Texaco, Inc. v. Dominguez

• Citation: 812 S.W.2d 451
• Decision Date: 23 July 1991
• Docket Number: No. 04-91-00264-CV,04-91-00264-CV
• Court: Texas Court of Appeals
• Parties: TEXACO, INC., Appellant, v. Honorable John F. DOMINGUEZ, Appellee.

Page 451

812 S.W.2d 451

TEXACO, INC., Appellant, v. Honorable John F. DOMINGUEZ, Appellee.

No. 04-91-00264-CV.

Court of Appeals of Texas,

San Antonio.

July 23, 1991.

Marshall Boykin, III, Wood, Boykin & Wolter, Corpus Christi, Robert P. Thibault, Brian S. West, Hartford H. Prewett, Houston, for appellant.

Richard Tinsman, Tinsman & Houser, Inc., San Antonio, for appellee.

Before REEVES, C.J., and PEEPLES and CARR, JJ.

OPINION

REEVES, Chief Justice.

This is an original proceeding in which relator, Texaco, Inc., seeks protection from two discovery orders entered by the Honorable John F. Dominguez.

I. BACKGROUND

The real parties in interest (plaintiffs) sued Texaco, Inc. for gas royalties allegedly owed pursuant to oil and gas leases, referred to as the Tijerina lease. Plaintiffs contend that Texaco has failed to pay them royalties based on market value, as required by these leases. Suit was originally filed in 1982 in federal district court. At that time, plaintiffs filed a motion for production of documents pursuant to the federal rules of civil procedure. The case was remanded to the state district court. Plaintiffs filed their request for production in state court in October 1986. Informal discovery proceeded and no motions to compel production or seeking sanctions for failure to comply with discovery were filed. ¹ In 1990, plaintiffs changed counsel and somewhat more formal discovery commenced. In response to plaintiffs' "First Set of Interrogatories and 1990 Request for Production," Texaco filed its response and supplemental response in which it claimed that some of the requests were beyond the scope of discovery, irrelevant to plaintiffs' claims, not calculated to lead to admissible evidence, overbroad, for harassment only, and the requested documents preceded the tolling time agreed to by the parties.

In order to respond to the interrogatories, Texaco searched through more than 200 boxes of its records stored in a warehouse in Midland, Texas, and pulled out documents it believed were related in any way to the Tijerina lease. These documents filled twelve boxes. Later, Texaco went through another fifty-four boxes it discovered at another location and tendered plaintiffs another three boxes of documents related to the Tijerina lease.

On November 7, 1990, plaintiffs filed a motion to compel production and a hearing was held April 19 and 22, 1991. Texaco filed a response to the motion to compel. Two orders (May 23, 1991, and May 28, 1991) arose out of the hearing and are the subject of this proceeding.

II. THE MAY 23RD ORDER

The trial court order, signed May 23, 1991, permits plaintiffs to search through any box or file from which Texaco produced a document in response to plaintiffs' 1990 request for production. The court provided that for any document plaintiffs found that they wanted to copy, an in camera inspection would be held.

Texaco claims that the order is violative of TEX.R.CIV.P. 167 and constitutes an abuse of discretion. It requests this Court to order the trial court to rescind its order. After leave to file the petition for writ of mandamus was granted, this Court entered a stay order to halt plaintiffs' search of Texaco's files.

A. Mandamus Relief

The writ of mandamus will issue to correct an improper order granting discovery of non-discoverable documents. Commercial Travelers Life Ins. Co. v. Spears, 484 S.W.2d 577, 579 (Tex.1972); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 439 (1959). Such relief is appropriate when the trial court's order is a clear abuse of discretion and conflicts with a rule of civil procedure. Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex.1988).

B. Inspection of Adversary's Records

Rule 167 permits a party to request another party to produce any designated document within its possession, custody, or control. TEX.R.CIV.P. 167(1)(a). In the general or routine discovery case, the discovered party raises claims of exemption or immunity to prevent the discovering party from reviewing or obtaining documents that, although responsive to the production requests, are protected due to their special characterization as attorney-client communications, work product, etc. In that case, the burden rests on the discovered party to raise the specific immunity or exemption and, when appropriate, to request the trial court to review the documents in camera to determine whether they are indeed protected from discovery. See Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985).

