In Re: Longview Medical Center, L.P. D/B/A Longview Regional Medical Center v. the State of Texas ( 2024 )

NO. 12-24-00068-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
LONGVIEW MEDICAL CENTER, L.P.
D/B/A LONGVIEW REGIONAL § ORIGINAL PROCCEDING
MEDICAL CENTER,
RELATOR §
MEMORANDUM OPINION
Longview Medical Center, L.P. d/b/a Longview Regional Medical Center (LRMC) filed a
petition for writ of mandamus challenging Respondent’s orders denying its motion to compel and
granting Real Parties in Interest Korry Shelton and Stephanie Shelton, individually and on behalf
of R.S., a minor’s (collectively the Sheltons) motion for protection related to the discovery of
settlement agreements among co-defendants. 1 In its petition, LRMC further challenges
Respondent’s orders denying LRMC’s motion to quash the notice of deposition and subpoena
duces tecum of its corporate representative and motion for protection regarding the deposition
topics in the notice. We conditionally grant relief in part and deny relief in part.
BACKGROUND
Stephanie Shelton was admitted at LRMC on September 25, 2019, for a scheduled, induced
labor. The Sheltons allege in their pleadings that the child, R.S. was, upon admission, healthy-
intrauterine and neurologically intact. The Sheltons further allege that during Stephanie’s
1
Respondent is the Honorable Vincent Dulweber, Judge of the County Court at Law Number 2 in Gregg
County, Texas.
seventeen-hour labor, problems arose and R.S.’s fetal heartbeat deteriorated to the point where
Stephanie’s attending physician was forced to attempt an urgent, forceps delivery rather than
earlier delivering R.S. by Cesarean section when the child still was neurologically intact.
Following delivery, R.S. required resuscitation and intubation and had onset seizures within the
first hour of life. R.S. was diagnosed with hypoxic-ischemic encephalopathy and spastic
quadriplegic cerebral palsy and will require medical care and twenty-four-hour supervision for the
remainder of his life.
The Sheltons filed the instant suit against LRMC and other defendants and sought to
recover damages for medical malpractice. They further allege that LRMC is vicariously liable for
the negligent acts and omissions of its nurses, employees, and agents and independently deviated
from the standard of care and is directly liable for its failure to educate, train, and supervise its
employees/nursing staff and for its failure to follow its own policies and procedures. LRMC
answered, asserted a general denial, and, in pertinent part, asserted the defense of comparative
responsibility and alleged that, in the event it is found to be liable, it is entitled to a credit or offset
from sums the Sheltons receive by way of settlements.
The Settlement Agreement
As pre-trial matters proceeded, LRMC served the Sheltons with a request for disclosure,
as well as a request for production of documents, including Request No. 11, which sought “[a]copy
of any formal or informal agreements, understandings, or contracts entered into with any other
party to this Lawsuit or any third-party regarding liability, damages, settlement, dismissal, or other
disposition of the present suit or any other suit related to the Incident in question made the basis
of this Lawsuit.” The Sheltons responded, “None.”
More than one year later, in November 2023, the Sheltons entered into a settlement
agreement with defendants Dr. Charles Newlin and Diagnostic Clinic of Longview. The Sheltons
further moved to appoint a guardian-ad-litem and, in that motion, represented that they reached a
settlement agreement. 2
On January 4, 2024, Respondent conducted a minor-settlement hearing on the settlement
agreement. LRMC’s counsel appeared, but the Sheltons and the settling defendants objected to
2
LRMC requested a copy of the settlement agreement pursuant to its request for disclosure. The Sheltons
responded that they would provide the relevant portions of the agreement but ultimately did not provide the agreement
until the matter was resolved by Respondent.
2
his being present and requested that he be excluded from the hearing based on the confidentiality
provisions in the settlement agreement. LRMC’s counsel objected that such exclusion was a
violation of LRMC’s due process rights, but Respondent excluded him, and the hearing proceeded
ex parte.
On January 15, LRMC filed a motion to compel production of the settlement agreement,
as well as a transcript of the minor-settlement hearing. A hearing was set on the matter for January
30. On January 25, the Sheltons served amended responses to LRMC’s request for disclosure and
Request No. 11, in which they first raised objections to the requests. That same day, the Sheltons
and the settling defendants filed a Joint Motion for Protective Order, by which they sought
protection from production of any information related to their settlement agreement based on the
confidentiality provisions contained therein. On January 29, the trial court sustained the Sheltons’
objections to LRMC’s requests for disclosure and Request No. 11 and granted the Joint Motion for
Protective Order.
In response, LRMC filed an amended motion to compel production of all settlement
agreements and a request for a transcript of the minor-settlement hearing, as well as a motion to
vacate Respondent’s January 29 order. Respondent conducted a hearing on LRMC’s motion on
February 14. At the conclusion of the hearing, Respondent stated that it would conduct an in-
camera review of the settlement agreement to determine whether and to what extent it might be
discoverable. On February 21, by a letter-ruling, Respondent ordered the production of a redacted
version of the settlement agreement, the Rule 11 agreement, and redacted draft-settlement
agreement between the Sheltons and the settling defendants. That same day, Respondent denied
LRMC’s motions with the notation, “Order no longer needed. Issue addressed in separatee [sic]
ruling.”
