a
discovery order covers products the plaintiff never used. See, e.g., In re Graco Children’s Prods.,
210 S.W.3d at 600–01 (in suit alleging that infant car seat’s harness was defective,
mandamus granted concerning discovery order regarding defects not similar to defect alleged in
case); In re Am. Optical, 988 S.W.2d at 712–13 (mandamus granted concerning discovery order
regarding respiratory protection equipment plaintiffs never alleged they used); Gen. Motors Corp.
v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (orig. proceeding) (in suit claiming truck with in-
cab fuel tank was defectively designed, mandamus granted concerning discovery order requiring
information about all GM vehicles); see also Texaco, 898 S.W.2d at 814–15 (in suit based on
plaintiffs’ alleged exposure to asbestos and other toxic substances, mandamus granted regarding
discovery order requiring production of all documents written by corporate safety director that
concern safety).
Discussion
        In the instant case, both Hyundai and Case presented extensive expert affidavit testimony
to the trial court in support of their respective positions. Hyundai’s expert, Youn ho Baek,
testified, in pertinent part, as follows:

        • The vehicles with airbag systems and front outboard seatbelt systems substantially similar to the
        2014 Hyundai Elantra MD/UD were introduced for the 2011 model year and continued in
        production until the 2016 model year. Therefore, . . . the appropriate scope of vehicles to consider
        in this matter is 2011–2016 Elantra Series MD/UD that were designed, developed, manufactured
        and tested to be distributed in the United States (“Subject Elantra Series”). No other Hyundai
        vehicles are substantially similar to the Subject Elantra Series for purposes of analyzing the airbag
        systems and front outboard seatbelt systems, and information about other vehicles would not be
        helpful in analyzing the allegations in this case because . . . one cannot make sound engineering
        conclusions about the performance and design of the airbag system and front outboard seatbelt
        system by analyzing the performance and design of dissimilar systems in dissimilar vehicles and
        environments.

        • Some Hyundai vehicles sold worldwide utilize the same general body structure, chassis and
        powertrain (or “base platform”) as the Subject Elantra Series, and some may have similar external
        stylings, but these vehicles are not substantially similar to the Subject Elantra Series described
        above.

        • The Avante is the model name of a vehicle built on the same “base platform” as the Subject
        Elantra Series but specifically built for Korean markets. The Avante is not substantially similar
                                                         4
to the Subject Elantra Series for analyzing the restraint system components, including the seatbelt
systems and airbag system.

• Vehicles built on the MD “base platform” for the Australian and Indian markets are known
as Elantras but these vehicles are not substantially similar to the Subject Elantra Series for analyzing
the restraint system components. They have different layouts of the engine room compartments for
different drive systems (right hand v. left hand drive system). The change in geometry would affect
how the vehicle’s overall performance would affect certain component systems. Therefore, the
safety restraint systems including the seatbelt systems and airbag system are different.

• Hyundai and Kia share vehicle “base platforms” (general body structure, chassis and powertrain)
for development purposes. However, they do not share the same styling, characteristic
or performance and sometimes do not share the type of vehicles. The 2011–2016 Hyundai Elantra
(MD/UD) share the “base platform” with the Kia Forte for the model years 2014–2018 (YD). These
vehicles are a similar type of small sedan and share many base systems and components given that
they are developed on the same “base platform,” but the styling and the restraint systems, including
airbag systems and seatbelt systems, are different.

• In order to draw sound engineering conclusions about the performance or characteristics of the
airbag system and front outboard seatbelt system for the Subject Elantra Series at issue in this case,
there must be substantial similarity in the airbag systems and front outboard seatbelt systems of the
other vehicles being considered with that of the Subject Elantra Series. The physical dimensions,
materials, and properties of the airbag system and front outboard seatbelt system, and how the airbag
system and front outboard seatbelt system are designed to function and deploy in certain
circumstances, are a few of the important factors in evaluating the performance of the Subject
Vehicle and reasonableness of its design. These factors vary from vehicle family to vehicle
family.

