in Re C & J Energy Services, Inc.

NUMBER 13-20-00503-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE C & J ENERGY SERVICES, INC.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides 1
Relator C & J Energy Services, Inc. filed a petition for writ of mandamus seeking
to compel the trial court 2 to vacate its June 24, 2020 discovery order requiring relator to
respond to specified requests for production from the real parties in interest, Jimmy Allen
and Dale Allen. In the underlying case, the Allens sued relator and others for severe
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so,” but “[w]hen granting relief, the court must hand down an opinion as in any other case”);
id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number C-1816-B in the 93rd District Court
of Hidalgo County, Texas, and the respondent is the Honorable Fernando G. Mancias. See id. R. 52.2.
personal injuries sustained by Jimmy when pressurized hydraulic fracturing equipment
failed. Relator asserts generally that the trial court abused its discretion in ordering
overbroad and irrelevant discovery because it is not properly limited “to the type of
accident or issues involved in this case” and is not limited to a proper duration. We
conditionally grant the petition for writ of mandamus in part and deny it in part as stated
below.
I. BACKGROUND
The Allens filed suit against relator and other defendants 3 for personal injuries
sustained by Jimmy, the well-site manager, during a hydraulic fracturing process at a site
known as the GD Houston Well #1 located in the Delaware Basin area of Ward County,
Texas. In the Allens’ second amended petition, they alleged that relator was a “well-
known provider of onshore well construction, well intervention, well completion, and other
oilfield services, including specializing in hydraulic fracturing operations.” On the date of
the incident, the defendants were testing the pressure of the pop-off valve and the
fracturing equipment on a well. The Allens asserted that the defendants failed to properly
secure a pipe nipple to the tubing head in the fracturing stack equipment, and Jimmy
sustained serious injuries to his head, neck, and spine when the pressurized pop-off
assembly failed, blew apart, and parts of the well assembly struck him. The Allens alleged
that the pipe nipple fitting was not adequately tested under high pressure, the pipe nipple
fitting should not have been used for high-pressure hydraulic fracturing operations, the
3The second amended petition reflects that the Allens filed suit against relator, Baker Hughes
Oilfield Operations, LLC, Cameron Technologies Inc., Cameron Technologies US, Inc., Ervin Well Site
Consultants, LLC, FESCO, Ltd., Jaguar Hydrostatic Testing, LLC, Key Energy Services, Inc., Key Energy
Services, LLC, Nitro Fluids, LLC, RWLS, LLC, Schlumberger Technology Corporation, Sunbelt Rentals,
Inc., Sunbelt Rentals Industrial Services, LLC, and Westbrook Manufacturing Company.
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location of the pressure gauge made it impossible to determine the annulus pressure
unless the well was opened, and safety restraints were not properly installed on the swage
assembly. The Allens specifically asserted that relator was negligent in:
a. Failing to properly assemble, install, operate, maintain and inspect
the hydraulic fracturing equipment located at the GD Houston Well
#1 site;
b. Failing to properly fasten and secure the pipe nipple to the connector
of the new tubing head;
c. Failing to adequately test the hydraulic fracturing equipment at the
GD Houston Well #1 site at pressure levels that were likely and
expected to occur during hydraulic fracturing operations;
d. Failing to utilize pipe connections that were proper and suitable for
high-pressure hydraulic fracturing operations;
e. Failing to install and utilize a pressure gauge that allowed personnel
at the GD Houston Well #1 site to actively monitor annulus pressure
levels without having to open the well;
f. Failing to properly prepare, initiate or implement standard safe
operating procedures for the operation of the hydraulic fracturing
equipment at the GD Houston Well #1 site;
g. Failing to inspect the GD Houston Well #1 site, the hydraulic
fracturing equipment, and the rig in order to provide a safe and
proper place for Allen and others to perform their work-related
activities;
h. Failing to adequately and properly supervise its employees and
those employees of others under its supervisory control;
i. Failing to adequately train its employees and those employees of
others under its direction or control as to proper safety procedures
which would have prevented the incident in question from occurring;
and
j. Failing to obtain or have the knowledge, training, and experience
necessary to safely operate the hydraulic fracturing equipment at the
GD Houston Well #1 site.
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They further asserted that relator was negligent in:
a. Failing to properly inspect and install safety restraints on the
fracturing stack of equipment located at the GD Houston Well #1 site;
b. Failing to properly prepare, initiate or implement standard safe
operating procedures for the operation of the fracturing stack of
equipment at the GD Houston Well #1 site;
c. Failing to use reasonable care in testing the fracturing stack of
equipment so as to ascertain whether or not it was in a safe condition
for hydraulic fracturing operations;
d. Failing to adequately and properly supervise its employees and
those employees of others under its supervisory control; and
e. Failing to adequately train its employees and those employees of
others under its direction or control as to proper safety procedures
which would have prevented the incident in question from occurring.
The Allens alleged that all defendants were liable through negligent undertaking and
respondeat superior, that all defendants committed gross negligence, and that Jimmy
sustained an indivisible injury.
