NO. 12-19-00412-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: UPS GROUND FREIGHT, INC.

AND PHILLIP VILLARREAL,

RELATORS

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ORIGINAL PROCEEDING

MEMORANDUM OPINION

UPS Ground Freight, Inc. and Phillip Villareal, Relators, filed a petition for a writ of 

mandamus and a request for a temporary stay in the above cause, seeking to compel the 

Respondent, the Honorable J. Clay Gossett, Judge of the 4th Judicial District Court of Rusk 

County, Texas to vacate an order compelling discovery. This Court granted the request for a 

temporary stay, stayed the trial court’s order compelling discovery, and requested any real party 

in interest file a response to the petition for writ of mandamus. Real parties in interest Jacintha 

Nicole McElduff, independently and as Independent Administrator of the Estate of Nathan Dean 

Clark, and Micah and Sean Trotter, filed responses. Relators contend the trial court abused its 

discretion by requiring disclosure of drug and alcohol testing results they deem irrelevant. We 

conditionally grant the petition.

BACKGROUND

Phillip Villareal was a truck driver employed by UPS Ground Freight, Inc. when he was 

involved in a multiple-car accident that resulted in multiple injuries and one fatality. In the course 

of the ensuing litigation, Jacintha Nicole McElduff served Relators with the following requests for 

interrogatories and for production:

INTERROGATORY NO. 1: For the time period of 2006 to 2017, 

please Identify all Commercial Motor Vehicle drivers who drove Commercial 

Motor Vehicles under Your authority and were dispatched out of the UPS 
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Freight/UPS Ground Freight facility in Irving, Texas (the same facility from 

which Defendant Phillip Villarreal was dispatched), and the time from [sic] each 

driver was employed (e.g. January 2003 to present, or January 1997 to October 

2017).

REQUEST FOR PRODUCTION NO. 1: Copies of all documentation 

of all alcohol, drug and/or controlled substance tests of the drives [sic] identified 

in Your response to Cross-Plaintiff’s Second Set of Interrogatories, including preemployment, random, reasonable suspicion, periodic and post-accident testing.

Relators objected and, after a hearing, the trial court ordered Relators to comply with the 

requests. Thereafter, Relators filed their petition for writ of mandamus complaining of the trial 

court’s discovery order.

PREREQUISITES TO MANDAMUS

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of 

discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 

938, 941 (Tex. 1998) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839-40 

(Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so 

arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker, 827 

S.W.2d at 839-40. Additionally, a trial court has no discretion in determining what the law is or 

in applying the law to the facts. Id. at 840. Thus, a clear failure by the trial court to analyze or 

apply the law correctly will constitute an abuse of discretion and may result in mandamus. Id. 

The relator has the burden to establish the prerequisites to mandamus. Canadian Helicopters Ltd. 

v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (org. proceeding).

Mandamus relief from a non-appealable interlocutory order requires the showing of a 

serious denial of a right for which the remedy by appeal is inadequate. See United Mexican States 

v. Ashley, 556 S.W.2d 784, 785 (Tex. 1977) (orig. proceeding). Whether a remedy is adequate so 

as to preclude mandamus review depends heavily on the circumstances, and that determination 

requires a balancing of jurisprudential considerations. See In re Prudential Ins. Co. of Am., 148 

S.W.3d 124, 136-37 (Tex. 2004) (orig. proceeding). Thus, an appellate remedy is adequate when 

any benefits to mandamus review are outweighed by the detriments. Id. at 136. The requirement 

that there be no other adequate remedy by law is met when parties are in danger of permanently 

losing substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) 

(orig. proceeding) (per curiam); Walker, 827 S.W.2d at 842. A party will not have an adequate 
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remedy by appeal: (1) when the appellate court would not be able to cure the trial court’s discovery 

error; (2) where the party’s ability to present a viable claim or defense at trial is vitiated or severely 

compromised by the trial court’s discovery error; and (3) where the trial court disallows discovery 

and the missing discovery cannot be made a part of the appellate record or the trial court, after 

proper request, refuses to make it part of the record. In re Ford Motor Co., 988 S.W.2d 714, 721 

(Tex. 1998) (orig. proceeding); Walker, 827 S.W.2d at 843. 

DISCOVERY ORDER

Relators assert that the trial court abused its discretion by requiring disclosure of drug and 

alcohol testing data, including records of non-parties, because McElduff did not show that those 

results are relevant. Of Relators’ several arguments, we will address the contention that the 

requests were overly broad.

Applicable Law

The scope of discovery largely rests within the discretion of the trial court. In re CSX 

Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). In general, a party may 

obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of 

the pending action. TEX. R. CIV. P. 192.3(a). The rules governing discovery require that the 

information sought appear reasonably calculated to lead to the discovery of admissible evidence. 

