in Re Houstonian Campus, LLC's ( 2010 )

Petition for Writ of Mandamus Conditionally Granted and Majority and Concurring and Dissenting Opinions filed April 16, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00631-CV  

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IN RE HOUSTONIAN CAMPUS, L.L.C., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M A J O R I T Y   O P I N I O N

In this mandamus proceeding, relator, Houstonian Campus, L.L.C. (“the Houstonian”), complains of a discovery order requiring it to produce certain documents containing the identities of its members.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  The Houstonian asks this court to compel the Honorable Judge Michael Gomez, presiding judge of the 129th District Court of Harris County, to set aside his discovery order of production signed June 18, 2009, or, alternatively, to instruct Judge Gomez to vacate his order as to specific production requests.

BACKGROUND

Deana Pollard Sacks, Real Party in Interest, filed a defamation suit against the Houstonian, a private members-only social and fitness facility, two named individuals, and Does 1-10 (Houstonian employees and/or members).  Pollard Sacks alleged she was defamed by statements that she was guilty of reckless and dangerous driving and had made a racist comment.  Also, Pollard Sacks alleged that by terminating her membership the Houstonian implied she had committed an act of serious misconduct or a crime.^[1]     During discovery, Pollard Sacks propounded various requests for production.  Ultimately, the Houstonian produced 1,713 pages of responsive documents, including complaints filed by club members.  However, the Houstonian redacted the names of individual club members.   The Houstonian objected to producing the names of the individual club members who filed the complaints, contending that (1) the names were not relevant to the defamation suit, (2) disclosure would violate its members’ privacy interests, and (3) disclosure violated the Houstonian’s right of association. 

In response to the redactions, Pollard Sacks moved to compel the Houstonian to release the members’ names on the complaints and also moved for sanctions for redacting the names.  The trial court subsequently signed an order compelling the production of the documents without the names redacted.^[2]    

The Houstonian requests that we issue a writ of mandamus ordering Judge Gomez to reverse his decision on the Order to Compel Production of Documents and hold that the members’ names are confidential and irrelevant to Sacks’ causes of action.  In its petition, the Houstonian claims that the trial court’s discovery order requires the Houstonian to produce documents that (1) contain private and sensitive information; (2) are not relevant; (3) are protected by the associational rights by the First Amendment of the United States Constitution; and (4) encroach upon a private club’s interest in managing its own affairs.

DISCOVERY ORDER

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion, and there is no adequate remedy by appeal.  See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998); see also In re Maurer, 15 S.W.3d 256, 259 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding). 

A.  Abuse of Discretion

The Houstonian claims the discovery order constitutes an abuse of discretion because it is overly broad in that it requires the production of private and sensitive information neither relevant to the subject matter of the suit nor reasonably calculated to lead to the discovery of admissible evidence.  While the scope of discovery is generally within the trial court’s discretion, the trial court must impose reasonable discovery limits.  In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (per curiam).  An order that compels discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy.  Id. 

A party may obtain discovery of the contents of documents that constitute or contain matters relevant to the subject matter of the action.  See Tex. R. Civ. P. 192.3(b). “Discovery is limited to matters relevant to the case.”  Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex. 1995).  Discovery requests must be reasonably tailored to include only matters relevant to the case. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).  It is not the burden of the responding party to tailor a reasonable discovery request for the requesting party.  See In re Sears, Roebuck and Co., 146 S.W.3d 328, 333 (Tex. App.—Beaumont 2004, orig. proceeding).  Rather, the requesting party has the responsibility to narrowly tailor its requests to produce.  Id.

