in Re Pilgrim's Pride Corporation, Christopher Bentley, and Kyle Martin ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00305-CV
IN RE PILGRIM'S PRIDE CORPORATION,
CHRISTOPHER BENTLEY, AND KYLE MARTIN
Original Proceeding
From the 170th District Court
McLennan County, Texas
Trial Court No. 2021-1030-4
MEMORANDUM OPINION
In this original proceeding, Relators Pilgrim’s Pride Corporation (Pilgrim’s Pride),
Christopher Bentley (Bentley), and Kyle Martin (Martin) have filed a petition seeking
mandamus relief from the trial court’s October 21, 2021 discovery order. We will
conditionally grant the petition in part and deny it in part.
Factual and Procedural Background
Jonathan Barrett died, and Daniel Kendall and Brandon Lawler both suffered
serious injuries, when a ceiling panel on which they were standing collapsed beneath
them at Pilgrim’s Pride’s poultry plant in Waco, Texas, on or about January 26, 2021.
Thereafter, in April 2021, Daniel Kendall (Kendall) and his wife Lauren (together, the
Kendalls) took a Rule 202 deposition of Bentley, the head of engineering at the Pilgrim’s
Pride plant. See generally TEX. R. CIV. P. 202. The Kendalls subsequently filed a negligence
suit against Pilgrim’s Pride, Bentley, and Martin, the complex manager at the Pilgrim’s
Pride plant. The Kendalls later amended their pleadings to add NBMC, Inc. (NBMC) as
a defendant.
The Kendalls made the following allegations in their live pleading at the time of
the trial court’s complained-of ruling: Pilgrim’s Pride decided to have some renovations
done at its Waco plant. Pilgrim’s Pride had a company policy prohibiting the use of a
general contractor for projects at the plant; instead, Pilgrim’s Pride took on the tasks
normally assigned to a general contractor. Pilgrim’s Pride assigned Bentley as the
“Project Engineer” for this renovation project; therefore, Bentley assumed the duties
normally undertaken by a general contractor’s superintendent at a renovation project.
The Kendalls alleged that Pilgrim’s Pride contracted with Baker Refrigeration
Systems Inc. (Baker Refrigeration) to perform the refrigeration portion of the renovation
project. The Baker Refrigeration crew, of which Kendall was a member, was assigned to
work in an area above the ceiling of a large storage room. The storage room ceiling panels
served as the floor for the Baker Refrigeration crew as they worked. The Kendalls alleged
that Pilgrim’s Pride also contracted with NBMC to perform the demolition of equipment,
the concrete work, and the replacement of walls and ceilings for the renovation project.
In re Pilgrim's Pride Corp. Page 2
Before the ceiling panel collapsed, NBMC performed demolition work in the Baker
Refrigeration crew’s work area above the ceiling of the storage room.
The Kendalls alleged that the Baker Refrigeration crew had been working for
several days at the plant in the designated work area before the ceiling panel collapsed.
The day before the collapse, Bentley was in the storage room below the area where the
Baker Refrigeration crew was working when he saw the storage room ceiling “flexing
and bowing.” Bentley therefore knew that the storage room ceiling panels that served as
the floor for the Baker Refrigeration crew as they worked were dangerous. Bentley,
however, did not notify the Baker Refrigeration crew of the dangerous condition, did not
lock the gate to the area, and did not put up a caution sign or tape. Instead, without
notifying others at Pilgrim’s Pride and without completing a feasibility analysis, Bentley
specifically approved a plan to use a scissor lift as a brace to support the ceiling panels so
that the Baker Refrigeration crew could continue to work. But the collapse occurred
before any such plan was implemented.
The Kendalls alleged that as part of the renovation project, Pilgrim’s Pride had
implemented a procedure requiring Baker Refrigeration to apply for a “hot works
permit” whenever it needed to engage in welding, cutting, or grinding inside the
building. On the morning of the day that the ceiling panel collapsed, Pilgrim’s Pride
issued a “hot works permit” authorizing the Baker Refrigeration crew to cut pipe that
needed to be removed in the designated work area above the storage room ceiling.
