In Re: Volt Power, LLC v. the State of Texas ( 2023 )

NO. 12-23-00047-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
VOLT POWER, LLC, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
Volt Power, LLC filed this original proceeding in which it challenges Respondent’s order
granting a motion to compel production filed by Real Party in Interest, Quandel Ray Morgan. 1
We conditionally grant the writ in part.
BACKGROUND
This case arises out of a vehicular collision wherein Real Party in Interest Jared Shane
Henderson, while driving a Volt commercial truck, struck Morgan’s vehicle, in which Real Party
in Interest Betty Holcomb was a passenger. In 2019, Morgan and Holcomb (collectively RPIs)
sued Henderson for negligence and negligence per se and sued Volt for negligent entrustment,
negligence, negligent hiring, training, supervision, and retention, and respondeat superior. They
alleged gross negligence by both Henderson and Volt. Volt does not dispute that Henderson was
acting in the course and scope of his employment at the time of the collision.
According to RPIs, Morgan proceeded into the intersection when his light turned green,
but Henderson failed to stop at the red light and struck Morgan’s vehicle. RPIs state that
Henderson claimed that the truck’s brakes failed and that Crane Tech Inc. conducted a faulty
1
Respondent is the Honorable Dean Fowler, Judge of the 115th District Court in Upshur County, Texas.
inspection of the truck’s brake system. 2 Henderson further expressed anger towards Volt
personnel responsible for the truck’s inspection and maintenance.
RPIs alleged that they sustained serious and substantial injuries as a result of the
collision. They allege that Henderson failed to (1) keep a proper lookout while operating the
truck, and (2) observe in an intelligent manner factors such as “the general situation present on
the roadway,” the red light, the rate of speed at which he was driving the truck, the proximity of
the truck and Morgan’s vehicle, and that Morgan was lawfully entering the intersection. RPIs
allege that had Henderson maintained a proper lookout, he would have noticed the red light and
stopped the truck; rather, he took no precautionary measures. RPIs maintain that Henderson
failed to operate the truck at a safe speed and in a reasonable and prudent manner. Otherwise,
Henderson would have been able to stop the truck in sufficient time. Additionally, RPIs allege
that Henderson failed to yield the right-of-way and stop at the red light in violation of the
transportation code. They pleaded that Henderson had an actual, subjective awareness that
driving a large truck on a busy highway while not watching the road, controlling his speed,
and/or running a red light created an extreme degree of risk of severe injury, but he proceeded
with conscious indifference to the rights, safety, and welfare of others.
RPIs allege that Volt (1) entrusted its truck to an unqualified, incompetent, unfit, and
dangerous driver, (2) negligently inspected and maintained the truck, i.e., the brakes were not
properly functioning, and (3) negligently hired, trained, retained, and supervised Henderson, as
well as those responsible for maintaining and inspecting the truck, including Henderson’s
supervisor and supervisory personnel. RPIs pleaded that Volt had a subjective awareness that
“allowing an unqualified, incompetent and dangerous driver, who had been inadequately trained
and supervised in the safe operation of a large, powerful, and dangerous truck, to operate such a
truck on the public streets and highways of the State of Texas, posed an extreme degree of risk to
members of the public.” They further pleaded that Volt had a subjective awareness that
“allowing one of its large, powerful, and dangerous trucks - with unmaintained, improperly
functioning, and unsafe brakes, combined with a defective braking system - to be operated on the
public streets and highways of the State of Texas, posed an extreme degree of risk to members of
2
The RPIs also sued Crane Tech, Inc., a heavy equipment inspection company. Crane Tech is not a party
to this proceeding.
2
the public.” According to RPIs, Volt proceeded with conscious indifference to the rights, safety,
and welfare of others.
On March 13, 2020, Morgan served Volt with a first request for production (set one) that
included 110 items. On March 17, Morgan served Volt with a second request for production (set
two) that included seventy-five items. Some requests from both sets included subsections. Volt
objected to numerous requests in both sets. According to Volt, it produced over 557 pages of
documents. On May 17, 2022, Morgan’s counsel sent letters to Volt’s counsel, in which he
complained of Volt’s objections and responses to a total of sixty of the requests, including some
subsections, from both sets of production. In response to Morgan’s request for a privilege log,
Volt responded:
The only documentation or information being withheld is information and conversations passed
between counsel and Defendant pursuant to the defense of this case, which is being withheld as
privileged by the attorney/client privilege and work product privilege, pursuant to rule 193.3(c).