During discovery, the Allens propounded the same eighty-four requests for
production to relator and the other defendants. Relator and the Allens disagreed
regarding the scope and relevance of some of the requests for production. Ultimately, the
Allens filed a motion to compel against relator. On June 24, 2020, the trial court granted
the Allens’ motion to compel in part and denied it in part per the order at issue in this
original proceeding. On July 6, 2020, the Allens filed a motion for contempt and for
sanctions against relator and others. They alleged, inter alia, that a third party to the
litigation produced several emails from relator’s employees regarding relator’s
investigation of the incident at issue which relator did not produce in discovery, and that
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relator failed to produce other relevant documentation identified in its own discovery
responses.
This original proceeding ensued immediately prior to the trial court’s hearing on
contempt. Relator and the Allens filed an agreed motion for temporary relief, which this
Court granted, and ordered the date for production under the trial court’s June 24, 2020
order, and all hearings pertaining to that production, to be stayed until ten days after final
disposition in this Court or further ruling of the Court. See TEX. R. APP. P. 52.10. By eight
issues, relator argues that the trial court abused its discretion in ordering it to:
1. Produce all documents relating to any accident resulting in serious
personal injury or death at any well site for the period beginning June
16, 2015 to present;
2. Produce all documents relating to any accident from a failure of a
pressurized component part of a well at any well site for the past 10
years;
3. Produce all documents that discuss safety or operational issues
concerning valves or component parts while under pressure with no
time limit;
4. Produce all engineering documents, drawings, schematics and
models of the equipment, component parts or materials that were in
use at the well where the accident occurred with no time limit;
5. Produce the original petition or other charging document for any
lawsuit, arbitration proceeding, or OSHA proceeding at any wellsite
where an injury or death occurred for 10 years before June 16, 2017;
6. Produce all documents in any lawsuit where [relator] has been a
defendant [and] a person at the well site was injured or died as a
result of failure of a component part of the well that was under
pressure including all deposition transcripts, production, answers to
interrogatories, and pleadings with no time limit;
7. Produce all documents that discuss, refer to, or relate to transcripts
or recordings of all depositions of corporate designees for the time
period beginning June 16, 2015 to present; [and]
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8. Produce all complaint files, letters, or similar documents identifying
or describing same or similar matters as those alleged by [the Allens]
for the preceding 5 years.
This Court requested that the real parties in interest, the Allens, or any others
whose interest would be directly affected by the relief sought, including but not limited to
Baker Hughes Oilfield Operations, LLC, Cameron Technologies Inc. and Cameron
Technologies US, Inc., Ervin Well Site Consultants, LLC, Jaguar Hydrostatic Testing, Inc.,
Key Energy Services, Inc. and Key Energy Services, LLC, Nitro Fluids, LLC, and
Westbrook Manufacturing Company, file a response to the petition for writ of mandamus.
See id. R. 52.2, 52.4, 52.8. The Allens filed a response to the petition through which they
assert that the requests for production are sufficiently specific and narrowly tailored and
seek permissible and relevant discovery.
II. STANDARD OF REVIEW
Mandamus is an extraordinary remedy issued at the discretion of the court. In re
Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam). To obtain relief
by writ of mandamus, a relator must establish that an underlying order is void or is a clear
abuse of discretion and there is no adequate appellate remedy. In re Nationwide Ins. Co.
of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); see In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).
An abuse of discretion occurs when a trial court’s ruling is arbitrary and
unreasonable or is made without regard for guiding legal principles or supporting
evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; Ford Motor Co. v. Garcia,
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363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy
by balancing the benefits of mandamus review against the detriments. In re Essex Ins.
Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am.,
148 S.W.3d at 136.
A discovery order that compels production beyond the rules of procedure is an
abuse of discretion for which mandamus is the proper remedy. In re Nat’l Lloyds Ins. Co.,
449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding); In re Deere & Co., 299 S.W.3d 819,
820 (Tex. 2009) (orig. proceeding) (per curiam); Texaco, Inc. v. Sanderson, 898 S.W.2d
813, 815 (Tex. 1995) (per curiam); see In re Shipman, 540 S.W.3d 562, 565 (Tex. 2018)
(orig. proceeding) (per curiam). “If an appellate court cannot remedy a trial court’s
discovery error, then an adequate appellate remedy does not exist.” In re Dana Corp.,
138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding).
III. DISCOVERY
The scope of discovery is generally within the trial court’s discretion. In re Graco
Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam);
In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam).
“Parties 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)). Thus, our procedural rules
allow the broad discovery of unprivileged information that is “relevant to the subject matter
of the pending action.” TEX. R. CIV. P. 192.3(a); see In re N. Cypress Med. Ctr. Operating
Co., 559 S.W.3d 128, 131 (Tex. 2018) (orig. proceeding); In re Nat’l Lloyds Ins. Co., 449
S.W.3d at 488. It is not a ground for objection “that the information sought will be
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inadmissible at trial if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.” TEX. R. CIV. P. 192.3(a).
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. See TEX. R. EVID. 401. The phrase “relevant to the subject matter”
is to be “liberally construed to allow the litigants to obtain the fullest knowledge of the facts
and issues prior to trial.” Ford Motor Co., 279 S.W.3d at 664; see In re Nat’l Lloyds Ins.