Martin also came into the work area that morning and observed the Baker Refrigeration
crew working in the designated work area above the storage room ceiling. Martin did
In re Pilgrim's Pride Corp. Page 3
not warn the crew of the dangerous condition. The Kendalls alleged that while the Baker
Refrigeration crew was then working on the pipes, a ceiling panel collapsed and fell out
from under Kendall’s feet, creating a hole where the panel had been. Three workers fell
through the hole in the ceiling and onto the concrete floor of the storage room below. As
a result, Kendall was severely injured, and his supervisor was killed. 1
Pilgrim’s Pride, Bentley, and Martin jointly answered the Kendalls’ pleading with
a general denial of the Kendalls’ allegations. Pilgrim’s Pride, Bentley, and Martin further
asserted that the Kendalls’ factual allegations produced “an inaccurate picture of the
incident” and inaccurately represented Bentley’s Rule 202 deposition testimony.
Accordingly, Pilgrim’s Pride, Bentley, and Martin put forward their own factual
allegations in their answer as follows: The incident was a “tragic accident” that occurred
in the attic space above where the “Waco Line 4 Freezer Replacement Project” was taking
place. Before the bidding process for the renovation began, Baker Refrigeration inspected
the facility. Furthermore, after being selected to complete the project, Baker Refrigeration
inspected the jobsite a second time before beginning its work.
Pilgrim’s Pride, Bentley, and Martin alleged that a few days after the work began,
and the day before the ceiling panel collapsed, Bentley noticed that “the ceiling above
Line 4 (which also served as the attic floor) was bowing and flexing to an unacceptable
extent” because several of Baker Refrigeration’s employees/subcontractors were
1 Shortly after the Kendalls filed suit, Brandon Lawler and his wife Kimberly Stone filed a petition in
intervention asserting negligence claims against Pilgrim’s Pride, Bentley, Martin, and Baker Refrigeration.
Additionally, Summer Barrett, individually and as the surviving spouse and representative of the estate of
Jonathan Barrett, filed a petition in intervention asserting negligence claims against Pilgrim’s Pride,
Bentley, and Martin.
In re Pilgrim's Pride Corp. Page 4
concentrated in a relatively small area where they were removing old, heavy
piping/valves. Bentley thereafter notified Jonathan Barrett (Barrett), Baker
Refrigeration’s supervisor, that the work needed to stop because the excessive weight
that the Baker Refrigeration workers were placing on the ceiling panels while performing
their jobs was creating an unsafe situation. Bentley further suggested that a safer,
alternate way for the Baker Refrigeration employees/subcontractors to complete the
removal of the pipes/valves would be to take out the whole ceiling and use scissor lifts
and forklifts to remove the pipes. But Baker Refrigeration rejected the idea. Barrett told
Bentley that he felt like it would be unsafe to use scissor lifts in that way.
Pilgrim’s Pride, Bentley, and Martin alleged that Baker Refrigeration instead
developed its own plan. After discussing the situation with his boss, Barrett told Bentley
that, before the workers would continue working, Baker Refrigeration was going to use
scissor lifts to “crib up” the area under the ceiling panels where the Baker Refrigeration
employees/subcontractors were removing the pipes. Bentley approved the plan because
he felt like Baker Refrigeration was the expert, not him. Baker Refrigeration also
informed others of the plan because NBMC employees showed Bentley the area where
Barrett had shown them that the scissor lifts would be located. The next morning,
however, Barrett ordered his workers to begin working before the arrival and
implementation of the scissor lifts, in violation of the plan that he had devised. Based on
the foregoing factual allegations, Pilgrim’s Pride, Bentley, and Martin further moved to
designate Baker Refrigeration and Barrett as responsible third parties.
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On June 29, 2021, the Kendalls served their first requests for production of
documents and first sets of interrogatories on Pilgrim’s Pride, Bentley, and Martin.
Subsequently, Pilgrim’s Pride, Bentley, and Martin each timely provided their objections
and responses to the Kendalls’ first requests for production of documents. On September
30, 2021, Pilgrim’s Pride, Bentley, and Martin then filed a motion for protection from the
Kendalls’ discovery requests, and on October 1, 2021, the Kendalls filed a motion to
compel Pilgrim’s Pride to respond to their Requests for Production Nos. 3, 12, 33, 43, and
55. The Kendalls later supplemented their motion to compel. Pilgrim’s Pride, Bentley,
and Martin also jointly filed a response to the Kendalls’ motion to compel and a reply in
support of their own motion for protection.
