In re Ups Ground Freight, Inc.

• Decision Date: 23 September 2020
• Docket Number: NO. 12-20-00129-CV,12-20-00129-CV
• Citation: 629 S.W.3d 441
• Parties: IN RE: UPS GROUND FREIGHT, INC., Relator
• Court: Texas Court of Appeals

629 S.W.3d 441

IN RE: UPS GROUND FREIGHT, INC., Relator

NO. 12-20-00129-CV

Court of Appeals of Texas, Tyler.

Opinion delivered September 23, 2020

Bradley T. Steele, Longview, for Intervenor Clark, Julian.

John L. McCraw III, McKinney, for Real party in interest Riddle, Stephanie Nicole.

Thomas C. Wright, for Relator UPS Ground Freight, Inc.

Douglas T. Gosda, Houston, for Real party in interest Villarreal, Phillip.

Marty L. Young, Gilmer, Clay Wilder, J. Brent Goudarzi, Gilmer, for Real party in interest McElduff, Jacintha Nicole.

M. Keith Dollahite, Tyler, Michael R. Mitchell, Dallas, for Intervenor Trotter, Micah, Trotter, Sean.

John C. Nohinek, Fort Worth, for Intervenor Morrison, Cameronn.

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

OPINION

Greg Neeley, Justice

On the court's own motion, we withdraw our opinion issued September 16, 2020 and vacate our judgment of that date. The following is now the opinion of this court.

UPS Ground Freight, Inc., Relator, filed a petition for writ of mandamus in the above cause, seeking to compel the Respondent, the Honorable J. Clay Gossett, Judge of the 4th Judicial District Court of Rusk County, Texas to vacate his April 23, 2020 order compelling discovery. The parties agreed to stay enforcement of the order. Real party in interest Jacintha Nicole McElduff, as independent administrator of the estate of Nathan Dean Clark, filed a response. Relator contends Respondent abused his discretion by ordering disclosure of information regarding persons who are not connected to the case. We conditionally grant the petition in part and deny it in part.

BACKGROUND

A UPS driver, Phillip Villareal, was involved in a car accident that resulted in multiple injuries and one fatality. Litigation ensued, and McElduff served Relator with the following discovery requests:

INTERROGATORY NO. 1: For the time period of 2006 to 2017, please Identify all Commercial Motor Vehicle drivers who drove Commercial Motor Vehicles under Your authority and were dispatched out of the UPS Freight/UPS Ground Freight facility in Irving, Texas (the same facility from which Defendant Phillip Villareal was dispatched), and the time from [sic] each driver was employed (e.g. January 2003 to present, or January 1997 to October 2017).

REQUEST FOR PRODUCTION NO. 1: Copies of all documentation of all alcohol, drug and/or controlled substance tests of the drives [sic] identified in Your response to Cross-Plaintiff's Second Set of Interrogatories, including pre-employment, random, reasonable suspicion, periodic and post-accident testing.

Respondent ordered Relator to comply with these requests. Instead, Relator filed a petition for writ of mandamus with this court complaining that the trial court abused its discretion by requiring the disclosure of drug and alcohol testing data, including records of non-parties. This court determined that the order was overbroad and conditionally granted the petition. See In re UPS Ground Freight, Inc. , No. 12-19-00412-CV, 2020 WL 975357 (Tex. App.—Tyler Feb. 28, 2020, orig. proceeding) (mem. op.). Thereafter, Respondent vacated his December 6, 2019 discovery order and this court dismissed the petition for writ of mandamus as moot.

McElduff filed a motion for entry of a revised order on her motion to compel discovery. After a hearing, Respondent granted her motion in part. The order's first through fourth decretal paragraphs are as follows:

IT IS THEREFORE ORDERED that in response to Interrogatory Number 1 of McElduff's Second Set of Interrogatories, UPS Ground Freight, Inc. must provide the names, addresses, and telephone numbers of all UPS Ground Freight, Inc. drivers who worked out of the same facility as Defendant Phillip Villarreal, limited to the five years prior to the accident in question.

IT IS FURTHER ORDERED that in response to Request Number 1 of McElduff's Second Request for Production, Defendant UPS Ground Freight, Inc. must produce all positive drug tests for five years prior to the accident in question for all the drivers who worked out of the same facility as Defendant Phillip Villareal.

IT IS FURTHER ORDERED that in response to Request Number 1 of McElduff's Second Request for Production, Defendant UPS Ground Freight, Inc. must produce records related to any controlled substances collection process for two years prior to the accident in question for all the drivers who worked out of the same facility as Defendant Phillip Villarreal.

IT IS FURTHER ORDERED that in response to Request Number 1 of McElduff's Second Request for Production, Defendant UPS Ground Freight, Inc. must produce all negative drug tests for one year prior to the accident in question for all the drivers who worked out of the same facility as Defendant Phillip Villarreal.

Relator filed its petition for writ of mandamus asserting that Respondent abused his discretion by rendering a discovery order that requires Relator to violate federal law, invades the privacy rights of third persons, and requires the disclosure of irrelevant information. The parties agreed to stay discovery pending a ruling on the petition.

PREREQUISITES TO MANDAMUS

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. 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. Canadian Helicopters Ltd. v. Wittig , 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding).

Mandamus relief from a non-appealable interlocutory order requires the showing of a serious denial of a right for which the remedy by appeal is inadequate. See United Mexican States v. Ashley , 556 S.W.2d 784, 785 (Tex. 1977) (orig. proceeding). An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. See In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). The requirement that there be no other adequate remedy by law is met when parties are in danger of permanently losing substantial rights. In re Van Waters & Rogers, Inc. , 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding) (per curiam) ; Walker , 827 S.W.2d at 842. 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.

DISCOVERY ORDER

Relator asserts that Respondent abused his discretion by rendering an order that requires Relator to violate federal law by producing irrelevant and federally privileged documents containing the private health information of hundreds of UPS drivers who were not involved in the accident at issue in the underlying lawsuit and who have not consented to disclosure of their records.

Preemption

Relator argues that federal law prohibits it from disclosing testing results about drivers not involved in this lawsuit without their consent, and therefore preempts the trial court's discovery order. Alternatively, Relator argues that, even if the information sought is otherwise discoverable, it is prohibited due to public interest considerations regarding those drivers' right to confidentiality.

Applicable Law

Part 382 of the Federal Motor Carrier Safety Regulations establishes programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles. 49 C.F.R. § 382.101 (2020). The regulations require certain testing of drivers. See id . §§ 382.301-.311. Employers must retain the testing records for specified time periods. See id . § 382.401. There are restrictions on an employer's authority to release the test results. See id . § 382.405(a). Except as otherwise provided in the regulations, the employer is prohibited from releasing individual test results or medical information about an employee to third parties without the employees' specific written consent. Id . § 40.321. However, the regulations authorize release of information in some instances. An employer may disclose information in criminal or civil actions in accordance with Section 40.323(a)(2) of Title 49. Id . § 382.405(g). Section 40.323(a)(2) provides:

(a) As an employer, you may release information pertaining to an employee's drug or alcohol test without the employee's consent in certain legal proceedings.

....

(2) These proceedings also include a criminal or civil action resulting from an employee's performance of safety-sensitive duties, in which a court of competent jurisdiction determines that the drug or alcohol test information sought is relevant to the case, and issues an order directing the employer to produce the information. For example, in personal injury litigation following a truck or bus collision, the court could determine that a post-accident drug test result of an employee is relevant to determining whether the driver or the driver's employer was negligent. The employer is authorized to respond to the court's order to produce the records.

Id . § 40.323(a)....