• Even though this case involves only claims regarding a Subject Elantra Series vehicle, the Court’s
Order involves a wide range of information relating to vehicles and model years with design
parameters which do not match those of the Subject Vehicle. The scope defined in the Court’s Order
goes far beyond cars of similar design to the Subject Vehicle and encompasses information
regarding luxury cars, sedans, sports cars, compacts and SUVs. The performance of these other
vehicles in dynamic situations, including situations similar to the event in question, are significantly
different and not helpful in analyzing the Subject Vehicle’s performance.

• HMC maintains an enormous volume of documents regarding its many hundreds of model years
of vehicles and its thousands of components. It is unduly burdensome for HMC to conduct a
worldwide search for vehicles that are not reasonably tailored to the model year vehicle involved in
this matter. It is unduly burdensome for HMC to conduct a search that spans a multitude of vehicle
platforms, models, and trim levels over a ten-year period. For HMC to fully comply with a
worldwide scope of all Hyundai vehicles for a l0 year period anywhere in the world would not only
result in undue hardship and burden on HMC but would yield a tremendous volume of irrelevant
documents and result in enormous expenses for HMC, including for time and expenses spent sorting
and copying many thousands of documents. Such expansive searches would require costs and
resources that are far beyond the benefits of gathering such materials. The cost to HMC to search
for, gather and copy materials in compliance with the Court’s Order would be extremely expensive
and excessive when considering the needs of this case.


In contrast, Case’s expert, Nell Hannemann, testified, in pertinent part, as follows:

• [Hyundai’s proposed narrow] scope of its discovery search to the 2011–2016 model year U.S.
bound Hyundai Elantra . . . is improper from an engineering standpoint for a number of reasons
....
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• While there are some vehicles that have different features and designs for different geographical
regions, the vast majority of the components and systems are the same. A different geographical
region does not guarantee a different or unique design.

• The design of a body structure, chassis, airbag, seat and seat belt components are, in most cases,
an evolutionary process. It is an oversimplification that “The MD/US Elantra body structure is a
unique engineering platform. Major body structural, chassis, airbag, seat and seat belt components
are unique and not interchangeable with any other Hyundai platform.” It is likely that some
components are identical, and there are Hyundai platforms that are substantially similar, with the
difference being the size of the vehicle. For example, the function of the body structure in most
vehicles is substantially similar.

• All major automotive manufacturers recognize that the vehicles they produce have specific
functional requirements. These functional requirements are cascaded down from an overall vehicle
level, to system level, to component level. Each manufacturer varies in some degree in how they
classify systems and components, but these are more clerical differences than functional
differences. Within a given company, for example, Hyundai in this case, it is likely that the
functional requirements for “sedans” are substantially similar if not identical in many aspects.

• While not having access to Hyundai’s functional requirements or objectives, the actual documents
cannot be compared. However, based on my 35 plus years of automotive engineering and
manufacturing experience, it would be my expectation that the vehicle level functional
requirements, or whatever the highest level of requirements or objectives that addresses the
structure, chassis, airbag, seat and seat belt components of a vehicle, would be substantially similar
if not identical.

• These requirements would apply to all vehicles that a manufacturer designs and
manufactures [including passenger vehicles, minivans, and sport utility vehicles with
multiple “design architecture” subcategories].

• Design details, such as a vehicle[’]s shape, size or appearance is not a criterion that creates a
substantial difference within the architecture types or configurations . . . .

• A difference between a 2-door or 4-door vehicle is not substantially different as to the design
architecture if the design still includes A, B, and C pillars for both the 4 door and 2 door
versions. There should be no difference in safety performance goals for a 2 door vs. a 4 door.

• It is not required that a component be “interchangeable” in order for it to be substantially
similar. In fact, many components on vehicles that are the “same” part are not
interchangeable. There are design iterations that could make the part not interchangeable, but it still
performs the same function on the same vehicle.