On October 15, 2021, the trial court held a hearing on Pilgrim’s Pride’s, Bentley’s,
and Martin’s motion for protection and on the Kendalls’ motion to compel. At the end of
the hearing, the trial court stated: “I will grant [the Kendalls’] motion to compel in full.”
On October 21, 2021, the trial court then signed its “Order on Plaintiffs’ Motion to
Compel Defendant Pilgrim’s Pride Corporation to Produce Documents Responsive to
Plaintiffs’ First Requests for Production Nos. 3, 12, 33, 43, and 55.” In the order, the trial
court granted the Kendalls’ motion to compel Pilgrim’s Pride to respond to their Requests
for Production Nos. 3, 12, 33, 43, and 55 and overruled Pilgrim’s Pride’s objections to
those discovery requests. The trial court then ordered Pilgrim’s Pride to provide all
responsive documents and further answers or supplementations to the Kendalls’
Requests for Production Nos. 3, 12, 33, 43, and 55 within thirty days of the date of the
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order.2 Finally, the trial court denied Pilgrim’s Pride’s, Bentley’s, and Martin’s motion
for protection from the Kendalls’ discovery requests.
Discussion
Mandamus is an extraordinary remedy that is available only when (1) the trial
court clearly abused its discretion and (2) the relator lacks an adequate remedy by appeal.
In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (citing
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36, 138 (Tex. 2004) (orig. proceeding)).
A. Clear Abuse of Discretion
We begin with whether the trial court clearly abused its discretion in denying
Pilgrim’s Pride’s, Bentley’s, and Martin’s motion for protection from the Kendalls’
discovery requests. Rule of Civil Procedure 192.6(a) provides: “A person from whom
discovery is sought, and any other person affected by the discovery request, may move
within the time permitted for response to the discovery request for an order protecting that
person from the discovery sought.” TEX. R. CIV. P. 192.6(a) (emphasis added). Pilgrim’s
Pride, Bentley, and Martin did not file their motion for protection from the Kendalls’
discovery requests until after the time permitted to respond to the Kendalls’ first requests
for production of documents and first sets of interrogatories had expired. The trial court,
therefore, did not clearly abuse its discretion in denying Pilgrim’s Pride’s, Bentley’s, and
Martin’s motion for protection. See id.2 We have stayed the trial court’s October 21, 2021 order, pending further order of this Court.
In re Pilgrim's Pride Corp. Page 7
We next address whether the trial court clearly abused its discretion in granting
the Kendalls’ motion to compel Pilgrim’s Pride to respond to their Requests for
Production Nos. 3, 12, 33, 43, and 55 and in overruling Pilgrim’s Pride’s objections to
those discovery requests.
“‘The trial court abuses its discretion by ordering discovery that exceeds that
permitted by the rules of procedure.’” In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787
(Tex. 2021) (orig. proceeding) (quoting In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003)
(orig. proceeding) (per curiam)). Rule of Civil Procedure 192.3(a) provides that the
parties to a lawsuit may generally obtain discovery of information that “is not privileged
and is relevant to the subject matter of the pending action.” TEX. R. CIV. P. 192.3(a). “Such
evidence is discoverable even if it would not be admissible at trial so long as it ‘appears
reasonably calculated to lead to the discovery of admissible evidence.’” USAA Gen.
Indem. Co., 624 S.W.3d at 787–78 (quoting TEX. R. CIV. P. 192.3(a)). Rule of Civil Procedure
192.4 provides, however, that the trial court “should” limit otherwise permissible
discovery if:
(a) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely
benefit, taking into account the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery
in resolving the issues.
TEX. R. CIV. P. 192.4. Rule of Civil Procedure 192.4 imposes a proportionality standard
that requires “a case-by-case balancing of jurisprudential considerations.” K & L Auto
In re Pilgrim's Pride Corp. Page 8
Crushers, 627 S.W.3d at 253 (quoting In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017)
(orig. proceeding)).