Co., 449 S.W.3d at 488. A request “is not overbroad merely because [it] may call for some
information of doubtful relevance” so long as it is “reasonably tailored to include only
matters relevant to the case.” Texaco, Inc., 898 S.W.2d at 815; see In re Nat’l Lloyds Ins.
Co., 449 S.W.3d at 488; In re Graco Children’s Prods., Inc., 210 S.W.3d at 600. We
evaluate the relevancy of discovery on a case-by-case basis by considering, among other
things, the pleadings and the instrumentality of the alleged injury. In re Sun Coast Res.,
Inc., 562 S.W.3d 138, 146 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding); see
also In re Methodist Primary Care Grp., No. 14-17-00299-CV, 2017 WL 3480292, at *2
(Tex. App.—Houston [14th Dist.] Aug. 14, 2017, orig. proceeding) (mem. op.) (per
curiam).
Nevertheless, a party’s discovery requests must show a reasonable expectation
of obtaining information that will aid in the resolution of the dispute. In re CSX Corp., 124
S.W.3d at 152. A discovery request is “overbroad” when it encompasses “time periods,
products, or activities beyond those at issue in the case” and, therefore, is not “reasonably
tailored to include only relevant matters.” In re Alford Chevrolet–Geo, 997 S.W.2d 173,
180 n.1 (Tex. 1999) (orig. proceeding); see also In re Deere & Co., 299 S.W.3d at 820;
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In re Graco Children’s Prods., 210 S.W.3d at 600; In re Waste Mgmt. of Tex., Inc., 392
S.W.3d 861, 871 (Tex. App.—Texarkana 2013, orig. proceeding). Stated otherwise, “a
discovery request that is unlimited as to time, place, or subject matter is overly broad as
a matter of law.” In re United Fire Lloyds, 578 S.W.3d 572, 580 (Tex. App.—Tyler 2019,
orig. proceeding); see In re Xeller, 6 S.W.3d 618, 626 (Tex. App.—Houston [14th Dist.]
1999, orig. proceeding). An overbroad request is improper regardless of whether it is
burdensome. In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig.
proceeding).
The rules of civil procedure allow the trial court to limit discovery under the following
circumstances:
The discovery methods permitted by these rules should be limited by the
court if it determines, on motion or on its own initiative and reasonable
notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely
benefit, taking into account the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery
in resolving the issues.
TEX. R. CIV. P. 192.4(b); see In re Alford Chevrolet–Geo, 997 S.W.2d at 181. Additionally,
the trial court may make protective orders “in the interest of justice” to protect the movant
from “undue burden, unnecessary expense, harassment, annoyance, or invasion of
personal, constitutional, or property rights” that, among other things, orders that: (1) the
requested discovery not be sought in whole or in part; (2) the extent or subject matter of
discovery be limited; (3) the discovery not be undertaken at the time or place specified;
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(4) the discovery be undertaken only by such method or upon such terms and conditions
or at the time and place directed by the court; or (5) the results of discovery be sealed or
otherwise protected, subject to the provisions of Rule 76a. TEX. R. CIV. P. 192.6(b); In re
United Fire Lloyds, 578 S.W.3d at 578–79. Although a trial court may exercise some
discretion in granting a protective order, such discretion is not without bounds. In re
Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding). The party seeking a
protective order must show particular, specific, and demonstrable injury by facts sufficient
to justify a protective order. Id.IV. ANALYSIS
The specific issues presented in relator’s petition for writ of mandamus are not
supported by citation to the record or to the specific requests for production at issue, and
similarly, relator’s argument and analysis are not structured according to the issues
stated. See TEX. R. APP. P. 52.3(f), (h). However, relator has made clear and concise
arguments for the contentions made in this original proceeding, and we will therefore
analyze the relator’s assertions of error according to the structure of the argument
provided in the petition for writ of mandamus. See id. R. 52(h).
A. Requests for Production Nos. 51 and 67
These requests for production seek discovery about other accidents resulting in
personal injury. These requests for production and corresponding objections are as
follows:
REQUEST FOR PRODUCTION NO. 51:
Produce all documents created, published, distributed or generated in the
two years prior to the Work starting at the Well through present that discuss,
refer or relate to any accidents resulting in serious personal injury or death
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at any other well sites, including without limitation any liability
determinations, reports or databases.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
REQUEST FOR PRODUCTION NO. 67:
Produce all documents that discuss, refer or relate to all instances in which
anyone has been injured in an accident involving any part or Component
Part, including without limitation, a swage or any other part or Component
Part that was pressurized at any wellsite where you had a contract or
workers present during the ten years preceding the Work regardless of
whether anyone working on your behalf was present when the injury or
death occurred.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
The definitions associated with the requests for production define the “Well” as the
“GD Houston Well #1,” and define the “Work” as “any service, maintenance, labor,
construction, operation or anything else done at the GD Houston Well #1 from the period
starting on June 9, 2017 through and including June 28, 2017.” Under the definitions,
“Component Part” means “a uniquely identifiable input, part, piece, assembly or
subassembly, system or subsystem, that (1) is required to complete or finish an activity,
item, or job, (2) performs a distinctive and necessary function in the operation of a system,
or (3) is intended to be included as a part of a finished, packaged, and labeled item.” The
definitions instruct that “Components are usually removable in one piece and are
considered indivisible for a particular purpose or use.” As relevant to relator’s arguments
regarding the foregoing requests for production, the trial court’s order limits request for
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production number 67 to: “only the Original Petition/Complaint, Arbitration Demand,
criminal charging documents or other paper that constitutes the initiation of any
proceeding; this includes all documents that were filed or served on Defendant by OSHA
or any other federal, state or other governmental or regulatory entity that is deemed to
initiate a complaint.”
