                                 NUMBER 13-14-00023-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                      IN RE H.E.B. GROCERY COMPANY, L.P.


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza, and Perkes
                    Memorandum Opinion by Justice Garza1

        On January 13, 2014, relator, H.E.B. Grocery Company, L.P. (“H.E.B.”), filed a

petition for writ of mandamus and motion for stay contending that the trial court abused

its discretion in ordering relator to produce two incident reports in the underlying premises

liability lawsuit. We deny the petition for writ of mandamus.

                                           I. BACKGROUND

        Daniel Rodriguez tripped and fell in the parking lot of the H.E.B. store located at

2155 Paredes Line Road in Brownsville, Texas. According to H.E.B.’s incident report,



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Rodriguez, who was a customer at the store, was putting trash in one of the trash cans in

the parking lot when he tripped on the metal plate of a cart corral. Rodriguez fell against

the trash can and cut his face. Rodriguez was taken by ambulance to a local hospital.

       Rodriguez thereafter brought suit against H.E.B. for negligence and breach of

ordinary care. According to Rodriguez’s original petition, H.E.B. was negligent because

it: failed to maintain the premises in a reasonably safe condition and free of hazards;

failed to correct an unreasonably dangerous condition; failed to warn invitees of the

dangerous condition; failed to properly inspect the premises to discover the unreasonably

dangerous condition; failed to properly train its employees regarding the appropriate

manner in which to make the premises reasonably safe; failed to implement policies,

rules, or procedures to make its premises reasonably safe; and failed to enforce proper

policies, rules, or procedures to make its premises reasonably safe. Rodriguez also

alleged that H.E.B. breached its duty of ordinary care regarding maintenance and the

supervision of personnel and in failing to implement adequate policies, procedures, or

safeguards to ensure that its premises were free of unreasonably dangerous conditions.

       The parties thereafter engaged in discovery. This original proceeding concerns

H.E.B.’s responses to interrogatory number 9 and request for production number 11.

Interrogatory number 9 and H.E.B.’s response to this interrogatory are as follows:

       9.     Describe each incident in which you have been sued, and/or had a
              claim brought against you whereby a person claimed that a condition
              on your premises caused an accident or injury. This interrogatory is
              limited to the last five (5) years and to [H.E.B.’s] premises in
              Brownsville, Texas. For each such incident, please state:

              a.     The date of the incident;

              b.     The parties involved;

              c.     The style and case number of each filed case, if any;
                                             2
              d.      The claim number of each non-filed case; and

              e.      A brief description of the incident and claimed injuries.

       ANSWER:     Defendant objects to this request on the basis that it is overly
           broad and burdensome. Defendant further objects on the basis of
           relevance. In addition, Defendant objects on the basis that
           disclosure of the information would violate the individual’s privacy
           rights and expectation of privacy.

Request for production number 11 and H.E.B.’s response thereto provide:

       11.    Please provide all accident and/or incident reports regarding slip and
              falls, trips and falls or other incidents, including, but not limited to,
              accidents and/or incidents of your employees which have occurred
              on [H.E.B.’s] premises. This request is limited to five (5) years before
              the incident made the basis of this suit and to [H.E.B.’s] premises in
              Brownsville, Texas.

       RESPONSE: Defendant objects to this request on the basis that it is overly
           broad and burdensome. Defendant further objects on the basis of
           relevance. In addition, Defendant objects on the basis that
           disclosure of the information would violate the individuals’ privacy
           rights and expectation of privacy.

Rodriguez filed a second motion to compel regarding these two discovery requests and

others on August 26, 2013. The trial court held a hearing on the motion to compel on

October 2, 2013, but the transcript of that hearing is not part of the record before this

Court. The trial court granted the second motion to compel and ordered, in relevant part,

that interrogatory number 9 and request for production number 11 were limited to “3 years

for trip and fall incidents in the parking lot for the H.E.B. in question.”

       On November 1, 2013, relator filed a motion to reconsider the trial court’s order on

the motion to compel and requested an in camera inspection. According to the motion,

H.E.B.’s search for information and documents responsive to interrogatory number 9 and

request for production number 11 resulted in the location of two other incident reports

besides the one at issue in this lawsuit. H.E.B. requested that the trial court reconsider
                                               3
its order to produce these two incident reports on grounds that the “two other trip and fall

accidents [were] not related to shopping cart corrals” and “contained private and

confidential information.” The incident reports at issue are prepared by H.E.B. employees

and consist of one-page computer-generated printouts which contain the customers’

names, addresses, day and evening phone numbers, dates of birth, a brief description of

the incident, and a brief summary of the injuries sustained.