Pilgrim’s Pride challenges the propriety of the Kendalls’ Requests for Production
Nos. 3, 12, 33, 43, and 55 on both relevance and proportionality grounds.
1. Relevance
We first address Pilgrim’s Pride’s contention that the Kendalls’ Requests for
Production Nos. 3, 12, 33, 43, and 55 are overbroad and seek irrelevant documentation.
. . . Although [the Rules of Civil Procedure] must be “liberally
construed to allow the litigants to obtain the fullest knowledge of the facts
and issues prior to trial,” Axelson, [Inc. v. McIlhany,] 798 S.W.2d [550,] 553
[(Tex. 1990) (orig. proceeding)], “even these liberal bounds have limits, and
discovery requests must not be overbroad.” In re Nat’l Lloyds Ins. Co., 449
S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam). In essence, an
overbroad discovery request is one that seeks irrelevant information. In re
Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig.
proceeding) (per curiam). But a request is not overbroad simply because it
“may call for some information of doubtful relevance,” Texaco, Inc. v.
Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding) (per curiam),
and “the sheer volume of a discovery request does not in itself render the
request irrelevant or overbroad as a matter of law,” In re Alford Chevrolet–
Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding).
K & L Auto Crushers, 627 S.W.3d at 251–52. Whether a request for discovery is overbroad
is distinct from whether it is burdensome or harassing. Allstate, 227 S.W.3d at 670.
Instead, discovery requests and orders are overbroad if they are not
properly “tailored with regard to time, place, or subject matter,” In re Nat’l
Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) [(orig. proceeding)] (per
curiam), or otherwise require production of information that is not
reasonably calculated to lead to the discovery of admissible evidence, Nat’l
Lloyds, 449 S.W.3d at 490.
K & L Auto Crushers, 627 S.W.3d at 252 (footnote omitted). “A central consideration in
determining overbreadth is whether the request could have been more narrowly tailored
In re Pilgrim's Pride Corp. Page 9
to avoid including tenuous information and still obtain the necessary, pertinent
information.” CSX Corp., 124 S.W.3d at 153.
a. Requests for Production Nos. 3 and 33
The Kendalls’ Request for Production No. 3 states: “Produce all documents
reflecting all incidents, including but not limited to any near-miss reports, at the Worksite
for the sixty (60) days before and including the date of the Incident.” Similarly, the
Kendalls’ Request for Production No. 33 provides: “Produce any Documents that reflect
any concerns and/or complaints received by You regarding safety deficiencies and/or
operation of Worksite from January 1, 2016 through the date of the Incident.” The term
“Worksite” is defined as “the building where the Waco Line 4 Freezer Replacement
project was being conducted at the Pilgrim’s Pride Corporation located at 2500 E Lake
Shore Drive, Waco, Texas, where the incident resulting in the bodily injury of Daniel
Kendall” occurred.
Pilgrim’s Pride contends that, regarding these discovery requests, because of the
definition of the term “Worksite,” the Kendalls are seeking information that encompasses
the entire poultry processing plant. Pilgrim’s Pride further points out that, regarding
Request for Production No. 33 specifically, the Kendalls are seeking discovery that covers
a period spanning more than five years before the incident involving Kendall occurred.
Pilgrim’s Pride asserts, however, that Baker Refrigeration was working on the Waco Line
4 Freezer Replacement Project as an independent contractor, not as an employee; that the
project involved only a small area of the attic located above Line 4, where the routine
operation of the poultry processing plant had been shut down; and that the project had
In re Pilgrim's Pride Corp. Page 10
begun only a few days before the incident involving Kendall occurred. Pilgrim’s Pride
argues that the Kendalls’ Requests for Production Nos. 3 and 33 are therefore fishing
expeditions. See generally Alford Chevrolet–Geo, 997 S.W.2d at 181 (“[D]iscovery may not
be used as a fishing expedition or to impose unreasonable discovery expenses on the
opposing party.”).
Pilgrim’s Pride also argues that a premises owner has a very limited duty to an
employee of an independent contractor. The Texas Supreme Court stated in General
Electric Company v. Moritz that a premises owner does not owe a duty to ensure that
independent contractors perform their work in a safe manner. 257 S.W.3d 211, 214 (Tex.
