in Re Indeco Sales, Inc. and Jerome J. Wright Jr. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00405-CV
_________________
IN RE INDECO SALES, INC. AND JEROME J. WRIGHT JR.
________________________________________________________________________
Original Proceeding
________________________________________________________________________
MEMORANDUM OPINION
In this mandamus proceeding filed by Indeco Sales, Inc. and Jerome J.
Wright Jr., we must decide whether the 253rd District Court of Liberty County
abused its discretion by granting the plaintiff’s motion for protection and by
denying the defendants’ motion to compel (1) production of the plaintiff’s cell
phone and a forensic examination and data extraction of the plaintiff’s cell phone,
and (2) production of information, data, posts, and conversations from the
plaintiff’s Facebook page. We temporarily stayed the trial of the case and
requested a response from the real party in interest, Cristen Purswell. After
reviewing the mandamus petition, the response, and the records submitted by the
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parties, and considering the applicable rules and law, we conclude that the trial
court did not abuse its discretion because the particular requests were overly broad
and could have been more narrowly tailored. Accordingly, we lift our stay order
and deny Relators’ petition for writ of mandamus.
“Parties are ‘entitled to full, fair discovery’ and to have their cases decided
on the merits.” Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009)
(quoting Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) (orig.
proceeding)). “A trial court abuses its discretion when it denies discovery going to
the heart of a party’s case or when that denial severely compromises a party’s
ability to present a viable defense.” Id. But, the trial court may refuse to compel
discovery of information that “would require the responding party to include
matters that are unlikely to fall within the scope of discovery permissible under the
rules of procedure.” In re AWC Frac Valves Inc., No. 09-13-00247-CV, 2013 WL
4314377, at *2 (Tex. App.—Beaumont Aug. 15, 2013, orig. proceeding) (mem.
op.). The trial court has the discretion to deny a request if it is an overly broad
discovery request that it determines could have been more narrowly tailored to
include only relevant matters or should have been limited in time and scope. In re
Christus Health Se. Tex., 399 S.W.3d 343, 347 (Tex. App.—Beaumont 2013, orig.
proceeding); see Tex. R. Civ. P. 192.3.
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Cristen Purswell sued Relators for personal injuries that Purswell alleges she
sustained in a motor vehicle accident that occurred on August 23, 2013. Her
pleading includes allegations that her damages include past and future physical
pain and suffering, mental anguish, disfigurement, physical impairment, medical
expenses, loss of earning capacity, and loss of household services.
Requests For Production Regarding Facebook Items
The disputed Requests For Production pertain to the following requests that
Relators sent to Purswell:
(1) A color copy of any and all photographs and/or videos of
you (whether alone or accompanied by others) posted on your
Facebook page(s)/account(s) since the date of the accident on August
23, 2013.
(2) A color copy of all Facebook posts, Facebook messages
and/or Facebook chat conversations, other than those protected by the
attorney-client privilege, authored, sent or received, and/or otherwise
entered into by you since August 23, 2013.
(3) A color copy of any and all photographs and/or videos of
you (whether alone or accompanied by others) posted on your
Facebook page(s)/account(s) prior to August 23, 2013.
(4) A color copy of all Facebook posts, Facebook messages
and/or Facebook chat conversations, other than those protected by the
attorney-client privilege, authored, sent or received, and/or otherwise
entered into by you prior to August 23, 2013.
Relators argue they limited their first request to photographs and videos
depicting Purswell after the date of the accident and that should be sufficiently
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narrow and Purswell should be compelled to respond. But, the request on its face
requests that Purswell produce every photograph and video posted since the date of
the accident regardless of when the photograph was taken or created. Their second
request requires that Purswell produce every post, message or chat conversation
authored, sent, or received by her, no matter how mundane or remote, regardless of
the topic, content, or subject, includes everything anyone sent or posted to her
account. Although limited to posts made or received after the date of the accident,
there is no limit on the scope of the request or the subject matter of the post. The
third and fourth requests ask for every photograph, video, post, message, or chat
conversation posted before the date of the accident, and are unlimited as to scope,
topic, content, and subject. Accordingly, the trial court could reasonably conclude
that each of the requests for production were overly broad. See In re Christus
Health Se. Tex., 399 S.W.3d at 347. Therefore, the trial court did not abuse its
discretion when it denied Relators’ motion to compel production of information
from Purswell’s Facebook account.
Request For Production of Cell Phone
The trial court also denied Relators’ request for production to Purswell
requesting that Purswell produce her cell phone to the defendant for a forensic
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examination. In the cell phone request Relators state that they want her phone for a
forensic examination to extract data of:
(1) Currently stored and deleted photographs depicting Plaintiff
subsequent to the accident.
(2) Currently stored and deleted videotapes depicting Plaintiff
subsequent to the accident.
(3) Currently stored and deleted text messages referencing or
reflecting Plaintiff’s alleged depression, anxiety, injuries, memory or
cognition problems, frustration, irritability and withdrawal from
family, friends, work and school.