Relator asserts that these requests “are overly broad and fail to limit discovery to
incidents involving circumstances necessarily relevant to the underlying lawsuit.” In
support of this contention, relator argues that there are many different steps involved in
drilling a well, wells contain multiple component parts, there are various pressurized
stages in the drilling process, and accidents and injuries can occur that are unrelated to
the specific accident involved in the underlying lawsuit. Relator also asserts that request
number 67 is not limited to incidents where it “had anyone present on the site.”
The Allens argue, in contrast, that instances in which relator performed work at a
well site where someone was injured or died “are relevant to [their] ability to establish a
duty of care, liability, and damages.” They contend that “[e]vidence of prior instances in
which [relator] may have been negligent in performing its work—particularly involving any
component part that was pressurized at a wellsite—is also relevant to evaluate the
magnitude of the risks presented in a particular situation and whether [relator] should
have foreseen the possibility of injury” to Jimmy. They assert that this discovery is relevant
in the context of their theory of liability, which includes specific allegations about “the
relationship between negligent pressure management and [relator’s] negligent failure to
inspect well sites, train its employees, and supervise its employees.” They specifically
argue that “[a]ny serious injury or fatality at a wellsite in the two years prior to Jimmy
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Allen’s accident is relevant to the determination of whether [relator’s] training, supervision
and inspection procedures were deficient and whether [relator] had reason to know that
they were deficient.” Finally, they argue that relator has failed to produce responsive
documents pertaining to a well site explosion occurring three months prior to Jimmy’s
injury which resulted in an operator’s skull fracture and head trauma, and which further
resulted in relator taking corrective measures.
The Fourteenth District Court of Appeals recently analyzed the discovery of other
accidents or incidents as follows:
We begin by observing that evidence of other accidents, near accidents, or
related similar events is probative evidence in Texas courts, provided an
adequate predicate is established. See In re HEB Grocery Co., 375 S.W.3d
at 502–03; Henry v. Mrs. Baird’s Bakeries, 475 S.W.2d 288, 294 (Tex. Civ.
App.—Fort Worth 1971, writ ref’d n.r.e.). Insofar as admissibility is
concerned, evidence of similar events need not be identical to the case at
hand, but the circumstances must be reasonably similar. See Mo. Pac. R.
Co. v. Cooper, 563 S.W.2d 233, 236 (Tex. 1978); McEwen v. Wal-Mart
Stores, Inc., 975 S.W.2d 25, 29 (Tex. App.—San Antonio 1998, pet.
denied). Prior to admission of similar events, the plaintiff must first establish
(1) a predicate of similar or reasonably similar conditions; (2) connection of
the conditions in some special way; or (3) that the incidents occurred by
means of the same instrumentality. Id.; Henry, 475 S.W.2d at 294; Columbia
Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411–12 (Tex. App.—
Dallas 2006, pet. denied) (“An unrelated incident may be relevant and
admissible if it and the incident involved in the lawsuit occurred under
reasonably similar circumstances, the two incidents are connected in a
special way, or the incidents occurred by means of the same
instrumentality.”). “‘Reasonably similar’ generally means the same type of
occurrence.” Columbia Medical Center, 198 S.W.3d at 411–12. The degree
of similarity required depends on the issue the evidence is offered to prove.
Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004).
Further, notice of past similar incidents may strengthen a claim that an
incident was foreseeable. See Timberwalk Apartments, Partners, Inc. v.
Cain, 972 S.W.2d 749, 758 (Tex. 1998)[; see] also Brookshire Bros., Inc. v.
Wagnon, 979 S.W.2d 343, 348 (Tex. App.—Tyler 1998, pet. denied)
(evidence of prior injuries from lifting heavy box was relevant to show that
the defendant could have foreseen that the failure to provide necessary
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equipment or to require team lifting might have contributed to plaintiff’s
injury).
In re Sun Coast Res., Inc., 562 S.W.3d at 148. Although the concepts of discovery and
admissibility are necessarily related, we bear in mind that “the scope of discovery is
obviously much broader than the scope of admissible evidence.” In re Exmark Mfg. Co.,
299 S.W.3d 519, 528 (Tex. App.—Corpus Christi–Edinburg–Edinburg 2009, orig.
proceeding [mand. dism’d]). In analyzing the discovery of other accidents or incidents,
“we consider the plaintiff’s claims as plead, the instrumentality of the injury, as well as the
potential relevance of similar conditions at other premises at issue.” In re HEB Grocery
Co., 375 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); see
also In re HEB Grocery Co., No. 13-10-00533-CV, 2010 WL 4523765, at *5 (Tex. App.—
Corpus Christi–Edinburg 2010, orig. proceeding [mand. denied]) (mem. op.) (holding that
a request for search beyond the premises of injury was not overbroad considering
allegations of negligence based upon nationwide policy decisions regarding the provision
and utilization of mechanized electronic carts for customers).