2008). The court further stated:
Generally, a landowner is liable to employees of an independent contractor
only for claims arising from a pre-existing defect rather than from the
contractor’s work, and then only if the pre-existing defect was concealed:
“With respect to existing defects, an owner or occupier has a duty to inspect
the premises and warn of concealed hazards the owner knows or should
have known about.”
Id. at 215 (footnote omitted) (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)
(emphasis added)). Pilgrim’s Pride then states in its petition that it “has already
stipulated that it had notice of the condition of the [ceiling panels] in the exact area where
the accident occurred, and that it advised Baker Refrigeration of same, prior to the
accident.” Pilgrim’s Pride, relying on In re USAA General Indemnity Company, argues that
there is therefore “no need to conduct discovery on what Pilgrim’s Pride should have
known when Pilgrim’s Pride admits that it actually knew.” See generally 624 S.W.3d at 793
(“Considering USAA’s coverage concessions and the narrow scope of the ‘car crash’
In re Pilgrim's Pride Corp. Page 11
issues in dispute, we hold that some, but not all, of Wearden’s noticed deposition topics
exceed the rules’ permissible scope.”).
In many instances, “evidence of other accidents, near accidents, or related similar
events is probative evidence in Texas courts.” In re Sun Coast Res., Inc., 562 S.W.3d 138,
148 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding). But before such evidence
may be admitted, an adequate predicate must be established. Id. The plaintiff must
establish: “(1) a predicate of similar or reasonably similar conditions; (2) connection of
the conditions in some special way; or (3) that the incidents occurred by means of the
same instrumentality.” Id. We accordingly conclude that, at a minimum, the Kendalls’
Requests for Production Nos. 3 and 33 are not properly tailored with regard to subject
matter. See K & L Auto Crushers, 627 S.W.3d at 252 (“[D]iscovery requests and orders are
overbroad if they are not properly ‘tailored with regard to time, place, or subject matter.’”
(quoting Nat’l Lloyds, 507 S.W.3d at 226)). Even though the scope of discovery is much
broader than the scope of admissible evidence, In re Exmark Mfg. Co., 299 S.W.3d 519, 528
(Tex. App.—Corpus Christi–Edinburg 2009, orig. proceeding), the Kendalls are not
entitled to discover documents reflecting incidents and concerns regarding Pilgrim’s
Pride’s entire poultry processing operation. See, e.g., Texaco, Inc. v. Sanderson, 898 S.W.2d
813, 815 (Tex. 1995) (orig. proceeding) (per curiam) (where principal issue was whether
defendants were grossly negligent in exposing plaintiffs’ decedents to asbestos, benzene,
and other such toxic substances, and where plaintiffs wanted to prove a general
“corporate strategy to ignore safety law,” court explained that “[w]hile plaintiffs are
entitled to discover evidence of defendants’ safety policies and practices as they relate to
In re Pilgrim's Pride Corp. Page 12
the circumstances involved in their allegations, a request for all documents authored by
[the corporate safety director] on the subject of safety, without limitation as to time, place
or subject matter, is overbroad”).
The Kendalls argue, in part, that they did not arbitrarily choose to define
“Worksite” as the entire building but that they instead defined it as it is defined in the
contract between Pilgrim’s Pride and Baker Refrigeration. The Kendalls further assert
that defining “Worksite” as the entire building “simply reflects the actual scope of the
work being done when the [ceiling panel] collapsed.” To support their assertion, the
Kendalls point to Bentley’s deposition, in which he stated: “So theoretically, when
they’re in the attic area dealing with pipes, [Baker Refrigeration’s work area] actually
covers the majority of the section of the attic, as well as up on the roof of the building
where they’re running their new ammonia pipes.” But even though these arguments
may explain why the Kendalls’ Requests for Production Nos. 3 and 33 are properly
tailored with regard to place, these arguments do not establish how the Kendalls’ Requests
for Production Nos. 3 and 33 are properly tailored with regard to subject matter
considering that Baker Refrigeration was an independent contractor that was not
involved in the poultry processing operation of the plant.
