In Re Home Depot U.S.A., Inc. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00076-CV
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IN RE HOME DEPOT U.S.A., INC.
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Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 22-06-08438-CV
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MEMORANDUM OPINION
Home Depot U.S.A., Inc. petitions for mandamus relief from an
order compelling discovery in a personal injury case filed by one of its
employees, Brandon Giard. Home Depot, which doesn’t claim it
subscribes to workers compensation insurance, also doesn’t claim it is
statutorily immune from the claims in Giard’s suit.
The crux of the dispute in this original proceeding revolves around
two issues: (1) do the scope of topics on which Giard seeks to question
Home Depot’s corporate representative exceed the scope of discovery
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under the rules of civil procedure as the topics relate to the facts of
consequence relevant to Giard’s claims; and (2) did Home Depot waive its
objections to the scope of the topics covered in Giard’s notice by failing to
seek a protective order after receiving Giard’s notice of deposition and by
instead filing objections to the scope of Giard’s notice.
We stayed the trial court’s order so that Giard, as the real party in
interest, could respond to Home Depot’s petition. In his response, he
argues the trial court did not clearly abuse its discretion in finding that
Home Depot failed to properly preserve its objections to the scope of his
notice, in compelling a second deposition of Home Depot’s corporate
representative to answer the questions covered by his notice since the
topics address matters that are “relevant and discoverable[,]” and in
ordering Home Depot to produce “safety related materials in response to
his request for production.”
For the reasons explained below, we conclude the trial court abused
its discretion in ordering Home Depot to comply with Giard’s notice and
in compelling it to produce documents and materials when they are
unrelated to facts of consequence to Giard’s claims.
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Background
The scope of discovery in a lawsuit is framed by the allegations in
the plaintiff’s live pleadings, which on this record is Giard’s First
Amended Petition. In it, Giard alleged that while working as an employee
of Home Depot in November 2020, he injured his back loading a zero-turn
lawn mower onto a customer’s trailer. Giard alleged that while employed
by Home Depot, Home Depot was negligent in failing to:
1. provide a safe workplace;
2. provide safe and appropriate instrumentalities,
equipment, and machinery;
3. adequately supervise employees;
4. adequately staff its stores;
5. hire competent and careful co-employees;
6. adequately train its employees, especially for tasks that
are unusually precarious or involve a greater risk of injury
than the employees’ typical duties; and
7. refrain from instructing or requiring employees to use
unreasonably dangerous methods to perform their work.
On January 14, 2023, Giard served Home Depot with a notice of
deposition, which required Home Depot to designate one or more
corporate representatives who were authorized and prepared to testify
on ten topics in the notice.1 See Tex. R. Civ. P. 199.2(1). Two days before
1According to the certificate of service that accompanies the notice,
the notice of deposition was served by e-service. The topics listed are:
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deposition, Home Depot served Giard with objections to the notice,
objections that assert each topic fails to comply with the requirements in
Rule 199.2, which is the rule that applies to depositions of corporate
representatives. Rule 199.2 requires that the notice for the deposition of
a. Home Depot’s policies, procedures, practices, and
training relating to loading merchandise into customers’
vehicles.
b. The safety training Home Depot provided to [Giard].
c. The safety rules applicable to [Giard] during his
employment at Home Depot.
d. The safety rules applicable to loading heavy
merchandise into customers’ vehicles.
e. Home Depot’s ‘Safety Takes EveryONE’ program.
f. Home Depot’s sales of zero-turn mowers and other riding
mowers and the process of loading them into customers’
vehicles.
g. Equipment that could be used to load zero-turn and
other riding mowers into customers’ vehicles, its
availability, the feasibility of adopting it and making it
available to Home Depot’s employees, and whether any
such equipment was available to Plaintiff on November 6,
2020.
h. The number of employees working at Home Depot Store
#6516—The Woodlands on November 6, 2020, and how
Home Depot determines the necessary number of
employees for a given day at a given store, including but
not limited to all written policies and/or guidelines
regarding the same.
i. The process by which Home Depot employees report
injuries sustained at work and how Home Depot stores
records of those injuries.
j. Home Depot’s policies and procedures for retaining video
of employees’ injuries.
