Opinion issued June 13 , 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 2 2
- 00 856
- CV

———————

———— IN RE NANCY ZHANG , Relat or

Orig i nal Proceedi ng o n P etition for Writ of Mandamus

MEMORANDUM OPINION In this original pro c eeding, relator Nancy Zhang seeks mandamus relief
from the trial court’s discovery order grant ing a motion to com pel. 1 Zhang

cont ends that the trial court abused its d iscreti o n by c ompelling her to produce

1 The underlying case is Gui Ming Jin v. Nanc y Dong Zhan g A KA Nancy Zhang , cause number 2 0 2 1

- 66512 , pend ing in th e 151st District Court of Harris County, th e H onorable Mike Eng e l hart presiding.2

non
- existen t and irr e levant discovery and by imp rope rly comp elling the production
of personal tax return and net worth i nfor mation

. We agree and conditionally grant mandamus relief. Background
The u n derlying suit alleges that real p arty in interest G ui Ming Jin sold her
home in C hina and sent th e sale proc eeds to her daughter, Zhang , 2 in exchange for Zhang car ing for Jin and sponsor ing her green card

. Zhang contends that the
money wa s a gift.
In her live pleading, Jin ass erte d clai m s ag ai nst Z hang for breach of contract, declaratory relief, fraudulent indu cement, common law fraud, constructive fraud, promiss ory estoppe l, m oney ha d and received, and breach of f id uciary dut y
. On
Ju ly 5 , 2022, the trial court gr ante d Zhan g ’ s m ot ion f or partia l summary judgment,
dismiss ing all of Jin ’ s claims except for mo ney had and received and promissory

esto ppel.
Jin se rved her fir st set of interrogator ies and re ques t s for produc tio n on Ja n uary 19 , 2022 and a second set of interrogatories and requests for product ion on Ju ly 29, 2022

. Zhan g ti mely objected to both sets of d iscovery

.

2 Jin has a nother daugh ter named Wei Zhang

. All references to Zhang in this o pinion refer to Nanc y Zha ng.3

On October 7, 2022, Jin sent a deficiency lett er to Zh ang, ob je cting to Zhang ’ s responses to discovery. Zhang responded with an Octob er 12, 2022 lette r, clarifying why sh e obje c ted to the discovery req uests. On October 24, 2022, Jin mov e d to compel an swers to the Janu ary 19, 2 022 discovery

. Her motion to compel also attached th e October 7 deficiency letter , which object ed to (1) Zhang ’ s response s to the f irst set of interrog atories 4 and 17

– 20 ; ( 2 ) Zhang ’ s responses to the first set of r equests for pro duc tion 1, 2, 6

– 9 , 11

– 15 , and 17

– 18 ; ( 3 ) Zhang ’ s responses to the second set of re q uests for production 1, 2, 7

– 14 , 16

– 19 , 21

– 32, and 34 ; and ( 4 ) Zha ng ’ s re s ponses to th e secon d set of
in terrogatories 2 and 3

. O n October 31, 2022 , Zhang r espon ded to the motion to compel , noting that
it was d eficient and failed to include Zhang ’ s October 12, 2022 clarifying l etter

. Zhan g add iti onally explained that she was not with holding any res ponsive non

pr i vilege d documents

. 3
On Novem ber 10, 2022, th e trial court granted Jin ’ s motion to compel,
stati ng, “ it appears t o the C ourt that the Motion should be GR A NTED . The C ourt review ed the lette r attached to [Jin ’ s] Motion. It i s there fore ordered that, on or

3 Zhang also f

iled a motion for protective order, seeking protect ion from J in’s re quest for personal finan ci al information

. The reco rd does not inclu de a ruling on Zh ang ’ s mot ion

.4

before December 2, 2022, Nanc y Zhang complete ly and full y respond to the Discovery Requests prev iously served her ein by Plaintiff. ”
Aft e r t h e tri al court granted Jin ’ s motion to compel , Z hang file d an

em ergen c y motion to cl arify

. Zhang argued that the trial court ’ s order was ambiguous, that it did not define “ discovery requ est s, ” that it order ed Zhang to
respon d to discovery requ ests tha t we re irr elevant, without any l imi tation as to time, and wit hout an y protection for Z h ang ’ s personal identifying inform ation

. The t rial court deni e d Zhang ’ s m otion to clarify

. Zhang now seeks mandamus relie f in this Court . We previously granted Zhang ’s r eq uest for temp orary relief and stayed th e tr ial court ’ s N ovember 10,
2022 discovery order