In response, LRMC filed a letter, in which it noted several, outstanding matters not
addressed in Respondent’s letter-ruling. On February 27, Respondent issued a letter-ruling
permitting LRMC to obtain a copy of the transcript of the minor-settlement hearing. It further
issued an order (1) denying LRMC’s motion to vacate the order granting the joint motion for
protection, (2) sustaining the Shelton’s objections to Request No. 11, except as to the portions of
the settlement agreement it previously deemed relevant, (3) summarizing the letter-rulings
regarding production of the redacted settlement agreement and minor-settlement-hearing
transcript, and (4) denying all other relief sought by LRMC. On February 28, Respondent issued
3
another letter-ruling, by which it ordered the production of a redacted version of the draft-
settlement agreement presented at the minor-settlement hearing.
Notice of Deposition of LRMC’s Corporate Representative
On November 15, 2023, the Sheltons served their first amended notice to take oral and
video-taped deposition of LRMC’s corporate representative with subpoena duces tecum. The
notice included nine proposed topics. 3 LRMC moved to quash the deposition notice and filed a
motion for protection. On December 11, Respondent conducted a hearing on the matter. On
January 4, 2024, Respondent denied LRMC’s motion to quash and motion for protection.
Thereafter, LRMC filed this petition for writ of mandamus.
AVAILABILITY OF MANDAMUS
Mandamus relief is available if the relator establishes a clear abuse of discretion for which
there is no adequate remedy by appeal. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig.
proceeding). “Generally, the scope of discovery is within the trial court’s discretion, but the trial
court must make an effort to impose reasonable discovery limits.” Id. (quoting In re Graco
Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding)). A trial court abuses
its discretion if it orders discovery exceeding the scope permitted by the rules. In re CSX Corp.,
124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding); K Mart Corp. v. Sanderson, 937 S.W.2d 429,
431 (Tex. 1996) (orig. proceeding); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)
(orig. proceeding); In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 WL 890970, at *4
(Tex. App.–Dallas Mar. 9, 2016, orig. proceeding) (mem. op.)
Whether a clear abuse of discretion adequately can be remedied by appeal depends on a
careful analysis of costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275
S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). Because this balance depends heavily on the
circumstances, it must be guided by analysis of principles rather than simple rules that treat cases
as categories. Id. An appeal is inadequate when the parties are in danger of permanently losing
substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig.
proceeding). “Such a danger arises when the appellate court would not be able to cure the error,
when the party’s ability to present a viable claim or defense is vitiated, or when the error cannot
be made part of the appellate record.” Id. For this reason, mandamus relief is available when the
3
LRMC’s petition for writ of mandamus raises challenges only as to four of these topics.
4
trial court compels production beyond the permissible bounds of discovery. See In re Weekley
Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding). “Intrusive discovery measures
. . . require, at a minimum, that the benefits of the discovery measure outweigh the burden imposed
upon the discovered party.” Id.; see In re CSX Corp., 124 S.W.3d at 153 (holding relator lacked
adequate remedy by appeal where discovery order compelled production of “patently irrelevant”
documents); Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex. 1996) (orig. proceeding) (mandamus
relief may be justified when burden on producing party is far out of proportion to any benefit to
requesting party). Furthermore, a party does not have an adequate remedy by appeal if the trial
court prohibits discovery, whereby such discovery cannot be made part of the appellate record and
the appellate court is, thus, unable to evaluate the effect of the trial court’s order based on the
record. See In re GreCon, Inc., 542 S.W.3d 774, 787 (Tex. App.–Houston [14th Dist.] 2018, orig.
proceeding).
DISCOVERY OF SETTLEMENT AGREEMENT
In its first issue, LRMC argues that Respondent abused his discretion by, through various
orders and letter-rulings, granting the Sheltons’ 4 motion for protection, sustaining the Shelton’s
objections to Request No. 11, denying LRMC’s motion to compel, and ordering discovery only as
to a redacted version of the settlement agreement, the Rule 11 agreement, and a redacted draft of
the agreement.
In support of their motion for protection and in opposition to LRMC’s motion to compel,
the Sheltons contended that the requests are overly broad, seek information that is not relevant and
is merely a “fishing expedition” not reasonably calculated to lead to the discovery of admissible
evidence, and, because of the settlement agreement, are not discoverable as they contain
confidential information. LRMC argued that the settlement agreements are discoverable because
they are relevant to the issue of determining settlement credits, witness prejudice or bias, and its
independent evaluation of potential exposure for the purposes of assessing case value and potential
settlement offers before trial. It further contends that the fact that the settlement agreement may
4
There were other parties to this motion and other motions antagonistic to LRMC’s discovery of settlement-
agreement information. In the interest of simplicity, we refer to any such motions as to it collectively as brought by
the Sheltons.
5
contain a confidentiality agreement does not render the settlement agreement or its contents
undiscoverable.
Governing Law
The existence and contents of relevant portions of settlement agreements presumptively
are discoverable. See TEX. R. CIV. P. 192.3(g); In re GreCon, Inc., 542 S.W.3d at 780. The party
resisting discovery bears the burden of proof because a settling party has a copy of the settlement
agreement and is in the best position to demonstrate why any portions are irrelevant and, further,
civil litigants must plead and prove their entitlement to protection from discovery in a timely
fashion. See In re GreCon, Inc., 542 S.W.3d at 780.
Settlement Credits
A prevailing party is entitled to only “one satisfaction” for an injury. First Title Co. of
Waco v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993); In re GreCon, Inc., 542 S.W.3d at 782. “[W]hen
a plaintiff files suit alleging that multiple tortfeasors are responsible for the plaintiff’s injury, any
settlements are to be credited against the amount for which the liable parties as a whole are found
responsible, but which only the non-settling defendant remains in court.” Garret, 860 S.W.2d at
78. “[T]he plaintiff should not receive a windfall by recovering an amount in court that covers the
plaintiff’s entire damages, but to which a settling defendant has already partially contributed.” Id.
