in Re: Kemper Lloyds Insurance Company ( 2006 )

                NO. 12-05-00309-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§         

IN RE: KEMPER LLOYDS

INSURANCE COMPANY,   §          ORIGINAL PROCEEDING

RELATOR

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                                                MEMORANDUM OPINION

            In this original mandamus proceeding, Kemper Lloyds Insurance Company complains of a discovery order signed by Respondent, the Honorable Campbell Cox, Judge of the 145th Judicial District Court, Nacogdoches County, Texas, on August 31, 2005.  We deny the petition.

Background

            Tim and Lynn Howell discovered water damage to the roof and ceiling structure, wall framing, interior and exterior wall coverings, wall insulation, and floor coverings of their home.  They filed a claim with Kemper, who issued their homeowner’s policy. Kemper hired Gary Whightsil to inspect the Howells’ residence and determine the cause and origin of the damages. The inspection revealed a hole in the roof of the residence.  Kemper denied a portion of the Howells’ claim, and the Howells sued Kemper alleging breach of contract and bad faith settlement practices.

            The Howells sent Kemper interrogatories and requests for production, including the following:

Interrogatory 2:  Please identify any other claims made to or filed by one of your policy holders for which you contracted with or employed GLW Engineering, Inc. to investigate or inspect any property in connection with that claim.

Request for Production 1:  All documents identified in Interrogatory No. 2 of Plaintiff’s First Set of Interrogatories.

Kemper objected, in part, that these discovery requests are overbroad and that they seek information that is irrelevant and protected from discovery by the privacy rights of Kemper’s insureds.  The Howells filed a motion to compel production contending the requested discovery is necessary to discover any bias Whightsil may have.  Kemper filed a response and attached a document in which Whightsil summarized 25 claims he had previously investigated for Kemper, but redacted the insureds’ names.

            Respondent conducted a hearing on the Howells’ motion to compel.  Following the hearing, Respondent signed an order requiring Kemper to provide the Howells with the names and addresses of the property owners whose claims are listed in Whightsil’s summary.  The order includes a confidentiality provision that prohibits the Howells and their counsel from disclosing the information to anyone unless it is essential to the litigation.  The provision also requires the Howells to return the disclosed names and addresses to Kemper upon resolution of the case. Kemper filed this original proceeding and a motion for emergency relief.  We stayed the trial court proceedings pending resolution of the issues presented here.

Availability of Mandamus

            The scope of discovery is largely within the trial court’s discretion.  Dillard Dep’t Stores, Inc., 909 S.W.2d 491, 492 (Tex. 1995).  Mandamus will issue to correct a discovery order when the mandamus record establishes that the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal.  In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998).  Mandamus relief may be justified when (1) the appellate court would not be able to cure the trial court’s discovery error, such as when privileged information would be revealed; (2) the party’s ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling; or (3) the trial court’s discovery order disallows discovery that cannot be made a part of the appellate record.  Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. 1992).  The party seeking the writ of mandamus has the burden of showing that the trial court abused its discretion.  In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.–Tyler 2005, orig. proceeding).  A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without reference to guiding rules and principles.  In re Colonial Pipeline, 968 S.W.2d at 941. 

            In two issues, Kemper contends that it has satisfied both prerequisites to mandamus.  As to the first prerequisite, Kemper argues that Respondent’s order is an abuse of discretion because (1) the Howells have not pleaded or proved that Whightsil is biased; (2) the Howells did not meet their burden to show that the names and addresses are relevant, material, and necessary to the issues in the litigation; and (3)  Respondent’s confidentiality order is insufficient to protect the privacy rights of Kemper’s insureds.  We address each argument in turn.¹

Bias of Expert Witness

            In his summary, Whightsil stated that in 57% of the 25 claims he investigated for Kemper, he found no damage or found damage from causes that were not covered under the policy.  The Howells argued that they need the names and addresses of the property owners submitting the claims identified in Whightsil’s summary to independently verify the information in the summary and to determine whether evidence of Whightsil’s bias exists. 