. Sta n d ard of Review and Applicable Law
T o be ent i t led to a writ of man damus , a relat or must demonstrate that the
trial court abused its discretion an d that the r elat or h as no ade quat e remedy by
app eal. See I

n re Pr u dential Ins. Co. of Am ., 148 S.W .3d 124, 135

– 36 (Tex. 2004) (ori g. proceeding); W

alker v. Packer , 8 2 7 S.W.2d 83 3, 839

– 40 (Tex. 1992) ( orig. proceeding). T he scope of discovery perm itted by a tria l cour t i s rev iewed for an
abu se of discreti on. In r e CSX C o rp ., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding )

. A trial court clearly abuses its discretion i f it re a ches a deci sion so5

arbitrary a nd unreasonable as to amount to a c lear and prejudi cial error o f law.
Walke r , 827 S .W.2d at 839.
Wi th res pect to the r e solution of factu al issues, the r eviewing court may not
subst itute its judgment for that of the tr ial co u rt, and the relat or must esta bl ish that
the trial court could reas onably have reac hed only one deci sion. Id . at 8 39

– 40. A
trial c ourt ha s no di scre t i on in determining w hat the law is or in applying the law to

t he facts. Id . at 840. Thus, a clear failu re by the tri al co urt to analy ze or apply the
law c orrectly co nstitute s an abus e of discret i o n. In re Allst ate Cnty. Mut. Ins. C o ., 85 S.W. 3d 193, 1 95 (Tex. 2002) ( ori g. proceeding)

. The Texas Rule s of Civil Procedure define the gener al scope of d isc overy “as any unp riv ileged information that is rele vant to the subject of the acti on, even if it would be inadm issi ble at trial, as long as t h e inform ation sought is ‘reasonabl y calculated to lead to the discovery of admissible evidence.’ ” CSX , 124 S.W.3d at
152 (quoting T EX
. R. C IV . P. 192.3 (a) )

. Courts measure the scope of discovery by
th e live ple ad ings c ontain ing the pending claims. 4
Becaus e parties are not en titled to unlimited discovery, a trial court must impose re aso nable discovery limits. See In re Gr aco Children ’ s Prods., Inc ., 210

4 See In r e Booth , No. 14

– 14

– 00637

– CV, 2 014 WL 5796726, at *2 (Tex . A pp.

— Houston [14 th Dist.] Oct. 21 , 20 14, orig. p roceeding ) (per curiam) (mem. op.) (citing In re Citizens Suppo rt ing Metro Solutions, Inc ., No. 14

– 07

– 00190

– CV, 2007 WL 4277850, at *3 (Tex. App.

— Hous ton [14th Dist.] Oct. 18, 200 7 , orig. proceeding) (mem. op. )).6

S.W.3d 598, 600 (Tex. 2006) ( orig. proceeding) (per curiam ). Requ ests for
i nformation mus t be “re asonabl y tailored to in clude only matters relevant to the case” and may not be use d as a “fishing expedition.” In re Am. Op ti cal Corp ., 988
S.W.2d 711, 71 3 (Tex. 1998) (orig. proceeding)

. D i scovery requests must
the re fore b e limited to the relevant t ime, place, a n d subject matter. See In re Xeller , 6 S.W.3d 618, 626 (Tex. App.

— Houston [14t h Dist.] 1999, orig. procee ding). Requ ests not reasonably tai lored as to time, place, or subje ct matter are ove rbroad

as a matter o f law. See, e.g. , CSX , 1 24 S.W.3 d at 1 5 2

. 5 An order that compels overb road discovery constitutes an abuse of
discretion f

or which mandamus is the appropriate rem edy. See In re Nat ’ l Lloyds
Ins. Co ., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding )

. 6 I ndeed, “[m ]and amus relief is ava il able when [ever] [a] trial court c ompels production beyond the permi ssib le bound s of dis covery.” In re Weekley Homes, L.P ., 295
S

. W.3d 309, 322 (Tex. 2009) (orig. proceeding). Under th is analysis, a pa rty will
not ha ve a n adequate remedy by appeal when t he appe llate court is un able to cure
the t r ial court ’ s discover y error. Walk er , 827 S.W.2d at 843

.

5 See also In re Am. Optica l C orp ., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) ; Dillard Dep ’ t St or es, Inc. v. Hall , 909 S .W.2d 491, 492 (Tex. 1 995); Texaco , Inc. v. Sanderson , 898 S.W .2d 813, 815 (Tex. 1995)

.
6 See also Di llard Dep ’ t Stores , 909 S.W.2d at 492; In re Hous ton ian Campus, L.L.C ., 312 S.W. 3d 178, 183 (Tex. A pp.