• The only way to know how similar specific parts, and their performance may be is to analyze the
drawings and the test results. If these documents are not produced for the purposes of this analysis,
it is impossible for a plaintiff to do this analysis. The court is accepting the “engineering
judgment” of Hyundai and being prevented from even having the benefit of the engineering
judgment of the plaintiff[’]s expert.

• Without being able to compare the performance requirements of various Hyundai vehicles it is
difficult to determine how similar they are. It is important to my design analysis methodology to
investigate alternative designs, so discovery on what other Hyundai designs are similar, or not, is
required. Hyundai manufactures vehicles of many different sizes and weights. The performance
should take the different weights of vehicles into account. The only way to determine if Hyundai
has decided that performance should take this into account is to analyze the performance of other
Hyundai vehicles.

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       • Alternative designs are part of the design and development methodology in the product creation
       process for an auto company. These alternative designs are either studies that were undertaken
       during the design process or other vehicles that have been designed by the manufacturer. Many
       vehicle designs are an iterative process developing with each subsequent model year and other
       platforms that the manufacturer designs. These designs of other models make up the collective
       experience and knowledge that an auto manufacturer can and should apply to any of their specific
       vehicles.

       • Competitive analysis is another method that an auto manufacturer uses to improve their
       designs. All manufacturers study what other manufacturers are doing and use this information as
       alternatives in their vehicle, system and component designs.

       • Counsel for Hyundai have offered to tender a witness that will address what Hyundai considered
       for all of its vehicles when developing and designing the subject vehicle. This offer is
       problematic. First, Hyundai has numerous subsidiaries and actually owns Kia so this offer would
       not cover these entities. Second, manufacturers routinely have access to outside entities, such as
       system or component suppliers, that conduct research, analysis and testing on specialized research
       projects so these outside entities work would not be covered. Third, Hyundai may have conducted
       testing 10 or 20 years ago that it had not considered for a specific generation or platform vehicle but
       solely for research purposes. Fourth, research, evaluations and studies of various safer alternative
       designs can be a process that builds upon itself and safety advances are made through continuous
       improvement. Safer alternative designs developed in the past may not have been considered for any
       generation or platform until such time as the cost factors have been met.

       • I am at a distinct disadvantage in this case because Hyundai’s engineers have unlimited access to
       their entire body of engineering data. When Hyundai limits my ability to access this same
       information, it jeopardizes my ability to discuss safer alternative designs that are technologically
       and economically feasible . . . . This is precisely why broad-brush discovery access is relevant, vital
       and imperative.

       • Hyundai has access to vital information and historical knowledge that is vital and critical so that
       a true understanding of why they did not use these safer alternative designs can be explored.

       • Just because a vehicle is not tested to US standards does not mean it will or will not pass them if
       tested. To imply that the vehicle is different because it does not have to meet a particular standard is
       an over-simplification and likely not true. It is likely that the vehicle will be identical, and that
       specific discrete changes will be necessary.

       • Testing results from other markets is relevant to customer safety, not from the perspective of
       regulatory requirements. Differing regulatory requirements are quite different from the safety of a
       customer.

       •    Also, if a manufacturer is using a safer alternative design in a market other than the United
       States, then that demonstrates that the design is both technologically and economically
       feasible. Further, the design was likely tested before it was used in a production vehicle. This testing
       and engineering analysis would be beneficial in trying to determine why the system was not used in
       the United States.


       It is evident from their respective experts’ testimonies that the parties have
taken vastly divergent positions about what information likely will lead to the discovery
of admissible evidence. On the one hand, Case’s expert testified that, as it relates to the subject