As a result, there is no requirement incumbent upon Defendant to specifically identify said
documents or information being withheld.
Morgan filed a motion to compel, and subsequently filed a supplemental motion. His motion to
compel sought an order instructing Volt to fully respond to the sixty requests identified in his
two letters, as well as three additional production requests.
On November 8, Respondent held a hearing on the motions. At the conclusion of the
hearing, Respondent overruled Volt’s objections and stated the following:
Now, I do not expect you to produce direct communications. And if you’ve already produced
something then that’s the answer: “This has already been produced.” But, please tell Volt --
because I don’t ever remember a lawsuit with them, that there’s no sanctions today, but if I have to
do this again then we'll take them one by one and then there will be sanctions because that's just
how I do it.
Respondent signed an order on January 3, 2023, in which he granted Morgan’s motions to
compel and ordered Volt to produce documents responsive to the sixty-three requests Morgan
identified in his two letters and motion to compel, including (1) Requests 9, 10, 16, 18, 19, 23,
30, 31, 34, 37, 38, 39, 44, 59, 60, 61, 62, 65, 66, 66a, 68, 70, 71, 81, 83, 85, 85a, 89, 91, 95, 95a,
98, 108, 109, and 110 from set one; and (2) Requests 4, 8, 12, 15, 16, 18, 21, 23, 27, 29, 31, 34,
3
34a, 35, 37, 40, 41, 43, 44, 48, 51, 53a, 53d, 54, 64, 64a, 66, and 69 from set two. 3 The order
states, “Volt’s assertion of the attorney-client privilege and/or the work product privilege are not
overruled – at this juncture – with respect to direct communications between client and its
attorney(s).” The order clarified that Volt was not required to produce any such direct
communications responsive to the order for which Volt asserted the attorney-client or work
product privileges. Respondent also ordered Volt to produce a privilege log. 4
Volt filed this original proceeding on February 9. This Court granted Volt’s request for a
stay of Respondent’s January 3 order pending further order of this Court.
PREREQUISITES TO MANDAMUS
Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of
discretion and there is not adequate remedy by appeal. See In re Daisy Mfg. Co., 17 S.W.3d
654, 658 (Tex. 2000) (orig. proceeding) (per curiam). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of
law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has
no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Thus,
a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion and may result in mandamus. Id. The relator has the burden to establish the
prerequisites to mandamus. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014,
orig. proceeding). A party will not have an adequate remedy by appeal: (1) when the appellate
court would not be able to cure the trial court’s discovery error; (2) where the party’s ability to
present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s
discovery error; and (3) where the trial court disallows discovery and the missing discovery
cannot be made a part of the appellate record or the trial court, after proper request, refuses to
make it a part of the record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig.
proceeding); Walker, 827 S.W.2d at 843.
3
Before the hearing, the parties reached an agreement as to Requests 108 and 109 from set one.
Respondent still included these two requests in his order. Volt raises no issues regarding these two requests.
4
Volt does not present any complaints related to Respondent’s order requiring a privilege log or other
matters related to privilege.
4
ABUSE OF DISCRETION
Volt argues that Respondent abused his discretion by overruling its objections and
ordering Volt to produce documents responsive to requests that are overbroad, not reasonably
calculated to lead to the discovery of admissible evidence, and/or seek irrelevant documents.