            In the order, Respondent stated his conclusion that “Texas Rules of Civil Procedure number 192.3(e)(5) specifically provides that a ‘party may discover. . .any bias of the witness.’”  The order includes a finding that “[a] determination of whether the findings made by Gary Whightsil in favor of [Kemper] were reasonable or arbitrary is essential to show whether or not said Whightsil is biased.” Kemper argues that the names and addresses are not discoverable because Whightsil’s bias is not an issue in the underlying proceeding.  More particularly, Kemper points out that the Howells have not filed any pleading asserting that Whightsil is biased and that Tim Howell stated in his deposition that he did not believe Whightsil is biased.² 

            A party may discover the bias of a testifying expert or a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert.  Tex. R. Civ. P. 192.3(e)(5).  Rule 192.3(e)(5) includes no requirement that the expert’s credibility must be an issue for evidence of the expert’s potential bias to be discoverable.  See id.  Kemper cites the rule that discovery is not permitted (1) where personal documents such as appointment books or financial records have been requested from a potential nonparty witness whose credibility has not been put in issue, (2) the records do not relate directly to the subject matter of the pending suit, and (3) the records are sought to be discovered for the sole purpose of impeachment of the witness by showing his bias and prejudice.  See Russell v. Young, 452 S.W.2d 434, 435 (Tex. 1970).³  Here, the names and addresses are not sought from Whightsil nor are they to be discovered from his personal documents.  Thus,  the holding in Russell is inapplicable. 

            The Howells were not required to raise the issue of Whightsil’s bias as a prerequisite to obtaining discovery of the names and addresses. Therefore, Respondent did not abuse his discretion in ordering disclosure on the basis that bias is an issue in the underlying proceeding.

Relevance of Requested Information

            Kemper contends that because it objected to the requested discovery based on privacy rights, the Howells had the burden to show that the names and addresses are material, relevant, and necessary. According to Kemper, the Howells failed to meet this burden and therefore Respondent abused his discretion in ordering production of the names and addresses. 

            A party may obtain 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).  Evidence is relevant if it has a “tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  Evidence may not always be necessary to support a claim that the information sought is not relevant.  In re Union Pacific Resources Co., 22 S.W.3d 338, 340 (Tex. 1999) (orig. proceeding); see also Tex. R. Civ. P. 193.4(a) (party making objection or asserting privilege must present any evidence necessary to support objection or privilege) (emphasis added).

            As a general rule, the burden of pleading and proving the requested evidence is not relevant falls upon the party seeking to prevent discovery.  Valley Forge Ins. Co. v. Jones, 733 S.W.2d 319, 321 (Tex. App.–Texarkana 1987, orig. proceeding) (citing Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56 (Tex. 1986); Peeples v. Fourth Court of Appeals, 701 S.W.2d 635 (Tex. 1985)).   In support of its contention that a different rule applies in the instant case, Kemper cites El Centro del Barrio Inc. v. Barrow, 894 S.W.2d 775 (Tex. App.–San Antonio 1994, orig. proceeding). 

            In El Centro del Barrio, the plaintiffs in the underlying proceeding sought to compel production of tax returns.  In conditionally granting mandamus relief, the court stated that when tax returns are sought, it is not the burden of the party resisting discovery to show the tax returns are not relevant.  Id. at 779 (citing Maresca v. Marks, 362 S.W.2d 299, 300 (Tex. 1962); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (Tex. 1959)).  Instead, the burden is on the party seeking discovery to show that the tax returns are material and relevant to the issues in the case.  El Centro del Barrio, 894 S.W.2d at 779.  This rule has also been applied to tithing records, which in many cases may be a subset of personal tax records.  Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex. 1996).  However, we have found no cases, and Kemper has not cited any, suggesting that this exception to the general rule is applicable to information other than tax returns and tithing records.  In the absence of such authority, we reject Kemper’s contention that this exception applies in the case at hand.  Therefore, Kemper had the burden to show that the names and addresses were not relevant.

            At the hearing on the motion to compel, Kemper argued that the names and addresses are not relevant because Whightsil’s bias is not an issue in the case. As we have previously discussed, Texas Rule of Civil Procedure 192.3(e)(5) does not preclude discovery of bias where the issue has not been raised previously.  Consequently, Kemper’s argument was insufficient to show that the names and addresses are not relevant.  Because Kemper failed to meet its burden, Respondent did not abuse his discretion in ordering disclosure on the basis that the names and addresses are relevant to the issue of bias.

