In re Volt Power, LLC

1

IN RE: VOLT POWER, LLC, RELATOR

No. 12-23-00047-CV

Court of Appeals of Texas, Twelfth District, Tyler

April 5, 2023

ORIGINAL PROCEEDING.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

Greg Neeley, Justice.

Volt Power, LLC filed this original proceeding in which it challenges Respondent's order granting a motion to compel production filed by Real Party in Interest, Quandel Ray Morgan.^[1]We conditionally grant the writ in part.

Background

This case arises out of a vehicular collision wherein Real Party in Interest Jared Shane Henderson, while driving a Volt commercial truck, struck Morgan's vehicle, in which Real Party in Interest Betty Holcomb was a passenger. In 2019 Morgan and Holcomb (collectively RPIs) sued Henderson for negligence and negligence per se and sued Volt for negligent entrustment, negligence, negligent hiring, training supervision, and retention, and respondeat superior. They alleged gross negligence by both Henderson and Volt. Volt does not dispute that Henderson was acting in the course and scope of his employment at the time of the collision.

According to RPIs, Morgan proceeded into the intersection when his light turned green, but Henderson failed to stop at the red light and struck Morgan's vehicle. RPIs state that Henderson claimed that the truck's brakes failed and that Crane Tech Inc. conducted a faulty inspection of the truck's brake system.^[2] Henderson further expressed anger towards Volt personnel responsible for the truck's inspection and maintenance.

RPIs alleged that they sustained serious and substantial injuries as a result of the collision. They allege that Henderson failed to (1) keep a proper lookout while operating the truck, and (2) observe in an intelligent manner factors such as "the general situation present on the roadway," the red light, the rate of speed at which he was driving the truck, the proximity of the truck and Morgan's vehicle, and that Morgan was lawfully entering the intersection. RPIs allege that had Henderson maintained a proper lookout, he would have noticed the red light and stopped the truck; rather, he took no precautionary measures. RPIs maintain that Henderson failed to operate the truck at a safe speed and in a reasonable and prudent manner. Otherwise, Henderson would have been able to stop the truck in sufficient time. Additionally, RPIs allege that Henderson failed to yield the right-of-way and stop at the red light in violation of the transportation code. They pleaded that Henderson had an actual, subjective awareness that driving a large truck on a busy highway while not watching the road, controlling his speed, and/or running a red light created an extreme degree of risk of severe injury, but he proceeded with conscious indifference to the rights, safety, and welfare of others.

RPIs allege that Volt (1) entrusted its truck to an unqualified, incompetent, unfit, and dangerous driver, (2) negligently inspected and maintained the truck, i.e., the brakes were not properly functioning, and (3) negligently hired, trained, retained, and supervised Henderson, as well as those responsible for maintaining and inspecting the truck, including Henderson's supervisor and supervisory personnel. RPIs pleaded that Volt had a subjective awareness that "allowing an unqualified, incompetent and dangerous driver, who had been inadequately trained and supervised in the safe operation of a large, powerful, and dangerous truck, to operate such a truck on the public streets and highways of the State of Texas, posed an extreme degree of risk to members of the public." They further pleaded that Volt had a subjective awareness that "allowing one of its large, powerful, and dangerous trucks - with unmaintained, improperly functioning, and unsafe brakes, combined with a defective braking system - to be operated on the public streets and highways of the State of Texas, posed an extreme degree of risk to members of the public." According to RPIs, Volt proceeded with conscious indifference to the rights, safety, and welfare of others.

On March 13, 2020, Morgan served Volt with a first request for production (set one) that included 110 items. On March 17, Morgan served Volt with a second request for production (set two) that included seventy-five items. Some requests from both sets included subsections. Volt objected to numerous requests in both sets. According to Volt, it produced over 557 pages of documents. On May 17, 2022, Morgan's counsel sent letters to Volt's counsel, in which he complained of Volt's objections and responses to a total of sixty of the requests, including some subsections, from both sets of production. In response to Morgan's request for a privilege log, Volt responded:

The only documentation or information being withheld is information and conversations passed between counsel and Defendant pursuant to the defense of this case, which is being withheld as privileged by the attorney/client privilege and work product privilege, pursuant to rule 193.3(c). As a result, there is no requirement incumbent upon Defendant to specifically identify said documents or information being withheld.

Morgan filed a motion to compel, and subsequently filed a supplemental motion. His motion to compel sought an order instructing Volt to fully respond to the sixty requests identified in his two letters, as well as three additional production requests.

On November 8, Respondent held a hearing on the motions. At the conclusion of the hearing, Respondent overruled Volt's objections and stated the following:

Now, I do not expect you to produce direct communications. And if you've already produced something then that's the answer: "This has already been produced." But, please tell Volt --because I don't ever remember a lawsuit with them, that there's no sanctions today, but if I have to do this again then we'll take them one by one and then there will be sanctions because that's just how I do it.

Respondent signed an order on January 3, 2023, in which he granted Morgan's motions to compel and ordered Volt to produce documents responsive to the sixty-three requests Morgan identified in his two letters and motion to compel, including (1) Requests 9, 10, 16, 18, 19, 23, 30, 31, 34, 37, 38, 39, 44, 59, 60, 61, 62, 65, 66, 66a, 68, 70, 71, 81, 83, 85, 85a, 89, 91, 95, 95a, 98, 108, 109, and 110 from set one; and (2) Requests 4, 8, 12, 15, 16, 18, 21, 23, 27, 29, 31, 34, 34a, 35, 37, 40, 41, 43, 44, 48, 51, 53a, 53d, 54, 64, 64a, 66, and 69 from set two.^[3] The order states, "Volt's assertion of the attorney-client privilege and/or the work product privilege are not overruled - at this juncture - with respect to direct communications between client and its attorney(s)." The order clarified that Volt was not required to produce any such direct communications responsive to the order for which Volt asserted the attorney-client or work product privileges. Respondent also ordered Volt to produce a privilege log.^[4]

Volt filed this original proceeding on February 9. This Court granted Volt's request for a stay of Respondent's January 3 order pending further order of this Court.

Prerequisites to Mandamus

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is not adequate remedy by appeal. See In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in mandamus. Id. The relator has the burden to establish the prerequisites to mandamus. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding). A party will not have an adequate remedy by appeal: (1) when the appellate court would not be able to cure the trial court's discovery error; (2) where the party's ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court's discovery error; and (3) where the trial court disallows discovery and the missing discovery cannot be made a part of the appellate record or the trial court, after proper request, refuses to make it a part of the record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); Walker, 827 S.W.2d at 843.

Abuse of Discretion

Volt argues that Respondent abused his discretion by overruling its objections and ordering Volt to produce documents responsive to requests that are overbroad, not reasonably calculated to lead to the discovery of admissible evidence, and/or seek irrelevant documents.

Applicable Law

It is not the burden of the responding party to tailor a reasonable discovery request for the requesting party. In re Houstonian Campus, L.L.C., 312 S.W.3d 178, 181 (Tex App.- Houston [14th Dist.] 2010, orig. proceeding). Rather the requesting party has the responsibility to narrowly tailor its requests. Id. at 182. Specifically, a discovery request must show a reasonable expectation of obtaining information that will aid the dispute's resolution and must be reasonably tailored to include only matters relevant to the case. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the...