“[I]f settling parties are partially responsible for such an injury, then as a matter of law the
judgment should be reduced by the amount of any settlements so as to prevent double recovery by
the prevailing plaintiff.” Id.
The reduction of the plaintiff’s recovery may be achieved by settlement credits under
Chapter 33 or the Texas Civil Practice and Remedies Code. Bus. Staffing, Inc. v. Viesca, 394
S.W.3d 733, 752 (Tex. App.–San Antonio 2012, no pet.). Under Section 33.012(b), “[i]f the
claimant has settled with one or more persons, the [trial] court shall . . . reduce the amount of
damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar
amounts of all settlements.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.012 (West 2020).
The defendant has the burden to prove its right to a settlement credit, including the amount
of the settlement credit. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998). Thus,
a settlement agreement, including the dollar amount exchanged, is relevant to the remaining
defendants for the purpose of determining the amount of the settlement credit. See In re GreCon,
Inc., 542 S.W.3d at 782. As it relates to settlement credits, the contents of any relevant portions
6
of a settlement agreement, not just the settlement “amounts,” must be produced before trial in
response to a request for disclosure under Rule 194.2(h). Id. at 783; (citing TEX. R. CIV. P.
194.2(h)); see also TEX. R. CIV. P. 192.3(g).
Witness Bias or Prejudice
“[S]ettlement agreements and offers may be discoverable for purposes other than to
establish liability, such as to demonstrate bias or prejudice of a party or witness, or, to establish the
existence of a promise or agreement made by nonparties to the settled lawsuit.” In re Univar
USA, Inc., 311 S.W.3d 175, 182 (Tex. App.–Beaumont 2010, orig. proceeding). Not producing
settlement agreements prevents the nonsettling defendant the opportunity to examine the contents
of the settlement agreements, thereby depriving the nonsettling defendant the opportunity to
evaluate whether some portions of the settlement agreements demonstrate the presence of bias. Id.If the agreements contain provisions that affect the testimony of the trial witnesses, the order
denying production will prevent the nonsettling defendant from using the settlement agreements
during trial. Id. By neither having the agreements in the record nor having them to utilize in
examining the witnesses at trial, the nonsettling defendant is restricted of its ability subsequently
to demonstrate on appeal that it did not receive a fair trial. Id.; see also In re GreCon, Inc., 542
S.W.3d at 785.
Evaluation of Potential Exposure and Engagement in Settlement Negotiations
A nonsettling defendant should be entitled to make its own, independent assessment of its
settlement credits to evaluate a settlement offer to avoid trial. Univar, 311 S.W.3d at 181.
“Because the sole source of a nonsettling defendant’s knowledge about its settlement credits is
based on what a party with an incentive to minimize that amount tells the nonsettling defendant,
without being given the opportunity to verify that information, a nonsettling defendant might be
pressured into settling.” Id. Such a settlement, procured by darkness, is neither just, fair, equitable,
or impartial, and appears to be inconsistent with the objectives of the Texas Rules of Civil
Procedure. Id.; see also In re GreCon, Inc., 542 S.W.3d at 786.
Discussion
In the instant case, LRMC argued it was entitled to discovery of the settlement agreement
documents at issue based on the foregoing grounds and relied heavily on the court’s opinion in In
re GreCon. In response, the Sheltons argue that In re GreCon, Inc. is distinguishable because,
unlike in that case, the Sheltons filed a motion for protection. See In re GreCon, Inc., 542 S.W.3d
7
at 781–82. However, in In re GreCon, Inc., the court also addressed the merits of the
discoverability of settlement agreements based on the same arguments raised by LRMC. See id.at 782–87. The Sheltons do not attempt to distinguish the court’s opinion in In re GreCon, Inc.
on this basis. Furthermore, a settlement agreement’s inclusion of a confidentiality provision does
not render the agreement or its contents undiscoverable as a matter of law. Marteny v. Coon, No.
09-19-00019-CV, 2020 WL 5666567, at *8 (Tex. App.–Beaumont Sept. 24, 2020, no pet.) (mem.
op.); In re DCP Midstream, L.P., No. 13-14-00502-CV, 2014 WL 5019947, at *7 (Tex. App.–
Corpus Christi Oct. 7, 2014, orig. proceeding) (mem. op.); cf. Scott v. Mcllhany, 798 S.W.2d 556,
559–60 (Tex. 1990) (discussing inability of litigants to use private agreements to block discovery
of information and testimony sought by third parties). Accordingly, the confidentiality provisions
of the settlement agreement do not insulate the settlement agreement from discovery if the
discovery otherwise is appropriate.
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). It
is not a ground for objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Id. Here, LRMC asserted the defense of comparative responsibility and alleged that, in the event
it is found to be liable, it is entitled to a credit or offset from sums the Sheltons receive by way of
settlements. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.003 (West 2020), 33.012, 33.013
(West Supp. 2023). Accordingly, we conclude that any relevant portions of the settlement
agreement to the issue of settlement credits are discoverable. See In re GreCon, Inc., 542 S.W.3d
at 784.
Furthermore, we reiterate that settlement agreements and offers may be discoverable for
purposes other than to establish liability, such as to demonstrate bias or prejudice of a party or
witness, or, to establish the existence of a promise or agreement made by nonparties to the settled
lawsuit. By not producing settlement agreements, the nonsettling defendant is denied the
opportunity to examine the contents of the settlement agreements, thereby depriving the
nonsettling defendant the opportunity to evaluate whether some portions of the settlement
agreements demonstrate the presence of bias. See id. at 785.