— Houst on [14th Dist.] 2010, o rig. proceeding).7 Analysis
J in ’ s motion to compe l and her deficiency letter sought di scovery responses
to the Ja nuar y 19 and July 29 in terr og ator i es and requests for product ion

. I n its order, th e trial court granted Jin ’ s motion to compel and broadly or dered Zhang to respond to all discovery requests w ithout limitation

. I nt erl ineated notes on the tri al

court ’ s order show that it conside red th e defi ciency le tter atta ched to Jin ’ s m otion , thus indicating that the trial court order ed Zhang to an swer both the Janua ry and
Ju ly dis covery. 7 W e therefore anal y ze both se ts of dis covery. 8 January 19, 2022 Interrogatories
The d eficiency letter so ught d iscovery resp onses to t he follow ing
int errogatories :

I nterrogatory 17. If you conten d Plain ti ff did not perform her contra ctual o bl igations, exp lain what p art of the plaint iff ’ s contractual obligations she did not perform, including a description o f th e oblig ation an d t he exact time, d ate , an d place of Plaintiff ’ s failure to perform. In terroga to ry 18. If you contend plaint iff did n ot suffer dam ages for th e breac h of the c ontrac t, state the factual basis for your contention.

7 The record does not contain any trial court rulings o n Zhang ’ s objections to discovery. A court must ad dress obj e ctions before it compels discovery, not af te r. See T EX

. R. C IV

. P. 193 .4(b) (providing no response to discovery is req u ir ed if objections are sustained).

8 Because the trial court ’ s order compel s Zhang to respond to all discovery requests wi th out any limitation , and thus is overbroad, we conclu de that it i s un nec e s sary to addr ess each objection a ble discovery request and limi t our analysis according ly. See T E X

. R. A PP . P

. 47

. 1.8 Interrogatory 19. I f yo u contend Plai n ti ff should have, bu t di d n ot, mitigate her damages, provide the factual basis fo r this contention.
I nterrog atory 2 0. If you cont end you wer e ind uc ed by frau d to e nter into the contract, state the factual basis for your contention.
Zha ng initially a n sw ered th at the inte rrog ato ries were vague and ambiguous

. Later, in he r re sponse to the motion to compe l and in her October 1 2, 2022
cla rifying lette r , Z hang asserted that interrogatories 17

– 20 were irrelevant because they conce rned J in ’ s b reach

- of

- contract cla im t hat had been disposed of by summary judgment

. Jin pr ovided no explanation to the trial court, or this Court, as to how these interrogatorie s c ould be re l evant after summary judgment was granted
on the breach

- of

- contrac t clai m
. T he trial cou r t nevertheless orde red Zhang to respond to these
interr ogatories which , on the face of the record, were no long er relevant. Because
th at is beyon d the permissible boun ds o f discovery, the trial court abused its
discret ion in order ing Z h ang to respond to the se inter rogatories

. See T EX
. R. C I V
. P. 192.3(a) ( allowing discovery regarding any matter not privileged an d rele vant to subject matter of pending a ct ion)

. 9

9 See also T EX

. R. C IV . P

. 192.4(b ) (prohibiting dis covery when burde n outweighs likel y benefit)

.9

January 19, 2022 First Requests for P roduction
I n her deficiency lett er, Ji n comp lained t ha t Zhang did not answer req uests 2, 7, 9, and 12 :

R FP 2. Produc e all docum ents reflecting that Defendant wa s a party to the June 28, 2019, sale referre d to in Plaintiff ’ s Original Peti tion.
R FP 7. All documents evidenci ng tha t you an d Pl ainti ff argued ab out how the sale p ro ceeds of the Property were be ing sp ent.
R FP 9. Prod uce any document re flecting that Plaintiff requested you be her fiduci ary
. R FP 12. Any document re f lecting that you visited

. . . China in Jan ua ry 2019.
Fo r these req uests, Zhang answered, “ None. ”
Jin also complained about Zhang ’ s res ponses to requests 1, 11, and 1 4

– 18

. R FP 1. Produce all documents evidencing the closing of the June 28, 2019 sale of the Property referred to in P lai ntif f ’ s Original Pe tition.
R FP 1 1. Any docum ents r eflect ing , evidencing, or ident ifying the “ p rojects or investment opportuni ties ” th at you discussed with Pl aintiff during your v isi t to China in January 2019.
R FP 14. All documents reflecting th e tra nsf e r by the buyer of the Property of $1.2 M dol lars to you the sale proceeds of the Property refe rre d to in Plaintiff ’ s Origin al Petition.
R FP 15. Any docum ent reflecting payments by you to the Third

