Ford Motor Co. v. Ross

• Decision Date: 25 October 1994
• Docket Number: No. 12-94-00239-CV,12-94-00239-CV
• Citation: 888 S.W.2d 879
• Parties: FORD MOTOR COMPANY and Douglas Stanley, Jr., d/b/a Doug Stanley Ford, Relators, v. Honorable Donald ROSS, Judge of the 4th Judicial District Court, Rusk County, Respondent.
• Court: Texas Court of Appeals

Page 879

888 S.W.2d 879

FORD MOTOR COMPANY and Douglas Stanley, Jr., d/b/a Doug Stanley Ford, Relators, v. Honorable Donald ROSS, Judge of the 4th Judicial District Court, Rusk County, Respondent.

No. 12-94-00239-CV.

Court of Appeals of Texas Tyler.

Oct. 25, 1994.

Mike Hatchell and Gregory D. Smith, Tyler, for relator.

Mark Mann, Henderson, R. Jack Ayers, Dallas, for respondents.

PER CURIAM.

I. INTRODUCTION

This original mandamus proceeding arises out of a discovery dispute in a products liability suit. In the underlying lawsuit, the real parties in interest Susan Renae Miles (acting individually and as Next Friend of Willie Searcy and Jermaine Searcy) and Kenneth Miles ("Plaintiffs") sued Relators Ford Motor Company and Douglas Stanley, Jr. d/b/a Douglas Stanley Ford (hereinafter collectively "Ford"), for personal injuries that Willie Searcy suffered when the 1988 Ford Ranger pickup in which he was a passenger collided with another vehicle. As a result of the accident, young Searcy was rendered a ventilator-dependent quadriplegic. The accident occurred in April of 1993, and suit was filed on March 23, 1994. ¹ Because of Willie Searcy's serious condition, Plaintiffs sought and Ford agreed to an expedited trial setting of October 31, 1994.

Since the filing of that suit, Ford has labored under the onus of a series of thorough, fast-paced pretrial orders. These pretrial orders, with few exceptions, uphold the numerous, comprehensive interrogatories and production requests propounded to Ford by Plaintiffs. If left intact, these orders will require Ford to produce, in all likelihood, millions of pages of documents.

At the outset, however, let us say that we are bound by the constraints of "abuse of discretion". While many equities lie with Ford, some of the legal footholds that would have entitled Ford to greater relief by mandamus, were lost amid the battle of the initial Rule 166b(4) hearing and later attempts to re-define an alternative, reasonable scope of discovery. Thus, for the most part we can only say that Respondent has committed an unclear abuse of his discretion; accordingly, we can only grant Ford a modicum of the relief it seeks without abusing ours.

II. FACTUAL BACKGROUND OF THE DISCOVERY SUIT

A. THE JUNE 14TH HEARING ON PLAINTIFFS' FIRST MOTION TO

COMPEL DISCOVERY AND FOR SANCTIONS AGAINST FORD

MOTOR COMPANY: PRONOUNCEMENT OF THE

THIRD PRETRIAL ORDER

On April 4, 1994, Ford was served with process as well as Plaintiffs first set of interrogatories and production requests. On May 23, Ford responded to both the interrogatories and production requests by providing limited answers and asserting various objections. In production request numbers 2, 5, ² 14 and 24, Ford asserted that some of the documents requested were privileged under the attorney-client and/or attorney work product-anticipation of litigation privileges. Ford, however, did not produce any documents within the time allowed under the discovery rules. Consequently, in a letter dated Friday, June 3, 1994, Plaintiffs complained to Ford about its responses and enclosed a draft of the motion to compel discovery that they were prepared to file if Ford did not cooperate. Ultimately, Plaintiffs filed their motion to compel discovery on Thursday, June 9, 1994 and obtained a Tuesday, June 14th, setting on the motion. Plaintiffs' 16-page motion to compel discovery was not addressed to Ford's responses over all, but sought relief from various objections Ford had lodged to specific discovery requests.

At the hearing on the motion to compel, Plaintiffs argued at length about Ford's history of discovery abuse in other cases, and its ability to ambush unwitting plaintiffs through its use of evasive discovery tactics. In response, Ford's New York counsel acknowledged to the court that "Plaintiffs are entitled to legitimate discovery, and that in a complex design case like this, that discovery will in fact be quite voluminous and massive." When Respondent asked Ford's counsel how long it would take Ford to produce the requested documents to Plaintiffs in Dallas, Ford's counsel responded:

There are some documents that have arrived today and can be available for Plaintiffs today, a relatively small volume [approximately 7 boxes]. Others are in process and on the way. We're talking about days for that kind of material.