8
We examined in-camera the settlement agreement submitted by the Sheltons under seal.
Our examination of the agreement does not reveal any provision that would demonstrate an
agreement to cooperate between the Sheltons and the settling defendants. Nonetheless, in accord
with the court’s conclusion in In re GreCon, Inc., LRMC should have the opportunity to examine
the settlement agreement to determine whether it contains anything that would raise the issue of
witness bias or prejudice. See id. at 785 (citing In re DCP Midstream, L.P., No. 13-14-00502-CV,
2014 WL 5019947, at *12 (Tex. App.–Corpus Christ Oct. 7, 2014, orig. proceeding) (mem. op.)
(holding that portions of settlement agreement concerning the existence of potential witness bias
were reasonably calculated to lead to the discovery of relevant impeachment or bias evidence);
Burlington N., Inc. v. Hyde, 799 S.W.2d 477, 480–81 (Tex. App.–El Paso 1990, orig. proceeding)
(explaining, with respect to contention that settlement agreement may contain or lead to Mary
Carter agreement, that “[a]lthough our inspection of the document reveals nothing of the kind, we
conclude that Hartman should have the opportunity to examine the agreement to determine for
himself whether there is any relevant, admissible material or information that might lead to the
discovery of admissible evidence”); Nermyr v. Hyde, 799 S.W.2d 472, 476 (Tex. App.–El Paso
1990, orig. proceeding) (same)). Accordingly, we conclude that (1) all portions of the settlement
agreement are relevant or are reasonably calculated to lead to the discovery of admissible
impeachment, bias, or prejudice evidence and (2) LRMC is entitled to obtain a copy of all portions
of the settlement agreement, as well as the draft-settlement agreement attached to the settling-
defendants’ Rule 11 agreement, along with other admissible evidence related to settlement
negotiations to the extent such other admissible evidence falls within the scope of the types of
documents requested by LRMC’s Request No. 11. 5
Based on the foregoing, we hold that Respondent abused his discretion by denying
LRMC’s motion to compel, by granting the Sheltons’ motion for protection, and by ordering
discovery only as to redacted versions of the settlement agreement, Rule 11 agreement, and the
5
Evidence of “furnishing, promising, or offering––or accepting, promising to accept, or offering to accept–
–a valuable consideration in compromising or attempting to compromise the claim” at issue, as well as “conduct or
statements made during compromise negotiations about the claim” may be admissible for purposes, including to prove
a party’s or witness’s bias or prejudice. See TEX. R. EVID. 408; see also In re Univar USA, Inc., 311 S.W.3d 175, 182
(Tex. App–Beaumont, orig. proceeding). Request No. 11 sought production of “any formal or informal agreements,
understandings, or contracts entered into with any other party to this Lawsuit or any third-party regarding liability,
damages, settlement, dismissal, or other disposition of the present suit or any other suit related to the Incident in
question made the basis of this Lawsuit.” (emphasis added).
9
draft settlement agreement. Such settlement documents are relevant to determining settlement
credits and the existence of witness bias or prejudice, and LRMC is entitled to obtain a copy of all
portions of the settlement agreement and draft agreement, as well as other admissible evidence
related to settlement negotiations specifically sought by LRMC’s Request No. 11. 6 See In re
GreCon, Inc., 542 S.W.3d at 786–87; see also TEX. R. EVID 408. We further hold that there is no
adequate remedy by appeal as to the denial of this type of discovery. See In re GreCon, Inc., 542
S.W.3d at 787. 7
CORPORATE REPRESENTATIVE DEPOSITION TOPICS
In its second issue, LRMC argues that Respondent abused his discretion in denying its
motion for protection and motion to quash the Sheltons’ notice of deposition and subpoena duces
tecum for its corporate representative.
Governing Law
A trial court generally has discretion to determine the scope of discovery. In re Nat’l
Lloyds Ins. Co., 532 S.W.3d 794, 802 (Tex. 2017) (orig. proceeding). “Our procedural rules define
the general scope of discovery as any unprivileged information that is relevant to the subject of the
action, even if it would be inadmissible at trial, as long as the information sought is reasonably
calculated to lead to the discovery of admissible evidence.” In re Nat’l Lloyds Ins. Co., 507
S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (per curiam). Accordingly, discovery 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) (per curiam); see also In re Allstate Fire & Cas.
Ins. Co., 617 S.W.3d 635, 643 (Tex. App.–Houston [14th Dist.] 2021, orig. proceeding); In re
6
With regard to LRMC’s argument that the settlement agreement is discoverable to evaluate potential
exposure and engagement in settlement negotiations, an improper motive in seeking a settlement agreement is not
relevant in deciding whether settlement agreements should be produced if there are other valid bases for producing
the agreements. See In re GreCon, Inc., 542 S.W.3d 774, 786 (Tex. App.–Houston [14th Dist.] 2018, orig.
proceeding). Even if seeking settlement agreements for the purpose of determining LRMC’s exposure, standing alone,
does not meet the test for relevancy, all portions of the settlement agreement are relevant to the determination of
settlement credits and the existence of witness bias or prejudice. See id.7
Because the settling defendants have an expressed interest in maintaining the confidentiality of the
provisions of their settlement agreement, Respondent, before compelling discovery of the settlement agreement and
other documents related thereto, to the extent that any current confidentiality agreements between the parties are
inadequate, shall ensure that the parties herein agree to be bound by a protective order so as to keep the contents of
these documents confidential so that such information is not revealed apart from their appropriate use in the underlying
litigation.