Request number 51 requires the production of “all documents created, published,
distributed or generated in the two years prior to the Work starting at the Well through
present that discuss, refer or relate to any accidents resulting in serious personal injury
or death at any other well sites, including without limitation any liability determinations,
reports or databases.” The Texas Supreme Court has held that evidence of “other
accidents” may be relevant to show whether a product or procedure was unreasonably
dangerous, a warning should have been given, a safer design was available, or a
manufacturer was “consciously indifferent toward accidents in a claim for exemplary
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damages.” Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 138–39 (Tex. 2004). In gross
negligence cases, such as here, the Texas Supreme Court has stated that the “degree of
reprehensibility,” which is the most important factor in determining the reasonableness of
a punitive damages award, is determined, in part, by considering whether “the conduct
involved repeated actions or was an isolated incident.” Horizon Health Corp. v. Acadia
Healthcare Co., 520 S.W.3d 848, 875 (Tex. 2017) (discussing that the existence or
absence of other similar incidents bears upon the question of recidivism). As mentioned
above, we have previously addressed whether the scope of discovery about other
incidents is limited to the location of the incident or extends to a broader geographic region
is determined in light of the pleadings:
[T]he instant case concerns allegations of negligence on the part of HEB
based not only on a premises defect specific to a particular location, or on
employee conduct at a specific location, or on criminal conduct occurring at
a particular location, but on its nation-wide policy decisions regarding the
provision and utilization of mechanized electronic carts for customers . . . .
Moreover, HEB has not presented argument or evidence indicating that the
policies and procedures vary from store to store and, accordingly, has failed
to show that other locations are not relevant. See In re Deere & Co., 299
S.W.3d at 820–21 (holding that it was not error to allow discovery as to
various product lines where manufacturer failed to present evidence
showing that the product lines lacked the assembly at issue, although the
order nevertheless exceeded the scope of permissible discovery by
neglecting to set a reasonable time limit) . . . . Finally, it must be noted that
the petition in this case asserts claims related to an incident involving an
HEB customer riding a motorized vehicle inside an HEB store, and the
discovery request seeks information about prior reports related to HEB
customers riding motorized vehicles inside HEB stores. There is a direct
relationship between the claims at issue and the discovery sought.
In re HEB, 2010 WL 4523765, at *5–6; see In re Walmart, Inc., No. 08-20-00191-CV,
2021 WL 1153033, at *6, __ S.W.3d __, __ (Tex. App.—El Paso Mar. 26, 2021, orig.
proceeding) (stating that, with regard to other similar incidents, “the scope of discovery is
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dictated by the pleadings in the case”); see also In re Methodist Primary Care Grp., 2017
WL 3480292, at *2 (“Courts measure the scope of discovery by the live pleadings
regarding the pending claims.”); In re Booth, No. 14-14-00637-CV, 2014 WL 5796726, at
*2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2014, orig. proceeding) (mem. op.) (per
curiam) (denying mandamus relief regarding the scope of discovery after reviewing the
pleadings); In re Citizens Supporting Metro Solutions, Inc., No. 14-07-00190-CV, 2007
WL 4277850, at *3 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, orig. proceeding
[mand. denied]) (mem. op.) (“The scope of discovery is measured by the live pleadings
regarding the pending claims.”).
In this case, the Allens’ pleadings raise allegations regarding relator’s alleged
negligence based not only on its actions specific to the GD Houston #1 well site, but also
on its global safety practices and policies regarding relator’s alleged failure to “adequately
train its employees and those employees of others under its direction or control as to
proper safety procedures which would have prevented the incident in question from
occurring,” and “to obtain or have the knowledge, training, and experience necessary to
safely operate the hydraulic fracturing equipment at the GD Houston Well #1 site.” Relator
has not presented argument or evidence indicating that its safety training, policies, and
procedures vary from location to location, and, accordingly, has failed to show that other
locations are not relevant. See In re Deere & Co., 299 S.W.3d at 820–21. There is a direct
relationship between the claims at issue, which include claims for gross negligence, and
the discovery sought. Accordingly, we reject relator’s contentions that this request is
otherwise overbroad.
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Request number 67 requires the production of “all documents that discuss, refer
or relate to all instances in which anyone has been injured in an accident involving any
part or Component Part, including without limitation, a swage or any other part or
Component Part that was pressurized at any wellsite where you had a contract or workers
present during the ten years preceding the Work regardless of whether anyone working
on your behalf was present when the injury or death occurred.” In contrast to the foregoing
request number 51, request number 67 has a broader time frame—ten years instead of
two—but is narrower in scope by virtue of the limitation to incidents of injury or death
resulting from pressurized component parts. This limitation has a direct bearing on the
gross negligence claim in the Allens’ pleadings because a defendant may be directly
liable for punitive damages related to a breach of “the non-delegable duty . . . to furnish
safe machinery and instrumentalities.” Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923–
24 (Tex. 1981); see also Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 199 (Tex. 2015)
(“It is well established that an employer has certain nondelegable and continuous duties
to his employees,” including “the duty to furnish reasonably safe instrumentalities with
which employees are to work.”); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 926 (Tex.