Although it involved a claim of product liability, not defamation, the case of In re Graco Children’s Prods., Inc., 210 S.W.3d at 600, is instructive.  The court granted mandamus on the grounds that the discovery requests were impermissibly overbroad because they “were not reasonably tailored to the relevant product defect.”  Id. at 601.  As the court recognized, mandamus has been granted in products liability cases when a discovery order included (1) products the plaintiff never alleged they used, In re Am. Optical Corp., 988 S.W.2d at 713; (2) substances to which the plaintiffs never alleged exposure, Texaco, Inc. v. Sanderson, 898 S.W.2d at 814; and (3) vehicles without the fuel filler-neck that was allegedly defective, General Motors Corp. v. Lawrence, 651 S.W.732, 734 (Tex. 1983).  As these authorities indicate, an order may constitute an abuse of discretion if it compels discovery of matters not relevant to the subject matter of the action.

In Sears, 146 S.W.3d at 334, the appellate court noted that only the asbestos- containing products to which the plaintiffs claimed their son had been indirectly exposed were involved in the lawsuit.  The trial court’s order was erroneous because it required production of documents related to asbestos “without tying the discovery to the type of exposure . . .”  Id.  Similarly, the trial court’s order in this case requires the disclosure of all names contained in the documents produced without tying the discovery to any issue related to the lawsuit.

In her suit, Pollard Sacks claims she was defamed by statements that she drove dangerously and recklessly and that she made a racist comment.^[3]     Although we agree that the trial court could have reasonably concluded that the names of the members who made these alleged statements are relevant to the subject matter of the suit or reasonably calculated to lead to the discovery of admissible evidence, the order before this court did not order disclosure of just those members’ names.  Instead, it orders disclosure of all the members’ names contained in all the documents produced and is therefore overbroad.  The trial court is in a far better position than this court to determine which of the produced documents in fact relate to those statements and to tailor an order more narrowly drawn.

Pollard Sacks further claims she was defamed by the Houstonian by the act of terminating her membership.  She asserts that the Houstonian has tolerated conduct by other members that is more egregious than that alleged of her in complaints and is known to only terminate membership for serious misconduct, such as crimes.  The termination of her membership therefore implies the commission of an act of serious misconduct or a crime.  This ground entitles Pollard Sacks to discover evidence of action taken, or not taken, by the Houstonian against other members about whom similar or more serious complaints were made.  The identity of those members, however, is not relevant.  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.  See Tex. R. Evid. 401.  The identity of the other members does not make it more or less probable they received more favorable treatment than Pollard Sacks.  The documents produced will reveal whether another member against whom a similar or more egregious complaint was filed received similar treatment, regardless of his or her identity.

  The Houstonian has established that many of the names of the other members are not relevant to Pollard Sacks’s causes of action.  Therefore, the trial court’s order to produce all the documents requested by Pollard Sacks without redaction of any names is overly broad because it compels discovery of matters that are not relevant to the case.^[4]    

The trial court’s order is not reasonably tailored to the issues relevant to the pending case and is therefore outside the bounds of proper discovery.  See In re CSX, Corp., 124 S.W.3d at 152–53.  “When a discovery order fails to apply the rules of discovery, issuance of mandamus requiring the trial court to utilize those rules and procedures is appropriate.”  In re Does 1-10, 242 S.W.3d 805, 819 (Tex. App.—Texarkana 2007, orig. proceeding).  Because the trial court’s order requires production beyond that permitted by the rules of procedure, it constitutes a clear abuse of discretion.  See In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). Accordingly, the Houstonian has established the trial court abused its discretion.   We now must determine whether the Houstonian has an adequate remedy on appeal.

B.  Adequate Remedy on Appeal

In determining whether appeal is an adequate remedy, we consider whether the benefits of mandamus relief outweigh the detriments.  In re Jacobs, 300 S.W.3d 35, 40 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).  Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court’s discovery error.    In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding).  Furthermore, a party does not have an adequate remedy on appeal when a discovery order compels the production of patently irrelevant documents such that it clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party.  Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992).

As discussed above, the trial court’s order is not reasonably tailored to the issues relevant to the pending case and is therefore outside the bounds of proper discovery.  Production of the documents without redaction would reveal the identities of an indeterminate number of the Houstonian’s members, most of whom are nonparties.  This information is patently irrelevant to Pollard Sacks’s defamation suit, and disclosure of such irrelevant information would leave the Houstonian without remedy on appeal.  In re Jacobs, 300 S.W.3d at 44–45 (finding no adequate remedy on appeal where trial court order compelled production of patently irrelevant documents).