10
Xeller, 6 S.W.3d 618, 626 (Tex. App.–Houston [14th Dist.] 1999, orig. proceeding). When
discovery requests exceed these boundaries, trial courts must impose reasonable discovery limits
commensurate with the scope of permissible discovery. See In re Graco Children’s Prods., Inc.,
210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam). A trial court abuses its discretion
if it orders discovery beyond that which the rules of civil procedure permit. In re N. Cypress Med.
Ctr. Operating Co., 559 S.W.3d 128, 130–31 (Tex. 2018) (orig. proceeding).
The phrase “relevant to the subject matter” is to be broadly construed. In re Nat’l Lloyds
Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam). Information is relevant
if it tends to make the existence of a fact that is of consequence to the determination of the action
more or less probable than it would be without the information. TEX. R. EVID. 401. Determining
which facts are “of consequence” to the action necessarily begins with a review of the pleadings.
“The materiality and relevancy of testimony is to be determined by reference to the issues made
by the pleadings.” In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d at 643; see In re Alford
Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (stating that review of relevancy generally
done by “close examination of the pleadings and specific claims and defenses made”); see also
TEX. R. CIV. P. 192.3(a) (party may obtain discovery of matters not privileged that are relevant to
the “subject matter of the pending action”, whether relating to claims or defenses). Facts that may
be of consequence to issues not raised by pleadings are not permissible areas of discovery.
Discovery undertaken with the purpose of finding an issue, rather than in support of an issue
already raised by the pleadings, would constitute an impermissible fishing expedition. See In re
Am. Home Assurance Co., 88 S.W.3d 370, 376 (Tex. App.–Texarkana 2002, orig. proceeding)
(citing Alford Chevrolet-Geo, 997 S.W.2d at 180).
Discussion
In its notice of deposition for LRMC’s corporate representative, the Sheltons listed the
following topics pertinent to our discussion:
3. Interpretation of the information contained in the Audit Trail of the Electronic Medical
Records of Stephanie Shelton produced by Longview Regional Medical Center and the location and
retrieval of the audit trail.
4. Interpretation of the information contained in the Audit Trail of the Electronic Medical
Records of R.S. produced by Longview Regional Medical Center and the location and retrieval of
the audit trail.
11
7. Longview Regional Medical Center’s supervision of Sabrina Giles while working for
Longview Regional Medical Center from May 2019 to January 2020.
8. The search protocol utilized to collect relevant documents requested for the discovery
responses filed by Longview Regional Medical Center in this case.
LRMC argues that the Sheltons’ proposed deposition topics (1) seek to invade its work product,
(2) seek irrelevant information with no bearing on material issues, (3) are unreasonably cumulative
or duplicative, and (4) are unduly burdensome.
Search Protocol Utilized to Collect Relevant Documents for Discovery Responses
LRMC argues that this topic amounts to “an improper invasion of the highly protected and
long-standing work product privilege. In support of its claim, LRMC relies on In re Exxon Corp.,
208 S.W.3d 70 (Tex. App.–Beaumont 2006, orig. proceeding) (per curiam). There, the plaintiffs
sought to depose an Exxon representative “‘most knowledgeable regarding’ documents previously
requested” regarding, among other things, the “method of search.” See id. at 71. Exxon objected
that the plaintiffs deposition topics sought to invade the attorney-client privilege and the work
product doctrines. Id. at 72. When the deponent was asked if she could provide testimony
regarding the method of search for the responsive documents, she replied that “the only
information she could provide was what Exxon’s attorneys provided to her.” Id. As for the
completeness of the responsive documents, she testified that the people who retrieved the
documents went where she would have gone to look for the documents. Id. at 72–73. Ultimately,
the witness could not tell the plaintiffs that they possessed all possible responsive documents
because she had not personally participated in the search. Id. at 73. The plaintiffs filed a motion
to compel compliance with the trial court’s discovery orders and requested sanctions because
Exxon produced a witness with no knowledge of the method of its search for documents responsive
to the requests for production. Id. Exxon responded that its in-house and outside counsel compiled
responsive documents. See id. The trial court granted the plaintiffs’ motion to compel, and Exxon
sought relief by mandamus. See id. In analyzing the issue, the court of appeal noted that “it cannot
reasonably be argued that the anticipated deponent is not one of Exxon’s attorneys.” Id. at 76. It
further noted that the discovery at issue involved how Exxon conducted the process of litigation
as opposed to its research on the facts underlying the case. Id. Thus, the court concluded that the
deposition topic was designed to inquire into the mental processes of counsel and was not
12
reasonably calculated to lead to the discovery of admissible evidence and should be protected from
discovery. See id.In the instant case, there is no indication in the record that any of LRMC’s attorneys or
other applicable representative would be the designated corporate representative on the topic of
the search protocol utilized to collect relevant documents requested. See TEX. R. CIV. P. 192.5(a).
