Allen v. Humphreys

• Decision Date: 20 July 1977
• Docket Number: No. B-6672,B-6672
• Citation: 559 S.W.2d 798
• Parties: Opal Lee ALLEN, Relator, v. Joe Bailey HUMPHREYS, Judge, 44th Judicial District Court of Dallas County, Texas, Respondent.
• Court: Texas Supreme Court

Page 798

559 S.W.2d 798

Opal Lee ALLEN, Relator,

v. Joe Bailey HUMPHREYS, Judge, 44th Judicial District Court of

Dallas County, Texas, Respondent.

No. B-6672.

Supreme Court of Texas.

July 20, 1977.

James C. Barber, Dallas, for relator.

Thompson, Knight, Simmons & Bullion, David S. Kidder, and Timothy R. McCormick, Dallas, for respondent.

STEAKLEY, Justice.

This is an original mandamus proceeding instituted by Opal Lee Allen, Relator, against Respondent, Honorable Joe Bailey Humphreys, Judge of the 44th Judicial District Court of Dallas, County, Texas. Relator seeks a writ of mandamus requiring Judge Humphreys to vacate his orders of January 3, 1977, and February 8, 1977. The January 3 order denied Relator's Motion for Discovery Under Rule 167, a motion which sought the production of certain documents from Charter Oak Fire Insurance Company, the defendant in the trial court. ¹ The February 8 order overruled Relator's Rule 215a motion to compel production, a motion necessitated by the refusal of Safeway Stores, Inc. and The Travelers Insurance Company to comply with subpoenas duces tecum issued in connection with notices of depositions upon written questions.

Mrs. Allen has filed a workmen's compensation suit against Charter Oak Fire Insurance Company, the insurer of Safeway Stores, Inc. She alleged that she suffered from lung cancer and that the cause of her condition was her exposure, during the course and scope of her employment in the meat department of a Safeway store, to polyvinyl chloride particles released into the air when meat wrapping film was cut with a hot wire. Mrs. Allen alleged that as a result of her affliction she was totally and permanently disabled. In order to facilitate proof of her case, she sought discovery of numerous items from Safeway, from Charter Oak Fire Insurance Company, Safeway's insurer, and from The Travelers Insurance Company, Charter Oak's parent company. From each Mrs. Allen sought: (1) copies of any surveys or test reports, done by anyone, which reflected tests or surveys done in any grocery store to determine the amount or composition of particles released by burning of the plastic meat wrapping film used by Safeway; (2) all formal and informal complaints by private individuals or government agencies in the possession of the defendant or to which it had access claiming that persons had contracted cancer as a result of breathing fumes emitted from the cutting of plastic sheeting containing polyvinyl chloride, and all correspondence by which the defendant responded to the complaints; (3) all medical, laboratory, or other expert reports, not made in connection with the investigation or defense of the plaintiff's claim, either directly written by the expert or summaries thereof, dealing with the possibility or probability that fumes released in the hot wire cutting of plastic sheeting containing polyvinyl chloride could or might cause cancer or any type of lung disease; (4) all correspondence, memoranda, safety bulletins, or any other communications between the defendant and any other person, not made by the defendant in connection with the investigation or defense of plaintiff's claim, reflecting a decision by Safeway to abandon the use of hot wire cutting of plastic meat wrapping material, reflecting the possibility of a health hazard to persons breathing fumes from the hot wire cutting of such material, reflecting expert concern in the industry about such a hazard, reflecting any corrective measures that could or should have been taken by the employer or manufacturer to correct any health hazards posed by the hot wire cutting of plastic meat wrapping material, and reflecting any other relevant information concerning the hazard or potential hazard which caused Safeway to discontinue the use of the materials; (5) copies of any scientific studies, done by the defendant or in its possession and not made in connection with the investigation or defense of Mrs. Allen's claim, reflecting any conclusions concerning the possible causal relationship between polyvinyl chloride or any chemical fumes emitted from the burning of plastic sheeting used for meat wrapping and cancer or any lung disease; and (6) copies of all reports from expert witnesses which the defendant intended to call during the trial.

Mrs. Allen sought production of the requested items from Charter Oak, the party defendant, under the relevant provisions of Rule 167. As to Safeway and The Travelers Insurance Company, Mrs. Allen filed notices to take depositions upon written questions. Pursuant to Rule 201, the notices were accompanied by subpoenas directing Safeway and Travelers to produce the identical documents requested from Charter Oak. Safeway and Travelers joined in a Motion to Quash the discovery but the motion was not acted upon. Nevertheless, Charter Oak refused to produce the requested items, and though the designated representatives of Safeway and Travelers appeared for purposes of being deposed, they refused to produce or answer questions regarding the documents sought by Mrs. Allen. Mrs. Allen then filed a motion under Rule 215a requesting the trial court to order Safeway and Travelers to produce the requested items. Additionally, she urged the trial court to rule on the original Motion for Discovery Under Rule 167. The trial court denied both motions, and it is from this action that she seeks relief by the writ of mandamus.

On behalf of Judge Humphreys, Charter Oak, Safeway, and Travelers initially argue the extraordinary writ of mandamus is not available to the Relator in this case. They assert that a writ of mandamus is improper to review an interlocutory discovery ruling of the trial court and that, furthermore, in the instant case Mrs. Allen has an adequate remedy via the normal appellate process. We have previously held that the writ of mandamus is proper in cases where a trial judge has abused his discretion in ordering the wholesale production of certain highly confidential information. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). In a more recent case, Barker v. Dunham, 551 S.W.2d 41 (Tex.1977), we held a trial judge had abused his discretion in denying discovery of certain properly discoverable information. It was there asserted that the discovery motion in question was addressed to the discretion of the trial judge, and that his exercise of that discretion was not subject to supervision by the writ of mandamus. A unanimous court disagreed, stating "the writ of mandamus may issue in a discovery proceeding to correct a clear abuse of discretion by a trial judge." Id. at 42. Thus, here, as in Barker, the question is whether such a clear abuse of discretion has been shown. We will first consider the trial court's action in denying Mrs. Allen's Motion for Discovery Under Rule 167, the motion directed at Charter Oak.

Rule 167 of the Texas Rules of Civil Procedure governs the discovery and production of documents and other tangible items. Generally, it permits the discovery from another party to the lawsuit of "any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action". The party seeking discovery must show good cause, and the party from whom discovery is sought cannot be required to disclose privileged material. All traditional rules of testimonial privilege can be invoked to prevent discovery of items under Rule 167. Tex.R.Civ.P. 167, comment (1976); 2 R. McDonald, Texas Civil Practice § 10.03 (1970). However, the privilege most prominently asserted in the instant case is that delineated in the third paragraph of Rule 167, wherein it is provided that the right of discovery

shall not extend to other written statements of witnesses (i. e., written statements of testifying non-experts) or other written communications passing between agents or representatives or the employees of either party to the suit, or to other communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.

Simply stated, this privilege can be invoked where three factors coexist: (1) the material sought to be discovered is either (a) a written statement by a non-expert witness, (b) a written communication between agents, representatives, or employees of either party to the suit, or (c) written communications between any party and his agents, representatives, or their employees; (2) the statement or communication is made subsequent to the occurrence or transaction upon which the suit is...