7In an important case of first impression, the Corpus Christi Court of Appeals has granted a conditional writ of mandamus directing a trial court to vacate its order compelling Ford to produce tens of thousands of documents without actual notice of the documents intended for use and opportunity to make authenticity objections as provided by Texas Rule of Civil Procedure 193.7.
In re Ford Motor Company (No. 13-22-00083-CV) arose from a vehicle-pedestrian accident in which plaintiff was struck in a parking lot by a Ford F-250. Plaintiff sued Ford alleging that the truck should have been equipped with a pedestrian detection system. Plaintiff filed a Rule 193.7 notice informing Ford that “any and all documents and materials produced in response to written discovery may be used as evidence in this case,” including “at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating the document and/or materials produced in discovery.” Ford objected that the noticed “constituted a ‘blanket, nonspecific attempt’ to invoke Rule 193.7” and did not provide notice “as contemplated by Rule 193.7.” At the time of Ford’s objection, it had not yet produced any discovery in the case. Ford further stated authenticity objections and requested plaintiff to “specifically identity all documents [she] intends to use at any proceeding to provide Ford actual knowledge that such documents may be used at trial and to allow Ford an opportunity to object as allowed under Rule 193.7.” After a hearing, the trial court granted plaintiff’s motion to compel and ordered Ford to “state which of the documents it admits to the authenticity of and which of the documents it does not, and why, within [thirty] days.” Ford sought mandamus.
The court of appeals conditionally granted mandamus and directed the trial court to vacate its order to compel. The court’s analysis turned solely on the construction of Rule 193.7 as there is no case law regarding the specificity of a Rule 193.7 notice. Proceeding to the plain text of the rule, the court discussed the meaning of the term “actual notice” and concluded that plaintiff’s “preemptive and prophylactic” notice did not comply with the rule. Although the trial court did not have any case authority upon which to base its ruling, the court added, it could still abuse its discretion in misapplying the rule. In response to plaintiff’s argument that specifically identifying documents and materials that “will” be used, as Rule 193.7 provides, would tip off the defendant to its trial strategy, thus violating the work product doctrine, the court compared this case to a criminal proceeding in which it ruled that the state was required to notify the defendant of the specific telephone recordings [out of a list of 1,100 such calls] it intended to use at trial. Simply designating that a particular exhibit will be used at trial “does not infringe on the attorney work product doctrine.”
Finally, the court held that mandamus was appropriate because compelling Ford to review tens of thousands of documents to determine their authenticity “without regard to whether those documents will be used during pretrial hearings or at trial, rather than focusing its efforts on those documents that will actually be used,” would constitute “a waste of time and money, and the burden of the procedure outweighs any putative benefit” (citations omitted).
This is an excellent opinion that provides a straightforward, common sense reading of Rule 193.7. Justices Longoria, Hinojosa, and Silva are to be commended for holding the trial court to both the letter and spirit of the rules.