There further is no indication that the discovery sought matters related to how LRMC conducted
the process of litigation, as opposed to its research on the facts underlying the case. See id. And
LRMC does not elaborate in its petition as to how the methods its client utilized to compile
documents responsive to discovery requests constitutes work product. See In re Fairway
Methanol LLC, 515 S.W.3d 480, 487 (Tex. App.–Houston [14th Dist.] 2017, orig. proceeding)
(party seeking to resist discovery bears burden of proving applicable privilege). As such, we
conclude that the facts of the instant case are distinguishable from those in In re Exxon Corp. and
Topic 8 related to discoverable information. See TEX. R. CIV. P. 192.5(a). 8
LRMC further argues that this deposition topic is unduly burdensome because there are
2,590 pages of responsive documents spanning a broad number of categories, which would not be
within the knowledge base of a single, corporate representative. But in making this contention,
LRMC fails to specify, to any extent, how many representatives might be required to cover this
topic or what the role of such representatives might be. Without more information, we cannot
determine by LRMC’s blanket assertion of overbreadth or based simply on the large number of
documents produced in a complex, medical malpractice case that this deposition topic is unduly
burdensome. See In re Fairway Methanol LLC, 515 S.W.3d at 487.
Lastly, LRMC argues that this topic does not relate to any of the Sheltons’ allegations and
is outside the scope of discovery on its face. In response, the Sheltons argue that their request is
designed to ensure that the documents already produced comprise all documents responsive to
their requests for production. Based on the Sheltons’ counsel’s representations to Respondent and
this court that the topic limits its scope to documents responsive to discovery, it is reasonable to
8
To the extent questions on this topic seek to delve into issues of LRMC’s work product or attorney-client
communications, such questions are improper and subject to an instruction by LRMC’s counsel not to answer. Cf. In
re USAA Gen. Indem. Co., 624 S.W.3d 782, 794 (Tex. 2021) (orig. proceeding). But based on the wording used in
the deposition notice, we cannot conclude that the topic wholly is “cloaked in privilege.” Cf. id.13
conclude that it does not exceed the scope of discovery. See In re Nat’l Lloyds Ins. Co., 507
S.W.3d at 223.
Audit Trails
Topics 3 and 4 relate to the deposition of LRMC’s corporate representative’s testimony
regarding the interpretation, location, and retrieval of the information contained in the Audit Trail 9
of the Electronic Medical Records of Stephanie Shelton and R.S. previously produced by LRMC.
LRMC argues that the Sheltons intended meaning of the term “interpretation” of the
information contained in the audit trail is overbroad, lacks specificity, is unclear, and is not
described with reasonable particularity. See TEX. R. CIV. P. 199.2(b)(1). We agree. As LRMC
notes in its petition, the audit trails it produced are voluminous, comprising a combined, nearly
one thousand pages of information. The word “interpretation” is not vague or unclear in and of
itself. See Interpret, THE AMERICAN HERITAGE DICTIONARY (2nd College ed. 1982). But the
Sheltons use of the word with reference to the entirety of the two audit trails is too broad and vague
to give LRMC “reasonable notice” of the topics upon which its corporate representative can expect
to testify. See TEX. R. CIV. P. 199.2(b)(1); see, e.g., In re Christianson Air Conditioning &
Plumbing, LLC, 639 S.W.3d 671, 680 (Tex. 2022) (“Though deposition topics—by their nature—
may be broader in scope than individual deposition questions or interrogatories, the principle that
discovery requests should not be overbroad nevertheless applies”).
LRMC further argues that the Sheltons previously deposed the two nurses involved with
the care at issue and who have personal knowledge regarding the entries, and, thus, the deposition
topics seek cumulative and duplicative information. As set forth above, the notices at issue are too
broad and vague to give LRMC reasonable notice of the topics upon which its corporate
representative can expect to testify. As a result, this court cannot determine whether topics covered
by other witnesses in prior depositions contain cumulative or duplicative information. Moreover,
LRMC has failed to cite to this court where in the thousands of pages of the mandamus-record it
may confirm the existence of this purportedly cumulative and duplicative testimony. See White
Oak Bend Mun. Util. Dist. v. Robertson, No. 14-00-00155-CV, 2002 WL 245957, at *5 (Tex.
9
An “audit trail” is a security-relevant, chronological record, set of records, and/or destination and source
of records that provide documentary evidence of the sequence of activities that have affected, at any time, a specific
operation, procedure, event, or device. See AUDIT TRAIL, https://en.wikipedia.org/wiki/Audit_trail (last visited Jul. 2,
2024). According to LRMC, the audit trail at issue “identifies who has accessed a patient’s chart.”
14
App.–Houston [14th Dist.] Feb. 21, 2002, pet. denied) (op.) (appellate court not required to sift
through voluminous deposition transcripts in search of evidence to support party’s contentions).
LRMC also argues that, to the extent an audit trail identifies who accessed a patient’s chart,
the document speaks for itself. And to the extent the Sheltons seek further interpretation of the
information, expert testimony would be required. As before, until the scope of discovery is
narrowed by Respondent to give LRMC reasonable notice of the topics upon which its corporate
representative can expect to testify, this court cannot determine whether the topics request
testimony that is redundant of information expressed in the documents or, otherwise, would require
expert testimony.
LRMC next argues that the Sheltons have not pleaded any claims relating to the audit trail
or timing of when entries were made. See In re USAA Gen. Indem. Co., 624 S.W.3d 782, 791
(Tex. 2021) (orig. proceeding). However, the Sheltons’ notice concerns audit trails, which LRMC
already produced. Whether the documents comprising the audit trails are discoverable is not at
issue before this court. Accordingly, we cannot conclude, without more, that the deposition topic
related to documents LRMC already produced in discovery exceeds the bounds of the claim at
issue.
Lastly, LRMC argues that the portion of the topics related to the “location and retrieval” of
the audit trail invades its work-product privilege. As before, there is no indication in the record
that any of LRMC’s attorneys or other applicable representative would be the designated corporate
representative on the topic of the “location and retrieval” of the audit trails. See TEX. R. CIV. P.