Applicable Law
It is not the burden of the responding party to tailor a reasonable discovery request for the
requesting party. In re Houstonian Campus, L.L.C., 312 S.W.3d 178, 181 (Tex. App.—
Houston [14th Dist.] 2010, orig. proceeding). Rather, the requesting party has the responsibility
to narrowly tailor its requests. Id. at 182. Specifically, a discovery request must show a
reasonable expectation of obtaining information that will aid the dispute’s resolution and must be
reasonably tailored to include only matters relevant to the case. In re CSX Corp., 124 S.W.3d
149, 152 (Tex. 2003) (orig. proceeding) (per curiam). In general, a party may obtain discovery
regarding any matter that is not privileged and is relevant to the subject matter of the pending
action, whether it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party, provided the discovery is “reasonably calculated to lead to the
discovery of admissible evidence.” TEX. R. CIV. P. 192.3(a). Relevant evidence is that which
has any tendency to make a fact more or less probable than it would be without the evidence and
the fact is of consequence in determining the action. TEX. R. EVID. 401. Although “relevant to
the subject matter” is broadly construed, there are limits. In re UPS Ground Freight, Inc., 646
S.W.3d 828, 832 (Tex. 2022) (per curiam) (orig. proceeding) (citing In re Nat’l Lloyds Ins. Co.,
507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (per curiam)). The evidence need not be
admissible; it is sufficient that the information appears reasonably calculated to lead to the
discovery of admissible evidence. See TEX. R. CIV. P. 192.3(a). “Information is ‘patently
irrelevant’ when reasonable minds would not differ that it has no tendency to prove or disprove
any issue involved in the subject matter of the suit and the information’s irrelevancy is apparent
from the face of the record.” In re Sun Coast Res., Inc., 562 S.W.3d 138, 146 (Tex. App.—
Houston [14th Dist.] 2018, orig. proceeding). We evaluate relevancy on a case-by-case basis by
considering, among other things, the claims as pleaded and the instrumentality of the alleged
injury. Id.5
A discovery request is overbroad when it encompasses time periods, activities, or subject
matters that are not relevant to the case in which the discovery is sought. See Nat’l Lloyds Ins.
Co., 507 S.W.3d at 226. Such requests are overly broad as a matter of law. In re United Fire
Lloyds, 578 S.W.3d 572, 580 (Tex. App.—Tyler 2019, orig. proceeding); In re Brookshire
Grocery Co., No. 12-06-00065-CV, 2006 WL 2036569, at *2 (Tex. App.—Tyler July 21, 2006,
orig. proceeding) (mem. op.). A party may not use discovery as a fishing expedition. UPS
Ground Freight, 646 S.W.3d at 832. “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.” CSX Corp., 124 S.W.3d at
153; see UPS Ground Freight, 646 S.W.3d at 832.
The scope of discovery largely rests within the discretion of the trial court. See CSX
Corp., 124 S.W.3d at 152. But because parties are not entitled to unlimited discovery, the trial
court must impose reasonable discovery limits. In re Hyundai Motor Co., No. 12-19-00417-
CV, 2020 WL 1445303, at *6 (Tex. App.—Tyler Mar. 25, 2020, orig. proceeding) (mem. op.). A
discovery order that compels overly broad discovery is an abuse of discretion. Dillard Dep’t
Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding) (per curiam).
Requests Before this Court
As previously stated, Respondent ordered Volt to fully respond to a total of sixty-three
requests, including some subsections from the two sets of production. Our review of Volt’s
mandamus petition reflects that Volt presents specific arguments regarding: Requests 39, 65, 70,
71, 83, 85, 85a, 91, 95, and 95a from set one and Requests 31, 34, 34a, 40, 41, 43, 44, 48, 51, 53,
53a, 53d, and 54 from set two. Referring to all sixty-three ordered production requests, Volt
asserts that “[n]one of these requests were narrowed by the trial court during the November 8,
2022, hearing, nor were they addressed one by one.” Volt makes other global assertions, such as
(1) Respondent abused his discretion by ordering Volt to produce documents responsive to
requests that do not seek documents relevant to the underlying case, (2) Morgan’s live petition
contains no allegations that would render Respondent’s order proper and the purposes of
Morgan’s requests are unrelated to Volt’s alleged behavior, or that of Henderson, particularly
given that course and scope is undisputed, (3) many requests are not limited by time or scope, (4)
not one of the “discovery requests to Volt were tailored” by Respondent, and (5) Morgan’s
6
“presumable goal in issuing the breathtakingly over broad requests discussed herein is to prove a
‘corporate strategy to ignore safety laws’ relating to Plaintiff’s gross negligence claims.”