The Kendalls’ Requests for Production Nos. 3 and 33 are therefore overbroad, and
the trial court clearly abused its discretion to the extent that it granted the Kendalls’
motion to compel Pilgrim’s Pride to produce documents responsive to those discovery
requests.
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b. Request for Production No. 12
The Kendalls’ Request for Production No. 12 states: “Produce any Documents
reflecting the job descriptions and identities of the workers at the Worksite, including
Defendant’s employees, agents and/or contractors at the Worksite, on the date of the
Incident.”
Pilgrim’s Pride again contends regarding this discovery request that because of
the definition of the term “Worksite,” the Kendalls are improperly seeking information
that encompasses the entire poultry processing plant. More specifically, Pilgrim’s Pride
argues that the job descriptions and identities of the more than 545 Pilgrim’s Pride
employees are irrelevant considering that Baker Refrigeration was an independent
contractor that was hired only to conduct a freezer remodel and that Pilgrim’s Pride’s
employees were not involved in the work being performed by Baker Refrigeration at the
time of the incident that injured Kendall.
In support of its argument, Pilgrim’s Pride relies on In re Pioneer Natural Resources
USA, Inc., in which the defendant company challenged a discovery request seeking
“production of the hiring, disciplinary, and employment files of all employees who
performed work at the accident site at any time on the day of the accident.” No. 05-20-
00536-CV, 2020 WL 5107284, at *1–2 (Tex. App.—Dallas Aug. 31, 2020, orig. proceeding)
(mem. op.). The defendant company argued that the discovery request “exceed[ed] the
bounds of discovery authorized by the rules of procedure” because the discovery request
sought “information concerning employees who were not present at the time of the
accident and did not participate in the events leading up to the accident.” Id. at *3. The
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Dallas Court of Appeals agreed, holding that the trial court abused its discretion in
ordering the defendant company to produce documents responsive to the discovery
request. Id. The court reasoned that the “only connection these employees had to the
accident is that they arrived at the scene in the accident’s aftermath” and that the
discovery request “could have easily been more narrowly tailored to include only
employees who had some conceivable role in the injury-causing events.” Id.
The Kendalls respond, in part, that Pilgrim’s Pride’s emphasis on the number of
people it employs is a red herring. The Kendalls point to the fact that “’the sheer volume
of a discovery request does not in itself render the request irrelevant or overbroad as a
matter of law.’” K & L Auto Crushers, 627 S.W.3d at 251–52 (quoting Alford Chevrolet–Geo,
997 S.W.2d at 180 n.1). Similar to In re Pioneer Natural Resources USA, Inc., however, the
Kendalls’ Request for Production No. 12 applies to many people who would have no
knowledge of any relevant facts regarding the circumstances involved in the Kendalls’
allegations, including many who simply arrived at the scene in the incident’s aftermath.
See 2020 WL 5107284, at *3. The discovery request could have been more narrowly
tailored to apply to only those employees, agents and/or contractors at the Worksite, on
the date of the incident, before the incident occurred. See CSX Corp., 124 S.W.3d at 153
(“A central consideration in determining overbreadth is whether the request could have
been more narrowly tailored to avoid including tenuous information and still obtain the
necessary, pertinent information.”).
We therefore conclude that the Kendalls’ Request for Production No. 12 is
overbroad and that the trial court clearly abused its discretion to the extent that it granted
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the Kendalls’ motion to compel Pilgrim’s Pride to produce documents responsive to the
discovery request.
c. Request for Production No. 43
The Kendalls’ Request for Production No. 43 states:
Produce any correspondence, emails, text messages or other Documents
reflecting communication between Defendant and the following entities
(specifically including any employees, officers, or representatives of same)
concerning Plaintiff Daniel Kendall, the Incident, the Worksite, and/or any
safety issues or matters related to same:
a. Baker Refrigeration;
b. Abacus Engineering Inc;
c. Midland Industrial; and
d. NBMC, Inc.
Pilgrim’s Pride again contends regarding this discovery request that because of
the definition of the term “Worksite,” the Kendalls are improperly seeking information
that encompasses the entire poultry processing plant. Pilgrim’s Pride also argues that
this discovery request is overbroad on its face because it contains no temporal limits.