192.5(a). There further is no indication that the discovery sought matters related to how LRMC
conducted the process of litigation, as opposed to its research on the facts underlying the case. See
In re Exxon Corp., 208 S.W.3d at 76. And LRMC does not elaborate as to how the location or
methods utilized to retrieve the audit trails constitutes work product. See TEX. R. CIV. P. 192.5(a).
Accordingly, we again conclude that the facts of the instant case are distinguishable from those in
In re Exxon Corp. and to the extent questions on this topic seek to delve into issues of LRMC’s
work product or attorney-client communications, such questions are improper and subject to an
instruction by LRMC’s counsel not to answer. Cf. In re USAA Gen. Indem. Co.,624 S.W.3d at
794.
15
LRMC’s supervision of Nurse Sabrina Giles from May 2019 to January 2020
LRMC first argues that it is unclear what the topic seeks with the term “supervision,” which
it describes as “vague, ambiguous, overbroad, unduly burdensome, lacking specificity, and not
described with reasonable particularity.” See TEX. R. CIV. P. 199.2(b)(1). We disagree. The record
reflects that Giles was employed as a nurse by LRMC and attended to Stephanie during the period
of her labor and delivery. In an employment context, to “supervise” means to “direct and inspect
[or superintend] the performance of” the employee’s performance of her job duties. See Supervise,
THE AMERICAN HERITAGE DICTIONARY (2nd College ed. 1982); see also Nederlandsch-
Amerikaansche - Stoomvaart - Maatschappij; Holland-Am. Line v. Vassallo, 365 S.W.2d 650,
656 (Tex. Civ. App.–Houston 1963, writ ref’d n.r.e.) (“common meaning of ‘supervise’ is ‘to
superintend,’ . . . [which means] ‘To have charge and direction of; to direct the course and oversee
the details; to regulate with authority; to manage; to have or exercise the charge and oversight of;
to oversee with the power of direction; to take care of with authority; to oversee; to overlook’”)
(citing Burrell Eng’g & Constr. Co. v. Grisier, 240 S.W. 899, 900 (Tex. 1922)). We conclude that
the word “supervision” describes the topic on which LRMC’s corporate representative can expect
to testify with reasonable particularity. See TEX. R. CIV. P. 199.2(b)(1).
LRMC further argues that the overbreadth is exacerbated by a lengthy, nine-month time
frame. Specifically, it contends that the supervision of Giles months after 10 the labor and delivery
is improper, beyond the scope of discovery, and neither relevant nor reasonably calculated to lead
to the discovery of admissible evidence. In response, the Sheltons argue that a corporate
representative’s testimony regarding LRMC’s supervision of Giles is crucial to establish its
recently-pleaded claim for negligent supervision. See, e.g., Mackey v. U.P. Enters., 935 S.W.2d
446, 4459 (Tex. App.–Tyler 1996, no writ) (employer has legal duty to use ordinary care in
adequately supervising its employees). They note that Giles testified 11 that she had a prior felony
10
LRMC makes no argument that the nearly six-months of the topic’s timeframe preceding Stephanie’s
admission as a patient to LRMC lends to its overbreadth, and, thus, we do not consider it in conjunction with our
analysis.
11
LRMC contends that because the Sheltons already have procured both Giles’s and her supervising charge
nurse’s testimony, any testimony from a corporate representative would be cumulative. Once again, LRMC failed to
cite to this court where in the thousands of pages of record it may confirm the existence of this purportedly cumulative
and duplicative testimony. See White Oak Bend Mun. Util. Dist. v. Robertson, No. 14-00-00155-CV, 2002 WL
245957, at *5 (Tex. App.–Houston [14th Dist.] Feb. 21, 2002, pet. denied) (op.). Furthermore, it is axiomatic that in
larger organizations like LRMC, an employee likely is supervised by a chain of command with numerous links in that
chain. And it is reasonable to conclude that a corporate representative is in the best position to explain that chain of
16
conviction for illegal distribution of methamphetamine in Wood County, Texas, which required
that she receive permission to sit for her nursing-board examinations, and which resulted in her
having stipulations with which she had to comply during the first two years of her nursing career.
They further point out that Giles refused to answer, on confidentiality grounds, whether she had
any pending complaints filed against her by the Texas Board of Nursing at the time of her
deposition. Lastly, we reviewed a portion of Giles’s deposition testimony, which is subject to the
parties’ agreed motion for protection and labeled “confidential.” Without disclosing the substance
of that testimony, it concerns the latter period of her employment by LRMC and relates to matters
leading up to the end of her employment with LRMC in January 2020. Based on our review of
this testimony, we conclude that it suggests the existence of a pattern of behavior including but not
necessarily limited to the relatively short time-period between September 2019 and January 2020,
related to LRMC’s supervision of Giles which is likely to lead to the discovery of admissible
evidence. In re Nat’l Lloyds Ins. Co., 507 S.W.3d at 223.
Summation
We carefully reviewed the record in light of the deposition topics at issue, in light of
LRMC’s arguments, consideration of the likelihood that the noticed-topics will lead to the
discovery of admissible evidence, and the proportionality of the burden on LRMC’s producing the
information sought compared to the Sheltons’ need for the information. Having done so, and based
on the foregoing, we hold that Respondent did not abuse his discretion in denying LRMC’s motion
to quash and motion for protection as to Topic 7––relating to LRMC’s supervision of Giles while
she was working for LRMC between May 2019 to January 2020––and Topic 8––relating to the
search protocol utilized to collect relevant documents requested for the discovery responses filed
by Longview Regional Medical Center in this case.