To the extent Volt globally challenges all sixty-three ordered production requests, it is not
this Court’s duty, or even right, to conduct an independent review of the record and applicable
law to determine whether there was error. Interest of A.E., 580 S.W.3d 211, 219 (Tex. App.—
Tyler 2019, pet. denied). Were we to do so, we would be abandoning our role as neutral
adjudicators and become an advocate for that party. Id. A mandamus petition must contain clear
and concise arguments for the contentions made, with appropriate citations to authorities and the
appendix or record. See TEX. R. APP. P. 52.3(h). Fulfilling this duty entails more than proffering
mere conclusions; a relator must provide substantive legal analysis supporting the arguments and
conclusions. Fitzgerald, 429 S.W.3d at 897. Except for the requests we identified above to
which specific arguments were made, Volt offers no substantive discussion of legal principles or
controlling authority regarding the other production requests to which it was ordered to respond.
See id. We will not speculate as to the merits of Volt’s attack on the ordeed production requests
it only globally challenged in its petition. See Stanton v. Gloerson, No. 05-16-00214-CV, 2016
WL 7166550, at *5 (Tex. App.—Dallas, Nov. 30, 2016, pet. denied) (mem. op.). Volt’s failure to
fulfill its duty under Rule 52.3(h) results in waiver of its complaint regarding all the requests it
has not specifically challenged. See In re Aethon Energy Operating, LLC, No. 12-21-00202-
CV, 2022 WL 242902, at *5 (Tex. App.—Tyler Jan. 26, 2022, orig. proceeding) (mem. op.)
(declining to address challenge to production requests where argument regarding majority of
requests consisted of mere conclusions without substantive discussion of legal principles or
controlling authority, and limiting review of interrogatories to those specifically discussed by
relators); see also Fitzgerald, 429 S.W.3d at 897; In re Lankford, 501 S.W.3d 681, 690 (Tex.
App.—Tyler 2016, orig. proceeding) (declining to address issue unsupported by substantive
analysis); Stanton, 2016 WL 7166550, at *5.
But with respect to the specifically challenged requests, on March 21, the RPIs filed a
stipulation and agreement to permanently withdraw Requests 85a, 95, and 95a from set one and
Requests 31, 34, 34a, 41, 43, 44, 48, and 51 from set two. The stipulation unequivocally asserts
that RPIs will not file these requests or any similar discovery requests in the future.
7
Accordingly, any argument with respect to these requests is now moot. 5 See In re Smith
County, 521 S.W.3d 447, 453 (Tex. App.—Tyler 2017, orig. proceeding) (case becomes moot
when controversy no longer exists, i.e., issues presented are no longer live or parties lack legally
cognizable interest in outcome; we will not issue mandamus if it would be useless or unavailing).
This leaves at issue Requests 39, 65, 70, 71, 83, 85, and 91 from set one and Requests 40, 53,
53a, 53d, and 54 from set two.
However, in its response to Morgan’s motion to compel, Volt only challenged certain
requests. Of those it challenged in response, only Requests 83, 85, and 91 were included. Nor
did Volt challenge any additional requests at the hearing on the motion to compel. “The
extraordinary nature of the mandamus remedy and the requirement that a party
seeking mandamus relief exercise diligence both mandate that arguments not presented to the
trial court cannot first be considered in an original proceeding seeking mandamus.” In re Floyd,
No. 05-16-00491-CV, 2016 WL 2353874, at *1 (Tex. App.—Dallas May 3, 2016, orig.
proceeding) (mem. op.); see In re Abney, 486 S.W.3d 135, 138 (Tex. App.—Amarillo 2016,
orig. proceeding) (“arguments withheld from the trial court will not first be considered in a
petition for writ of mandamus”). Volt was required to first challenge in the trial court all the
requests of which it complained before seeking relief in this Court and because it failed to do so,
its complaints regarding Requests 39, 65, 70, and 71 from set one and Requests 40, 53, and 54
from set two are not preserved for our review. See TEX. R. APP. P. 33.1(a); see also In re Doyle,
No. 12-19-00317-CV, 2020 WL 219236, at *1 n.3 (Tex. App.—Tyler Jan. 15, 2020, orig.
proceeding) (mem. op.) (declining to consider argument raised for the first time in mandamus
proceeding). Accordingly, we limit our review to Requests 83, 85, and 91 from set one.