The Kendalls respond that this is a routine request for communications between
Pilgrim’s Pride and the contractors involved in the project. Regarding the lack of
temporal limits, specifically, the Kendalls assert that this discovery request is inherently
limited in time in that it is necessarily limited to the period when each of the contractors
worked at the Pilgrim’s Pride plant. See generally In re Nolle, 265 S.W.3d 487, 493 (Tex.
App.—Houston [1st Dist.] 2008, orig. proceeding) (upholding discovery requests that
were inherently limited as to relevant time period). The Kendalls further contend that
this discovery request is important to clarify the expectations between Pilgrim’s Pride
In re Pilgrim's Pride Corp. Page 16
and its contractors, especially the amount of control that Pilgrim’s Pride exercised over
its contractors.
We conclude, however, that the discovery request is not properly tailored with
regard to time or subject matter. The discovery request encompasses communications
beyond those related to this renovation project and the circumstances involved in the
Kendalls’ allegations. Instead, the discovery request includes communications related to
other projects, if any, in which these contractors have participated at the poultry
processing plant. The Kendalls’ Request for Production No. 43 is therefore overbroad,
and the trial court clearly abused its discretion to the extent that it granted the Kendalls’
motion to compel Pilgrim’s Pride to produce documents responsive to the discovery
request.
d. Request for Production No. 55
Finally, the Kendalls’ Request for Production No. 55 states: “Produce all
documents pertaining to or referencing all repairs or work or modifications to any
portion of the Floor including but not limited to work orders, invoices, receipts.” The
term “Floor” is defined as “the floor of room where Plaintiff was located at the time the
fatal collapse occurred.”
Pilgrim’s Pride’s contention regarding this discovery request is similar to its
argument with regard to the Kendalls’ Requests for Production Nos. 3 and 33. Pilgrim’s
Pride contends in its petition that
this request is not reasonably calculated to lead to the discovery of
admissible evidence, when Pilgrim’s Pride has already stipulated that it
knew of the [ceiling panels’] condition in the exact area where the accident
In re Pilgrim's Pride Corp. Page 17
occurred, communicated it to Baker Refrigeration and its onsite supervisor,
Barrett, and that Baker Refrigeration was responsible for developing a
course of action to remedy the [ceiling panels’] condition, and then
implementing said plan.
Pilgrim’s Pride further asserts in its reply to the Kendalls’ response to its petition that
there is “no need to conduct discovery on what Pilgrim’s Pride should have known when
Pilgrim’s Pride admits that it actually knew about the floor.”
As stated above, the Texas Supreme Court explained in General Electric Company v.
Moritz:
Generally, a landowner is liable to employees of an independent contractor
only for claims arising from a pre-existing defect rather than from the
contractor’s work, and then only if the pre-existing defect was concealed:
“With respect to existing defects, an owner or occupier has a duty to inspect
the premises and warn of concealed hazards the owner knows or should
have known about.”
257 S.W.3d at 215 (footnote omitted) (quoting Shell Oil Co., 138 S.W.3d at 295 (emphasis
added)). But there are some situations when an otherwise adequate warning is
insufficient to discharge the landowner’s duty to make the premises reasonably safe.
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 204 (Tex. 2015). One such exception is the
necessary-use exception, i.e., “when the invitee necessarily must use the unreasonably
dangerous premises, and despite the invitee’s awareness and appreciation of the dangers,
the invitee is incapable of taking precautions that will adequately reduce the risk.” Id.The Kendalls have also sued NBMC, alleging that before the ceiling panel
collapsed, NBMC negligently performed demolition work in the Baker Refrigeration
crew’s work area above the ceiling of the storage room. The trial court could have
reasonably concluded that the Kendalls’ Request for Production No. 55 was reasonably
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calculated to lead to the discovery of admissible evidence regarding these issues. We
therefore conclude that the Kendalls’ Request for Production No. 55 is not overbroad.
2. Proportionality
Having concluded that the Kendalls’ Request for Production No. 55 is not
overbroad, we next address Pilgrim’s Pride’s proportionality concerns.