Moreover, the redacted information that the trial court ordered disclosed is not only patently irrelevant, but highly personal and sensitive.  The record before us reflects that the Houstonian’s personnel and membership files are kept in the strictest confidence, which includes reports and complaints made by individual members.  Disclosure of the patently irrelevant—and highly private information—would violate confidences between the Houstonian and its members.  Because the trial court’s order does not protect disclosure of the names of the members who have no connection to the underlying lawsuit, once their identities are revealed, any damage cannot be rectified.  See In re Does 1-10, 242 S.W.3d at 811–12.  Privacy once broken by the inspection and copying by an adversary cannot be retrieved. Accordingly, any error in disclosing the nonparties’ names cannot be cured on appeal.  See In re Netherlands Ins. Co., No. 04-08-00815-CV, 2009 WL 962539, at *2 (Tex. App.—San Antonio 2009, orig. proceeding) (mem. op.) (citing Walker v. Packer, 827 S.W.2d at 843); see also In re Am. Optical Corp., 988 S.W.2d at 713. 

Furthermore, the harm that the Houstonian might suffer by revealing the members’ names on the complaints cannot be remedied on appeal.  See In re Weekly Homes, 295 S.W.3d at 323 (reasoning that a party does not have an adequate remedy on appeal when a trial court’s order imposes a burden on the producing party far out of proportion to any benefit the requesting party may obtain); see also In re Jacobs, 300 S.W.3d at 44–45 (finding no adequate remedy on appeal where trial court order compelled production of patently irrelevant documents).

For the above reasons, we hold that the Houstonian has no adequate remedy on appeal.^[5]      Because there is no adequate remedy by appeal, relator is entitled to relief by mandamus.  Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its order compelling production of all requested documents without redaction of names.^[6]      See Tex. R. App. P. 52.8(c).  The writ will issue only if the trial court fails to comply.

/s/        Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J., concurring and dissenting.)

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[1]     We refer to Pollard Sacks’s Original Petition which was before the trial court at the time the order at issue was signed.

^[2] In its discovery order, the trial court indicated that “nothing in this order precludes redaction of personal identifiers (i.e. social security [and] driver’s license numbers).  In addition, the Court requests the parties submit to the Court an agreed protection order . . . maintaining the confidential[ity] of the documents as to third-parties, if . . . the documents contain allegations of a sensitive and confidential nature.” 

^[3]     The dissent would order disclosure of all the names in the documents produced in the First Group based on this cause of action.  The documents in the First Group, however, contain the names of more members than the four who allegedly made these defamatory statements.

^[4]     Some of the documents produced are patently irrelevant.  For example, one document concerns the size of the work-out towels.

^[5]     Pollard Sacks also argues that the Houstonian has waived any legal objection to producing unredacted copies of documents that it has produced voluntarily, albeit in redacted form.  We agree with Pollard Sacks to the extent that the Houstonian waived other objections when it voluntarily produced the documents.  However, the Houstonian expressly objected to disclosing the names of its members. By producing the documents with the names redacted it complied “with as much of the request to which the party [had] no objection.”  Tex. R. Civ. P. 193.2(b).  A party is required to produce what is discoverable when only part of a request is objectionable.  See In re CI Host Inc., S.W.3d 514, 516 (Tex. 2002) (orig. proceeding).  A response in accordance with the rules does not constitute waiver of the objection. 

Pollard Sacks further claims the Houstonian does not have a “legal” objection to disclosing the names of its members.  As the cases already discussed demonstrate, a lack of relevance to the claims raised is a proper objection to an overly broad request.

^[6] Because we conditionally grant mandamus relief on the relevancy ground, we need not address the Houstonian’s alternative argument for relief.