### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00477- CV

In re Jose C. P adill a and CCJK d/b/a Hill Cou ntry Site Supp ly, LLC, App ellant

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N

Relators J ose C. Padilla Alvare z and CC JK d /b /a H il l Co u

n try Site Supply , L L C filed 1

a petition for writ of mandamus alleg in g t h at t h e district court abused its discretion by issuing a discovery order compelling rela to rs to produce company and persona l cell-phone rec ords. We conditionally

g rant manda

mus relief a

nd order the trial cour

t to vacate its order.
Background On Aug ust 10, 2015, Alvare z and Ortiz wer e involved in an auto acc ident. Alvare z, who was driving a truck for his employ er Hill Country Site Supply , had stopped on the southbound

acc ess road of I H-37 in Geor g e West, Texas, afte r he had missed the rig ht turn on to US-59. When Alvare z beg an backing the t ru ck u p to neg otiate the exit on to US-59, he collided with Ortiz’s vehicle, w hich was stopped immediate ly behind Alvar ez on the acc ess roa d.

Although rela tors used “Jose C. Padilla” in the sty le of their orig inal proce eding , we will 1 ref er to him as “Jose C. Padilla A lvare z” to maintain consistency with the parties’ briefs and court documents.Ortiz sued relators for injuries sustained i n the col lision, asser ting causes of action for ne g lige nce, g ross neg lige nce, and neglig ent entrustment. Ortiz’s live pleading s are specific as
to the acts of neg lige nce, g ross neg lige nce, and neg lige nt entrustment—i.e., that Alvare z “fa iled to keep

. . . an outlook,” failed to avoid the collision, reve rsed too fast, reve rsed illega lly , failed to honk, failed to brake , and drove too fast. Ortiz’s pleading s do not include any alleg ation that the use of cell phones ca used or c ontributed to the ac cident. During the course of litigation, Ortiz ser ved discovery reque sts on rela tors seeking , rele vant here , production of rela tors’ company and persona l cell phone rec ords cover ing thirty day s befor e and thirty

day s after the acc ident. Relators objected to the reque sts a s overly broad, unduly burdensome, and hara ssing, but ag ree d to produce telephone rec ords for Alvare z’s cell phone for one hour befor e and one hour afte r the time of the acc ident. Ortiz ref used and filed a motion to compel,
arg uing that the information was rele vant to establishing, in support of her g ross-neg lige nce claim,

a “knowing and repe ated pattern of unsafe conduct and cell phone usag e on the part of both Relators” and whether Hill Country Site Supply had “cha ng ed its corpor ate prac tices in light of this incident.” The district court g rante d Ortiz’s motion, ord ering rela tors to provide “phone rec ords for 14 day s prior to and 14 da

y s after Aug ust 10, 2015.”

Discussion Relators seek mandamus relief from the district court’s order , urg ing that the district
court abused its discretion by g ranting discovery reque sts that seek information not sup p o rt ed by Ortiz’ s li v e p le a d in g s , in f

o rmation that is not rele vant, and information that violates third-par ty rig hts to privacy

. 2“A discovery order that compels production b ey ond the rules of proce dure is an

abuse of discretion for which mandamus is the proper reme dy .” In re National Lloyd s In s
. C o
. , 449 S.W .3d 486, 488 (Tex. 2014). “Our proce dural rule s define the g ener al scope of discovery as any unprivileg ed information that is rele vant t o the s ubject of the action , ev en though it would be inadmissible at trial, as long as the information soug ht is ‘reasonably calc ulated to lead to the d i s cover y of admissible evidenc e.’” In re National Lloyds Ins. Co. , 507 S.W .3d 219, 22 3 (T ex . 2016) (quoting In re CSX C orp ., 124 S.W .3d 149, 152 (Tex. 2003); Tex. R . Civ. P . 192.3(a) ); see also In re National Lloyds In s
. C o
. , 532 S.W .3d 794, 808 (Tex. 2017) (orig

. proce eding ) (“The discovery g uideposts [under the rules] can be summarized as follows: [1] only rele vant evidenc e is discovera ble; [2] rele vant evidenc e that is privileg ed is not discovera ble; [3] rele vant evidenc e that is not privileg ed is discovera ble when (i) it is admissible or (ii) i t i s i n ad m i s sible but rea sonably calc ulated to lead to the discovery of admissible evidenc e. . . .”). “The phrase ‘re levant to the subject
mat t er ’ i s t o be broadly construed,” but “eve n these liberal bounds have limit s.” “Evidenc e is rele vant if ‘(a ) it has any tendenc y to make a fac t more or less probable than it would be without the evidenc e; and (b) the fac t is of conseque nce in deter mining the action.’” In re National Lloyds Ins. C o
. , 5 3 2 S.W .3d at 808 (quoting Tex. R. Evid. 401). Thus, “[a]lt houg h the s cope of disco v er y i s broad, a reque st for information ‘must show a rea sonable expectation of obtaining information that will aid the dispute’s resolution.’” Id

. (quoting In re CSX Corp ., 1 2 4 S

. W

. 3 d at 152). L ikewise, discovery reque sts must be “re asonably tailored to include only matters rele vant to the case ”—i.e., they “must not be overbr oad”—a nd such a flaw rende rs req u es t s i m p roper independe ntly from whether they are also burdensome or hara ssing. In re National Lloyds Ins. Co. , 449 S.W .3d at 488.

3The district court’s order requiring production of the driver’ s and t h e company ’s

cell-phone rec ords from fourtee n day s befor e and fo u rt ee n day s afte r the date of the incident g o b ey o n d the scope of the pleading s befor e the district court. There is no fac t of conseque nce i n Ortiz’s claims that the cell-phone information has any tendenc y to make a fac t that is of conseque nce
to her claims more or less probable than it would be without the evidenc e. See In re National Lloyds Ins. Co. , 532 S.W .3d at 808. Ortiz has not pleade d that cell-phone usag e by Alvare z or any one else had any thing to do with the acc ident on Aug ust 10, 2015. Nor has she pleade d that Hill Country Site Supply eng ag ed in conduct or had espoused some corpor ate policy rela ted to cell-phone usag e. As such, th e order compelling production of twenty -eig ht day s’ of cell-phone rec ords from Alvare z, Hill Count ry

Site Suppl y , and other s is overly broad. Ortiz arg ues that the reque sted cell-phone information is rele vant beca use her claims of neg lige nce, neg lige nt entrustment, and g ross neg lige nce broadly encompa ss and justify discovery of any distractions, including cell-phone usag e, that might have aff ecte d Alvare z. Relatedly , Ortiz contends that the reque sted information is rele vant t o her neg lige nce claim beca use it rela tes to whether Hill Country Site Supply failed to cre at e an d en forc e a policy prohibiting the use of cell phones while opera ting company vehicles and whether it failed to train Alvare z and other drivers to ref rain from using cell phones while opera ting company vehicles. B oth of these asser tions, whic h
ag ain are nowhere to be found in Ortiz’s pleading s, presuppose and depe nd on the use of the cellphone by Alvare z at or near t h e t i m e of the incident, at best, while her discovery reque st seeks information well bey ond that timeline and scope

.

4Conclusion We conditionally g rant mandamus relief and direc t the trial court to vacate its order requiring rela tors to produce the reque sted phone rec ords. We a re confide nt the trial court will act in acc ordanc e with this opinion. The writ will iss ue only if the trial cour

t fails to do so.

_________________________________________ J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Filed: Aug ust 28, 2018

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