As explained above, Rule of Civil Procedure 192.4 imposes a proportionality
standard that requires “a case-by-case balancing of jurisprudential considerations.” K &
L Auto Crushers, 627 S.W.3d at 253 (quoting State Farm Lloyds, 520 S.W.3d at 599). The
Texas Supreme Court has said, however, that “parties ‘must “support [such]
proportionality complaints with evidence”’ and may not rely on conclusory allegations.”
See USAA Gen. Indem. Co., 624 S.W.3d at 792 (quoting K & L Auto Crushers, 627 S.W.3d at
253 (quoting State Farm Lloyds, 520 S.W.3d at 614)). The Kendalls argue that Pilgrim’s
Pride has not supported its proportionality concerns with sufficient evidence. We agree.
Pilgrim’s Pride argues generally that the Kendalls already have the benefit of a
significant amount of discovery, including Bentley’s Rule 202 deposition. Pilgrim’s Pride
further asserts in its petition that it “has already stipulated that it had notice of the
condition of the [ceiling panels] in the exact area where the accident occurred, and that it
advised Baker Refrigeration of same, prior to the accident.” Pilgrim’s Pride also attached
the “Declaration of Kyle Martin” to its motion for protection from the Kendalls’ discovery
requests. Martin stated in his Declaration that the “Pilgrim’s Pride facility has one
building with a total of 309,000 square feet, which is just over seven acres.” Martin further
stated, “There are 545 employees that work for Pilgrim’s Pride at this location.”
In re Pilgrim's Pride Corp. Page 19
But, as pointed out by the Kendalls, Pilgrim’s Pride did not connect the facts in
Martin’s Declaration to the burdensomeness of responding to the Kendalls’ discovery
requests. See In re Energas Co., 63 S.W.3d 50, 55 (Tex. App.—Amarillo 2001, orig.
proceeding) (“The fact that a discovery request is burdensome is not enough to justify
protection, ‘it is only undue burden that warrants nonproduction.’” (quoting ISK Biotech
Corp. v. Lindsay, 933 S.W.2d 565, 568 (Tex. App.—Houston [1st Dist.] 1996, orig.
proceeding)). Accordingly, we conclude that the trial court did not clearly abuse its
discretion to the extent that it granted the Kendalls’ motion to compel Pilgrim’s Pride to
produce documents responsive to the Kendalls’ Request for Production No. 55.
B. No Adequate Remedy by Appeal
We have held that the trial court clearly abused its discretion to the extent that it
granted the Kendalls’ motion to compel Pilgrim’s Pride to produce documents responsive
to the Kendalls’ Requests for Production Nos. 3, 12, 33, and 43. To determine if
mandamus is available to Pilgrim’s Pride, we must then determine whether Pilgrim’s
Pride lacks an adequate remedy by appeal. See K & L Auto Crushers, 627 S.W.3d at 247.
A trial court order that allows discovery not permitted under procedural rules is subject
to mandamus relief because “parties lack an adequate appellate remedy from orders
compelling discovery beyond what the rules allow.” In re Millwork, 631 S.W.3d 706, 714
(Tex. 2021) (orig. proceeding) (per curiam). Accordingly, we conclude that Pilgrim’s
Pride lacks an adequate remedy by appeal.
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Conclusion
We lift our stay of the trial court’s October 21, 2021 discovery order and
conditionally grant in part the petition for writ of mandamus filed by Pilgrim’s Pride,
Bentley, and Martin. A writ will issue only if the trial court fails to vacate those portions
of the October 21, 2021 order granting the Kendalls’ motion to compel Pilgrim’s Pride to
produce documents responsive to the Kendalls’ Requests for Production Nos. 3, 12, 33,
and 43, and to notify this Court in writing that it has done so within twenty-one days of
the date of this opinion. We otherwise deny the mandamus petition. 3
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Petition granted in part and denied in part
Opinion delivered and filed August 3, 2022
[OT06]
3On January 28, 2022, Pilgrim’s Pride, Bentley, and Martin filed a “Motion for Leave to File Supplemental
Brief in Support of Petition for Writ of Mandamus.” The motion is granted to the extent that the
supplemental brief has been filed. However, we are prohibited from issuing advisory opinions. See Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
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