In re Ford Motor Co.

Decision Date26 August 2022
Docket Number13-22-00083-CV
PartiesIN RE FORD MOTOR COMPANY
CourtCourt of Appeals of Texas

On Petition for Writ of Mandamus.

Before Justices Longoria, Hinojosa, and Silva

MEMORANDUM OPINION

NORA L. LONGORIA, JUSTICE [1]

By petition for writ of mandamus, relator Ford Motor Company (Ford) contends that the trial court[2] abused its discretion by requiring it "to admit or object to the authenticity of tens of thousands of documents produced during discovery" when the real party in interest, Nancy Coll, "has not yet provided actual notice of the documents actually intended for use." This original proceeding concerns the construction of Texas Rule of Civil Procedure 193.7, which governs the self-authentication of documents produced in discovery. See Tex. R. Civ. P. 193.7. The underlying case is a personal injury product liability matter in which Coll was struck by a 2018 Ford F-250 when she was walking through the parking lot at Moore Plaza in Corpus Christi, Texas. Coll alleges, in part, that the Ford F-250 should have been equipped with a pedestrian detection system. We conditionally grant the petition for writ of mandamus.

I. Background

On March 30, 2020, Coll filed her "Plaintiff's Original Petition and Requests for Disclosure" against Ford and other defendants, who are not parties to this original proceeding. The petition included the following section:

RULE 193.7 NOTICE
11.1 Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby gives actual notice to Defendants that any and all documents and materials produced in response to written discovery may be used as evidence in this case and, that any such materials may be used as evidence against the party producing the document at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating the document and/or materials produced in discovery.

On April 23, 2020, Ford filed an "Objection to Rule 193.7 Notice." In that objection, Ford asserted that the notice provided by Coll constituted a "blanket nonspecific attempt" to invoke Rule 193.7. Ford contended that this paragraph did not constitute "actual notice" as contemplated by Rule 193.7 and noted that it had not yet produced any discovery in the case. Ford further asserted:

In the spirit of this Notice, further, and out of caution, Ford responds to the substance of the "notice" by objecting to the authenticity of this bulk designation of all documents produced by Ford in discovery. As a group, the documents undoubtedly will contain many individual documents which Ford does not have sufficient knowledge to authenticate. Requiring Ford to review all documents without actual knowledge that they may be used in the litigation places an unnecessary burden on Ford that is not contemplated by Rule 193 and is counterproductive to the stated object of streamlining discovery and of encouraging production of complete discovery. Ford calls upon [Coll], then, to specifically identify all documents [she] intends to use at any proceeding to provide Ford actual knowledge that such documents may be used at trial and to allow Ford an opportunity to object as allowed under Rule 193.7.

Ford requested the trial court to grant its objection to Coll's "attempted bulk designation of documents to be used at future proceedings in this case and order [Coll] to instead identify specific documents produced by Ford that [Coll] actually anticipates using in the litigation."

On January 14, 2022, Coll filed a "Motion to Compel Regarding . . . [Ford's] Objections to [Coll's] Rule 193.7 Notice."[3] Coll argued that she provided the notice required by Rule 193.7 in her petition and "yet again" by correspondence sent to Ford "on January 4, 2022." She argued, in relevant part, that:

The purpose of Rule 193.7 is to streamline trial and to, if possible, alleviate the requirement of a party to authenticate each internal document produced by the other party. Rule 193.7 requires Ford to . . . specifically state the basis for its objection to the authenticity of a document that it has produced, and that it has notice it may be used in court, and that the objection must be made in good faith.
Instead, Ford has interposed a boilerplate objection to authenticating any of the documents it has produced, even though Plaintiff has provided notice that they will or may be used in Court.