Id. Evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence in determining the action.” TEX.

R. EVID. 401. A request for information must show a reasonable expectation of obtaining 

information that will aid the dispute’s resolution. In re CSX Corp., 124 S.W.3d at 152. A 

discovery request is overbroad when it encompasses time periods, activities, or products that are 

not relevant to the case in which the discovery is sought. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 

219, 226 (Tex. 2016) (orig. proceeding) (per curiam). A discovery order that compels overly broad 

discovery is an abuse of discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 

1995) (orig. proceeding) (per curiam). Where a discovery order compels production of “patently 

irrelevant” documents there is no adequate remedy by appeal because the order “imposes a burden 

on the producing party far out of proportion to any benefit that may obtain to the requesting party.” 

In re CSX Corp., 124 S.W.3d at 153. Therefore, mandamus relief is available to remedy overly 

broad discovery. In re Nat’l Lloyds Ins. Co., 507 S.W.3d at 226. 
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Analysis

McElduff justifies her discovery requests by asserting they are supported by her claims

against UPS. She alleged that UPS was negligent in failing to properly train, supervise, and 

monitor Villareal. She also alleged that UPS was guilty of gross negligence by “knowingly 

requiring and permitting its commercial motor vehicle drivers to drive while under the influence 

of drugs.” Specifically, she alleged UPS failed to properly drug test Villareal or train him “about 

the operation of commercial motor-vehicles and use of drugs.” McElduff asserts that the 

information sought is relevant to her effort to discover matters relating to the parameters, 

implementation, enforcement, and efficacy of UPS’s drug-related policies. She wants to know 

whether UPS adequately supervised and monitored its drivers at the Irving terminal to prevent 

driving under the influence of drugs. She argues that she has “a legitimate interest in the drugtesting information because the drug culture of the Irving terminal is the crux of this lawsuit.” 

According to Relators, the order covers 357 drivers and all of their test results over a period of 

eleven years, which, they argue, includes information with no relevance to this case for an overly 

burdensome time period.

A party may obtain discovery of the name, address, and telephone number of persons 

having knowledge of relevant facts. TEX. R. CIV. P. 192.3(c). UPS drivers working out of the 

facility where Villareal worked could have knowledge of facts regarding whether UPS properly 

supervised and monitored its drivers. A party may obtain documents that contain matters relevant 

to the subject matter of the action. Id. 192.3(b). McElduff contends the results of drug tests 

conducted by UPS on its drivers might aid in the determination of whether UPS was guilty of gross 

negligence as alleged in her petition. We assume without deciding that the information sought, 

names of employees and their test results, is relevant and discoverable because this information 

may tend to make the existence of a fact that is consequential to the determination of the action 

more or less probable than it would be without the evidence. See TEX. R. EVID. 401.1

 

However, discovery requests must show a reasonable expectation of obtaining information 

that will aid the dispute’s resolution. See In re CSX Corp., 124 S.W.3d at 152. Requests must be 

reasonably tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 

 1 Having limited our consideration to whether McElduff’s requests were overly broad, we make no 

determination whether 49 C.F. R. § 40.323 is applicable, whether the trial court’s order complied with the requirements 

of that regulation, or whether production of drug tests of non-party UPS drivers is violative of any constitutional or 

evidentiary right of privacy.
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S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam). Therefore, the trial court must make 

an effort to impose reasonable discovery limits. In re CSX Corp., 124 S.W.3d at 152. Discovery 

orders compelling overly broad discovery cannot stand. See K Mart Corp. v. Sanderson, 937 

S.W.2d 429 (Tex. 1996) (orig. proceeding) (per curiam) (requests for information on criminal 

activities at all property owned, leased, or managed by the defendant in Texas over a seven-year 

period and information on incidents involving abductions from defendant’s premises over a 

ten˗year period held overly broad); Dillard Dep’t Stores, Inc., 909 S.W.2d at 492 (request for 

documents of all complaints involving allegations similar to that of plaintiff from defendant’s 

businesses located in twenty states over a five-year period held overly broad as a matter of law). 

In deposition testimony, Villareal agreed with counsel that UPS did not exercise its duty to 

prevent employees from selling, transferring, or giving drugs to each other at the UPS facility. He 

agreed that there were times when he supplied drugs to other UPS drivers and dock workers and 

times when they gave drugs to him, and no one at UPS stopped them. He testified that he was 

drug tested at least once a year and passed those tests. Until the accident, he had never been told 

he failed a drug test. He agreed with counsel that UPS’s system was not strict enough to catch his 

use of marijuana. He was not concerned about getting caught and knew he could continue driving 

for UPS. However, Villareal testified that he did not smoke marijuana the entire time period he 

was employed by UPS. He testified that he began “maybe five years” before his September 2019 

deposition, and at least two years before the September 2017 accident. 