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a company’s corporate representative must “describe with reasonable
particularity the matters on which the examination is requested.” Id.
199.2(b)(1). As to each topic Giard listed in his notice, Home Depot also
objected that the requests were overly broad “and not limited to a
relevant or reasonable time period.”
Still, in responding to the notice, Home Depot stated that subject to
its objections it would produce Zulema Portillo, a store manager at the
store where Giard was injured to testify “as to Home Depot’s policies,
procedures, practices, and training related to loading the subject lawn
mower into a customer’s vehicle, which were in effect at the time of the
incident giving rise to this lawsuit.” 2 No one disputes that in response to
Giard’s notice, Home Depot didn’t seek a protective order prior to
producing Portillo as its corporate witness. And there is no dispute that
Giard did not ask the trial court to rule on Home Depot’s objections before
the deposition was scheduled to occur.
2The objections Home Depot lodged to the ten topics do not
necessarily all use the exact same language, but a common theme runs
through them all—Giard wasn’t entitled to discovery under the Rules of
Civil Procedure on matters that were either not relevant to facts of
consequence in his suit or to matters that were too remote to when his
accident occurred.
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When Home Depot presented Portillo for the deposition, Giard’s
attorney asked her whether she was there “to talk about loading
procedures related to riding lawn mowers, but no other heavy items that
go into customers’ vehicles.” Portillo answered: “Yes sir.” Yet when
Giard’s attorney began questioning Portillo about why Home Depot
“believe[d] it [was] entitled” to limit her testimony to the procedures
relevant to Giard’s case, Home Depot’s attorney interrupted, stating:
We gave you our objection yesterday. If you want to ask her
about lawn mowers, go ahead. She’s not testifying — and I’m
going to instruct her not to answer — about heavy
merchandise. It’s not relevant.
After that, Giard’s attorney began questioning Portillo about the
extent to which she would answer questions on the ten topics in the
notice. Home Depot’s attorney made it clear to Giard’s attorney that she
would instruct Portillo not to testify about the matters addressed in
Home Depot’s objections to the deposition notice. Yet Home Depot’s
attorney also made it clear that while Portillo was not there to explain to
Giard’s attorney why Home Depot had raised objections to Giard’s
deposition notice, she was there “to testify about the topics [on which she
was being] presented[.]” When Giard’s attorney asked whether Portillo
would follow Home Depot’s attorney’s advice and decline to answer
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questions to which Home Depot’s attorney objected, Portillo replied:
“Yes.”
The exchanges between the attorneys went downhill from there.
Giard’s attorney said he had “information from numerous other suits”
showing that Home Depot engaged in discovery abuse. He continued that
Portillo’s deposition was simply another example of how Home Depot had
an “overwhelming amount of arrogance and refusal to follow the rules
because, in [his] view, Home Depot thinks” its “just too big and powerful
to care.” Home Depot’s lawyer responded: “[A]t this point you’re
harassing my witness.” The deposition continued for another 140 pages,
with frequent objections from Home Depot’s attorney to the form of
Giard’s attorney’s questions. Despite the back and forth, when Giard’s
attorney questioned Portillo on matters tied to Home Depot’s procedures
relevant to riding lawn mowers, the object Giard was moving when he
claimed he had been injured while at work, Portillo answered.
Less than two weeks later, Giard filed a motion to compel, claiming
Home Depot had obstructed discovery during the deposition of Home
Depot’s corporate representative. According to Giard’s motion, Home
Depot had “refuse[d] to produce a corporate representative on plainly
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relevant topics, largely based on objections the Court overruled when
Home Depot raised them in response to [Giard’s] requests for
production.” When Home Depot responded, it argued that during the
deposition of its corporate representative, Home Depot’s attorney had a
right to protect Portillo “from undue burden, unnecessary expense,
harassment or annoyance,” and that Home Depot’s witness didn’t engage
in sanctionable conduct by “declining to answer questions about matters
outside the scope of discovery” on which Portillo was being “presented to
testify.”