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component systems, vehicles substantially similar to the subject 2014 Hyundai Elantra include all
Hyundai and Kia passenger vehicles worldwide, including models from earlier generations. 1 On
the other hand, Baek testified that substantially similar vehicles are limited only to the 2011–2016
generation of Hyundai Elantras manufactured for the United States market. The trial court
appears to have adopted Hannemann’s testimony on a largely wholesale basis. And while we
disagree with the trial court’s finding, in so doing, we do not conclude that Baek’s testimony, in
which he sought to foreclose the notion that “substantially similar vehicles” could include, for
example, Elantras of the same generation sold in other countries, Kia vehicles based on the same
platform, and research and patents 2 unrelated to specific vehicle platforms, properly frames the
scope of discovery. Instead, the appropriate scope of discovery lies between these divergent
positions.
         Because parties are not entitled to unlimited discovery, the trial court must impose
reasonable discovery limits. See In re Graco, 210 S.W.3d at 600; In re Sun Coast Res., Inc., 562
S.W.3d at 146. Based on our review of the record, we conclude that by finding that the scope of
discovery should include information related to all Hyundai and Kia passenger vehicles worldwide
for a ten-year period, the trial court failed to exercise its discretion in a manner that imposed
reasonable discovery limits. Therefore, we hold that the trial court abused its discretion by issuing
a discovery order that is overly broad and unduly burdensome. See In re Deere, 299 S.W.3d at
820; see also TEX. R. CIV. P. 192.3. Further, because it is apparent from the record that as a result
of the trial court’s order, Hyundai is in danger of permanently losing substantial rights, which this
court otherwise would not be able to cure, we also hold that Hyundai lacks an adequate
remedy by appeal. See In re Van Waters & Rogers, 145 S.W.3d at 211; see also In re Weekley
Homes, 295 S.W.3d at 322.




         1
          Requests for information must be “reasonably tailored to include only matters relevant to the case” and may
not be used as a “fishing expedition.” In re Am. Optical Corp., 988 S.W.2d at 713. We note
that Hannemann’s testimony regarding his need for the “entire body of engineering data,” to which Hyundai
engineers have access, fairly can be categorized as a fishing expedition. See id.
         2
           It is apparent from the record that Hyundai already has produced tens of thousands of documents, including
certain patent information.
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                                                  CONCLUSION
         Having concluded that the trial court abused its discretion in rendering an order defining
the scope of discovery that is overly broad and unduly burdensome and that Hyundai does not have
an adequate remedy on appeal, we conditionally grant mandamus relief. We trust that the trial
court will promptly vacate its order of August 9, 2019, in which it set forth the scope of
discovery. The writ will issue only if the trial court fails to comply with this court’s opinion and
order within ten days. The trial court shall furnish this court, within the time for compliance with
this court’s opinion and order, a certified copy of its order evidencing such compliance.


                                                               BRIAN HOYLE
                                                                  Justice


Opinion delivered March 25, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




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                                COURT OF APPEALS
     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                      JUDGMENT


                                      MAARCH 25, 2020

                                     NO. 12-19-00417-CV



                             HYUNDAI MOTOR COMPANY
                           AND HYUNDAI MOTOR AMERICA,
                                      Relators
                                        V.

                                 HON. J. CLAY GOSSETT,
                                        Respondent


                                    ORIGINAL PROCEEDING

                   ON THIS DAY came to be heard the petition for writ of mandamus filed by
Hyundai Motor Company and Hyundai Motor America; who are the relators in appellate cause
number 12-19-00417-CV and the defendants in trial court cause number 2017-172, pending on the
docket of the 4th District Court of Rusk County, Texas. Said petition for writ of mandamus having
been filed herein on December 20, 2019, and the same having been duly considered, because it is
the opinion of this Court that the petition is meritorious, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby conditionally granted.

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                And because it is further the opinion of this Court that the trial judge will act
promptly and issue an order vacating its order of August 9, 2019, in which it set forth the scope of
discovery, the writ will not issue unless the Honorable J. Clay Gossett, Judge of the 4th Judicial
District Court of Rusk County, Texas fails to do so within ten (10) days from the date of this
order.
                It is further ORDERED that all costs of this proceeding are hereby adjudged against
Real Party in Interest, RANDALE CASE, as representative of the Estate of Vonda Wynette Case,
Deceased, for and on behalf of all those entitled to recover for her death under the Texas Wrongful
Death and Survival Acts, and as next friend of XXXXXXX XXXX, minor and Lillie Jean Craig,
individually.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.




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