On Friday TCJL filed an amicus curiae brief requesting that the Texas Supreme Court reconsider a late 1980s decision that opened the door to broad discovery sharing in Texas tort litigation. The case, In re Uber Technologies, Inc. (No. 22-0453), arose from an alleged sexual assault on a passenger in a vehicle drive by a person who had used the Uber app. Plaintiff sought discovery of all reports or complaints of sexual assault involving Uber drivers in Texas for the preceding five years. The trial court denied Uber’s objection to the request and granted Plaintiff’s motion to compel production. The trial court’s order likewise included a provision allowing Plaintiff to share the information with attorneys with similar cases against Uber. The Houston [14th] Court of Appeals denied Uber’s petition for writ of mandamus. Uber now seeks mandamus review from SCOTX.

Uber’s petition urges SCOTX to reconsider its decision in Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987). In an opinion by Justice William Kilgarlin (over a dissent from Chief Justice John Hill), the Court struck down a protective order that prohibited Plaintiff from sharing discovery in a product liability case with other plaintiff’s attorneys. Basing its decision on promoting “efficiency” and “full and fair disclosure,” the Court permitted broad discovery sharing (with some level of protection for confidential trade secrets). Justice Kilgarlin’s analysis, however, is shot through with assumptions about corporate defendants’ “lack of candor” and desire to obfuscate the truth in discovery responses. This language marks the case as part and parcel of the “Justice for Sale” era in which so many of the Court’s opinions evidenced clear and unmistakable bias in favor of plaintiffs.

TCJL’s brief supports Uber’s request that the Court revisit Garcia, particularly in light of the greatly heightened risk of the theft and abuse of confidential data in the digital age. As we state in the brief:

As this Court well knows, by 1987 the tort litigation landscape had undergone such a dramatic transformation in such a short period of time that the Legislature, first in 1987 and again in 1995, felt compelled to respond in the interest of restoring predictability and stability to the law. Beginning in the early 1990s, this Court answered the call as well and ever since then has built a strong and distinguished record of legal scholarship that in no small part has contributed to balancing the scales and making Texas the most attractive state in the country for life and work.

 The Garcia case is a product of the 1980s and the litigation environment of that time. According to Justice Kilgarlin:

  • “The truth about relevant matters is often kept submerged beneath the surface of glossy denials and formal challenges to requests until an opponent unknowingly utters some magic phrase to cause the facts to rise. Courts across the nation have commented on the lack of candor during discovery in complicated litigation.” 734 S.W.2d at 347.
  • “Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses.” Id.
  • “Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another’s discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Discovery costs are no small part of overall trial expense.” Id.

We certainly do not disagree with Justice Kilgarlin that promoting efficiency, avoiding duplication, and reducing costs benefit litigants in particular and the civil justice system in general. We do not deny that, as Justice Kilgarlin suggests, gamesmanship can and does occur in the discovery process, though we take issue with his thinly-veiled characterization of defendant product manufacturers as either disingenuous or discovery abusers interested only in hiding the “truth.”

 But in endorsing broad discovery sharing in the interest of “efficiency” and “full disclosure,” the Garcia court overdid it, using a case alleging a specific product defect in a specific vehicle make and model to announce a sweeping doctrine affecting not only product liability but general civil litigation as well. In fairness to that court, Justice Kilgarlin and the seven others who joined the opinion could not have foreseen the digital revolution in the economy and the reshaping of the discovery landscape that have occurred since Garcia. They had no conception that digital records containing sensitive and confidential personal and business information would be created for myriad purposes and become such a valuable asset that organizations ranging from governments to private businesses would have to spend immense amounts of money just to protect the data.

 These costs are real and substantial, and every disclosure of the information significantly enhances the risk that it will be appropriated and exploited for whatever purpose the appropriator may have. Whereas Justice Kilgarlin at least acknowledges that a business’s confidential and proprietary information should, at least to some extent, be protected from the prying eyes of its competitors, the actual holding of Garcia, in our view, does not even accomplish that, requiring only that the lawyers who got the information to promise they would not share it with “competitors or others who would exploit it for their own economic gain.” 734 S.W.2d at 348. Setting aside who those “others” might be, this approach is at best antiquated and at worst an invitation to use or misuse sensitive and confidential information for purposes that have nothing to do with the litigation for which it was produced.

 Whether Garcia can be preserved in some form or fashion is obviously not for us to decide, but in our mind there can be no doubt that the case is an echo from a bygone era. It is part and parcel of a moment in Texas tort jurisprudence when all bets were off and professors in first-year torts classes learned the new law at the same time as their students. That does not mean that some of the broad policy statements in the opinion are invalid. The question is whether that court’s decision, which has its roots in a mindset and understanding of the world that may no longer be entirely valid, should be reviewed and modified to reflect new realities that shape discovery issues in contemporary litigation. We think it should and that this is the case to do it.

As we recently reported, SCOTX overruled its own precedent in Edward James Mitschke, Jr., Individually and as a Representative of Cody Mitschke, Deceased v. Marida Faiva del Core Borromeo and Blackjack Ranch, L.L.E. (No. 21-0326). In that opinion Justice Young opined that a decision to overrule a binding precedent requires a determination of whether the precedent any longer serves the policy purposes of the rule, which are to promote efficiency, fairness, and legitimacy. In view of the fact that SCOTX has demonstrated interest in revisiting Garcia at least four times (each case settled before oral arguments), we believe that this case gives the Court another opportunity to apply Justice Young’s analysis.

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