Home Depot also responded to Giard’s complaint that it had refused
to comply with the trial court’s order compelling it to produce videos and
documents that related to Giard’s training. In its response, Home Depot
argued it had produced documents and videos related to Giard’s training
on loading lawn mowers, and that to the extent it had not produced other
documents or videos, Home Depot noted it had provided Giard’s attorney
with a list of training materials on topics clearly irrelevant to Giard’s
loading of lawn mowers, a list that shows he “completed dozens and
dozens of training courses that have absolutely nothing to do with moving
or loading large or heavy items like the lawn mower he claims he was
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loading when he hurt himself.” Some of these videos, Home Depot noted,
were for training on “Privacy and Data Security Awareness,” “Safe
Handling of Christmas Trees,” “Texas Citrus Quarantine Training,”
“Selling Credit for Merchandising,” and “Workplace [H]arassment for
Associates.” Home Depot added that “at least 28 of the courses [Giard]
took occurred after his accident.”
The trial court considered Giard’s motion to compel and to sanction
Home Depot by submission. In February 2023, the trial court issued an
eleven-page order, ordering Home Depot to produce a corporate
representative to testify on the following ten topics:
Topic 1: . . . loading merchandise other than the subject lawn
mower into customers’ vehicles[;]
Topic 2: . . . safety training other than that safety training
associated with loading the subject lawn mower into
customers’ vehicles[;]
Topic 3: . . . safety rules imposed on Home Depot U.S.A., Inc.’s
employees other than those associated with loading the
subject lawn mower into customers’ vehicles[;]
Topic 4: . . . loading heavy merchandise other than the subject
lawn mower into customer’s vehicles[;]
Topic 5: . . . Home Depot U.S.A., Inc.’s Safety Takes
EveryONE program[;]
Topic 6: . . . sales of zero-turn mowers and other riding mowers
and . . . the process of loading them into customers’ vehicles[;]
Topic 7: . . . equipment that could be used to load zero-turn
and other riding mowers into customers’ vehicles, its
availability, the feasibility of adopting it and making it
available to Home Depot’s employees[;]
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Topic 8: . . . [the number of Home Depot employees working
at the store where Giard was injured when his injury occurred
and how Home Depot determines how many employees are
needed at its stores on a given day[;]
Topic 9: . . . [t]he process by which Home Depot employees
report injuries sustained at work and how Home Depot stores
records of those injuries[;] and
Topic 10: . . . Home Depot’s policies and procedures for
retaining videos of employees’ injuries.
As to Home Depot’s production of training materials, the trial court
ordered Home Depot to produce “all policy manuals, safety manuals,
presentation slides, training materials, tests and test results, videos, and
other safety-related materials that Home Depot contends were shown,
taught, or provided to [Giard] during his employment at Home Depot.”
The next sentence of the trial court’s order states that the order
compelling production “does not include non-safety related topics[.]”
Addressing Giard’s request for sanctions as the last of the matters
addressed in its order, the trial court denied Giard’s request and
explained: “Because both sides are guilty of unprofessional conduct, as in
football, the penalties are offset and the down (deposition will be
replayed).” The trial court reminded the attorneys for both parties that
the court expected them to “disagree without being disagreeable.”
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Standard of Review
Mandamus will issue to correct a discovery order if there is a clear
abuse of discretion and there is no adequate remedy at law. In re Colonial
Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). A trial
court abuses its discretion when its ruling is so arbitrary and
unreasonable that it constitutes a clear and prejudicial error of law. In re
CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). A
discovery order compelling a party to provide an opponent with discovery
falling outside the bounds of the procedural rules that govern the proper
scope of discovery is an abuse of discretion for which mandamus is the
proper remedy. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex.
2022) (orig. proceeding).
Under the Texas Rules of Civil Procedure, a party may generally
obtain discovery about any matter that is not privileged when it is
relevant to the subject matter of the pending action. See Tex. R. Civ. P.
192.3(a). Even so, the discovery requests that a party serves on an
opponent must be “reasonably tailored to include only matters relevant
to the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998)
(orig. proceeding). Here, the question is whether the topics and the
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documents at issue in the trial court’s order to compel are reasonably
related or calculated to lead to the discovery of facts that will be material
to the fact at issue in the parties’ dispute.
