SHARON McCALLY, Justice.
On April 16, 2012, relator HEB Grocery Company filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App. P. 52. In the petition, HEB asks this court to compel the Honorable Josefina M. Rendon, presiding judge of the 165th District Court of Harris County to vacate her April 4, 2012 order granting real party in interest's motion to compel discovery. We conditionally grant partial mandamus relief.
Real-party-in-interest Rebecca Lara slipped and fell in an HEB grocery store. Lara sued HEB alleging negligence in failing to (1) maintain the premises, (2) correct the unreasonably dangerous condition, (3) warn invitees of the dangerous condition, (4) properly inspect the premises, (5) properly train employees regarding the proper manner to make the premises reasonably safe, (6) implement and enforce policies, rules and procedures to make the premises reasonably safe, and (7) supervise
Lara sought discovery including information concerning: (A) incidents involving premises conditions at all Houston, Texas HEB stores; (B) incidents involving premises conditions at the HEB store at issue; and (C) certain HEB employee and training files.
The trial court's order compelling HEB to respond to most of the discovery at issue is the subject of this petition for writ of mandamus. More specifically, HEB urges that the discovery to which it is compelled to respond is beyond the scope of permissible discovery in this premises liability case.
Mandamus relief is appropriate only if a trial court abuses its discretion and no adequate appellate remedy exists. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003). The heavy burden of establishing an abuse of discretion and an inadequate appellate remedy is on the party resisting discovery. Id. The scope of discovery is largely within the trial court's discretion. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998). Texas Rule of Civil Procedure 192.3 permits a party to "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 party seeking discovery or the claim or defense of any other party." Tex.R. Civ. P. 192.3.
An order that compels overly broad discovery is an abuse of discretion for which mandamus is the appropriate remedy. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995). Because discovery is limited to matters that are relevant to the case, requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible "fishing expeditions." See CSX Corp., 124 S.W.3d at 152; Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995). Requests for production must be "reasonably tailored to include only matters relevant to the case." In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998). Discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad. See CSX Corp., 124 S.W.3d at 152.
Generally, the scope of discovery includes any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information is reasonably calculated to lead to the discovery of admissible evidence. Tex.R. Civ. P. 192.3; CSX Corp., 124 S.W.3d at 152. Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. Tex.R. Evid. 401. The phrase "relevant to the subject matter" is to be "liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues prior to trial." Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex.2009).
To recover damages in a slip-and-fall case, a plaintiff must prove the following: (1) the owner/operator had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator's failure to use reasonable care proximately caused
During the course of discovery, Lara served HEB with interrogatories and requests for production. The following requests, objections, and rulings are relevant to this proceeding:
HEB objected to the subject discovery on the grounds that the requests were overbroad.
The trial court ordered HEB to produce the documents requested by No. 3 and No. 4 for two years, rather than four. The trial court also ordered HEB to produce the requested information as to all HEB stores in Houston, Texas.
By this petition for writ of mandamus on Requests No. 3 and No. 4, HEB urges that (1) incidents at other HEB stores are "irrelevant to Lara's premises liability claim"; (2) the order compelling production fails to tailor the requests to "information regarding incidents similar to Lara's fall"; and (3) the trial court's order is unduly burdensome. However, as HEB failed to object to the subject discovery on the basis that it was burdensome, it waived the objection in the trial court. See Tex.R. Civ. P. 193.2(a). The failure of the trial court to sustain an objection not made could not provide a basis for mandamus relief.
Lara contends discovery of incidents from other stores is necessary to show that HEB "had actual or constructive knowledge of some condition on the premises
Texas courts often characterize premises liability discovery that is not limited to the specific premises at issue as overbroad. See e.g. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (holding that a request for a 227 store search in twenty states over a five-year period was overly broad); see also K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (holding that a request for all criminal activity on all K Mart property over last seven years was overly broad). Yet, we cannot say that there is a bright-line limitation for all premises liability causes. Moreover, we find no precedent for holding that a premises-liability discovery request cannot be overly broad solely because the respondent fails to argue that it also imposes an undue burden. A discovery request may be overly broad as a matter of law. See, e.g. Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d at 492. Stated differently, just because you don't catch a lot of fish doesn't mean you didn't go fishing.