(4) Currently stored and deleted e-mails referencing or
reflecting Plaintiff’s alleged depression, anxiety, injuries, memory or
cognition problems, frustration, irritability and withdrawal from
family, friends, work and school.
(5) Currently stored and deleted audio recordings referencing or
reflecting Plaintiff’s alleged depression, anxiety, injuries, memory or
cognition problems, frustration, irritability and withdrawal from
family, friends, work and school.
(6) Currently stored and deleted electronic postings referencing
or reflecting Plaintiff’s alleged depression, anxiety, injuries, memory
or cognition problems, frustration, irritability and withdrawal from
family, friends, work and school.
(7) Currently stored and deleted electronic communications
referencing or reflecting Plaintiff’s alleged depression, anxiety,
injuries, memory or cognition problems, frustration, irritability and
withdrawal from family, friends, work and school.
(8) Currently stored and deleted electronic data referencing or
reflecting Plaintiff’s alleged depression, anxiety, injuries, memory or
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cognition problems, frustration, irritability and withdrawal from
family, friends, work and school.
(9) Currently stored and deleted text messages referencing or
reflecting Plaintiff engaged in social activities with family and friends
since the date of the accident made the basis of this suit, including
parties, dinners, shopping, church, concerts, traveling, appointments,
meetings and gatherings.
(10) Currently stored and deleted e-mails referencing or
reflecting Plaintiff engaged in social activities with family and friends
since the date of the accident made the basis of this suit, including
parties, dinners, shopping, church, concerts, traveling, appointments,
meetings and gatherings.
(11) Currently stored and deleted audio recordings referencing
or reflecting Plaintiff engaged in social activities with family and
friends since the date of the accident made the basis of this suit,
including parties, dinners, shopping, church, concerts, traveling,
appointments, meetings and gatherings.
(12) Currently stored and deleted electronic postings
referencing or reflecting Plaintiff engaged in social activities with
family and friends since the date of the accident made the basis of this
suit, including parties, dinners, shopping, church, concerts, traveling,
appointments, meetings and gatherings.
(13) Currently stored and deleted communications referencing
or reflecting Plaintiff engaged in social activities with family and
friends since the date of the accident made the basis of this suit,
including parties, dinners, shopping, church, concerts, traveling,
appointments, meetings and gatherings.
(14) Currently stored and deleted electronic data referencing or
reflecting Plaintiff engaged in social activities with family and friends
since the date of the accident made the basis of this suit, including
parties, dinners, shopping, church, concerts, traveling, appointments,
meetings and gatherings.
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(15) Currently stored and deleted text messages referencing the
present lawsuit.
(16) Currently stored and deleted e-mails referencing the
present lawsuit.
(17) Currently stored and deleted audio recordings referencing
the present lawsuit.
(18) Currently stored and deleted electronic postings
referencing the present lawsuit.
(19) Currently stored and deleted electronic communications
referencing the present lawsuit.
(20) Currently stored and deleted electronic data referencing or
relating to the present lawsuit.
(21) Currently stored and deleted entries and postings to
Plaintiff’s calendar since the accident.
At the hearing on the motion for protection and motion to compel, the trial
court noted that other means of obtaining the information would be less intrusive.
The trial court instructed Relators to make tailored requests, and to return to the
trial court if they could not reach an agreement with Purswell on requests for
specific relevant and discoverable information. Undoubtedly, there are many ways
for the defendants to propound narrow requests for relevant items without
requiring the plaintiff to produce her cell phone for a forensic examination in this
personal injury suit.
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“To obtain discovery of data or information that exists in electronic or
magnetic form, the requesting party must specifically request production of
electronic or magnetic data and specify the form in which the requesting party
wants it produced.” Tex. R. Civ. P. 196.4. “Rule 196.4 requires specificity[.]” In re
Weekley Homes, 295 S.W.3d 309, 314 (Tex. 2009). “[R]equests must be
reasonably tailored to include only matters relevant to the case.” In re American
Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding). Rule 192.3
provides that a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action. See Tex. R.
Civ. P. 192.3. However, the rules are not an invitation for the other party to engage
in a fishing expedition in hopes of finding some piece of information solely for
impeachment purposes. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431
(Tex. 1996). The trial court could have reasonably determined that Relators’
requests were overly broad and that the requested production of the cell phone and
forensic examination of the cell phone would be overbroad, not properly limited in
time and scope, and constituted an unwarranted intrusion. See Weekley, 295
S.W.3d at 322; In re Christus Health Se. Tex., 399 S.W.3d at 347. The trial court
had no obligation to redraft the discovery requests for the requesting party.
Christus Health, 399 S.W.3d at 347; see also In re TIG Ins. Co., 172 S.W.3d 160,
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168 (Tex. App—Beaumont 2005, orig. proceeding). Because Relators failed to
establish that the trial court abused its discretion, we lift our stay order and deny
Relators’ petition for writ of mandamus.
PETITION DENIED.
PER CURIAM
Submitted on September 23, 2014
Opinion Delivered October 30, 2014
Before McKeithen, C.J., Horton and Johnson, JJ.
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