in Re UPS, Inc. and Antoine Scott Crenshaw ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00526-CV
In re UPS, Inc. and Antoine Scott Crenshaw
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
MEMORANDUM OPINION
Relators UPS, Inc. (UPS), and Antoine Scott Crenshaw (Crenshaw) have filed a
petition for writ of mandamus and motion for stay complaining of the trial court’s discovery
order in a personal injury suit by Real Party in Interest Andrew Dunne (Dunne) et ux. Dunne
seeks damages for injuries sustained when a package truck operated by UPS employee Crenshaw
allegedly failed to yield right of way from a stop sign and struck Dunne, who was riding his
bicycle at the time. Dunne sued both Crenshaw and UPS, asserting claims of both vicarious and
direct liability against UPS, the latter based on theories of negligent training and supervision.
Against Relators’ objection, the trial court granted discovery requiring UPS to produce a list of
all accident claims and suits relating to any UPS vehicle allegedly failing to yield the right of
way at a traffic-control device in Texas for the five years preceding the lawsuit. In their petition,
Relators seek mandamus relief from the discovery order on the ground that it is both overbroad
and unduly burdensome. Having reviewed the petition and the record provided, we now deny
the petition for writ of mandamus. See Tex. R. App. P. 52.8(a).
To be entitled to a writ of mandamus in a civil suit in Texas, the party seeking
such relief must establish (1) that the ruling of the trial court constitutes a clear abuse of
discretion and (2) that there is no adequate remedy at law. In re Frank Kent Motor Co.,
361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding). An abuse of discretion is an exercise of
discretion that is “arbitrary, unreasonable, and without reference to [any] guiding [rules and]
principles”, Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996) (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985), or that is “so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re Bass,
113 S.W.3d 735, 738 (Tex. 2003) (internal quotation marks omitted).
Relators reason that similar-incident discovery necessarily seeks facts not relevant
to the subject incident and therefore constitutes an impermissible “fishing expedition.” For his
part, Dunne points out that evidence of other, similar incidents is probative of the foreseeability
of the subject occurrence and is therefore relevant to his negligent supervision claim.
Relators cite two recent Supreme Court cases in support of their argument that
similar-incident discovery of the type at issue here is overbroad. The first of these two cases,
In re Contract Freighters, Inc., involved a rear-end collision with the defendant’s tractor-trailer.
646 S.W.3d 810 (Tex. 2022) (CFI). The Court in CFI granted mandamus to bar discovery
regarding lawsuits arising from other rear-end collisions involving the defendant’s drivers during
the five years immediately preceding the subject collision and occurring anywhere in the United
States. Id. at 812. The second case—coincidentally also involving a UPS company—arose from
a fatal collision in which the defendant’s driver tested positive for THC. In re UPS Ground
Freight, Inc., 646 S.W.3d 828 (Tex. 2022). In that case, the Court granted mandamus to bar
discovery of five years of positive drug-test records for employees who worked at the facility
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where the defendant’s driver had worked. In our view, neither case clearly bars the order at
issue in this case.
The discovery at issue in CFI, as well as the cases cited therein, was broader than
the discovery at issue here in terms of either time or geographic scope. In CFI itself, the request
involved the same time period as in this case (five years), but was nationwide in scope, including
records from “all fifty states.” In re CFI, 646 S.W.3d at 815. The geographical reach of that
request was thus much broader than the request at issue here, involving only the state where the
cause of action arose. Moreover, the CFI Court cited In re Ford Motor Co., 427 S.W.3d 396,
397 (Tex. 2014), involving an eleven-year time frame; In re Dana Corp., 138 S.W.3d 298, 302
(Tex. 2004), involving fifteen years of similar cases; and Dillard Department Stores, Inc. v. Hall,
909 S.W.2d 491, 492 (Tex. 1995), involving only a five-year time frame but spanning twenty
states. In sum, we are unable to abstract from CFI or the cases it cites a bright-line rule that
would bar the five-year, one-state discovery sought in the instant case.
Distinct aspects of UPS Ground Freight render its application here doubtful as
well. For example, the plaintiff in that case sought confidential drug-test results for “hundreds of
current and former UPS drivers.” In re UPS Ground Freight, Inc., 646 S.W.3d 828, 831 (Tex.
2022). Here, by contrast, Dunne has cited record evidence to indicate that as few as sixty-seven
incidents in the category for which discovery is sought may have occurred in a given two-year
period. Resp. to Pet. for Mandamus at 12. If that figure is typical, extrapolating to the five-year
period at issue here will not result in the “hundreds” of records that concerned the UPS Ground
Freight Court. As with CFI, then, UPS Ground Freight seems to have addressed a much broader
contemplated production. The Court in UPS Ground Freight also observed that the dataset
sought in discovery in that case was in fact too small to accomplish the plaintiff’s nominal
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purpose in requesting it, viz., to evaluate the defendant’s compliance with federal drug-testing
protocols. “[T]he results of drug tests conducted only in the Irving facility represent merely a
small piece of the company’s national testing program,” the Court reasoned, “and thus reveal
nothing about whether that program complies with federal regulations.” In re UPS Ground
Freight, 646 S.W.3d at 832. No comparable concern is present in the facts of the case before us.
Given these precedents, we cannot charge the trial court with having acted
arbitrarily and unreasonably as required by the applicable standard of review.
As to Defendants’ burdensomeness argument, it suffers from two grave defects.
From the record, it appears not to have been raised timely. However, even if timely, the asserted
burden, if any, would seem to result, substantially if not entirely, from the manner in which
UPS chooses to store and organize its own materials. See In re K&L Auto Crushers, LLC,
627 S.W.3d 239, 253 (Tex. 2021). UPS disputes that contention, but the record leaves enough
room for judgment that, once more, we cannot impute to the trial court clear abuse under the
applicable standard.
Accordingly, we deny Relator’s petition for writ of mandamus. See Tex. R.
App. P. 52.8(a).
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Filed: October 21, 2022
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