Overly broad requests for irrelevant information are improper,
whether they are burdensome or not. In re Allstate Cty. Mut. Ins. Co., 227
S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). An overly broad discovery
request is one that seeks irrelevant information not properly tailored to
the dispute at hand as to time, place, and subject matter. In re K & L
Auto Crushers, LLC, 627 S.W.3d 239, 252 (Tex. 2021) (orig. proceeding).
“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). When a party propounds overly broad requests, the trial
court must either sustain the objection or narrowly tailor the requests.
In re Mallinckrodt, Inc., 262 S.W.3d 469, 474 (Tex. App.—Beaumont
2008, orig. proceeding).
Whether the discovery is obtained by means of a deposition from a
corporate representative or by serving a request to produce documents,
discovery in a suit “may not exceed the bounds of the claims at issue in
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the suit.” In re USAA Gen. Ind. Co., 624 S.W.3d 782 (Tex. 2021)(orig.
proceeding). Under Rule 192.3(a) of the Rules of Civil Procedure, “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 of the party seeking discovery or the claim or defense of any
party.” Tex. R. Civ. P. 192.3(a). “Evidence is relevant if: (1) it has any
tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.”
The trial court’s ruling compelling additional
testimony by a corporate representative from Home Depot
The trial court found Home Depot waived its objections to the scope
of the topics covered by Giard’s notice of its corporate representative by
failing to obtain a ruling on its objections in advance of Portillo’s
deposition. Referring to Rule 199.4 in its order compelling Home Depot
to produce a corporate representative to testify on the topics mentioned
above, the trial court noted that Home Depot could have filed a motion
for protective order or motion to quash the deposition Giard issued for
Home Depot’s corporate representative, which would have automatically
stayed the deposition until the court could rule on its motion. Id. 199.4.
Because Home Depot had that right, the trial court reasoned, it concluded
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Home Depot had waived its right to complain about the breadth of the
notice because it had failed to obtain a ruling on its objections before the
deposition occurred. Consequently, without addressing the merits of
Home Depot’s objections to the scope of the topics in Giard’s notice, the
trial court granted Giard’s motion to compel.
Home Depot contends it didn’t waive its objections to Giard’s notice
by failing to obtain a ruling on them in advance. According to Home
Depot, Giard could have set Home Depot’s objections to his notice for
hearing had he wanted to do so before Portillo’s deposition occurred, but
instead Giard chose to go forward with the deposition knowing Home
Depot was producing Portillo subject to its objections, which essentially
limited Home Depot’s representative to discussing the training and
equipment provided to Giard for loading lawn mowers into customers’
vehicles. See id. 193.4 (providing that “any party may at any reasonable
time request a hearing on an objection [to written discovery]”). And while
Home Depot recognizes that Rule 192.6 of the rules of civil procedure
allows a party a right to seek a protective order from a court and complain
about the scope of a deposition notice, Home Depot argues the procedure
in Rule 192.6 optional, not mandatory. Home Depot concludes that
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because the Giard’s notice asked Home Depot for discovery outside the
bounds of proper discovery as it relates to a dispute over the loading of a
riding lawn mower, the trial court abused its discretion in compelling its
corporate representative to answer questions on matters that are not of
consequence to Giard’s suit. See id. 192.3.
In response to Home Depot’s petition, Giard argues that Home
Depot waived its objections to his notice of deposition because it didn’t
file a motion for protective order or a motion to quash. See id. 192.6,
199.4. And even if not waived, Giard adds, each topic on which he sought
answers from Home Depot’s representative was “proportionally tailored”
and relevant to facts of consequence in Giard’s suit. As to the part of the
trial court’s order compelling Home Depot to produce all safety-related
materials that Home Depot provided to Giard, Giard argues the trial
court did not abuse its discretion by ordering Home Depot to produce
everything he requested since that the trial court had already made a
similar ruling when it overruled similar objections Home Depot raised to
his request asking Home Depot to produce all safety-related training
materials that applied to Giard. Since Home Depot was required to
produce those items to him by November 4, 2022, but didn’t produce
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them, and then waited until March 2023 to petition this Court for relief
from the trial court’s order, Giard argues, Home Depot waived its
objection to the scope of the trial court’s discovery orders regardless of
their breadth.
