1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00153-CV

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IN RE RODNEY CARDELL MCGEE

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Original Proceeding

172nd District Court of Jefferson County, Texas

Trial Cause No. E-209,674

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MEMORANDUM OPINION

In this original proceeding, Rodney Cardell McGee (“McGee”) seeks 

mandamus relief from an order denying motions to quash depositions on written 

questions seeking records from two third-party medical providers. The Real Parties 

in Interest, David Brooks Jr., Rilonda Brooks, and Danielle Hardaway, Individually 

and as Heirs to the Estate of Emma T. Brooks, Deceased, and Theresa Francois and 
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Gloria Kitchen, filed a response in opposition to the mandamus petition.

1 We 

conditionally grant mandamus relief.

Background

On April 11, 2022, while operating a tractor-trailer unit traveling eastbound 

on Interstate 10, McGee struck the concrete center barrier, crossed into the 

westbound lanes, and collided with westbound vehicles operated by Emma Brooks 

and Theresa Francois. After the trial court consolidated the wrongful death and 

survival suit filed by Emma Brooks’ heirs and the personal injury suit filed by

Theresa Francois and her passenger, Gloria Kitchen, Brooks filed a notice of 

intention to take depositions by written questions to the records custodians for North 

Mississippi Medical Center-Tupelo and New Albany Health Care Associates.

Brooks requested “[a]ny and all medical records from 01/01/2021 to the present, 

including but not limited to, hospital records, doctors’ records, color photographs, 

patient information sheets, lab/x-ray reports, office notes, files, papers, reports and 

correspondence pertaining to [McGee].” McGee moved to quash the depositions by

1 According to McGee, in August 2022 the trial court consolidated a wrongful 

death and survival suit, Trial Cause Number E-209,674, David Brooks Jr., Rilonda 

Brooks, and Danielle Hardaway, Individually and as Heirs to the Estate of Emma 

T. Brooks, Deceased v. Cotton Plant Transport LLC and Rodney Cardell McGee and 

a personal injury suit, Trial Cause Number A-209,679, Theresa Francois and Gloria 

Kitchen v. Cotton Plant Transport, LLC and Rodney Cardell McGee into Trial Cause 

Number E-209,674. In this opinion, we refer to the Real Parties in Interest 

collectively as “Brooks”.
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written questions. McGee argued the requests are unnecessarily overbroad in both 

time and scope, vague, ambiguous, outside the scope of proper discovery, and 

violated McGee’s privacy rights and the physician-patient privilege. McGee argued 

his medical records are not relevant to the suit because he is not seeking medical 

damages. He further argued that medical records from more than a year before the 

accident are not reasonably calculated to lead to the discovery of admissible 

evidence.

In response, Brooks argued the requests made for McGee’s medical records 

are calculated to lead to admissible evidence regarding whether McGee’s employer 

entrusted its equipment to an unfit driver.2 Brooks argued that his request for any 

and all medical records from the time of McGee’s employment with Cotton 

commenced in December 2020 to the present is reasonable in time. Brooks argued 

the requests are reasonably calculated to lead to the discovery of admissible evidence

because other discovery in the case showed that McGee “smell[ed] of marijuana[]”

at the time of the accident, the post-accident drug test showed an interfering 

substance present in the specimen, and McGee invoked his right against selfincrimination when asked about his marijuana use. Further, McGee invoked his right 

against self-incrimination when he was asked to explain why his medical 

2 In this proceeding, the parties call McGee’s employer “Cotton Patch 

Transport LLC” and “Cotton Plant Transport LLC.” Given this confusion, in this 

opinion we refer to McGee’s employer as “Cotton”.
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certification in December 2020 had been renewed for only one year instead of two 

years. Brooks argued McGee could have obtained a prescription for medical 

marijuana because an October 2021 off-work slip in McGee’s personnel file 

suggests McGee could have been receiving cancer treatment at the Tupelo medical 

facility. Brooks argued the medical records might confirm McGee’s marijuana use 

in violation of federal regulations applicable to commercial motor vehicle operators.

In the hearing on the motion to quash, counsel for McGee argued Brooks 

sought information from the New Albany health facility because a nurse at that 

facility issued a one-year medical certification in December 2020. McGee argued 

information about the December 2020 certificate and any health conditions that 

might have affected the expiration date would be irrelevant because McGee acquired 

a two-year certificate in December 2021, before the April 2022 accident. Brooks 

argued that it was not possible for Brooks to obtain health background information

on McGee through other means because McGee had invoked his Fifth Amendment 

right against self-incrimination. Brooks argued pre-accident laboratory tests could 

reveal McGee’s normal creatine levels and could explain whether the elevated 

creatine levels in the post-accident drug test indicate interference.

Regarding the records in the possession of the Tupelo medical facility, McGee 

argued the request for records from January 2021 seeks records that are too remote 

from the accident and medical marijuana was unavailable in Mississippi before the 
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date of the accident. The trial court denied the motion to quash the depositions on 

written questions and denied McGee’s request for an in camera inspection of the 

records before requiring McGee to produce them to Brooks.