App.—Houston [1st Dist.] 1988, no writ) (“Texas law provides that an award for punitive
damages against a corporate defendant” may be proper where the defendant “violated
the non-delegable duty of providing safe machinery or instrumentalities”); Delta Drilling
Co. v. Cruz, 707 S.W.2d 660, 666 (Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d
n.r.e.) (affirming a gross negligence finding and punitive damage award and noting the
“non-delegable duty . . . to furnish safe machinery and instrumentalities”).
17
Evidence of other incidents of injury or death resulting from the pressurized
component parts at relator’s well site is relevant to the alleged hazards and danger of
relator’s work, and relator’s alleged knowledge of a danger, notice of a problem, or
conscious indifference toward accidents. See Nissan Motor Co., 145 S.W.3d at 138–41.
Moreover, there is “nothing too broad as a matter of law about all discovery orders
covering ten years” and “there is simply not sufficient evidence in the record for us to
second-guess the scope of the trial court’s discovery order.” In re Exmark, 299 S.W.3d at
531. Accordingly, we reject relator’s contentions otherwise.
B. Requests for Production Nos. 52 and 53
These requests for production seek documents regarding issues with the
component parts of a well:
REQUEST FOR PRODUCTION NO. 52:
Produce all documents that discuss, refer or relate to any issue of any kind
with any valve or any part or Component Part of a well that was operating
under pressure, including without limitation documents that discuss, refer or
relate to any of the safety issues concerning valves, safety issues
concerning pressurized parts or Component Parts, safety or operational
issues concerning failures of any part or Component Part, and/or safety or
operational failures of any part or Component Part.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
REQUEST FOR PRODUCTION NO. 53:
Produce all documents that discuss, refer or relate to of the Well, including
without limitation documents that discuss, refer or relate to any of the safety
issues concerning valves, safety issues concerning pressurized parts or
Component Parts, safety or operational issues concerning failures of any
part or Component Part, and/or safety or operational failures of any part or
Component Part.
18
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
Relator argues that these requests for production are overly broad as a matter of
law because they do not limit discovery to a reasonable time. It also asserts that these
requests are not limited in scope because they seek documents that discuss “any issue
of any kind” concerning “any valve or any part or Component Part” of a well. It argues that
these requests cover products that are not relevant to the case, and under supreme court
authority, such requests are overbroad. The Allens assert that these requests seek to
identify any safety issues or mechanical failures that involve any component part of a well
and are “unquestionably” relevant to the subject matter of this case.
We first address relator’s contentions that these discovery requests are overly
broad because they do not limit discovery to a reasonable period. In this regard,
“[d]iscovery orders requiring production from an unreasonably long period period . . . are
impermissibly overbroad.” In re CSX Corp., 124 S.W.3d at 152.
The Allens assert that relator “falsely” contends that request for production number
52 has no time limitation. They argue that they “agreed in a Rule 191 letter to limit the
time duration of Request No. 52 to five years prior to the incident in question.” See TEX.
R. CIV. P. 191. In a supplemental record, the Allens provide the letter in which they
“agreed to limit the time duration to five years prior to the incident in question.” The Allens
further assert that request for production number 53 is limited in duration insofar as it
focuses on the specific well at issue in this case, the GD Houston #1 well site, which
operated only between the dates of June 9 and June 29, 2017.
19
We note that neither requests for production numbers 52 and 53 nor the trial court’s
discovery order regarding these requests contain any temporal limitations. The record
does not reflect whether the proposed five-year time limitation for number 52 was
discussed by the parties or was rejected by the trial court. Similarly, while the Allens assert
that request number 53 is limited in scope because the well at issue only operated for a
finite period, they merely support this proposition with the assertion that the definitions for
the discovery at issue provide that the “Work” shall mean “any service, maintenance,
labor, construction, operation or anything else done at the GD Houston Well #1 from the
period starting on June 9, 2017 through and including June 28, 2017.” However, request
number 53 does not reference “work” and the Allens’ suggested limitation is not otherwise
supported by the record. Under these circumstances, we focus our review on the order
at issue.
As ordered by the trial court, requests for production numbers 52 and 53 do not
contain any temporal limitations. See In re Ford Motor Co., 427 S.W.3d 396, 397 (Tex.
2014) (orig. proceeding) (per curiam) (concluding that a discovery request for “financial
and business information for all cases . . . for a period covering twelve years” was “just
the type of overbroad discovery the rules are intended to prevent”); K Mart Corp. v.
Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (orig. proceeding) (per curiam) (holding
that a request regarding documentation for every criminal act that occurred on the
defendant’s premises for the last seven years was overbroad); Dillard Dep’t Stores, Inc.
v. Hall, 909 S.W.2d 491, 491–92 (Tex. 1995) (orig. proceeding) (per curiam) (holding that
a request for every false imprisonment case in the last five years throughout twenty states
was overbroad); Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex.1983)
20
(reversing a discovery order without temporal limit and ordering that “[d]iscovery should
be limited to records of trucks for model years 1949 through 1972”); In re Exmark, 299
S.W.3d at 531 (“While a discovery order that covered a ten-year period might be too broad
under some circumstances, there is certainly nothing too broad as a matter of law about
all discovery orders covering ten years.”). We conclude that requests for production 52
and 53 are overbroad insofar as they contain no temporal limitation. See In re Ford Motor
Co., 427 S.W.3d at 397; K Mart Corp., 937 S.W.2d at 431; Dillard Dep’t Stores, Inc., 909
S.W.2d at 491–92; see also In re Bilfinger Westcon, Inc., No. 13-19-00466-CV, 2019 WL
6795870, at *7–8 (Tex. App.—Corpus Christi–Edinburg Dec. 12, 2019, orig. proceeding
[mand. denied]) (mem. op.).
Relator further argues that these requests cover products that are not relevant to
the case, and under supreme court authority, such requests are overbroad. It is
abundantly clear that the product subject to discovery need not be the exact same product
as that involved in the instant dispute. For example, whether discovery is overbroad in a
products liability case depends on whether the order covers products relevant to the case
and is reasonable in its scope. See In re Deere & Co., 299 S.W.3d at 820; In re Graco
Children’s Prods., Inc., 210 S.W.3d at 600–01; In re Exmark Mfg. Co., 299 S.W.3d at 528.
Request number 52 seeks “all documents that discuss, refer or relate to any issue
of any kind with any valve or any part or Component Part of a well that was operating
under pressure, including without limitation documents that discuss, refer or relate to any
of the safety issues concerning valves, safety issues concerning pressurized parts or
Component Parts, safety or operational issues concerning failures of any part or
Component Part, and/or safety or operational failures of any part or Component Part.”
21
This request is limited in scope to component parts of a well operating under pressure,
which, based on the Allens’ pleadings, is relevant to the claims made regarding the
accident at issue in this case. See In re Sun Coast Res., Inc., 562 S.W.3d at 146; see
also In re Methodist Primary Care Grp., 2017 WL 3480292, at *2. We conclude that this
request was not overbroad in subject.
Request number 53 encompasses “any issue of any kind with any valve or any
part or Component Part” of the specific well at issue in this case. We conclude that
discovery regarding issues with the specific well that caused Jimmy’s alleged injuries is
both relevant and discoverable. See In re Sun Coast Res., Inc., 562 S.W.3d at 146; see
also In re Methodist Primary Care Grp., 2017 WL 3480292, at *2.
C. Request for Production No. 59
This request for production seeks engineering and schematics for the GD Houston
Well #1:
REQUEST FOR PRODUCTION NO. 59:
Produce all engineering documents, drawings, diagrams, schematics and
models of the equipment, Component Parts or materials that were in use at
the Well during the Work.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
Relator first asserts that this request for production is overly broad as a matter of
law because it does not limit discovery to a reasonable time. It argues that the
“engineering drawings and schematics of equipment, component parts, and material can
go back decades depending on the particular part or material.” However, the request
22
limits the requests to those documents “that were in use at the Well during the Work.” As
stated previously, both the “Well” and “Work” are defined terms that limit the scope of the
request. The request is thus patently limited to the relevant time.
Relator further contends that this request is overbroad because “it seeks
information on parts, material, and equipment that were not involved in the underlying suit
“and over which this [relator] had no control.” “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.” In re
CSX Corp., 124 S.W.3d at 153. The request encompasses “equipment, Component Parts
or materials” that were in use at the well during the work, but is not limited to the
equipment, component parts, or materials that were in use when Allen was injured, and
thus includes discovery of dubious relevance to this case. We are confident that this
request can be more narrowly drawn. We conclude that this request is overbroad.
D. Requests for Production Nos. 68, 70, and 76
Requests for production numbers 68, 70, and 76 involve other claims or lawsuits.
These requests and correlating objections provide:
REQUEST FOR PRODUCTION NO. 68:
Produce all documents produced in any lawsuit in which you have been a
defendant in all cases in which a Person working at any wellsite where you
had a contract or workers present was injured or died as a result of the
failure of a part or Component Part of the well that was under pressure,
including without limitation all deposition transcripts, document productions,
interrogatory answers, responses to document requests, responses to
requests for admission and pleadings.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
23
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
REQUEST FOR PRODUCTION NO. 70:
Produce all documents that discuss, refer or relate to transcripts or
recordings of all depositions of your corporate designees for the period
beginning two years before the Work at the Well through the present,
including without limitation, the transcripts or recordings themselves.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
REQUEST FOR PRODUCTION NO. 76:
Produce all complaint files, letters, or other similar documents identifying or
describing the same or similar matters as those alleged by the Plaintiffs in
this cause of action against you for the period from the preceding five (5)
years to the present, that are in your possession, custody or control, as
provided by the Texas Rules of Civil Procedure.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
Relator asserts that request for production number 68 is overly broad as a matter
of law because it does not limit discovery to a reasonable time period, because failure of
any part or component part of a well does not establish that a prior lawsuit is factually
similar to the failure in the case at bar, and because a party may not be forced to produce
documents in a lawsuit just because the party produced the documents in an entirely
different lawsuit. The Allens assert that it is limited to similar allegations as in this case,
that is, litigation concerning a failure of a part under pressure, and further argue that there
is “a natural 23-year time limitation on this request because [relator] has only been in
operation since 1997.”
