in Re Christus Health Southeast Texas D/B/A Christus St. Elizabeth Hospital , 2013 Tex. App. LEXIS 3965 ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00538-CV
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IN RE CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A CHRISTUS ST.
ELIZABETH HOSPITAL
________________________________________________________________________
Original Proceeding
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OPINION
This discovery dispute arises from a health care liability lawsuit that
concerns a patient’s cardiac catheterization. In this mandamus proceeding, Christus
Health Southeast Texas d/b/a Christus St. Elizabeth Hospital contends the trial
court abused its discretion by refusing to order the opposing party to respond to
two of its requests for production of documents. Because the trial court could
conclude that the discovery requests at issue were not sufficiently tailored to avoid
the production of irrelevant evidence, the trial court had discretion to deny
Christus’s motion to compel. As a result, we deny relief.
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Plaintiffs, Linda Lowe, individually and representative of the Estate of
Arthur Lowe, and Amanda Lowe, Melissa Lowe, and Laura Singletary,
individually, filed a health care liability case against Christus and Arthur Lowe’s
treating physician. In their petition, the Lowes sought to recover wrongful death
and survival damages they alleged were related to Arthur’s cardiac catheterization
on June 30, 2009, and Arthur’s death, which occurred the following day. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 71.002, 71.021 (West 2008).
Approximately ten months after Christus answered the Lowes’ suit, it served
them with a request asking them to produce various documents; the trial court’s
rulings on two of the requests are the subject of this mandamus proceeding. One of
the requests at issue asked that the Lowes produce documentation, in whatever
form, of all purchases and calls that were made by Melissa Lowe and Laura
Singletary on June 30, 2009, the date Arthur had a cardiac catheterization. The
other request, now subject to this proceeding, asked the Lowes to produce copies
of any postings pertaining to Arthur or Arthur’s death on any social media site.
It is settled that “[p]arties are ‘entitled to full, fair discovery’ and to have
their cases decided on the merits.” Ford Motor Co. v. Castillo, 279 S.W.3d 656,
663 (Tex. 2009) (quoting Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex.
1995) (orig. proceeding)). “A trial court abuses its discretion when it denies
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discovery going to the heart of a party’s case or when that denial severely
compromises a party’s ability to present a viable defense.” Id.
Rule 192.3 of the Texas Rules of Civil Procedure defines the general scope
of discovery. See Tex. R. Civ. P. 192.3. “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.” Tex. R. Civ. P. 192.3(a). A
request for documents or tangible items is governed by Rule 192.3(b). Under the
provisions of Rule 192.3(b), “[a] party may obtain discovery of . . . documents and
tangible things . . . that constitute or contain matters relevant to the subject matter
of the action.” Tex. R. Civ. P. 192.3(b). The party responding to the request to
produce “is required to produce a document or tangible thing that is within the
person’s possession, custody, or control.” Id.
A court may deny a discovery request if the discovery is unreasonably
duplicative, could be obtained from a more convenient, less burdensome, or less
expensive source, or if it finds the burden or expense of the discovery outweighs its
likely benefit. See Tex. R. Civ. P. 192.4. To object to a discovery request, the
objecting party must “state specifically the legal or factual basis for the
objection[.]” Tex. R. Civ. P. 193.2(a). At a hearing on the objections, “[t]he party
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making the objection or asserting the privilege must present any evidence
necessary to support the objection or privilege.” Tex. R. Civ. P. 193.4(a).
The Lowes objected to producing documents responsive to the two requests
at issue in this proceeding. They objected to Christus’s request that Melissa and
Laura produce documents that reflected their purchases and calls, asserting “[t]he
information sought is not relevant or reasonably calculated to lead to the discovery
of admissible evidence.” They also objected to Christus’s request for copies of
postings on any social media sites, claiming the request was “an invasion of
privacy and any such information would be unreliable and constitute hearsay and a
fishing expedition and this request is meant for the purpose of harassment.” We
note that the Lowes presented no evidence the discovery requests at issue in this
proceeding were burdensome, asserted no claim that the information sought to be
discovered was privileged, nor did they provide the trial court with a privilege log.
In response to the Lowes’ objections, Christus filed a motion to compel.
Following an unrecorded hearing, the trial court entered an order denying
Christus’s motion to compel; afterwards, in this proceeding, the parties could not
agree whether the trial court’s order addressed only the two requests at issue, or
whether the trial court overruled other requests addressed in Christus’s motion to
compel. At our request, the trial court clarified its order, specifying that its ruling
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applied only to Christus’s request for records of purchases and phone calls made
by Melissa and Laura on June 30, 2009, and to social media posts that mentioned
Arthur.
In response to Christus’s petition for mandamus, the Lowes argue that
Christus failed to submit a sufficient record for mandamus review. See, e.g., In re
Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig.
proceeding). However, the Lowes do not identify what records that we do not have
that are needed to resolve the issues Christus raises in its petition. Although
Christus did not submit a reporter’s record of the hearing, counsel for Christus has
certified that there was no testimony introduced at the hearing on its motion to
compel. See Tex. R. App. P. 52.7(a). The trial court’s order does not mention that
it considered any testimony, nor do the Lowes claim the trial court conducted an
evidentiary hearing. We conclude that the record is sufficient for the purpose of
our review of the trial court’s discovery rulings. See In re Houseman, 66 S.W.3d
368, 373-74 (Tex. App.—Beaumont 2001, orig. proceeding) (concluding
mandamus record sufficient where neither party identified relevant evidence not
included in record before the court).
