In a pair of per curiam opinions, the Texas Supreme Court has granted writs of mandamus compelling a trial judge to deny overbroad discovery requests in cases involving truck accidents.

The first case involves a wrongful-death plaintiff’s request for discovery of the results of all alcohol and drug tests conducted on current and former drivers at UPS’s Irving, Texas facility. The case, In re UPS Ground Freight, Inc. (No. 20-0827), has already been twice to the Tyler Court of Appeals with respect to other aspects of the trial court’s expansive discovery order, with that court issuing mandamus to limit the requests in time and to redact the drivers’ identities drug-and-alcohol test results and collection processes. UPS filed a writ of mandamus with SCOTX when the court of appeals dismissed its mandamus petition upon trial court compliance the second time.

In a brief opinion, the Court held that the plaintiff’s request for discovery of the alcohol and drug tests of all drivers operating from the Irving facility constituted a “fishing expedition” and sought information irrelevant to the plaintiff’s claim about the driver whose marijuana use allegedly caused the accident. Whether any other UPS drivers tested positive or negative “does not make it more or less probable that [the driver] was negligent on that occasion.” Moreover, such records do not tend to prove plaintiff’s “allegations that UPS negligently trained, retained, and entrusted a vehicle to [the driver’ or was grossly negligent in these regards.” With respect to plaintiff’s claim that the discovery requests are relevant to whether UPS has negligently or gross negligently failed to comply with federal regulations in its testing program in general, the Court ruled that the information sought for the Irving facility represents only a small fraction of UPS’s nationwide testing program and has no bearing on UPS’s federal compliance as a whole.

The second case, In re Contract Freighters, Inc., d/b/a CFI, and Randall Scott Folks (No. 21-0134), arose from a rear-end accident in Webb County. The plaintiffs, among other requests, served interrogatories on CFI for any lawsuits against the company arising out of motor vehicle collisions for the preceding 10 years. They also sought to take the deposition of a USDOT representative and requested any documents concerning CFI for the 10 years prior to the date of the accident. The trial court cut the collision-history request from 10 to five years, and the plaintiffs voluntarily reduced the USDOT records request in accordance. CFI still sought to quash the requests as overbroad and seeking irrelevant information, which the trial court denied. The San Antonio Court of Appeals likewise denied relief.

When CFI filed a petition for writ of mandamus from SCOTX and the Court requested a response from plaintiffs, plaintiffs hastily tried to withdraw the collision-history interrogatory and USDOT deposition notice (without informing the trial court or getting the trial court to vacate its order) and asked SCOTX to dismiss CFI’s petition as moot. This stunt did not impress the Court, which commented acidly that “pretrial cannot be conducted one way when appellate courts are looking and another way when they are not” [citations omitted]. Noting that plaintiffs had not provided any “enforceable assurances via a Rule 11 agreement, a binding covenant, or anything else that would provide sufficient certainty that they would not refile the same or similar requests if the Court dismissed CFI’s petition,” the Court held that the dispute was not moot and that its “jurisdiction was secure.”

Proceeding to the merits, SCOTX once again declared the disputed requests, not only as a fishing expedition, but as “an effort to dredge the lake in hopes of finding a fish” [citation omitted]. As a matter of law, the requests for unrelated vehicle-collision lawsuits involving CFI and USDOT records “from all fifty states over a five-year period” were overly broad, and plaintiffs could not show “how a nationwide search over a five-year period reasonably advances their claims against CFI.” Discovery orders must be appropriately limited to “time, place or subject matter,” which was not the case here. The trial court thus abused its discretion.

The fact that the Court issued per curiam opinions without oral argument speaks volumes about its attitude toward overbroad discovery requests in general, and reptile theory-related requests in trucking cases in particular. Perhaps unsurprisingly, the UPS case came from the Rusk County district court and the Goudarzi & Young firm in Gilmer, which has been extremely successful in East Texas trucking litigation over the past several years. The CFI case reflects a different kind of gamesmanship, in which the defendant is forced either to engage in a costly discovery dispute to vindicate its rights in a plaintiff-friendly venue or settle the case without its day in court. Moreover, this business of trying to moot the defendant’s petition at the very last moment without promising not to go right back to the trial court with the same requests is really beyond the pale. In any event, this kind of discovery, which is largely designed to paint the trucking company as greed-driven and indifferent (if not hostile) to safety, is exactly the problem the legislature addressed in HB 19, the trucking litigation reform bill enacted last session. Combined with HB 19, decisions like these will go a long way toward reining in the nuclear verdicts that have already put some shippers out of business and threaten grave harm to the Texas economy.

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