Instead, we analyze overbreadth standing alone and bearing in mind the scope of evidence that may be probative in such cases. For purposes of the analysis of other HEB stores, we note that events at the other HEB stores would be admissible if the "`earlier accidents occurred under reasonably similar but not necessarily identical circumstances.'" McEwen v. Wal-Mart Stores, 975 S.W.2d 25, 29 (Tex. App.-San Antonio 1998, pet. denied) (quoting Missouri Pac. RR. Co. v. Cooper, 563 S.W.3d 233, 236 (Tex. 1978)). Thus, for the broader discovery question, we consider the plaintiff's claims as plead, the instrumentality of the injury, as well as the potential relevance of similar conditions at other premises at issue. See, e.g. K Mart Corp. v. Sanderson, 937 S.W.2d at 431 (holding a discovery request that encompasses time periods, products, or activities beyond those at issue in the case to be overly broad); see also Fethkenher v. Kroger Co., 139 S.W.3d 24, 30 (Tex.App.-Fort Worth 2004, no pet) (holding that a request for a search of previous incidents pertaining to automatic door malfunctions at all 188 stores in southwest region was overly broad); see also In re HEB Grocery Co., L.P., 2010 WL 4523765 (Tex.App.-Corpus Christi 2010) (orig. proceeding) (holding that a request for search beyond the premises of injury was not overbroad in light of allegations of negligence based upon nationwide policy decisions regarding the provision and utilization of mechanized electronic carts for customers).
Here, Lara's allegations are specific to the premises at issue. Thus, the requests for discovery at other HEB stores is more akin to the discovery in Dillard Dep't Stores and K Mart Corp., in which the incidents from other stores would not lead to relevant evidence of the HEB owner/operator's actual or constructive knowledge of a condition on the premises that posed an unreasonable risk of harm.
We conclude that Lara's discovery requests for information relating to incidents at all 23 HEB stores in Houston are overbroad. Therefore, the trial court abused its discretion in ordering HEB to produce:
Request No. 3 is limited to witnesses statements about "slip and fall incidents caused by a liquid substance" on the floor of HEB's premises. Request No. 4 is limited to accident reports about "slip and falls, trips and falls or other incidents" by any individual including an employee.
Evidence of similar events is admissible if the "earlier accidents occurred under reasonably similar but not necessarily identical circumstances." Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978) (emphasis supplied). The predicate a plaintiff must establish for admission of such events is (1) similar or reasonably similar conditions; (2) connection of the conditions in some special way; or (3) that the incidents occurred by means of the same instrumentality. Henry v. Mrs. Baird's Bakeries, Inc., 475 S.W.2d 288, 294 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.) (holding that the trial court properly admitted evidence of prior slip-and-fall at same location on a sidewalk where a slippery substance was dripping from a downspout); see also McEwen v. Wal-Mart Stores, 975 S.W.2d at 29 (holding that trip over a folded floor mat at the front door was sufficiently similar to an injury caused by a wind-blown floor mat that knocked a patron down that exclusion of evidence was reversible error); see also Klorer v. Block, 717 S.W.2d 754 (Tex.App.San Antonio 1986, writ ref'd n.r.e.).
HEB asserts the request could be more narrowly tailored to include only information concerning slip-and-fall accidents involving a similar condition at the time Lara fell. HEB's complaint is certainly well-founded as to accident or incident reports regarding "other incidents." Such a request will necessarily implicate every accident or incident report in HEB's possession. However, we cannot say that HEB has met its heavy burden to show that the trial court clearly abused its discretion in ordering reports regarding slip-and-falls or trip-and-falls or statements regarding slip-and-falls arising from liquid substances on the floor, both for a two-year period. Although the majority of Lara's allegations pertain to the "slippery condition" of the premises, Lara does urge negligence in policies and procedures for training, inspecting, and making the premises safe. Thus, incidents of debris on the floor that presents a tripping hazard would lead to relevant information on this ground for relief just as incidents of liquid substances left on the floor. Therefore, the trial court did not abuse its discretion in ordering production as to Request No. 3.
We conclude that Lara's discovery request for accident and/or incident reports regarding ... other incidents ..." is overbroad. Therefore, the trial court abused its discretion in ordering HEB to produce this data in response to Second Request for Production No. 4.
HEB objected to the subject discovery on the grounds that the requests were overbroad.
The trial court ordered HEB to respond to Interrogatory 9 exactly as it was written. The trial court ordered HEB to produce the documents requested by No. 6 covering a time period beginning on March 15, 2006, rather than January 1, 2005. The trial court ordered HEB to produce the documents requested by No. 11 covering a time period beginning on March 15, 2007, rather than January 1, 2005.
By this petition for writ of mandamus on Interrogatory 9 and Requests No. 6 and 11, HEB urges that the order compelling production fails to tailor the requests to "slip and falls involving the same condition" that allegedly caused Lara's fall, a condition caused by the same instrumentality, or even similar conditions in the same area of the store.