According to Christus, documents regarding the locations and amounts of
purchases made by Melissa and Laura on June 30 are necessary because there are
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discrepancies regarding when they were with Arthur at the hospital on that day.
According to Christus, the records may reveal when Melissa and Laura were with
Arthur on June 30, allowing Christus to more clearly define what events they may
have witnessed. Christus’s attorney argues that without the records, he cannot
create a timeline showing the times Melissa and Laura were with Arthur at the
hospital. In support of its argument, Christus utilized the discovery it had obtained
from Arthur’s family members to demonstrate that their testimony about when
Laura and Melissa were with Arthur at the hospital is not entirely consistent;
however, the testimony is consistent in showing that Laura and Melissa were with
Arthur at various times after his cardiac catheterization concluded. Nonetheless,
they were not with Arthur during the entire day at issue.
“Mandamus relief is appropriate only if the trial court abused its discretion
or violated a legal duty, and there is no adequate remedy at law, such as an
appeal.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). A
party to a lawsuit is allowed to discover matters that are relevant to the subject
matter of the litigation. See Tex. R. Civ. P. 192.3(a) (allowing discovery of matters
that are not privileged and that are relevant to the subject matter of the pending
action). The trial court may allow discovery of documents that “contain matters
relevant to the subject matter of the action.” Tex. R. Civ. P. 192.3(b). “Although
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the scope of discovery is broad, requests must show a reasonable expectation of
obtaining information that will aid the dispute’s resolution.” In re CSX Corp., 124
S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Consequently, the trial court can
require that discovery requests be reasonably tailored “to include only relevant
matters.” Id.
“It is the discovery proponent’s burden to demonstrate that the requested
documents fall within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co.,
172 S.W.3d 160, 167 (Tex. App.—Beaumont 2005, orig. proceeding). Here, based
on the allegations made in the Lowes’ pleadings, it appears that Christus has a
reasonable need to discover when Melissa and Laura were in Arthur’s room after
he returned from his cardiac catheterization, which was around noon. While
Christus has shown a reasonable expectation that records of purchases and phone
calls made on June 30 might pin down the times Laura and Melissa were in
Arthur’s hospital room after his heart was catheterized, the request at issue seeks
production of records covering a twenty-four hour period, including approximately
twelve hours before either Melissa or Laura claims to have initially arrived at
Christus on June 30. Thus, the request was not limited in time to the records
relevant to the time period in dispute, the period after Arthur’s catheterization. Nor
has Christus demonstrated that documents reflecting purchases or calls made
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before Arthur’s heart was catheterized are documents that will aid in the resolution
of the disputed facts. Because the request could have been more narrowly tailored
and Christus’s request for purchase and phone records was overly broad, we hold
that the trial court did not abuse its discretion by denying Christus’s motion to
compel the Lowes to produce all documents reflecting Laura’s and Melissa’s
purchases and calls made on June 30, 2009. See CSX Corp., 124 S.W.3d at 152
(“Generally, the scope of discovery is within the trial court’s discretion.”)
While the trial court could have narrowed Christus’s request so that the
information to be produced would have been relevant to the time period at issue,
the trial court did not abuse its discretion by not doing so. “The burden to
propound discovery complying with the rules of discovery should be on the party
propounding the discovery, and not on the courts to redraft overly broad discovery
so that, as re-drawn by the court, the requests comply with the discovery rules.”
TIG Ins. Co., 172 S.W.3d at 168.
The other request at issue in this mandamus proceeding asked the Lowes to
produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or
his death on Facebook or any other social media site.” The Lowes objected that
“[s]uch request is an invasion of privacy and any such information would be
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unreliable and constitute hearsay and a fishing expedition and this request is meant
for the purpose of harassment.”
With respect to request for copies of posts regarding Arthur before he died,
the request is not limited in time. While the time period of relevant discovery while
Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring
document production from an unreasonably long time period . . . are impermissibly
overbroad.” CSX Corp., 124 S.W.3d at 152 (citing In re Am. Optical Corp., 988
S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (concluding that a discovery order
was overly broad by requiring production of “virtually all documents regarding its
products for a fifty-year period”)); see also In re Deere & Co., 299 S.W.3d 819,
821 (Tex. 2009) (orig. proceeding) (noting that where requests to produce had no
limitation on time, trial court abused its discretion by neglecting to set a reasonable
time limit). While one of the plaintiffs indicated in her deposition that she had
placed posts about Arthur on a social media site, the request at issue in this
proceeding was not limited to those posts, nor was it limited to the period after
Arthur’s death. While the Lowes are seeking damages for their mental anguish,
and the statements the Lowes made about Arthur’s death are within the general
scope of discovery, the Lowes did not establish that they had an expectation of
privacy in their statements on social media sites. Nevertheless, a request without a
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time limit for posts is overly broad on its face. We conclude the trial court did not
abuse its discretion by denying the request for posts because it was unlimited in
time.
In summary, we hold the trial court did not abuse its discretion by denying
Christus’s motion to compel responses to the two requests at issue. Christus’s
petition is denied.
PETITION DENIED.
PER CURIAM
Submitted on November 26, 2012
Opinion Delivered March 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
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