However, the facts of this case differ significantly from those of the general or routine discovery case. In this situation, the discovered party does not seek protection for documents covered by immunity or exemption. The issue here is, once the discovered party has produced all requested documents it deems to be relevant to the controversy, does the discovering party have a right to ascertain the accuracy and completeness of the discovered party's response by searching through the files not produced by the discovered party? Texaco claims it produced all documents requested and fully complied with discovery; plaintiffs claim there may be more documents to satisfy their request--they just do not know.

1. TEX.R.CIV.P. 167

The purpose of discovery is to try cases based on what the facts reveal, not what they conceal. Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex.1987); Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984).

The purpose of the Discovery Rules is to augment and facilitate the trial process, to narrow as much as possible, the actual issues in dispute, and to change the trial of a lawsuit from a game of chance and surprise, or "Blind Man's Bluff", as it once was, to an orderly process of unclouding matters and uncovering the actual facts involved.

Pearson Corp. v. Wichita Falls Boys Club Alumni Assoc., 633 S.W.2d 684, 686 (Tex.App.--Fort Worth 1982, no writ).

Unfortunately, this goal of the discovery process is often frustrated by the adversarial approach to discovery. The "rules of the game" encourage parties to hinder opponents by forcing them to utilize repetitive and expensive methods to find out the facts. [Citation omitted.] The truth about relevant matters is often kept submerged beneath the surface of glossy denials and formal challenges to requests until an opponent unknowingly utters some magic phrase to cause the facts to rise.

Garcia v. Peeples, 734 S.W.2d at 347.

The competing interest of the discovered party to protect its privileged documents must also be considered. The trial court's broad grant of power to order discovery which may lead to admissible evidence "is limited, however, by the legitimate interests of the opposing party, for example, to avoid overly-broad requests, harassment, or disclosure of privileged information." Jampole v. Touchy, 673 S.W.2d at 573; see General Motors Corp. v. Lawrence, 651 S.W.2d 732, 733-34 (Tex.1983).

The movant for discovery must make a specific request. Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex.App.--Fort Worth 1987, writ dism'd); see Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986); Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d at 634. Generally, requested information is discoverable absent a valid objection. Jampole v. Touchy, 673 S.W.2d at 575. Thus, the party seeking to exclude documents from discovery must specifically plead the particular privilege or immunity claimed and provide evidence to support the claim. The trial court then must determine whether an in camera inspection is necessary. If it is needed, the party seeking protection must segregate and produce the documents to the court. Loftin v. Martin, 776 S.W.2d 145, 147 (Tex.1989); Weisel Enters., Inc. v. Curry, 718 S.W.2d at 58; Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d at 637; see TEX.R.CIV.P. 166b(4).

Rule 167 permits a party to inspect and copy designated documents. TEX.R.CIV.P. 167(1)(a). The rule "is not a fishing rule. It cannot be used simply to explore.... The Motion for Discovery must be specific, must establish materiality, and must recite precisely what is wanted. The Rule does not permit general inspection of the adversary's records." Loftin v. Martin, 776 S.W.2d at 148, quoting, STEELY & GAYLE, Operation of the Discovery Rules, 2 HOUSTON L.REV. 222, 223 (1964); see also Bryan v. General Elec. Credit Corp., 553 S.W.2d 415, 419 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ) (applying rule 167 when a showing of good cause was still required); Bounds v. Caudle, 549 S.W.2d 438, 444 (Tex.Civ.App.--Corpus Christi), rev'd on other grounds, 560 S.W.2d 925 (Tex.1977) (applying rule 167 when a showing of good cause was still required); General Commentary--1966, Tex.R.Civ.P.Ann. 167 (Vernon 1976). Rule 167 provides that the discovery request must state with particularity the items sought.

We have found no civil cases on the issue to turn to for guidance, though some criminal cases have been reported that we find to be instructive. It has been held that a criminal defendant has no right to search through the prosecution's files for exculpatory evidence. A defendant alone does not make the determination as to materiality of the information. For a Brady ² request, the State makes the decision of what information must be disclosed. The prosecutor's decision is final unless the defendant becomes aware of evidence that has been withheld and brings it to the court's attention. Pennsylvania v. Ritchie, 480 U.S. 39, 54, 59, 107 S.Ct. 989, 1000, 1002, 94 L.Ed.2d 40 (1987); Commonwealth v. Carillion, 380 Pa.Super. 458, 552 A.2d 279, 284 (1988). Since a criminal defendant, with strong due process protections, is not afforded the right sought by plaintiffs, we find it difficult to accept that such a right would be conferred in a civil case.

2. FED.R.CIV.P. 34(b)

Texas discovery rule 167 is based on FED.R.CIV.P. 34. Notes & Comments, ...