We disagree with Giard that his discovery requests were narrowly
tailored to the issues framed by the pleadings in his suit. The scope of
discovery that applies to the various forms of discovery—requests for
disclosure, requests to produce, interrogatories, requests for admission,
oral and written depositions, and motions to compel physical or mental
examinations—is governed by Rule 192. See id. 192.1 (Forms of
Discovery), 192.3 (Scope of Discovery). As to protective orders, Rule 192.6
provides that “a person from whom discovery is sought . . . may move . . .
for an order protecting that person from the discovery sought.” Id. 192.6
(emphasis added by the Court). Under the plain language of the rule
governing protective orders, the rule allows a party to file a motion, but
it is not mandatory. Id. Along with that, Rule 192 doesn’t provide that
timely-filed objections to deposition notices (or other discovery requests)
are waived unless the party seeks a protective order from the discovery
by filing a motion with the court. See id. 192. Nor does Rule 192.6 state
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that filing a protective order is the exclusive method for a party to protect
itself from answering an opposing party’s overly broad discovery. Id.
192.6, 192.3.
The rule that directly addresses objections to depositions of
corporate representatives when the representative is not testifying as an
expert is Rule 199. Id. 199. Under that rule, “the notice must describe
with reasonable particularity the matters on which the deposition is
requested.” Id. 199.2(b)(1). During the deposition, an attorney may
instruct a witness not to answer a question “if necessary to preserve a
privilege, comply with a court order or these rules, protect a witness from
an abusive question or one for which any answer would be misleading, or
secure a ruling pursuant to paragraph (g).” Id. 199.5(f). Rule 199.5(e) also
allows an attorney to instruct a witness not to answer questions during
a deposition to protect a witness from an abusive question or to secure a
ruling that the deposition is being conducted in violation of the rules of
civil procedure. Id. 199.5(e). A comment to the rules of procedure makes
it clear that abusive questions include questions that inquire into
matters clearly beyond the scope of discovery. See id. 199.6 cmt. Finally,
Rule 199.5 requires the parties to seek a ruling from the court when,
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during the deposition, a dispute erupts when the party presenting the
witness and the party who is questioning the witness disagree about
whether the deposition is being conducted as required by the Rule 199—
they “may suspend the oral deposition for the time necessary to obtain a
ruling.” Id. 199.5(g). Thus, the rule that specifically applies to depositions
of corporate representatives expressly allows objections like those Home
Depot’s lawyer raised to be made for the first time in the deposition.
In conclusion, Rule 199 does not provide that a party waives it
objections to the scope of the topics covered by a notice in a deposition for
a corporate representative when the party fails to move for a protective
order in advance of the deposition. Instead, Rule 199 allows the objections
to be raised during the deposition, which is what Home Depot did here.
When a discovery issue arises during the deposition of a company’s
corporate representative, one of the attorneys or the witness may
“suspend the oral deposition for the time necessary to obtain a ruling.”
Id. 199.5(e), (f). Because Home Depot did more than they were required
to do here by objecting before the deposition occurred and by objecting
during the deposition to questions that it argues are outside the proper
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scope of discovery, we conclude the trial abused its discretion in
concluding Home Depot’s objections were waived.
We further conclude Home Depot was harmed by the trial court’s
ruling. The trial court’s order—which requires Home Depot’s corporate
representative to answer questions that relate to Giard’s training on
matters of safety regardless of whether the training is related to his
loading of lawn mowers or his injury—goes far beyond the permissible
scope of proper discovery under Rule 192.3. See id. 192.3(a). A central
consideration in determining overbreadth is whether Giard’s notice could
have been more narrowly tailored. See In re 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.”).
When a trial court is faced with a motion asking it to compel
discovery to a party’s overly broad discovery request, it has a choice—it
may choose to engage in battlefield triage and narrow the discovery so
the discovery complies with the rules, or it may instead choose to sustain
the opposing party’s objections and place the burden of serving proper
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discovery on the party that had the burden of narrowly tailoring its
discovery to the rules. See In re Mallinckrodt, Inc., 262 S.W.3d at 474;
Tex. R. Civ. P. 192.3. As to the topics in the notice of deposition at issue
here, we leave it to the trial court to decide what course of action it wishes
to take.