24
Request for production number 68 is not limited in time. Accordingly, we conclude
that it is overbroad insofar as it contains no temporal limitation. See In re Ford Motor Co.,
427 S.W.3d at 397; K Mart Corp., 937 S.W.2d at 431; Dillard Dep’t Stores, Inc., 909
S.W.2d at 491–92; see also In re Bilfinger Westcon, Inc., 2019 WL 6795870, at *7–8.
In terms of its alleged overbreadth, it seeks “all documents produced in any lawsuit
in which you have been a defendant in all cases in which a Person working at any wellsite
where you had a contract or workers present was injured or died as a result of the failure
of a part or Component Part of the well that was under pressure.” This request is relevant
and reasonably calculated to lead to the discovery of admissible evidence insofar as it
seeks data pertaining to relator’s knowledge of the existence of previous accidents and
whether such accidents occurred under conditions like those alleged here involving the
failure of a pressurized part of the well. See Nissan Motor Co., 145 S.W.3d at 139–40
(discussing the admissibility of third-party complaints regarding the occurrence of
accidents).
Relator asserts that request for production number 70 is overly broad because it
seeks depositions in cases that are not factually similar to the case at bar. The Allens
assert that request number 70 seeks documents which “can reasonably be expected to
shed light on [relator’s] allocation of responsibility for supervision and training, questions
that are at issue in [their] case.” However, this request for production is not limited to
safety, training, supervision, or issues regarding personal injury and death. Significantly,
Texaco Inc. v. Sanderson confirmed that the “plaintiffs are entitled to discover evidence
of defendants’ safety policies and practices as they relate to the circumstances involved
in their allegations,” but they were not entitled to all documents “on the subject of safety,
25
without limitation as to time, place or subject matter.” 898 S.W.2d at 815. Accordingly, the
request includes depositions regarding other matters that would have nothing to do with
the Allens’ claims. We conclude that this request is overbroad.
And finally, relator asserts that request for production number 76 is overbroad and
vague because it would require relator to “peruse all evidence it might have.” The Allens
assert that request number 76 is limited to a specific kind of document that identifies a
particular subject matter by reference to their own allegations. This request seeks the
production of “all complaint files, letters, or other similar documents identifying or
describing the same or similar matters as those alleged by the Plaintiffs.” These requests
seek specific categories of documents pertaining to other incidents that occurred under
“reasonably similar circumstances” or “by means of the same instrumentality” as alleged
here. See In re Sun Coast Res., Inc., 562 S.W.3d at 148; In re HEB Grocery Co., 375
S.W.3d at 504; Columbia Med. Ctr. Subsidiary, L.P., 198 S.W.3d at 411–12; see also In
re Houstonian Campus, L.L.C., 312 S.W.3d 178, 183 (Tex. App.—Houston [14th Dist.]
2010, orig. proceeding [mand. denied]). We conclude that this request is not overbroad.
E. Request for Production No. 75
Request for production number 75 seeks investigative studies regarding avoiding
injuries in the workplace:
REQUEST FOR PRODUCTION NO. 75:
Produce any and all studies or investigations made by you, or at your
request and/or on your behalf in any way related to the means or methods
to avoid, minimize, eliminate or lessen the risk of problems or injuries
stemming from workplace incidents.
OBJECTIONS: Defendant objects that this Request is overly broad, unduly
burdensome, and seeks information that is neither relevant to any issue in
26
this lawsuit nor reasonably calculated to lead to the discovery of admissible
evidence.
The trial court’s order limited this request “to a period of 5 years prior to the date
of the injury and is further limited to well sites where Defendant performed work.” Relator
concedes that the trial court’s order limits the scope of this request to a five-year period,
however relator asserts that request for production number 75 remains overbroad and
vague insofar as it requests “any and all studies or investigations made” to avoid
workplace incidents. The Allens contend that these limitations render this request specific
and not overly broad. We agree and reject relator’s contentions otherwise. The Allens’
pleadings specifically allege that relator was negligent in failing to properly prepare,
initiate or implement standard safe operating procedures for the operation of the hydraulic
fracturing equipment at the GD Houston Well #1 site, and failing to adequately train its
employees and those employees of others under its direction or control as to proper safety
procedures which would have prevented the incident in question from occurring. We
reject relator’s argument otherwise.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that the petition for writ of
mandamus should be granted in part and denied in part. Accordingly, we lift the stay
previously imposed in this case. See TEX. R. APP. P. 52.10(b) (“Unless vacated or
modified, an order granting temporary relief is effective until the case is finally decided.”).
We grant the petition for writ of mandamus as to requests for production numbers 52, 53,
and 68 regarding their temporal scope, and as to requests for production 59 and 70 as
27
specifically discussed herein. We deny the petition for writ of mandamus as to requests
for production numbers 51, 67, 76, and 75, and all other relief sought. We direct the trial
court to vacate its discovery order as specified and to proceed in accordance with this
memorandum opinion. We are confident the trial court will comply, and our writ will issue
only if it does not.
GINA M. BENAVIDES
Justice
Delivered and filed on the
4th day of May, 2021.
28