- Party Defendant in 2019

- 2021 from the sale proc ee ds of t he Property.10 R FP 17. Produce any docu ment evi denc ing or reflecting that, i n connect ion with the sale of the Property, you were engaged in a business t ransaction with Plai ntif f.
R FP 18. Produce any document evidencing or re flec ting that you and Pla in tiff were en gaged in any business transact ion in co nnection with Pl a intiff ’ s Or iginal Pet ition. In response to each of these request s , Zhang ans wered with an objection , and

s ubject to the objection, “ none. ”
T hus, for a ll ten of thes e reque sts for produc tion , Zhang answered that there
are no such d o cuments. It is axi o m atic that a party cannot be compelled to produ ce docum ents that do not exist. See I n re Sun Coast Re s. , 562 S.W.3d 13 8, 15 6 (Tex. App.

— Houston [14 th Dist. ] 2018, orig. proceed ing). B y comp elling Zhan g to produce documents that she stated do not exist, the trial court abused its discretion

. See id

. Jin ’ s Second Set of Requests for Production
For her second set of requests for product ion, Jin comp l a ined ab out Zhang ’ s

re sponses to requ ests 1 , 8 , 18

– 19, and 34

.

R FP 1. Produc e all document s evidencing the closi ng of Pla i n t i ff ’ s real property in China.
R FP 8. Produce any document reflectin g your hiring an im migr ation attorney and payin g t hem for Plaintiff ’ s app licatio n.11

Zha ng respond ed to both request s with an obj ection and tha t , again , she had

no s u ch documents. A s we held above, a tria l court abuses its discretion when it orders a party to produce d ocuments t hat do not exist. S ee id

. In requests for pr oduction 18, 1 9, and 34 , Jin asked for Zh ang ’ s personal t ax

r eturns and suppor ting documentation :

R FP 18. All federal and s tate income

- reporting documents, including tax retu rns with all schedules and amendme nts, profit and loss s tatements, financial st atements, bala nce she ets, inc ome st atements, an d partners hip and/or joint vent ure agreements, wheth er personal or for any entity in which the parties own or claim, or have owned or clai m ed, any interest.
R FP 19 . All W

- 2 forms, 1099 forms, K

- 1 forms, F orm SSA

1099, Pe r sonal E arnings Benefi t Est im ate S tatement ( PEB E S), and other inc ome
- and revenue

- repor ting forms that evidence your income.
R FP 34. If not produced in respons e to a dif fe rent production request, p roduce all federal and state income

- report ing docum en ts, in cluding tax ret urns w ith all sche dules and amen dments, whether p ersonal or for any en tity in which you own or claim, or have owned or claimed, any interest, pe rtainin g t o you or your income, since the date of January 1, 2019. Zhang objecte d to each of t hese re quest s o n the basis that t hey are
overbr oad . Zhang also sought a prote ctive order contending that the se requests inva d e her personal, constitutiona l , or property rights

.12

Tax Returns a nd Net Worth Discovery
Tax r etu rns enjoy spec ial protections. See Ma resca v. Marks , 362 S.W.2d 299, 301 (Tex. 1962)

. Federal law req uires that tax returns be kept confidential, except in limited circums tances. See In re Irvin , No. 05

– 98

– 01771

– CV, 1998 WL 908955, at *4 (Tex . App.

— Dallas Dec. 31, 199 8, orig. p roceedi ng) ( citing I. R.C. § § 6103 , 743 1 ( 1998)). Texas law thus requires proof of a speci al need for the production of a tax return in a c ivil act ion. See id .; see also Maresca , 362 S.W.2d

at 301

. T he requesting party must establis h the relevancy a nd ma teria l ity of the ta x
return s soug ht

. El Centr o d el Barrio , Inc. v. B arlow , 894 S.W .2d 775, 780 (Tex

. App.

— San Antonio 1994, orig. proce eding). The requesting p arty must also show
that su ff i ci ent infor mation of financial status cannot be obtained el sewhere

. See Sears, Roebu ck & Co

. v. Ramirez , 8 24 S.W.2d 558, 559 (Tex. 1992) (o rig. proceeding)

. T he t rial court then has to weigh the privacy interests of the responding p arty in its fin ancial records and the need for the evidence. El Centro
d el Barrio , 894 S.W.2d a t 779.
H e re, the r ecord does n o t show that Jin satisfied her burden of establishing
the relevancy and materiality of Zhang ’ s personal tax return s
. Se e id

. Ji n al so failed to demonstrate that sufficient information o f financial status could not be13

o btained elsewhere

. See Ra mirez , 824 S

. W. 2d at 559; El Cen tro d el Barrio , 894
S.W.2d at 780. Accordingly, i n the absen c e of these predicate show ings, t he tri al court
abus ed its discr etion in co mpelli ng responses to requests 18 and 34 , without any limitatio n , and apparently with no consid eratio n of the private nature of personal

ta x return s
. 10 Additionally, part of request 18 seek s d ocuments showing Zhang ’ s net worth. See In re Garth , 214 S.W.3d 190, 193 (Tex . App.