Requests 83, 85, and 91
Requests 83 and 85 state as follows:
5
The stipulation assures this Court that Morgan and Holcomb will not file the same or similar requests at
any time in the future. See In re Contract Freighters, 646 S.W.3d 810, 814 (Tex. 2022) (per curiam) (orig.
proceeding) (noting that plaintiffs withdrew challenged discovery requests but “provided no enforceable assurances
via a Rule 11 agreement, a binding covenant, or anything else that would provide sufficient certainty that they would
not refile the same or similar requests;” “[u]nilateral and unenforceable withdrawal of discovery, without any
assurances that the withdrawal is definite, and at the very hour ‘appellate courts are looking,’ does not moot a
discovery dispute”) (emphasis added); see also Pate v. City of Rusk, No. 12-22-00118-CV, 2022 WL 3754714, at
*6 (Tex. App.—Tyler Aug. 30, 2022, no pet.) (mem. op.) (“A stipulation is a type of judicial admission, it must be a
clear, deliberate, and unequivocal statement”); Richardson v. Mills, 514 S.W.3d 406, 419 (Tex. App.—Tyler 2017,
pet. denied) (“The contents of a stipulation constitute judicial admissions, are conclusive on the issues addressed,
and estop the parties from claiming to the contrary”).
8
83. With respect to collisions and/or accidents occurring within Texas that involved a Volt
commercial vehicle, documents reflecting each and every personal injury claim that was made
against Volt.
85. With respect to incidents occurring within Texas wherein it was alleged that the driver of a
Volt commercial vehicle ran a red light, documents reflecting each and every allegation that was
made in that regard[.] 6
Volt lodged the following objection to each request:
Objection. This request is not properly limited in title or scope. “It is overbroad, vague, unduly
burdensome and harassing. Moreover, it seeks information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence, and as such, is tantamount to an
impermissible fishing expedition. Volt further objects to the extent this request seeks information
protected by the attorney client privilege and/or work product doctrine.
Request 91 and the accompanying objection state:
91. With respect to incidents occurring within Texas that involved the operation of a commercial
vehicle, all citations and/or traffic tickets that were issued to a Volt driver.
Response:
Objection. This request in not properly limited in time or scope. It is overbroad, vague and unduly
burdensome and harassing. Moreover, it seeks information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence, and as such, is tantamount to an
impermissible fishing expedition. Further, this information is equally accessible to Plaintiff.
In its response to Morgan’s motions to compel, Volt argued that Requests 83, 85, and 91 (among
other requests) are overbroad, citing In re Contract Freighters, 646 S.W.3d 810 (Tex. 2022)
(per curiam) (orig. proceeding) as support.
In Contract Freighters, the plaintiffs sued for negligence, negligence per se, and gross
negligence after an accident between their vehicle and a tractor trailer owned by Contract
Freighters (CFI) and driven by Randall Folks. Contract Freighters, 646 S.W.3d at 812. They
claimed that CFI was liable for Folks’s actions as his employer and because it (1) negligently
hired, entrusted, trained, supervised, and retained Folks; (2) negligently established,
implemented, and enforced safety policies and procedures; and (3) provided unsafe equipment.
Id. The plaintiffs served interrogatories, including one that stated, “For the previous 10 years,
please list each lawsuit arising out of motor vehicle collisions involving CFI as a Defendant
6
Request 85 contained a subsection (a) that, as previously discussed, Morgan withdrew by stipulation.
9
providing the jurisdiction, case style, date of collision, and date of the filing of the lawsuit.” Id.
CFI objected to the interrogatory as “overbroad, not likely to lead to relevant evidence, and
seeking privileged materials.” Id. The plaintiffs also sought a third-party deposition of the U.S.
Department of Transportation (USDOT) through written questions that requested (1) any records
of CFI’s actions or omissions that occurred on May 12, 2020 (the date of the accident), and (2)
documents concerning CFI in general from January 1, 2010 until October 20, 2020. Id. CFI
moved to quash the deposition on grounds that the request was overbroad as to scope and time.
Id. The trial court limited the USDOT request to “similar collisions to the accident at issue
occurring in the United States involving CFI vehicles similar to the one driven by Defendant for
the past 5 years.” Id. The plaintiffs revised their USDOT request to seek only documents
concerning rear-end collisions involving CFI from May 12, 2015 to May 12, 2020, and retained
their request for records concerning CFI’s actions or omissions on May 12, 2020. Id. CFI again
moved to quash and the plaintiffs filed a motion to compel. Id. The court denied the motion to
quash and limited the interrogatory to lawsuits arising from “rear end collisions occurring 5 years
previous to the collision that forms the basis of this suit.” Id. at 812-13.