       On January 8, 2014, the trial court held a hearing on H.E.B.’s motion. On January

9, 2014, the trial court issued an order granting H.E.B.’s motion to reconsider and for an

in-camera inspection. That same day, the trial court held an in-camera inspection of the

two incident reports and, by separate order issued that same day, ordered H.E.B. to

produce them.

       This original proceeding ensued. By three issues, H.E.B. contends: (1) the trial

court abused its discretion in ordering the production of incident reports for a three-year

period before the date of the accident at issue in this case for accidents “that did not occur

pursuant to the same instrumentality or related in some special way to the accident in

question”; (2) the trial court abused its discretion in ordering the production of non-

relevant incident reports containing individuals’ private information; and (3) Rodriguez

failed to meet his burden of showing why the production of incident reports containing

individuals’ private information was material, relevant, and necessary. By its motion to

stay, H.E.B. sought to stay all trial court proceedings, including discovery, depositions,

and hearings, pending resolution of this cause. This Court granted the motion to stay, in

part, and ordered the trial court’s orders of January 9, 2014 to be stayed, but denied the

motion insofar as it sought to stay all other trial court proceedings. This Court requested

and received a response to the petition for writ of mandamus from Rodriguez.
                                              4
                                 II. STANDARD OF REVIEW

       Mandamus is appropriate when the relator demonstrates that the trial court clearly

abused its discretion and the relator has no adequate remedy by appeal. In re Reece,

341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of

establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re

CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). A trial court clearly

abuses its discretion if it reaches a decision that is so arbitrary and unreasonable that it

amounts to a clear and prejudicial error of law or if it clearly fails to analyze the law

correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The adequacy of an

appellate remedy must be determined by balancing the benefits of mandamus review

against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.

proceeding). Because this balance depends heavily on circumstances, it must be guided

by the analysis of principles rather than the application of simple rules that treat cases as

categories.   In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig.

proceeding). We evaluate the benefits and detriments of mandamus review and consider

whether mandamus will preserve important substantive and procedural rights from

impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. We also consider

whether mandamus will “allow the appellate courts to give needed and helpful direction

to the law that would otherwise prove elusive in appeals from final judgments.” Id. Finally,

we consider whether mandamus will spare the litigants and the public “the time and

money utterly wasted enduring eventual reversal of improperly conducted proceedings.”

Id.
                                             5
       The scope of discovery is generally within the trial court's discretion. In re Colonial

Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding); Dillard Dep’t Stores,

Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (per curiam) (orig. proceeding). Parties

may seek discovery "regarding any matter that is not privileged and is relevant to the

subject matter of the pending action . . . ." TEX. R. CIV. P. 192.3(a). Information is relevant

if it tends to make the existence of a fact that is of consequence to the determination of

the action more or less probable than it would be without the information. TEX. R. EVID.

401. However, a party's discovery requests must show a reasonable expectation of

obtaining information that will aid in the resolution of the dispute. In re CSX Corp., 124

S.W.3d at 152. Therefore, discovery requests must be reasonably tailored to include only

matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998)

(orig. proceeding) (per curiam).

       Mandamus relief is available when the trial court compels production beyond the

permissible bounds of discovery. In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex.

2009) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d at 713; see, e.g., In re Ford

Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 843 (Tex.1992) (orig. proceeding).

                                        III. ANALYSIS

       In its first issue, H.E.B. contends that the order requiring production did not limit

discovery to accidents occurring by means of the same instrumentality or by the same

inanimate object. H.E.B. contends that the instant lawsuit arose as a result of a trip and

fall over the cart corral in its parking lot, but the two incident reports “did not involve the

cart corrals and therefore did not occur by means of the same inanimate object or

instrumentality,” and the “only connection” between these two other incidents and the one
                                              6
at issue in this case is that they occurred in the parking lot of the same store within the

three-year period before Plaintiff’s accident.”