Right to Privacy and Confidentiality Order

            Kemper contends that a confidentiality order does not overcome a privacy claim. Therefore, Kemper maintains, its privacy objection precluded Respondent from ordering disclosure of the names and addresses, and the confidentiality provision in the order cannot justify disclosure.

            The cases addressing the constitutional right to privacy have involved at least two different kinds of interests.  Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64 (1977).  One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.  Id.  The former is in dispute here.  This aspect, sometimes referred to as “disclosural privacy,” encompasses the ability of individuals to determine for themselves when, how, and to what extent information about them is communicated to others.  Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 679 (Tex. 1976). However, this does not mean that every publication of personal information about an individual constitutes an invasion of a constitutionally protected zone of privacy.  Id. at 680.  Nor does it mean that information within a constitutionally protected zone of privacy can never be disclosed.  See, e.g., Whalen, 429 U.S. at 604, 97 S. Ct. at 878 (upholding state statute requiring reporting of names and addresses of all persons obtaining prescriptions for certain drugs having both a lawful and an unlawful market); Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675, 680 (Tex. App.–Fort Worth 1987, orig. proceeding) (holding that compelling disclosure of blood donors’ identities was not an impermissible violation of constitutional right to privacy).

            A party asserting that privacy rights protect information from disclosure must present evidence showing disclosure would cause “a particular, articulated and demonstrable injury.”  See  Kessell v. Bridewell, 872 S.W.2d 837, 841-42 (Tex. App.–Waco 1994, orig. proceeding) (quoting Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987)).  Stated another way, the party must establish that it has such a privacy interest in the information as to bar disclosure.  Kessell, 872 S.W.2d at 842.  An insurance company may request limitation of discovery to protect the privacy of its insureds.  See Alpha Life Ins. Co. v. Gayle, 796 S.W.2d 834, 836 (Tex. App.–Houston [14th Dist.] 1990, orig. proceeding).

            Marital relations, procreation, contraception, family relationships, and child rearing and education are among the interests that are included within a constitutionally protected zone of privacy. See Indus. Found. of the S., 540 S.W.2d at 679.  An individual’s medical records are also within a constitutionally protected zone of privacy. Whalen, 429 U.S. at 601, 97 S. Ct. at 877.  In this case, the redacted names and addresses do not relate to any of these protected interests.  Moreover,  Kemper has not shown that the names and addresses are within any constitutionally protected zone of privacy.  Cf. In re Xeller, 6 S.W.3d 618, 625 (Tex. App.–Houston [14th Dist.] 1999, orig. proceeding) (requested medical reports within a zone of privacy protected by the United States Constitution); In re Dolezal, 970 S.W.2d 650, 652 (Tex. App.–Corpus Christi 1998, orig. proceeding) (same); Alpha Life Ins., 796 S.W.2d at 836 (same). 

            At the hearing, Kemper stated only that it does not want its insureds harassed by someone questioning them about Whightsil’s investigation of their claims.  This is insufficient to show that the names and addresses are afforded constitutional protection.  See Kessell, 872 S.W.2d at 841-42; see also  Indus. Found. of the S., 540 S.W.2d at 681 (names of worker’s compensation claimants in state records not within a constitutionally protected zone of privacy).  Because Kemper did not establish its privacy claim, Respondent did not abuse his discretion in ordering disclosure of the names and addresses subject to a confidentiality provision.

Conclusion

            Respondent did not abuse his discretion in ordering disclosure of the names and addresses of Kemper’s insureds whose claims were listed in Whightsil’s summary.  Because Kemper has not met the first prerequisite to mandamus, we need not consider the second—whether Kemper has an adequate remedy by appeal.  Kemper’s petition for writ of mandamus is   denied, and our stay is lifted.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered February 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

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¹ Because Respondent did not grant the Howells’ motion to compel in its entirety, we limit our discussion to the names and addresses described in Respondent’s order.

² We interpret Kemper’s argument to be that Howell’s statement affirmatively shows bias is not an issue.  

³ At least two courts have held that the supreme court did not overrule its decision in Russell by its promulgation of Rule 192.3 in 1999.  See In re Wharton, 2005 Tex. App. LEXIS 4572, at *12 (Tex. App.–Waco 2005, orig. proceeding); In re Doctor’s Hosp. of Laredo, 2 S.W.3d 504, 507 (Tex. App.–San Antonio 1999, orig. proceeding).