The Texas Supreme Court opined that the discovery required CFI and USDOT to
produce records for every rear-end accident involving CFI nationwide from May 12, 2015 to
May 12, 2020, but such requests were not reasonably tailored to the plaintiffs’ claims or the
factual circumstances of the accident. Id. at 814. The Court further stated that the “requests in
this vehicle-collision lawsuit for a list of unrelated lawsuits in which CFI was previously
involved and for USDOT records from all fifty states over a five-year period are also overly
broad as a matter of law.” Id. at 815. Additionally, the Court explained that “[s]couring a list of
lawsuits and USDOT records from all over the country here, with the hope of finding similarly
situated accidents, is likewise an impermissible fishing expedition.” Id. The plaintiffs failed to
show how a nationwide search over a five-year period reasonably advanced their claims against
CFI. Id. According to the Supreme Court, “such requests, without appropriate limits as to ‘time,
place or subject matter,’ are ‘not merely an impermissible fishing expedition; [they are] an effort
to dredge the lake in hopes of finding a fish.’” Id. (quoting Texaco, Inc. v. Sanderson, 898
S.W.2d 813, 815 (Tex. 1995)). The Court directed the trial court to vacate its order granting the
plaintiffs’ motion to compel and denying CFI’s objection and motion to quash. Id.10
In reliance on Contract Freighters and referring to certain requests, including Requests
83, 85, and 91, Volt’s response stated, “Here, as in In re Contract Freighters, there are similar
requests from Plaintiff.” Volt argued that its objections should be sustained because the requests
propounded by Morgan are “similarly overbroad.” At the November 8 hearing, Volt’s counsel
argued that the requests are overbroad because “they’re asking for, it’s all incidents, ever” in
Texas. Counsel later argued, “They’re overbroad and they’re asking for everything, you know,
all incidents, all convictions of any driver, all lawsuits that you’ve ever had with Volt.”
Respondent’s subsequent order requires Volt to respond to Requests 83, 85, and 91 without
limitation. 7
Adequacy of Objections and Evidence
We first address Morgan’s contention that Volt failed to adequately plead and prove its
objections, asserted boilerplate, prophylactic objections, and made obscured, insufficiently
specific objections. 8
Texas Rule of Civil Procedure 193.2(a) provides that the objecting party “must state
specifically the legal or factual basis for the objection and the extent to which the party is
refusing to comply with the request.” TEX. R. CIV. P. 193.2(a). “Thus, a responding party who
objects to a request for production because is it overbroad, unduly burdensome, vague,
ambiguous, or unreasonably cumulative or duplicative should explain why the discovery request
suffers from each asserted deficiency.” In re Park Cities Bank, 409 S.W.3d 859, 876 (Tex.
App.—Tyler 2013, orig. proceeding). Nevertheless, overbroad requests for irrelevant information
are improper whether they are burdensome or not, so the objecting party is not required to detail
what they might encompass. In re Allstate Cty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007)
(per curiam) (orig. proceeding). Requests that are not reasonably tailored to include matters
relevant to the case, i.e., the relevant time, place, or subject matter, are overbroad as a matter of
7
Morgan maintains that Volt offered no substantive analysis to Respondent in support of its arguments.
While Volt’s response may not be a model of perfection, with respect to the specific requests it challenged, Volt
argued the requests were overbroad and presented supporting authority. The record of the November 8 hearing does
not reflect that Respondent suffered any confusion over the complaints before him. See TEX. R. APP. P. 33.1 (a
complaint is preserved for appellate review when made to the trial court by a timely request, objection, or motion
that “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the
context”).
8
Morgan also contends that Volt made needless assertions of privilege. We do not address this argument
because Volt does not raise any contentions on the basis of privilege. See TEX. R. APP. P. 47.1.
11
law. Sun Coast Res., Inc., 562 S.W.3d at 147. As set forth above, Volt objected to these three
requests as overbroad, specifically objecting that Requests 83, 85, and 91 are not properly
limited in time or scope. Because a discovery request is overbroad as a matter of law when
unlimited as to the relevant time, place, or subject matter, Volt was not required to offer further
detail in its objections. See Allstate Cty. Mut. Ins. Co., 227 S.W.3d at 670 (rejecting contention
that discovery objections not preserved where objecting parties failed to provide details
regarding why discovery was burdensome); see also Sun Coast Res., Inc., 562 S.W.3d at 147.