       In support of this issue, H.E.B. cites three cases: Missouri Pacific Railroad Co. v.

Cooper, 563 S.W.2d 233 (Tex. 1978); Klorer v. Block, 717 S.W.2d 754 (Tex. Civ. App.—

San Antonio 1986, writ ref’d n.r.e.); and Bell v. Buddies Super Market, 516 S.W.2d 447

(Tex. Civ. App.—Tyler, 1974, writ ref’d n.r.e.).      Each of these cases concerns the

admissibility of evidence rather than the scope of discovery. See Mo. Pac. R.R. Co., 563

S.W.2d at 236 (holding that for evidence to be admissible, the “plaintiffs were required to

show that the earlier accidents occurred under reasonably similar but not necessarily

identical circumstances”); Klorer, 717 S.W.2d at 761 (“In other words, the evidence of

other similar falls, to be admissible, must have arisen out of the same inanimate cause or

condition.”); Bell, 516 S.W.2d at 450 (“[T]he evidence of other similar falls, to be

admissible, must have arisen out of the same inanimate cause or condition.”). In this

case, however, we are not assessing the threshold pertaining to the admissibility of other

incidents but the much lower threshold applicable to the discoverability of such incidents.

The scope of discovery is much broader than the scope of admissible evidence. In re

Exmark Mfg. Co., 299 S.W.3d 519, 528 (Tex. App.—Corpus Christi 2009, orig.

proceeding) (discussing Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 138–39

(Tex. 2004)); see also In re H.E.B. Grocery Co., 13-10-00533-CV, 2010 WL 4523765, at

*5 (Tex. App.—Corpus Christi Nov. 8, 2010, orig. proceeding [mand. denied]) (mem. op.).

The “relevant to the subject matter” and “reasonably calculated to lead to admissible

evidence” tests are “liberally construed” to allow the litigants to obtain the fullest

knowledge of the facts and issues prior to trial, and “it does not matter that the information

sought may be inadmissible at trial if it appears reasonably calculated to lead to the
                                              7
discovery of admissible evidence.” See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553

(Tex. 1990) (orig. proceeding); see also Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160

(Tex. 1993).    In this case, H.E.B. has conflated the standards for the discovery of

information and the admissibility of evidence.

       Moreover, in a separate original proceeding brought by H.E.B., the Fourteenth

District Court of Appeals expressly rejected H.E.B.’s contention that the discovery of other

incident reports must be limited to those involving the exact same condition or

instrumentality as that involved in the underlying case. See In re H.E.B. Grocery Co., 375

S.W.3d 497, 499 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding). In that case,

the plaintiff slipped and fell due to a slippery condition on the floor and, through discovery,

sought the production of accident or incident reports for the store generally and

specifically including those regarding “slip and falls” or “trip and falls” and those “caused

by a liquid substance on the floor.” Id. at 503. The Houston court held that the discovery

of accident reports or incident reports pertaining generally to “other incidents” was

overbroad insofar as it would “necessarily implicate every accident or incident report in

H.E.B.’s possession.” Id. at 502. However, the court refused to limit the discovery of

such reports to those pertaining to liquid on the floor or slippery conditions and instead

allowed discovery of those reports regarding slip and falls or trip and falls. Id. at 503. In

so holding, the court stated that, although the majority of the plaintiff’s allegations

pertained to the “slippery conditions” of the floor, the plaintiff also alleged that H.E.B. was

negligent in its policies and procedures for training, inspecting, and making the premises

safe. Id. “Thus, incidents of debris on the floor that presents a tripping hazard would lead

to relevant information on this ground for relief just as incidents of liquid substances found

on the floor.” Id.
                                              8
       In this case, the trial court ordered the production of the two reports as limited to:

“3 years for trip and fall incidents in the parking lot for the H.E.B. in question.” Rodriguez

has broadly alleged that H.E.B. was negligent and failed to use ordinary care in

maintaining the premises in question in a reasonably safe condition and free of hazards.

Rodriguez has specifically alleged that H.E.B. was negligent in failing to: inspect its

premises to discover the unreasonably dangerous condition, correct or warn of the

condition, train its employees regarding how to make the premises reasonably safe,

implement proper policies or procedures to make the premises reasonably safe, and

enforce policies or procedures to make the premises safe. Thus, the other incident

reports are discoverable insofar as they appear reasonably calculated to lead to the

discovery of admissible evidence. See Axelson, Inc., 798 S.W.2d at 553; In re H.E.B.