Mandamus Standard

Mandamus will issue to correct a discovery order if there is a clear abuse of 

discretion and there is no adequate remedy at law. In re Colonial Pipeline Co., 968 

S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). A trial court abuses its discretion 

when its ruling is so arbitrary and unreasonable that it constitutes a clear and 

prejudicial error of law. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. 

proceeding).

The Texas Rules of Civil Procedure allow a discovery request that has a 

reasonable expectation of obtaining information that will aid in resolution of the 

dispute. See id. at 152. That said, discovery requests must not be overbroad. In re 

Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding). “A

central consideration in determining overbreadth is whether the request could have 

been more narrowly tailored to avoid including tenuous information and still obtain 

the necessary, pertinent information.” In re CSX Corp., 124 S.W.3d at 153.

“[A] party may obtain discovery regarding any matter that is not privileged 

and is relevant to the subject matter of the pending action, whether it relates to the 

claim or defense of the party seeking discovery or the claim or defense of any other 
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party.” Tex. R. Civ. P. 192.3(a). But “[o]verbroad requests for irrelevant information 

are improper whether they are burdensome or not[.]” In re Allstate Cty. Mut. Ins. 

Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). An overbroad discovery 

request is one that seeks irrelevant information not properly tailored to the dispute 

at hand as to time, place, and subject matter. In re K & L Auto Crushers, LLC, 627 

S.W.3d 239, 252 (Tex. 2021) (orig. proceeding). “It is the discovery proponent’s 

burden to demonstrate that the requested documents fall within the scope-ofdiscovery of Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex. App.—

Beaumont 2005, orig. proceeding). When a party propounds overly broad requests, 

the trial court must either sustain the objection or narrowly tailor the requests. In re 

Mallinckrodt, Inc., 262 S.W.3d 469, 474 (Tex. App.—Beaumont 2008, orig. 

proceeding).

“Mandamus is appropriate to protect confidential documents from discovery.” 

In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256 (Tex. 2005) (orig. proceeding). 

“If the trial court issues an erroneous order requiring the production of privileged 

documents, the party claiming the privilege is left without an adequate appellate 

remedy.” In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016)

(orig. proceeding). When a review of documents is critical to the evaluation of a 

privilege claim, the trial court abuses its discretion if it fails to adequately inspect 

documents tendered for an in camera inspection before compelling production. Id. 
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Discovery Dispute

In his mandamus petition, McGee argues the trial court abused its discretion 

by denying the motion to quash the depositions on written questions because Brooks 

seeks documents that are protected by the physician-patient privilege, and Brooks 

failed to establish that the litigation exception to that privilege applies here.

Brooks argues only communications between a licensed physician and the 

patient fall within the ambit of Rule 509, so that communications between McGee

and a nurse or any other non-physician provider of medical services would not be

privileged. Brooks contends McGee failed to offer proof that the deposition on 

written questions required production of communications between a physician and 

the patient. To determine whether the discovery requests sought physician-patient

communications, we need to look no further than Brooks’ notices of intention to take 

deposition by written questions, which asked for “[a]ny and all medical records . . . 

including but not limited to . . . doctors’ records[.]” The discovery request on its face

required production of physician-patient communications. We also note that Brooks 

argues the medical records would be relevant because they might reveal that McGee 

had a diagnosis of cancer and a prescription for marijuana. Diagnosing medical 

conditions and prescribing medication are acts of a physician. 

McGee argues Brooks failed to establish that the litigation exception applies.

Brooks contends that the condition at issue goes to the central issue of “whether 
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McGee was ‘qualified’ to drive under the applicable motor carrier regulations[.]”

Brooks argues McGee’s physical condition is a part of their allegations because to 

prove their direct negligence and negligent entrustment claims against McGee’s 

employer, they will have to show that McGee was an unlicensed, incompetent, or 

reckless driver and Cotton knew or should have known by the exercise of reasonable 

care McGee was incompetent or unfit and thereby created an unreasonable risk of 

harm to others. Brooks further argues that their gross negligence claims require proof 

Cotton had actual, subjective awareness that McGee was unfit to drive. According 

to Brooks, McGee’s physical condition—alleged marijuana use—is central to 

Brooks’ case that Cotton knew or should have known that McGee was using 

marijuana and therefore he was unfit to drive a commercial vehicle. Brooks argues 

the depositions on written questions were narrowly tailored to expose whether 

McGee had a disqualifying physical condition—marijuana use—during the period 

when Cotton employed McGee.

