Neville v. Brewster

• Decision Date: 29 November 1961
• Docket Number: No. A-8524,A-8524
• Citation: 352 S.W.2d 449,163 Tex. 155
• Parties: R. E. NEVILLE et al., Relators. v. Judge Harris BREWSTER et al., Respondents.
• Court: Texas Supreme Court

Page 449

352 S.W.2d 449

163 Tex. 155

R. E. NEVILLE et al., Relators. v. Judge Harris BREWSTER et al., Respondents.

No. A-8524.

Supreme Court of Texas.

Nov. 29, 1961.

Rehearing Denied Jan. 17, 1962.

Spurlock, Schattman & Jacobs, Fort Worth (Kenneth M. Cole, Jr., Fort Worth, with above firm), for relator.

Bailey & Williams, Dallas, for respondent Texas Bitulithic Co.

Crumley & Green, Fort Worth, for respondent Bridge Builders, Inc.

Crowley, Wright, Miller & Garrett, Fort Worth, for respondent City of Arlington.

CALVERT, Chief Justice.

Relators, Neville and Drs. Key and Doss, seek a writ of mandamus directing the Honorable Harris Brewster, Judge of the 67th District Court of Tarrant County, Texas, to vacate an order requiring the two physicians to produce certain medical records in their possession and to deliver the same to the court reporter taking their depositions for the purpose of photostating the same and attaching the copies to the depositions.

Neville had filed a personal injury suit in the 67th District Court against Texas Bitulithic Company and the City of Arlington. The defendants in that case filed notice to take depositions of Doctors Key and Doss upon written interrogatories. The interrogatories propounded merely sought to identify the witnesses as having examined and treated Neville and then requested that the witnesses deliver to the court reporter 'all written records that you have in connection with such treatment or examination, including bills, or reports, office notes or anything else in writing concerning this patient' for the purpose of photostating the same and attaching to the depositions. Subpoenas duces tecum had been issued and served, requiring each doctor to produce 'all written records in connection with the treatment of R. E. Neville, including bills, reports, office notes, or anything else in writing concerning such patient'. The doctors refused to deliver over these records on the ground that they were confidential.

Thereafter, the respondent, Bitulithic Company, moved that the court order the doctors 'to produce the medical records' which they had in their possession 'concerning the plaintiff, R. E. Neville,' for copying and for use in the trial of the case. Notice of this motion was served upon Neville and his attorney, but not upon the medical witnesses. On a hearing the court ordered that the doctors produce the 'medical records which they have in their possession concerning the plaintiff, R. E. Neville' for the purpose stated in the motion.

Relators advance several grounds for their conclusion that the court's order is unauthorized and void. They first say that the Texas Rules of Civil Procedure cannot be construed so as to require a nonparty witness to produce his private records for copying or for any other purpose. In other words, they seem to take the position that the term 'produce' would not even comprehend an examination of the records by the attorneys for the respondents-defendants. This interpretation would render 'the order to produce' wholly useless and accomplish nothing. The production of the documents is required for the purpose of examination and if the documents may be examined then under proper safeguards there is no apparent reason why they may not be copied.

Next, they say that this procedure would effectively deny the relator, Neville, the right of cross-examination. We think this contention is also without merit. Under Rule 189 there is afforded to Neville the right to filing interrogatories, though we agree with him that the direct interrogatories as submitted afforded nothing on which to base meaningful cross interrogatories. The taking of the depositions was obviously for the purpose of discovering matters that might lead to the disclosure of admissible evidence as provided by Rule 186a, Texas Rules of Civil Procedure. In this connection relators raise the objection that the medical records should not be produced, examined and copied because they may be in memorandum form and subject to interpretation or explanation. We think this objection is not valid because if any interpretation or explanation is needed this may be given in further pretrial procedure or upon the trial on the merits.

In their third point relators say that this procedure would work a greater hardship upon the witnesses than parties to a lawsuit are required to endure for the reason that they are not accorded the protection afforded by Rule 167. In this connection they cite our decision in Crane v. Tunks, Tex., 328 S.W.2d 434, where we held that in a discovery proceeding the trial court had the duty to examine the documents in question so as to ascertain what parts are material and relevant to the main cause and to prevent the adversary from having access to information of a private nature that is not relevant or material to any issue in the case.

In the Crane case the adverse party had sought under Rule 737. Texas Rules of Civil Procedure, to compel the production for his examination of Mrs. Crane's income tax records for the years 1939 to date. It was shown that these returns contained information of a purely private nature. We held that to require the delivery of these documents over to Mrs. Crane's adversary would be an unreasonable invasion of her right of privacy, and that it...