Grocery Co., 375 S.W.3d at 503. Accordingly, we conclude that the trial court did not

abuse its discretion in ordering the production of the two incident reports regarding trip

and fall incidents in the parking lot for the Brownsville H.E.B. store. We overrule H.E.B.’s

first issue.

       By its second issue, H.E.B. contends that the discovery order would allow the

unnecessary disclosure of privileged information in violation of the privacy rights of those

individuals identified in the two incident reports. H.E.B. contends that the two incident

reports contain the customers’ names, addresses, day and evening phone numbers,

dates of birth, and injuries sustained. In support of this issue, H.E.B. cites Billings v.

Atkinson, 489 S.W.2d 858 (Tex. 1973), for the proposition that the Texas Supreme Court

has recognized the right of privacy, and In re United Services Automobile Ass’n, 76

S.W.3d 112 (Tex. App.—San Antonio 2002, orig. proceeding), for the propositions that

the right of privacy need not be asserted by the individuals affected by the disclosure, and
                                              9
once the right of privacy is raised as an objection to discovery, the burden shifts to the

party seeking production to show that the information sought is material, relevant, and

necessary.

       A right of personal privacy, or a guarantee of certain areas or zones of privacy,

exists under the United States Constitution and Texas Constitutions. See, e.g., Griswold

v. Connecticut, 381 U.S. 479, 484 (1965); Tex. State Employees Union v. Tex. Dep't of

Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). The right of

privacy has been defined as the right of an individual to be left alone, to live a life of

seclusion, to be free from unwarranted publicity. Billings, 489 S.W.2d at 859; see Indus.

Found. of the S. v. Tex. Indus. Acc. Bd., 540 S.W.2d 668, 682 (Tex. 1976). Stated

otherwise, the right of privacy is the right to be free from the unwarranted appropriation

or exploitation of one's personality, the publicizing of one's private affairs with which the

public has no legitimate concern, or the wrongful intrusion into one's private activities in

such manner as to outrage or cause mental suffering, shame, or humiliation to a person

of ordinary sensibilities. Billings, 489 S.W.2d at 859; Indus. Found. of the S., 540 S.W.2d

at 682.

       In Industrial Foundation of the South v. Texas Industrial Accident Board, the Texas

Supreme Court held that concepts of common-law privacy law exempted documents from

public disclosure under a former version of the Texas Public Information Act. See 540

S.W.2d 668, 686 (Tex.1976); see also Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers,

L.P., 343 S.W.3d 112, 116 (Tex. 2011). Under Industrial, information is protected from

mandatory disclosure as information deemed confidential by law if: (1) the information

contains highly intimate or embarrassing facts the publication of which would be highly

objectionable to a reasonable person, and (2) the information is not of legitimate concern
                                             10
to the public. Indus. Found. of the S., 540 S.W.2d at 685; see Abbott v. Dallas Area Rapid

Transit, 410 S.W.3d 876, 881 (Tex. App.—Austin 2013, no pet.). However, not every

publication of personal information about an individual constitutes an invasion of a

constitutionally protected zone of privacy. Indus. Found. of the S., 540 S.W.2d at 680.

Moreover, information within a constitutionally protected zone of privacy can sometimes

be disclosed. See, e.g., Tarrant Cnty. Hosp. Dist. v. Hughes, 734 S.W.2d 675, 680 (Tex.

App.—Fort Worth 1987, orig. proceeding) (holding that the disclosure of blood donors'

identities was not an impermissible violation of constitutional right to privacy).

Accordingly, we examine federal and state cases regarding privacy interests when the

right to privacy is raised as a challenge to pretrial discovery. See In re Crestcare Nursing

& Rehab. Ctr., 222 S.W.3d 68, 72 (Tex. App.—Tyler 2006, orig. proceeding [mand.

denied]); Tarrant Cnty. Hosp. Dist., 734 S.W.2d at 679 n.3. A court order that compels

or restricts pretrial discovery constitutes state action which is subject to constitutional

limitations. See In re Crestcare Nursing & Rehab. Ctr., 222 S.W.3d at 72; Tarrant Cnty.