The trial court’s ruling compelling Home Depot to produce
all safety-related materials shown, taught, or provided to Giard
When it decided to enforce its motion to compel, the trial court
refused to revisit Home Depot’s argument that it shouldn’t be required to
produce training materials and videos that were unrelated to the subject
of loading lawn mowers and as a result, according to Home Depot, not
relevant to a fact of consequence in the dispute. Home Depot supported
its argument that the items were not relevant with a list of the training
videos and materials it provided to Giard’s attorney and to the trial court,
which were viewed by Giard.
In this proceeding, Home Depot argues that when it responded to
the trial court’s order compelling it to produce all safety-related videos
and materials viewed by Girard in discovery in November 2022, it did so
by producing copies of items, documents, and videos, relevant to Giard’s
training on moving and lifting of items like lawn mowers, the tasks Giard
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claims he was performing when he was allegedly injured. According to
Home Depot, it has satisfied its obligation to provide Giard with the
discovery that is relevant to his claims given the scope of discovery that
governs the parties’ dispute. Home Depot concludes that by compelling it
to produce “all materials related to safety” shown, taught, or provided to
Giard during his employment, the trial court has required it to produce
items clearly irrelevant to facts of consequence in the dispute and outside
the bounds of discovery, as the safety training materials it must produce
include not information not relevant to lifting, but information not
relevant to his injury consisting of 28 training courses he took after his
injury occurred.
We agree with Home Depot that Giard’s discovery request and the
trial court’s order compelling discovery require it to produce items that
are well outside the proper bounds of discovery. Based on the titles of the
items on Home Depot’s list, items the trial court expressly stated it did
not review to evaluate their relevance to Giard’s suit, it appears the items
Home Depot withheld are unlikely to contain information relevant to
facts of consequence in a suit that involves an injury resulting from
loading a lawn mower into a customer’s vehicle. Even though we
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recognize that parties have some latitude in fashioning proper discovery
requests, the trial court’s order compels Home Depot to produce over a
hundred items Home Depot used during Giard’s training that might
possibly be said to relate to “safety” in a general sense, but given the
documents’ titles, we cannot see how subjects ranging from defibrillators
to workplace violence are relevant to the facts of consequence in this
dispute.
Simply put, the discovery request on its face falls well outside the
bounds of proper discovery because the scope of the requested production
represents “not merely an impermissible fishing expedition; it is an effort
to dredge the lake in hopes of finding a fish.” Texaco, Inc. v. Sanderson,
898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding). A trial court’s
discovery order is overly broad when the trial court could have more
narrowly tailored its order to avoid requiring the production of
information not relevant to the dispute. See In re CSX Corp., 124 S.W.3d
at 153. We conclude the trial court abused its discretion by compelling
Home Depot to produce “all policy manuals, safety manuals, presentation
slides, training materials, tests and test results, videos, and other safety-
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safety related materials [Home Depot] contends were shown, taught, or
provided to Plaintiff during his employment at Home Depot.”
Separate from the issue of the request’s breadth, Giard argues
Home Depot’s four-month delay in seeking relief from the trial court’s
order compelling Home Depot to comply with his request to produce the
safety-related materials to him by November 4, 2022, bars Home Depot
from seeking relief from the trial court’s order to enforce its order to
compel under the equitable doctrine of laches. We disagree. We conclude
that Home Depot preserved its objection to producing the information at
issue by filing a timely objection and asserting the request was overly
broad, as the positions of the parties as related to the items at issue
haven’t materially changed since the day the trial court’s order required
Home Depot to produce them, November 4, 2022, and the day Home
Depot petitioned this Court for relief in March 2023.
First, it appears Giard has been provided training videos and
documents that are relevant to his training on lifting and on loading
mowers. By Giard’s count, as of November 4, 2022, Home Depot had given
him five videos and 20 pages of documents along with a list identifying
114 training programs that he received at Home Depot. Second, after
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November 4 and before Portillo’s deposition on January 27, 2023, Giard
took Portillo’s deposition without filing a motion complaining that Home
Depot had refused to comply with the trial court’s order compelling Home
Depot to produce all safety-training materials and videos by November
4. So when Giard saw the titles of the items on which Giard had been
trained and knew they appeared unrelated to his training on loading
lawn mowers and lifting, he apparently didn’t believe these other items
were needed for the deposition of Home Depot’s corporate representative.