— B eaumont 2007, orig

. proceed ing) ( noting t hat balance sheet shows n et worth). T he discovery of net
worth information re quires a written court orde r before any such disc over y can

o c cu r
. See T EX
. C IV
. P RAC

. & R EM
. C ODE § 41.0115(a)

. “ O n the motion of a par ty
and after notice and a hearing, a trial court may au t horize di sc overy o f e vid ence of
a defendant ’ s net worth if the court finds in a written order that the cl aimant has
demons trated a substantial likelihood of su cces s on t h e meri ts of a c laim for

exe mpl ary damages. ” Id

. 11 E xem plary damage s ar e “any dam a ges awarded as a

10 Moreover, reque sts 18 and 19 contain no time limitation. Disc over y r equests that are not limited a s t o time frame or scope are impermissibly overbr oad. See In re CSX Corp ., 124 S .W.3d 149, 152 (Tex. 2003 ).

11 Se e In re Michelin N. Am., Inc ., No. 0 5

- 15

- 01480

- CV, 2016 WL 890 970 , at *8 (Tex. App.

— Dallas Mar. 9, 2016, orig . proc eeding) (mem. op.) ( stating t hat s ect ion 41.0115(a) “r equi res a party seeking net worth discovery to first d emonstr ate and obtain a finding from the trial court that there is a substantial likelihood of suc cess on the merits of a cl aim for exemplary damage s”) ; see also In re W TG Fue ls , Inc ., No. 11

- 19

- 00390

- CV, 2020 WL 205254, at *3 ( Tex.14

penalty or b y way of punishme nt but not for compensatory purposes.” T EX
. C IV
. P RAC

. & R EM
. C ODE § 41.001(5). Here, t he trial court ’ s order d oes not include a ny finding that Jin
demonstrated a substantial l ike l ihood of succes s on the merit s of an y cl aim fo r
exemp lary d ama ges
. In the absence of that statutorily r equired finding, the trial

court abused its discretion in compelling the production of Zhang ’ s ne t worth. See
I d

. § 41.0115( a); In re M ichelin N. Am. , Inc. , No. 05

- 15

- 01480

- CV, 2016 WL 890970, at * 8 (Tex. App.

— D allas Mar. 9, 2016, orig. proceeding) (mem. op.)

. Ad eq uate Remedy by Appeal
To b e entitled to mandamus relief , Zha ng must lack an ade qu ate remedy by

a ppeal. See I

n re K & L Auto Crushers , LLC , 627 S.W.3d 239, 247 (Tex. 2021) ( orig. proceeding)

. It is sett led that “parti es lack an a dequate appellate remedy
from orders compelling dis c o v ery beyond what the rules allow.” In re Millwork , 631 S.W.3d 706, 714 (Tex. 2021 ) (orig. proceeding) (per curiam). Here, the trial c ou rt ’ s order compel s Z hang to answer over broad discovery requests th at seek irr elevant infor mation , to produ ce documents that d o not exist , and to produce personal tax returns and net wo rth information without the required showing

. T h is goes beyond what T e xas law a l lows

. Zhang therefore lacks a n adequate remedy by appeal. Id

. App

. — Eastland Ja n. 13, 2020, orig. proceeding) (mem. op.) (noting claim ant is allowed to pursue ne t worth discove r y on ly after obtaining written order )

.15 Conclu s ion
Accor dingly, f

or all of the r ea son s above, w e conditionally grant Zhang ’ s peti tion for wr i t of ma ndamu s. We order t he trial court to vacat e its N ov ember 1 0 , 2022 discovery order and to rule on Zhang ’ s discovery objec tions and motion for protective or der . The writ wi ll issue only if th e trial court fails to do so. We also
l ift the stay e ntered on November 2 2 , 2023

. Se e T EX
. R. A PP
. P. 52.10(b) ( “ Unless
vacated or modi fied , an order granting t emporary relief is effective until the case is finally deci ded

. ” ).

Ter r y Ad ams Ch ief J ustice
Panel consist s of Chief J us tice Adams and Justi ce s Guerra an d Farris

.