Hosp. Dist. v. Hughes, 734 S.W.2d at 679 n.3.

       As a general rule, the party who seeks to limit discovery by asserting a privilege

has the burden of producing evidence to support its assertions. See TEX. R. CIV. P.

193.4(a); In re E.I. DuPont de Nemours & Co., 136 S.W.2d 218, 227 (Tex. 2004) (orig.

proceeding) (holding that the party asserting a privilege has the burden of proof and must

make a prima facie showing, which requires the “minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true”); Huie v.

DeShazo, 922 S.W.2d 920, 926 (Tex. 1996) (stating that evidence is necessary to support

a claim of privilege); see also In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex. 2002) (orig.

proceeding) (“Any party making an objection or asserting a privilege must present any
                                            11
evidence necessary to support the objection or privilege.”). This burden includes the

burden to produce evidence concerning the applicability of the privilege. See Peeples v.

Fourth Supreme Jud. Dist., 701 S.W.2d 635, 635 (Tex. 1985); In re Park Cities Bank, 409

S.W.3d 859, 868 (Tex. App.—Tyler 2013, orig. proceeding); In re USA Waste Mgmt. Res.,

L.L.C., 387 S.W.3d 92, 96 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding [mand.

denied]).

        This rule applies when a party asserts privacy rights as a ground for limiting

discovery. In re Crestcare Nursing & Rehab. Ctr., 222 S.W.3d at 73; Kessell v. Bridewell,

872 S.W.2d 837, 841 (Tex. App.—Waco 1994, orig. proceeding); see also In re Kemper

Lloyds Ins. Co., No. 12-05-00309-CV, 2006 WL 475436, at *3 (Tex. App.—Tyler Feb. 28,

2006, orig. proceeding) (mem. op.).2               A party asserting that privacy rights protect

information from disclosure must present evidence showing “a particular, articulated and

demonstrable injury.” In re Crestcare Nursing & Rehab. Ctr., 222 S.W.3d at 73; Kessell,

872 S.W.2d at 841 (quoting Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987)). Mere

conclusory allegations that documents sought are “confidential” are insufficient to support

a privacy claim. See Kessell, 872 S.W.2d at 841–42; see also In re E.I. DuPont de

Nemours & Co., 136 S.W.3d at 226.


        2  We note that the San Antonio Court of Appeals has held that “[w]hen a party has properly objected
to a request for production based on privacy rights, it is the burden of the party seeking production to show
the information sought is material, relevant, and necessary.” See In re United Services Automobile Ass’n,
76 S.W.3d 112, 115 (Tex. App.—San Antonio 2002, orig. proceeding) (concluding that the trial court abused
its discretion in ordering the production of unredacted engineering reports). In so holding, the San Antonio
court relied on El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775 (Tex. App.—San Antonio 1994, orig.
proceeding), which concerns the burden of proof relevant to the discovery of income tax returns. See id.
at 779; see also In re Sullivan, 214 S.W.3d 622, 624 (Tex. App.—Austin 2006, orig. proceeding). The
burden of proof for the production of income tax returns is unlike the burden relevant to other discovery
requests, which is on the party resisting the discovery. See In re Beeson, 378 S.W.3d 8, 12 (Tex. App.—
Houston [1st Dist.] 2011, orig. proceeding); In re Patel, 218 S.W.3d 911, 916 (Tex. App.—Corpus Christi
2007, orig. proceeding). Our case does not concern the production of income tax returns, and accordingly,
we decline to follow the San Antonio Court of Appeals regarding its statement of the burden of proof.
Moreover, even if we were to follow the San Antonio Court of Appeals, we note that H.E.B. did not properly
object to the request for production so as to shift the alleged burden of proof in this case.
                                                    12
        We disagree with H.E.B’s assertion that the trial court abused its discretion in

ordering the production of the two incident reports. First, H.E.B. has not identified any

information in the incident reports as protected by an applicable privacy right.                             See

generally TEX. R. CIV. P. 192.3(c) (providing that a party may obtain discovery of the

name, address, and telephone number of persons who having knowledge of relevant

facts). The information in the incident reports is not among the interests, such as marital

relations, procreation, contraception, family relationships, child rearing, and education,

which have been afforded constitutional protection. See Tarrant Cnty. Hosp. Dist., 734

S.W.2d at 679; see also In re Columbia Valley Reg’l Med. Ctr., 41 S.W.3d 797, 802 (Tex.