Likewise, “[e]vidence is not necessary to support an objection if the discovery requests
themselves demonstrate overbreadth as a matter of law.” In re Wal-Mart Stores, Inc., 545
S.W.3d 626, 634 (Tex. App.—El Paso 2016, orig. proceeding); see United Fire Lloyds, 578
S.W.3d at 580-81 (“A party objecting or asserting a privilege must present any evidence
necessary to support the objection or privilege”) (emphasis added); Brookshire Grocery, 2006
WL 2036569, at *2 (“Where a request is overly broad as a matter of law, the presentation of
evidence is unnecessary to decide the matter”); TEX. R. CIV. P. 193.4(a) (“party making the
objection or asserting the privilege must present any evidence necessary to support the objection
or privilege”) (emphasis added). Volt’s objections are capable of resolution by examining the
language of the challenged discovery requests. See Wal-Mart Stores, Inc., 545 S.W.3d at 635
(where overbreadth and irrelevance objections could be resolved by examining language of
discovery requests, objecting party was not required to present evidence in support of such
objections). Accordingly, Volt was not required to present evidence in support of its objections.
See id.; see also Brookshire Grocery, 2006 WL 2036569, at *2.
Overbreadth
We now address whether Requests 83, 85, and 91 are overbroad as a matter of law. Volt
argues that RPIs “are being allowed to troll through ‘any and all records’ related to every single
accident involving Volt anywhere in Texas rather than just an accident involving a red light
and/or braking issues.” Volt further complains that the requests are too broad in time. We agree
with Volt for two reasons.
First, none of the three requests contains a time limitation. “Discovery requests that are
overbroad in time encompass time periods beyond those at issue in the case.” In re Stagner, No.
01-18-00758-CV, 2020 WL 370565, at *4 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020, orig.
proceeding) (mem. op.). “[E]ven requests for five years’ worth of information have been held
12
overbroad.” Id. (citing Allstate Cty. Mut. Ins. Co., 227 S.W.3d at 669). Volt’s counsel
represented at the November 8 hearing that Volt has existed since 2016. The collision occurred
in 2019 and Henderson had worked for Volt approximately one year before the accident.
Morgan asserts that the applicable time-period is “perhaps less than three years, since Volt didn’t
exist until sometime in 2016 whereas the accident was in August of 2019.” But because they are
not expressly limited to collisions, accidents, and/or incidents that occurred during a specific
time period, Requests 83, 85, and 91, as written, encompass documents from 2016 to date, an
approximate seven-year time-period. Absent a time limitation, these requests are overbroad as a
matter of law. See Nat’l Lloyds Ins. Co., 507 S.W.3d at 226; see also Aethon, 2022 WL
242902, at *7; United Fire Lloyds, 578 S.W.3d at 580; Brookshire Grocery Co., 2006 WL
2036569, at *2.
Second, except for Request 85, Requests 83 and 91 contain no limitation as to subject
matter. “Evidence of other accidents, near accidents, or related similar events is probative
evidence in Texas courts, provided an adequate predicate is established.” Brookshire Grocery,
2006 WL 2036569, at *4. “More specifically, similar events are admissible if the earlier
accidents occurred under reasonably similar but not necessarily identical circumstances.” Id.Generally, “reasonably similar” means the same type of occurrence. Sun Coast, 562 S.W.3d at
148. “Prior to admission of similar events, the plaintiff must first 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.” Brookshire Grocery,
2006 WL 2036569, at *4. “Evidence of other accidents that are so dissimilar to the present
alleged incident as to be irrelevant are not discoverable.” Sun Coast, 562 S.W.3d at 150.
Here, Request 85 is limited to incidents wherein a Volt commercial driver ran a red light.