Coll requested the trial court overrule Ford's objections to her Rule 193.7 notice. Coll asserted that she had attempted to resolve this matter with Ford but had been unable to do so. As exhibits, Coll included a January 3, 2022 letter to Ford's counsel which discussed Ford's responses to Coll's requests for production, but did not address the Rule 193.7 issue, and a January 13, 2022 letter to Ford's counsel regarding its objections to the requests for production and asserting that counsel "would also like to visit about [Ford's] Objection to Rule 193.7 Notice." The record does not contain a letter dated January 4, 2022 as suggested in the body of Coll's motion to compel.

On February 8, 2022, the trial court held a non-evidentiary hearing on Coll's motion to compel. At the hearing, Ford's counsel stated:

The scope of discovery is very broad. We have produced, as I've said, thousands and thousands of documents. It can't be that the rule streamlines a trial by requiring Ford to go and see whether it has authenticity objections to every single document that it's produced in discovery. That would take days, weeks, months. So[,] the way the rule and the comments to the rule are written is that a party has to specify what documents it intends to use, and that is what triggers Ford's obligation to then go and look at those particular documents and determine whether it has authenticity objections or not; and if it does, to promptly let [Coll] know.
So[,] Ford's obligations under the rule have not yet been triggered because [Coll has] not yet specifically identified those documents that [she intends] to use at trial. Once [she does] so, whether through an exhibit list or some other letter that narrows down these thousands of documents to those that [she is] actually going to use, Ford, of course, will happily comply with that rule. At that point, Ford's obligation is triggered; but you can't use it in the way that [Coll is] using it, especially in a case like this that involves tens of thousands of documents. [She has] to specify what [she is] going to use; and then at that point, Ford's obligation is triggered. Ford looks at those- that subset of documents and lets [Coll] know whether there is an authenticity objection that needs to be dealt with.
So again, we are happy to comply with the rule. We just don't think it's been triggered yet.

In response, Coll's counsel asserted that the purpose of the rule was "to avoid what we are doing right now," and it is "to make it clear that when a party produces [a] document in discovery it authenticates it." Coll's counsel argued that:

If [Ford's counsel] is correct, what we have to do is either give them the Bates numbers . . . of all the documents they've produced, which would provide no new information to them, or send them a list of the documents that we think are important in the case and that we are going to use well in advance of trial. I don't think they're entitled to that work product. I don't think they're entitled to produce documents, and then have us turn around and say, these are the documents that in our theory of the case that we are planning to put on are important; and thereby give you a glimpse into what our work product is, what our mental impressions are as lawyers.
If on the other hand-[Ford's counsel] had suggested this to me. Why don't we simply prepare-you know, wait until we prepare exhibit lists and exchange those; and then Ford will go through our exhibit list of Ford documents and decide what is authentic and what is not. And of course, the obvious response to that is: Well then, if Ford says we've produced something and we don't stand by the authenticity, what is our remedy? We're a month out at trial and we're supposed to go out and take depositions of people to prove up these documents?

Coll's counsel further asserted that it would be unlikely for a party to produce a document from its own files, then contest its authentication. In response, Ford explained that its files contain documents from third parties such as the government, suppliers, vendors, and the media. Ford reiterated its position that Rule 193.7 is triggered by notice that the document "will be" used at trial, not "may be used" at trial. Ford's counsel further argued that:

So[,] we don't want to waive all our authenticity objections. Chances are it won't . . . turn out to be a big deal. But I think the right course is to wait until we do exchange exhibit lists; and then at that point, more than likely, almost all the documents Ford will have no problem with. If there are a handful, it's at that point that we can work with [Coll] to very quickly reach some sort of resolution on the use of the document.

The trial court took this matter under advisement, and the parties thereafter discussed continuing the March 7, 2022 trial setting.

By order signed on February 16, 2022, the trial court granted Coll's motion to compel regarding her Rule 193.7 notice and ordered Ford to "state which of the documents it admits to the authenticity of and which of the documents it does not, and why, within [thirty] days."

This original proceeding ensued. By one issue, Ford contends that the trial court abused its discretion, leaving Ford without an adequate remedy on appeal, by granting Coll's motion to compel and ordering Ford "to admit or object to the...

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