For the reasons outlined in connection with Second Request for Production No. 3 and No. 4, we determine that Interrogatory No. 9, which seeks information about injuries related to any premises condition is overbroad because it is not reasonably calculated to obtain similar events needed to prove the allegations in Lara's pleading. Because Request No. 6 seeks information on slip-and-falls caused by a liquid substance, it is narrowly tailored to obtain relevant information. Request No. 11 is flawed in the regard identified above in that it seeks accident/incident reports about "other incidents." However, HEB has not met its burden to show that accident or incident reports about slip-and-falls or trip-and-falls in the subject HEB store for a five-year period is not calculated to lead to the discovery of information relevant to HEB's policies and procedures on keeping the floor of its premises in a reasonably safe condition.
HEB objected to the subject discovery on the grounds that the requests were overbroad, not limited in reasonable time, scope, and subject matter, and not reasonably calculated to lead to the discovery of admissible evidence. HEB also urged privacy objections pertaining to its employees. HEB produced a work detail report, which identified all employees that were at the store at the time of Lara's fall.
The trial court did not order HEB to produce the manager's entire employment file, as requested in No. 27. Rather, the court ordered HEB to "a copy of the job application, all documents showing safety-related training, job performance evaluations, reprimands or records of any disciplinary actions from the employment file" for the manager on duty at the time of the incident; further the court narrowed the scope slightly to include only March 15, 2007 to March 15, 2012. For No. 29, the trial court also ordered HEB to produce "a copy of job application, all documents showing safety-related training, job performance evaluations, reprimands or records of any disciplinary actions from the employment file
HEB agrees that "with regard to employees who were on duty and charged with maintenance of the area where Lara fell, or employees who might have seen the substance on the floor beforehand, information regarding safety training might have some limited relevance to whether HEB failed to exercise ordinary care, assuming a duty arose at all."
HEB objects to production of job applications for its managerial employees, and safety training records for all employees "present at the time of the incident made the basis of this suit." Lara responds that HEB is only required to produce the job application of the manager in charge at the time of the incident if the job application was filed within the previous five years. Lara argues this time limit "recognizes that the employment history of a new hire may lead to the discovery of admissible evidence." Lara further argues that "floor safety training" from employee files of those employees present at the time of the incident could lead to admissible evidence regarding recognition of safety hazards.
In her petition, Lara alleged that HEB was negligent in, among other things, "failing
With regard to the production of copies of "certificates of attendance, regarding any training, school, examination or other similar instruction in cleaning or maintenance or safety of your floors" for every employee present at the time of Lara's fall, HEB has failed to establish that the discovery is overbroad.
During the hearing in the trial court Lara argued that every employee in the store had to warn of the danger, or clean up the liquid if they happened to see it on the day Lara fell. HEB concedes that the discovery is relevant to employees who were on duty and charged with maintenance of the area where Lara fell or employees who might have seen the substance on the floor before Lara's fall.
Thus, the trial court could have reasonably concluded that floor safety training records of managers, maintenance partners, and partners who were working in the area where Lara fell could lead to relevant, admissible evidence to support this pleading. We conclude, however, that the trial court's order to produce such documents pertaining to any other HEB employee present at the time of the incident is overbroad.
For the foregoing reasons, we conditionally grant partial mandamus relief as follows:
We are confident the trial court will act in accordance with this opinion. The writ will issue only if the trial court fails to do so. We lift the stay issued by this court on April 17, 2012.
CHRISTOPHER, J. concurring and dissenting.
TRACY CHRISTOPHER, Justice, concurring and dissenting.
I respectfully concur in part and dissent in part in this case. I agree with the well-established precedent that discovery requests that are not limited to the store in question are generally overbroad and burdensome. See Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995); K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996). But because the majority has imposed the extraordinary remedy of mandamus as to certain very commonplace discovery requests for the store in question, I dissent with respect to those requests.
Mandamus will issue to correct a discovery order only when the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline, 968 S.W.2d 938, 941 (Tex. 1998). We should follow our own precedent and grant mandamus only when a discovery order calls for patently irrelevant documents such that it clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party. In re Houstonian Campus, L.L.C, 312 S.W.3d 178, 183 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (mandamus appropriate for patently irrelevant documents that were highly personal and sensitive); see also Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (no adequate remedy by appeal where the discovery order compels the production of patently irrelevant documents that constitute
Even assuming that the requests called for "patently irrelevant" information, HEB has not argued or presented any evidence that the requests and interrogatory in question were burdensome. HEB does not assert that any privacy interests, trade secrets, or privileges of any sort will be violated, nor has it shown that the interrogatory and requests pertaining to the store in question posed a burden on HEB far out of proportion to any benefit that may obtain to the requesting party. Therefore, I respectfully dissent from the majority's opinion as to (1) Interrogatory No. 9, and (2) Requests for Production Nos. 4 and 11 as they pertain to information about other claims or accidents at the store in question, and (3) Request for Production No. 32, as to certain employees.
