In re UPS Ground Freight, Inc.

646 S.W.3d 828

IN RE UPS GROUND FREIGHT, INC., Relator

No. 20-0827

Supreme Court of Texas.

OPINION DELIVERED: June 17, 2022

Douglas T. Gosda, Houston, for Real Party in Interest Villarreal, Phillip.

Darrell L. Barger, Thomas C. Wright, Houston, James Christian Marrow, for Relator.

Robert B. Dubose, Anna M. Baker, Houston, J. Brent Goudarzi, Gilmer, Clay Wilder, Kevin H. Dubose, Houston, Marty L. Young, Gilmer, for Real Party in Interest McElduff, Jacintha Nicole.

Bradley Thomas Steele, Longview, for Intervenor Clark, Julian.

John Lindsley McCraw, Mckinney, for Real Party in Interest Riddle, Stephanie Nicole.

John Charles Nohinek, Fort Worth, Rosalyn Renee Tippett, for Intervenor Morrison, Cameronn.

Matthew J. Kita, Dallas, M. Keith Dollahite, Tyler, Michael R. Mitchell, Dallas, for Intervenors Trotter, Sean, Trotter, Micah.

PER CURIAM

In this wrongful-death suit, the trial court ordered UPS Ground Freight, Inc. to produce the results of all alcohol and drug tests conducted on all current and former drivers at its Irving, Texas facility for stated time periods preceding a fatal multi-vehicle accident. We conditionally grant mandamus relief because the discovery requests are overbroad in seeking irrelevant information about uninvolved UPS drivers, and UPS has no adequate remedy by appeal.

On September 21, 2017, a UPS driver operating out of the Irving facility was involved in a multi-vehicle collision that resulted in the death of Nathan Dean Clark. Post-accident drug testing for UPS's employee came back positive for THC, but UPS disputes whether any impairment was a causative factor in the accident.

Clark's mother, Jacintha Nicole McElduff, sued the driver, Phillip Villarreal, for negligence and gross negligence and UPS for (1) negligent retention and training of Villarreal; (2) negligent entrustment of a vehicle to Villarreal; and (3) gross negligence. McElduff alleges that Villarreal knowingly drove UPS trucks while under the influence of drugs; UPS knowingly failed to properly drug test Villareal and knowingly allowed him to drive while under the influence of drugs; and UPS knowingly failed to comply with its own policies and federal law, including the failure to properly drug test.

In discovery, UPS produced information about its federally mandated alcohol-and-drug testing program, which is administered by a third-party vendor for a nationwide pool of UPS drivers. UPS also made corporate representatives available for examination about the company's testing process and procedures and produced all of Villarreal's alcohol-and-drug test records, including random drug tests and post-accident testing from the day of the accident. In deposition testimony, Villareal, a 25-year employee, admitted that he had been using marijuana for two to five years before the fatal collision. During that time period, he had been randomly drug tested only one time. Villareal also testified that he had provided marijuana to other drivers in the workplace and identified by name one such driver, who similarly admitted to using marijuana.

To establish a pattern and practice of failing to adequately drug test at the Irving facility over a period of years, McElduff served discovery requests seeking (1) the names, addresses, and telephone numbers of "all Commercial Vehicle drivers who drove Commercial Vehicles" for UPS who were "dispatched out of the [UPS] facility in Irving, Texas" during the 11-year period preceding the accident and (2) "all documentation of all alcohol, drug, and/or controlled-substance tests" for each of those drivers—including pre-employment, random, reasonable-suspicion, periodic, and post-accident testing—without any time restriction. In compelling production, the trial court overruled UPS's objections, which included that the requests were overbroad, sought irrelevant information, sought information protected from disclosure under federal law, and violated constitutional and common-law privacy rights of uninvolved, nonparty drivers.

The court of appeals twice conditionally granted mandamus relief—once in whole and once in part. In the first original proceeding, the court held that the discovery requests were "not appropriately limited in time" and, therefore, overbroad. No. 12-19-00412-CV, 2020 WL 975357, at *4 (Tex. App.—Tyler Feb. 28, 2020, orig. proceeding). The court suggested that current federal-law mandates were "instructive on the question of what constitutes an appropriate time period for discovery" and required employers like UPS "to retain positive drug test results for five years, records related to the controlled substances collection process for two years, and negative drug test results for only one year." Id. at *3. Ruling only on overbreadth, the court expressly declined to address UPS's other objections to production. Id. at *3 n.1.

Back before the trial court, UPS reasserted its objections, but once again, the court compelled production of the same information. This time, however, the court limited the scope of discovery to (1) five years before the accident for names, addresses, and telephone numbers of drivers at the Irving facility; (2) five years for positive alcohol-and-drug test results from those drivers; (3) two years for records pertaining to controlled-substance collection processes; and (4) one year for all negative alcohol-and-drug test results for Irving facility drivers.

In the second mandamus proceeding, UPS challenged the revised discovery order, and the court of appeals conditionally granted mandamus relief in part. The court ruled adversely to UPS on its preemption, relevance, and overbreadth objections but found some merit to its privacy objections, holding that the trial court abused its discretion by compelling production of unredacted records of drug-and-alcohol test results and collection processes. 629 S.W.3d 441, 446-51 (Tex. App.—Tyler 2020). The court concluded that "McElduff has not shown any legitimate right to the identities of the non-party drivers whose test results are to be provided" and required the trial court to protect the identities of the drivers involved by modifying its order to permit production of test results and test-collection...