We find the Federal Motor Carrier Safety Regulations, pursuant to which UPS is required 

to test its drivers for alcohol and drug use, instructive on the question of what constitutes an 

appropriate time period for discovery. See 49 C.F.R. §§ 382.301-.311 (2020). Current federal law 

requires UPS to retain positive drug test results for five years, records related to the controlled

substances collection process for two years, and negative drug test results for only one year. Id. 

§ 382.401(b).

We note, also, that Judge Gossett previously narrowed the scope of discovery in this case. 

At a hearing on a prior request for interrogatories, the court narrowed the scope of McElduff’s 

request for information on all truck and vehicle accidents in which UPS has been involved. 

Counsel for McElduff asserted that he was willing to limit the request to accidents occurring in 

Texas in the last five years. The court ordered a “five years scope within the State of Texas, similar 
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in nature, concerning accident or cases involving allegations similar to this case. You know, unsafe 

driving, negligence, improper policies, safety training, rear-end collisions . . . .” 

Based on Villareal’s history of marijuana usage at UPS, his involvement in and first-hand 

knowledge of any alleged “drug culture” at UPS could only have been during the period of 2014

through 2017. Further, the federal government requires UPS to retain positive test results for only 

five years, not indefinitely. While the request and order before us are limited to information on 

UPS drivers who were dispatched out of UPS’s Irving, Texas facility, the order’s time period, the 

eleven years Villareal worked for UPS, is not a reasonable time limit. See In re Deere & Co., 299 

S.W.3d 819, 821 (Tex. 2009) (orig. proceeding) (per curiam) (order was properly limited to 

appropriate products but overbroad due to lack of reasonable time limit); Texaco, Inc. v. 

Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding) (per curiam) (overbroad 

discovery request lacking appropriate limitations as to time, place, or subject matter not relevant 

to establish defendant’s “corporate strategy to ignore safety laws”). Discovery orders requiring 

document production from an unreasonably long time period are impermissibly overbroad. See 

In re CSX Corp., 124 S.W.3d at 152. 

Here, the passage of time results in a sliding scale of relevance where information provided 

by previous employees becomes too attenuated from Villareal’s situation to be of use. The 

likelihood that employees and test results from eleven years prior to the accident that is the focus 

of this litigation would shed any light on this case is too small to justify discovery. See K Mart 

Corp., 937 S.W.2d at 431. McElduff’s request could be more narrowly tailored to include only 

relevant matters pertinent to a more appropriate time period. See In re CSX Corp., 124 S.W.3d at 

153; Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (orig. proceeding).

DISPOSITION

Interrogatory No. 1 and Request for Production No. 1 are overly broad because they are 

not appropriately limited in time. Therefore, the trial court’s order constitutes an abuse of 

discretion. Because mandamus relief is available to correct the trial court’s action, we lift the stay 

previously imposed in this case, and we conditionally grant mandamus relief. We trust the trial 

court will promptly vacate its December 6, 2019 order, and in its stead, issue an order narrowing 

the parameters of discovery. The writ will issue only if the trial court fails to comply with the 

court’s opinion and order within ten (10) days after the date of the opinion and order. The court 
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shall furnish this court, within the time for compliance with the court’s opinion and order, a 

certified copy of its order evidencing such compliance.

GREG NEELEY

Justice

Opinion delivered February 28, 2020.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ORDER

FEBRUARY 28, 2020

NO. 12-19-00412-CV

UPS GROUND FREIGHT, INC.

AND PHILLIP VILLARREAL,

Relators

V.

HON. J. CLAY GOSSETT,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by 

UPS GROUND FREIGHT, INC. and PHILLIP VILLARREAL, who are the relators in 

appellate cause number 12-19-00412-CV and defendants in trial court cause number 2017-330, 

pending on the docket of the 4th Judicial District Court of Rusk County, Texas. Said petition for 

writ of mandamus having been filed herein on December 13, 2019, and the same being duly 

considered, because it is the opinion of this Court that the petition is meritorious, it is therefore 

CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and 

the same is, hereby conditionally granted.

And because it is further the opinion of this Court that the trial judge will act 

promptly and issue an order vacating its order of December 6, 2019, granting the motion to compel 

filed by Real Party in Interest, Jacintha Nicole McElduff, individually and as Independent 
Administrator of the Estate of Nathan Dean Clark, the writ will not issue unless the Honorable J. 

Clay Gossett, Judge of the 4th Judicial District Court of Rusk County, Texas fails to do so within 

ten (10) days from the date of this order.

It is further ORDERED that all costs of this proceeding are hereby adjudged against 

Real Party in Interest Jacintha Nicole McElduff, independently and as Independent 

Administrator of the Estate of Nathan Dean Clark.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.