The litigation exception to the physician-patient privilege applies when (1) the 

evidence sought to be admitted is relevant to the condition at issue; and (2) a party 

relies on the condition as part of a claim or defense, such that the condition itself is 

a fact to which substantive law assigns significance. R.K. v. Ramirez, 887 S.W.2d 

836, 842 (Tex. 1994) (orig. proceeding). “Whether a condition is a part of a claim or 

defense should be determined on the face of the pleadings, without reference to the 
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evidence that is allegedly privileged.” Id. at 843 n.7. An in camera inspection may 

reveal the medical records are irrelevant or unfairly prejudicial, but the nature of the 

evidence has no bearing on whether the patient’s condition, if found, is a fact to 

which the law assigns significance. Id. 

If a condition is part of a party’s claim or defense, patient records should be 

revealed only to the extent necessary to provide relevant evidence relating to the 

condition alleged. Id. at 843. “Thus[,] courts reviewing claims of privilege and 

inspecting records in camera should be sure that the request for records and the 

records disclosed are closely related in time and scope to the claims made [] so as to 

avoid any unnecessary incursion into private affairs.” Id. (citation omitted). “[A]ny 

information not meeting this standard remains privileged and must be redacted or 

otherwise protected.” Id.

The parties agree Ramirez provides the guiding principle here, but they 

disagree about whether McGee invoked Ramirez in his motion to quash and whether 

the trial court properly applied it by allowing Brooks to obtain discovery of the entire 

medical file from a facility where McGee had a medical examination for his 

commercial driver’s license and a facility where McGee may have obtained cancer 

treatment. They also disagree as to whether the trial court abused its discretion by 

refusing to examine the documents in camera.
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The Texas Supreme Court’s test for the litigation exception to the physicianpatient privilege recognizes that “just because a condition may be ‘relevant’ to a 

claim or defense does not mean a party ‘relies upon the condition as a part of the 

party’s claim or defense.’” Id. at 842 (emphasis omitted). “Communications and 

records should not be subject to discovery if the patient’s condition is merely an 

evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue for a claim 

or defense, or if the condition is merely tangential to a claim rather than ‘central’ to 

it.” Id. “The scope of the exception should be tied in a meaningful way to the legal 

consequences of the claim or defense. This is accomplished, we believe, by requiring 

that the patient’s condition, to be a ‘part’ of a claim or defense, must itself be a fact 

to which the substantive law assigns significance.” Id. “[A] party cannot truly be 

said to ‘rely’ upon a patient’s condition, as a legal matter, unless some consequence 

flows from the existence or non-existence of the condition.” Id. at 843. Here, while 

it may be possible that McGee was prescribed marijuana for his cancer treatment, or 

that he was being treated for marijuana usage, that does not necessarily mean that he 

was using marijuana while he was driving, or that his prescription would be “of legal 

consequence to a party’s claim or defense.” Id.; see also In re Turney, 525 S.W.3d

832, 838-39 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). The trial 

court must determine whether the information about marijuana use is not only 

relevant to a claim or defense but also part of an “‘ultimate’ issue for a claim or 
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defense, or if the condition is merely tangential to a claim rather than ‘central’ to 

it.” Ramirez, 887 S.W.2d at 842. “The scope of the exception should be tied in a 

meaningful way to the legal consequences of the claim or defense. This is 

accomplished, we believe, by requiring that the patient’s condition, to be a ‘part’ of 

a claim or defense, must itself be a fact to which the substantive law assigns 

significance.” Id. “[A] party cannot truly be said to ‘rely’ upon a patient’s condition, 

as a legal matter, unless some consequence flows from the existence or nonexistence of the condition.” Id.

Although the medical condition Brooks claims to be at issue is McGee’s 

marijuana use, the depositions on written questions were much broader and sought

all medical information. The trial court abused its discretion by failing to grant the 

motion to quash an overly broad request and in failing to conduct an in camera 

inspection of the records to release only those records that pertain to marijuana use, 

and then only to the extent “marijuana use” by McGee goes to a central question of 

legal consequence to a party’s claim or defense. See id. at 842, 844.

Conclusion

Brooks relied on McGee’s suspected marijuana use to support their argument 

that McGee’s medical records in the possession of the New Albany and Tupelo 

medical facilities were an issue in the case. Whether McGee was on marijuana or 

medication that caused impairment at the time of the accident may be an issue in the 
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case and Brooks would be entitled to records regarding such prescription 

medications to the extent such use is prohibited for use by CDL holders under federal 

law. Here, Brooks failed to properly limit the document requests. We hold the trial 

court abused its discretion by failing to either grant McGee’s motion to quash or 

enter a protective order that limited the document production, and by refusing

McGee’s request that the trial court conduct an in camera inspection of the records. 

We are confident the trial court will vacate its order of April 6, 2023, and will 

either grant the motion to quash or tailor the order to allow discovery of records that 

pertain to the medical condition at issue in the case and the trial court will examine 

the records in camera to release only records that pertain to marijuana or prohibited 

drug use. The writ of mandamus shall issue only in the event the trial court fails to 

comply.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on June 1, 2023

Opinion Delivered August 24, 2023

Before Golemon, C.J., Horton and Johnson, JJ.