However, based on our analysis above, we further hold that Respondent abused his
discretion in denying LRMC’s motion to quash and motion for protection with regard to Topics 3
and 4, related to “interpretation” of audit trails pertaining to Stephanie and R.S. In the context of
the notice, the term “interpretation,” though not vague or unclear in and of itself, as used in the
notice with reference to the entirety of the audit trail, is too broad and vague to give LRMC
“reasonable notice” of the topics upon which its corporate representative can expect to testify.
supervision. See Nederlandsch-Amerikaansche - Stoomvaart - Maatschappij; Holland-Am. Line v. Vassallo, 365
S.W.2d 650, 656 (Tex. Civ. App.–Houston 1963, writ ref’d n.r.e.).
17
Apart from the overbreadth of the term “interpretation,” as used in Notices 3 and 4, Respondent’s
denial of LRMC’s motion to quash and motion for protection did not amount to an abuse of
discretion on these topics.
Lastly, we hold that, as to Respondent’s abuse of discretion regarding Topics 3 and 4,
LRMC does not have an adequate remedy by appeal. See In re Weekley Homes, L.P., 295 S.W.3d
at 322 (mandamus relief available when trial court compels production beyond the permissible
bounds of discovery); see also In re CSX Corp., 124 S.W.3d at 153.
CONCLUSION
Having held that Respondent abused his discretion by denying LRMC’s motion to compel,
by granting the Sheltons’ motion for protection, and by ordering discovery only as to redacted
version of the settlement agreement, Rule 11 agreement, and the draft settlement agreement and,
further, that LRMC does not have an adequate remedy by appeal, we conditionally grant
mandamus relief. We trust that Respondent will promptly vacate his order of February 27, 2024,
denying LRMC’s motion to compel and order of January 29, 2024, granting the Sheltons’ motion
for protection, and enter an order that, in addition to the discovery of settlement documents granted
by letter-orders of February 21, 2024, and February 28, 2024, LRMC is entitled to discover all
portions of the settlement agreement and draft agreement, as well as other admissible evidence
related to settlement negotiations specifically sought by LRMC’s Request No. 11. The writ will
issue only if Respondent fails to comply with this court’s opinion and order within ten days.
Respondent shall furnish this court, within the time for compliance with this court’s opinion and
order, a certified copy of its order evidencing such compliance.
Moreover, having held that Respondent abused his discretion by denying LRMC’s motion
to quash and motion for protection with regard to Topics 3 and 4 because of the overbreadth of the
term “interpretation,” as used, and, further, that LRMC does not have an adequate remedy by
appeal, we conditionally grant mandamus relief. We trust that Respondent will promptly vacate
his order of January 4, 2024, denying LRMC’s motion to quash and motion for protection as to
Topics 3 and 4 only, and enter an order that sets forth the scope of discovery with regard to Topics
3 and 4 in a manner which gives LRMC “reasonable notice” of the topics upon which its corporate
representative can expect to testify with regard to the audit trails referenced in the notice. The writ
will issue only if Respondent fails to comply with this court’s opinion and order within ten days.
18
Respondent shall furnish this court, within the time for compliance with this court’s opinion and
order, a certified copy of its order evidencing such compliance.
Finally, having held that Respondent did not abuse his discretion by denying LRMC’s
motion to quash and motion for protection based on its remaining objections to Topics 3 and 4, as
well as to Topics 7 and 8, we deny the remaining, requested, mandamus relief.
BRIAN HOYLE
Justice
Opinion delivered July 10, 2024.
Panel consisted of Worthen, C.J. and Hoyle, J.,
19
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
ORDER
JULY 10, 2024
NO. 12-24-00068-CV
LONGVIEW MEDICAL CENTER, L.P. D/B/A LONGVIEW REGIONAL MEDICAL
CENTER,
Relator
V.
HON. JUDGE VINCENT DULWEBER,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Longview Medical Center, L.P. d/b/a Longview Regional Medical Center (LRMC); who is the
Relator in appellate cause number 12-24-00068-CV and the Defendant in trial court cause number
2021-1734-CCL2, pending on the docket of the County Court at Law No. 2 of Gregg County,
Texas. Said petition for writ of mandamus having been filed herein on April 1, 2024, and the same
having been duly considered, 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 (1) his order of February 27, 2024, denying LRMC’s motion to compel and order of January
29, 2024, granting the Real Parties in Interests’ motion for protection, and enter an order that, in
addition to the discovery of settlement documents granted by letter-orders of February 21, 2024,
and February 28, 2024, LRMC is entitled to discover all portions of the settlement agreement and
draft agreement, as well as other admissible evidence related to settlement negotiations specifically
sought by LRMC’s Request for Production No. 11; and (2) his order of January 4, 2024, denying
LRMC’s motion to quash and motion for protection as to Topics 3 and 4 only, and enter an order
that sets forth the scope of discovery with regard to Topics 3 and 4 in a manner which gives LRMC
“reasonable notice” of the topics upon which its corporate representative can expect to testify with
regard to the audit trails referenced in the notice consistent with this court’s opinion; the writ will
not issue unless the HONORABLE VINCENT DULWEBER fails to comply with this Court’s
order within ten (10) days from the date of this order. The petition for writ of mandamus is denied
in all other respects.
Panel consisted of Worthen, C.J., and Hoyle, J.