The RPIs allege that Henderson ran a red light, which led to the collision. We conclude that,
aside from the lack of a time limit, Request 85 is sufficiently limited to similar or reasonably
similar circumstances as those at issue in this case. See In re UPS, Inc., No. 03-22-00526-CV,
2022 WL 13614008, at *1-2 (Tex. App.—Austin Oct. 21, 2022, orig. proceeding) (mem. op.)
(where UPS employee failed to yield right of way from stop sign and struck plaintiff, discovery
order requiring production of information regarding accident claims and suits in which a UPS
vehicle allegedly failed to yield the right of way at a traffic control device in Texas for the five
years preceding the lawsuit did not constitute impermissible fishing expedition); see also Sun
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Coast, 562 S.W.3d at 146 (we evaluate relevancy on a case-by-case basis by considering, among
other things, the claims as pleaded and the instrumentality of the alleged injury).
Requests 83 and 91 contain no subject matter limitation. Request 83 encompasses all
personal injury claims resulting from a Volt commercial vehicle collision or accident that
occurred under any circumstance in Texas and Request 91 encompasses all traffic citations and
tickets issued to a Volt driver while operating a commercial vehicle under any circumstance in
Texas. Morgan argues that Request 91 is “highly relevant to fully and fairly evaluating Volt’s
policies and practices governing driver supervision, and relevant to the subjective element of
gross negligence.” 9
But RPIs are only entitled to discover information regarding accidents that occurred
under similar or reasonably similar circumstances. See Sun Coast, 562 S.W.3d at 150; see also
Brookshire Grocery, 2006 WL 2036569, at *4. Respondent’s order requires Volt to provide
documents responsive to Requests 83 and 91, no matter how mundane or remote, regardless of
the topic, content, or subject, including information unrelated to the subject matter of the RPIs’
claims. “[R]equests for document production may not be used simply to explore.” Hall, 909
S.W.2d at 492. Yet, the subject matter of the information and documents sought in Requests 83
and 91 is not limited to incidents involving circumstances necessarily relevant to the underlying
lawsuit; thus, Requests 83 and 91, as written, are not sufficiently limited as to subject matter.
See Sun Coast, 562 S.W.3d at 148, 150. Thus, they are overbroad as a matter of law. See
Aethon, 2022 WL 242902, at *7; see Sun Coast, 562 S.W.3d at 150; see generally Contract
Freighters, 646 S.W.3d at 814.
Summation
Morgan could have drawn Requests 83, 85, and 91 from set one more narrowly and still
obtained the necessary pertinent information. But the requests as they stand are overbroad,
lacking reasonable limitations as to time and subject matter. See CSX Corp., 124 S.W.3d at 153;
see also United Fire Lloyds, 578 S.W.3d at 580; Brookshire Grocery, 2006 WL 2036569, at *2.
Accordingly, Respondent abused his discretion by ordering Volt to respond to Requests 83, 85,
and 91 from set one without limitation.
9
Morgan does not offer argument regarding Request 83.
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DISPOSITION
Having concluded that Respondent abused his discretion by granting Morgan’s motions
to compel with respect to Requests 83, 85, and 91 from set one, without temporal and subject
matter limitations, we conditionally grant in part Volt’s petition for writ of mandamus. We
direct Respondent to vacate only that portion of the January 3, 2023, order compelling responses
to Requests 83, 85, and 91 from set one, and in its stead, to issue an order imposing limits on
these requests and compelling Volt to respond to the production requests as limited. Volt’s
petition is denied in all other respects. We lift our stay of February 9, 2023.
GREG NEELEY
Justice
Opinion delivered April 5, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
ORDER
APRIL 5, 2023
NO. 12-23-00047-CV
VOLT POWER, LLC,
Relator
V.
HON. DEAN FOWLER,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Volt
Power, LLC; who is the relator in appellate cause number 12-23-00047-CV and the defendant in
trial court cause number 587-19, pending on the docket of the 115th Judicial District Court of
Upshur County, Texas. Said petition for writ of mandamus having been filed herein on February
9, 2023, and the same having been duly considered, because it is the opinion of this Court that
the petition for writ of mandamus be, and the same is, conditionally granted in part.
And because it is further the opinion of this Court that the trial judge will act promptly
and vacate only that portion of the January 3, 2023, order compelling responses to Real Party in
Interest Quandel Ray Morgan’s First Set of Requests for Production 83, 85, and 91, and in its
stead, to issue an order imposing limits on these requests and compelling Volt to respond to the
production requests as limited; the writ will not issue unless the HONORABLE DEAN
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FOWLER fails to comply with this Court’s order within ten (10) days from the date of this order.
The petition is denied in all other respects.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
17