Counsel argued, however, that Plaintiffs had requested "hundreds of thousands of pages of test material", and those documents would be best produced at Ford's headquarters in Dearborn, Michigan. Ford's counsel further stated: "[I]f they have to be copied, that would be a substantial task and would require at a minimum--I believe it would require weeks." Ford's counsel explained to the trial court that gathering the documents was not a complex process, but it would take some time especially since the case was less than three months old. He further stated that Ford was going to honor its October trial date. Ford's counsel then explained in great detail how its Reading Room in Dearborn, Michigan worked. He explained that Ford had gone to great expense to create this central location for categorizing, logging and storing its discoverable documents, crash tests, reports, etc. Counsel further cited the court to several Texas cases where courts had approved Reading Rooms as an acceptable cite for the production of documents. Stating that on an average, litigants only had to spend two or three days in the Reading Room, counsel urged the Court to require Plaintiffs to use the Reading Room for discovery in this case too.

With regard to its privileged documents, Ford's counsel stated:

We do have privileged documents that we're discussing in this case. We are prepared--not this minute, but we're prepared as early as tomorrow to provide a privileged log of documents that have not been included in test reports and in the test and study collection as we described it, but we believe that that issue has not really been joined. (emphasis added)

After completing his explanation of the Reading Room, and the reason for Ford's delay in production, Ford's counsel stated:

We will do whatever is necessary to deal with the deadlines at issue, but I think it is important for me to note that a massive discovery such as Plaintiffs are demanding on this expedited basis is in fact part of what's causing the problem. I believe, Your Honor, our responses which have been given to you provides additional information about what we're doing, and I don't think it's necessary, unless you would like it, to go into the individual details [here the Court agrees that it is not necessary] ... But we request that the motion be denied, at least in part, because we believe it is premature. We're prepared to provide material to Plaintiffs, we're prepared to work with them on immediate access to the reading room, and if they have problems after that, we're prepared to discuss with them, and if necessary, to deal with any motions they may bring. Thank you. [Emphasis added.]

It is undisputed that Ford offered no evidence in support of its objections to Plaintiffs' discovery.

At the conclusion of this hearing, Respondent granted Plaintiffs motion to compel, excluded from discovery anything that pertained to large trucks, buses or air bags, ordered Ford to answer fully and completely certain enumerated interrogatories ³ by June 27th), and ordered Ford to produce documents pertaining to certain production requests ⁴ by the end of the working day on July 5, 1994, at the offices of Plaintiffs' Dallas counsel. He further stated that "[a]ny objections which Defendants have made to the Plaintiffs' discovery inconsistent with the Court's pronouncement are overruled." (emphasis added) The court made no ruling on Plaintiffs' request for sanctions.

Respondents pronouncements were subsequently memorialized on June 17th in the court's Third Pretrial Order. Ford now seeks relief from that order.

B. FORD'S ATTEMPTS TO COMPLY WITH THE THIRD PRETRIAL ORDER

Subsequently, on June 21, 1994, counsel for the parties met in Dallas to discuss the scope of discovery. Although Ford believed that some inroads had been made on limiting scope, Plaintiffs refused to enter into Ford's proposed Rule 11 agreement. Thus, on July 1, 1994, Ford filed a motion to reconsider or modify the trial court's Third Pretrial Order, and Plaintiffs filed a motion for a protective order and for sanctions against Ford. On July 6th, the trial court heard Plaintiffs' motion; the parties reached an agreement on certain target dates for the completion of depositions, and the trial court carried the sanctions issue forward. On July 8th, Ford produced approximately 700,000 pages of documents. According to Ford, these documents were the ones that were responsive to Plaintiffs' requests based on its representations to Ford at their June 21st meeting. Ford represents that it took 149 people working over 6,400 hours to produce these documents at a cost to Ford of $355,000.

In addition to producing these documents, on July 8th Ford also supplemented its responses to Plaintiffs interrogatories and production requests with additional objections, many of which asserted the attorney-client and work-product privileges for the first time. On July 14th, Respondent conducted a hearing on this motion, a motion for protection, and a motion for extension. In lieu of entertaining these motions, the trial court appointed a special master to mediate the discovery disputes. At that hearing, Respondent stated: "The court is hopefully trying to get over what the court sees as an on going stalemate with regard to discovery, without placing blame on either side, and get past that so that we can try this case on its merits under the existing schedule." Thereafter, on July 15, 1994, Respondent signed an agreed order appointing Judge Paul S. Colley as Discovery Master "to oversee and report to this Court about discovery disputes and to attempt to...