Third, despite the fact Giard argues in his motion for sanctions that the
items Home Depot withheld from him are relevant, the items include
titles like “flat bed safety,” “solving difficult customer situations,” “what
to do when you don’t know,” and other safety programs with titles that
appear to have no connection to the facts of consequence in the dispute.3
For its part, Home Depot argued when it was in the trial court and
in response to Giard’s motion to compel that on November 4, 2022, it
produced documents responsive to Giard’s request to produce after
accounting for a Rule 11 agreement the parties made after the trial court
3At its option, the trial court may require Home Depot to submit
these training materials to the court for an in camera inspection and
narrowly tailor Giard’s request, if it wishes to undertake that burden.
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signed the October 2022 order compelling production. According to Home
Depot, the Rule 11 agreement limited Home Depot’s discovery obligations
to documents tied to Giard’s training on lifting or loading heavy objects.
It makes that same argument here. We disagree with Home Depot that
the Rule 11 agreement Home Depot relies on applies to the specific
request at issue here. Even so, we nonetheless conclude the trial court
could have and should have reconsidered its ruling on whether Home
Depot should have been required to comply with Giard’s overly broad
request to produce. See In re Panchakarla, 602 S.W.3d 536, 540 (Tex.
2020) (orig. proceeding) (observing that trial courts have the power to set
aside interlocutory orders any time before rendering a final judgment).
Generally, to obtain review in an ordinary appeal of an alleged
error, appellants must show they raised a timely complaint about the
matter when they were in the trial court and secured a ruling on their
objection. Tex. R. App. P. 33.1. As to the timing of the objection here, Rule
193.2 requires that a party object to an opposing parties’ request to
produce “within the time for response[,]” which for a request to produce
is generally 30 days. Tex. R. Civ. P. 193.2(a), 196.1(e). No party claims
Home Depot did not file a timely objection to the request at issue here.
25
Even though this is not an ordinary appeal, Home Depot could raise its
complaint that the trial court required it to comply with a request to
produce that exceeded the bounds of discovery under the rules of
procedure, although by then it would either have produced the material
to comply with the court’s order or faced sanctions for failing to comply.
The point is, however, that the error was preserved by the timely filing
of the objection, and therefore Home Depot could continue to assert the
discovery order was issued in error when it did not comply with the order,
given the delay and circumstances at issue here.
Even though there are occasions that a delay in filing a petition for
mandamus may result in the waiver of a parties’ right to relief, there are
no established guidelines on when the waiver occurs. Instead, when an
appellate court applies laches to bar a relator’s right to mandamus relief
for a lack of diligence in seeking relief, it is the appellate court that
determines whether laches should apply. See Rivercenter Assocs. v.
Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding); In re Allstate
Prop. & Cas. Ins. Co., No. 09-20-00031-CV, 2020 WL 1879659, at *1 (Tex.
App.—Beaumont Apr. 16, 2020, orig. proceeding) (mem. op.).
26
Generally, laches requires that a party show an unreasonable delay
occurred and a good faith and detrimental change in position by the real
party in interest resulted from the delay. In re Laibe Corp., 307 S.W.3d
314, 318 (Tex. 2010) (orig. proceeding). But here, Giard has not shown
that a delay of around four months resulted in any detrimental change
in his position—he didn’t have the records at issue here on November 4,
2022, and he didn’t have them when Home Depot filed its petition for
mandamus relief with this Court on March 9, 2023. As it relates to
Giard’s request to produce, we conclude the doctrine of laches does not
apply under the circumstances before us here.
Conclusion
We lift our stay order and conditionally grant Home Depot’s
petition. See In re Nat’l Lloyds Ins. Co., 507 S.W.3d at 223. We are
confident the trial court will vacate its February 27, 2023, order granting
Giard’s motion to compel discovery and consider Home Depot’s objections
on their merits before ruling on the motion.
27
A writ of mandamus will issue only if the trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on April 19, 2023
Opinion Delivered August 3, 2023
Before Horton, Johnson and Wright, JJ.
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