App.—Corpus Christi 2001, orig. proceeding) (en banc) (stating that medical records have

been held to be within the constitutional zone of privacy). Although H.E.B. cites one case,

Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336

(Tex. 2010), for the proposition that privacy rights exist in dates of birth and addresses,

we conclude that case is distinguishable insofar as it construes the Texas Public

Information Act and balances the individual’s right of privacy and the general public’s right

to information. Id. at 353.3 This case, in contrast, presents an issue pertaining to

discovery in civil litigation between two parties. See Indus. Found. of the S., 540 S.W.2d

at 679 (“It is also apparent that the right of privacy is primarily a restraint upon

unwarranted governmental interference or intrusion into those areas deemed to be within

the protected ‘zones of privacy.’”). Thus, although information contained in other incident


        3 In concluding that H.E.B. has not established a privacy right in the information contained in the
incident reports, we nevertheless caution the parties to fully comply with the newly revised Texas Rule of
Appellate Procedure 9 requiring the redaction of sensitive data in documents filed in civil cases. See TEX.
R. APP. P. 9.9. In this regard, we note that sensitive data is specifically defined as including, inter alia, birth
dates, home addresses, and the names of any persons who were minors when the underlying suit was
filed. See id. 9.9(a)(3). We note that in this case, H.E.B. neither filed the subject incident reports under
seal nor redacted the information that it claims is subject to a privacy right.
                                                       13
reports might, under some circumstances, be included within the protected zone of

privacy, this is not such a case.

       Second, even if we were to conclude that a zone of privacy protected the incident

reports from disclosure, H.E.B. has failed to meet its burden of proof to establish the

privilege in this case. Rather, H.E.B. has stated in a conclusory fashion that production

of the incident reports would violate the individuals identified in the incident reports’ right

to privacy. Such conclusory allegations do not suffice to establish the privilege. See In

re Crestcare Nursing & Rehab. Ctr., 222 S.W.3d at 73; Kessell, 872 S.W.2d at 841.

Moreover, H.E.B. has not presented prima facie evidence concerning the applicability of

the privilege or evidence showing “a particular, articulated and demonstrable injury” would

result from disclosure of the reports. See In re Crestcare Nursing & Rehab. Ctr., 222

S.W.3d at 73; Kessell, 872 S.W.2d at 841; see also Peeples, 701 S.W.2d at 635; In re

Park Cities Bank, 409 S.W.3d at 868; In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d

at 96. We overrule H.E.B.’s second issue.

       In its third issue, H.E.B. contends that Rodriguez failed to meet his burden of

showing why the production of incident reports containing individuals’ private information

was material, relevant, and necessary. In connection with this issue, H.E.B. asserts that

a discovery order that discloses private information must be limited to material and

relevant information to the case and Rodriguez failed to meet his burden to establish the

necessity and the relevancy of disclosing the private personal information of the two

customers identified in the incident reports when their accidents were not caused by the

same instrumentality and were not sufficiently similar to Rodriguez’s accident. We have

already determined that the incident reports are relevant to Rodriguez’s claims and that



                                              14
H.E.B. failed to meet its burden to establish that information in the reports is privileged.

Accordingly, we overrule H.E.B.’s third issue.

                                      IV. CONCLUSION

       We conclude that the trial court did not abuse its discretion in compelling discovery

of the two incident reports. The trial court’s order is narrowly tailored to limit discovery to

a period of three years, to the specific store where the underlying injury occurred—to a

specific area within that one store where the injury occurred—the parking lot, and to

incidents concerning “trip and falls” which mirrors the specific type of incident at issue in

this case. We further note that the trial court reviewed the incident reports in camera prior

to making its determination regarding production.

       Based on the foregoing, we deny the petition for writ of mandamus, and we lift the

the stay previously imposed by this Court. See TEX. R. APP. P. 52.10(b) ("Unless vacated

or modified, an order granting temporary relief is effective until the case is finally

decided.").



                                                   DORI CONTRERAS GARZA
                                                   Justice

Delivered and filed the
18th day of February, 2014.




                                              15
