in Re HEB Grocery Company, LP ( 2012 )

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part
and Majority and Concurring and Dissenting Opinions filed July 10, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00359-CV
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IN RE HEB GROCERY COMPANY, L.P., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
165th District Court
Harris County, Texas
Trial Court Cause No. 2011-40738
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part in this case. I agree with the
well-established precedent that discovery requests that are not limited to the store in
question are generally overbroad and burdensome. See Dillard Dep’t Stores, Inc. v. Hall,
909 S.W.2d 491, 492 (Tex. 1995); K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.
1996). But because the majority has imposed the extraordinary remedy of mandamus as
to certain very commonplace discovery requests for the store in question, I dissent with
respect to those requests.
Mandamus will issue to correct a discovery order only when the order constitutes a
clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial
Pipeline, 968 S.W.2d 938, 941 (Tex. 1998). We should follow our own precedent and
grant mandamus only when a discovery order calls for 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. In re Houstonian
Campus, L.L.C, 312 S.W.3d 178, 183 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(mandamus appropriate for patently irrelevant documents that were highly personal and
sensitive); see also Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (no adequate
remedy by appeal where the discovery order compels the production of patently irrelevant
documents that constitute harassment or impose a burden on the producing party far out of
proportion to any benefit to the requestor).
Even assuming that the requests called for “patently irrelevant” information, HEB
has not argued or presented any evidence that the requests and interrogatory in question
were burdensome. HEB does not assert that any privacy interests, trade secrets, or
privileges of any sort will be violated, nor has it shown that the interrogatory and requests
pertaining to the store in question posed a burden on HEB far out of proportion to any
benefit that may obtain to the requesting party. Therefore, I respectfully dissent from the
majority’s opinion as to (1) Interrogatory No. 9, and (2) Requests for Production Nos. 4
and 11 as they pertain to information about other claims or accidents at the store in
question, and (3) Request for Production No. 32, as to certain employees.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Christopher, and McCally. (McCally, J., majority).
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