1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

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IN RE DAIMLER TRUCKS NORTH AMERICA LLC

__________________________________________________________________ O riginal Proceeding 260th District Court of Orange County, Texas Trial Cause No. D160258
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__________________________________________________________________ MEMORANDUM OPINION
In this wrongful death products liability case, Daimler Trucks North America, LLC (“D TNA ”) seeks mandamus relief from a trial court order, signed on May 12, 2020, in Tr ial Court Case No. D160258

- C, Robert W. Doiron, et al., v. Daimler Trucks North America, LLC, et al. , (hereinafter Doiron ). T he trial court ordered DTNA to produce certain d iscovery items that had previously been produced in a different law suit that was fi led in West Virginia, styled Wanda Francis Lawrence, et al. v. Daimler Trucks North America, LLC f/k/a Freightliner, LLC and LTD Logistics, Inc. , (hereinafter Lawrence ). In Doiron , DTNA objected to the discovery2 requests and to having to produce the Lawrence discovery. A law firm that had represented DTNA in the Lawrence case then submitted t he Lawrence discovery items by providing two memory devices with thousands of documents and images to the Doiron trial court for an in

- camera review

. The Lawrence case involved an accident that occurred in 201 0 and involved a 2009 Columbia Freightliner truck manufactured by DTNA that was involved in a collision . As a result of the collision , the side mounted fuel tank on the driver’s side of the truck ruptured , the truck caught on fire , and the passengers and driver died. In
Lawrence , the plaintiffs alleged that the 2009 Freightliner was defective because of the side mounted, unguarded fuel tanks and fuel system which was used on all Class 8 semi tractors and that it was subject to post collision fires from impacts that were foreseeable, and that the defects related to the battery, the fuel tank design that allowed fuel to escape, that it lacked a fire suppression system or shi elding, that the location of the fuel tanks was not safe, that the sleeper compartment lacked an exit door, and it was made of highly combustible materials. The Lawrence case was tried to a jury and the jury found in favor of the defendants. The discovery and items produced in the Lawrence case were subject to a protective order entered by the West Virginia trial court. The Doiron plaintiffs alleged in their Fourth Amended Petition that in 2014, Mr. Doiron was riding as a passenger in the sleeper compartment of a 2006 Columbia3 120 Freightliner truck when the Freightliner was involved in a collision and the truck caught on fire, cau sing Mr. Doiron to suffer burns to a large percentage of his body and eventually causing his death. The Doiron plaintiffs allege that the 2006 truck was manufactured by DTNA and that the design and manufacture of the 2006 truck was unreasonably dangerous because of alleged defects in the placement of the fuel tank immediately behind the front wheels and under the doors of the passenger compartment, inadequate shielding of the fuel tanks ; the design of a fuel tank system with components that are compromised under survivable collision forces that expose occupants to post

- collision fuel fed fires, burns, and death ; and the fail ure to equip the truck with emergency exit doors to allow occupants to exit through the sleeper compartment. Real Parties in Interest, Plaintiffs Robert Doiron and Tracy Doiron, individually and as representatives of the Estate of Adam Doiron (“the Doiron Plaintiffs”) , assert claims against DTNA for strict product liability, negligence, breach of implied warranty, and gross negligence.
T he Doiron Plaintiffs sent requests for production asking DTNA and the attorneys that represented DTNA in the Lawrence suit to produce al l documents, expert reports, and depositions from the Lawrence suit. DTNA filed objections to the discovery arguing that the discovery was overbroad on its face and the Doiron Plaintiffs filed a motion to compel with the trial court. After conducting an initial hearing and reviewing one memory stick of the Lawrence discovery, the trial court4 sent the parties a l etter dated March 6, 2019, itemizing the materials that the trial court had concluded were or were not subject to discovery and asking the parties to try and reach some agreement on the production of the documents. At some point thereafter, an additional memory stick of items from the Lawrence suit was provided for in

- camera inspection. The trial court appointed a Special Master to review all the
Lawrence items and then to make recommendations to the trial court. After receiving the recommendations of the Special Master, the trial court sent another letter dated March 9, 2020, outlining the items that should or should not be produced. And on May 12, 2020, the trial court entered an Order requiring production of “discovery documents ” from the Lawrence suit. DTNA filed a petition seeking mandamus relief in this Court

. We stayed production of the documents temporarily wh ile we considered the petition and the responses filed by the R eal P arties, the plaintiffs, Robert W. Doiron and Tracy Doiron, Individually and as Representative of the Estate of Adam Doiron (“Doiron”), and an intervenor, Great Midwest Insurance Company (“ GMIC ”). See Tex. R. App. P. 52.10.
DTNA contends that the trial court erred by requiring it to produce items from the Lawrence s uit because the trial court’s order included documents concerning other incidents of post

- collision fires, expert and corporate witness depositions from other litigation , and documents that belong to a non

- party corporate affiliate of5 DTNA . DTNA argues the requests made by the plaintiffs for the documents were impermissibly overbroad. DTNA contends that the trial court erred in ordering the productio n of the Lawrence documents because the documents are not discoverable due to differences between Doiron and Lawrence concern ing state law, the products at issue , the factual allegations, and the experts and witnesses, and also because the
Lawrence discove ry includ es some documents not within DTNA’s possession or control. The Doirons argue that DTNA is not entitled to mandamus relief because DTNA failed to establish that it lacks an adequate remedy by appeal, the trial court and the special master narrow ly tailored the discovery of documents from Lawrence , and the documents the trial court ordered to be produced go to the heart of the case , which the Doirons argue is DTNA’s knowledge of the defect in the vehicle at issue
in Doiron

. The Doirons argue the Lawrence documents are relevant because the two vehicles used the same fuel delivery system. G MIC argues the protective order in
Lawrence does not prohibit the discove ry ordered in Doiron , the discovery ordered
in Doiron falls within the scope of discovery p er mitted under the Texas Rules of Civil Procedure, and DTNA had sufficient control over the Lawrence documents produced by its parent, Daimler AG, to permit producti on in Doiron. Mandamus will issue only when the petition and record establish a clear abuse of discretion for which the relator has no adequate remedy by appeal

. In re6 Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding); Wal ker v. Packer , 827 S.W.2d 833, 839

- 40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts in an arbitrary or unreasonable manner

. Downer v. Aquamarine Operato rs, Inc. , 701 S.W.2d 238, 241

– 42 (Tex.1985). “[An] order that compels overly broad discovery ‘well outside the bounds of proper discovery’ is an abuse of discretion for which mandamus is the proper remedy.” Dillard Dep ’ t Stores, Inc. v. Hall , 909 S.W.2d 49 1, 492 (Tex. 1995) (orig. proceeding). There is no adequate remedy by appeal when an appellate court cannot remedy a trial court ’ s discovery error. In re Dana Corp. , 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). Texas Rule of Civil Procedure 192.3 permits a party to “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 party.” Tex. R. Civ. P. 192.3(a). Requests for production must be “reasonably tailored to include only matters relevant to the case.” In re Am. Optical Corp. , 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding). “A central consideration in dete rmining 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. ,7 124 S.W.3d 149, 153 (Tex. 2003) (orig. proceeding). “Overbroad 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). “It is the discovery proponent ’ s burden to demonstrate that the requested docume nts fall within the scope

- of

- discovery of Rule 192.3.” In re TIG Ins. Co. , 172 S.W.3d 160, 167 (Tex. App.

— Beaumont 2005, orig. proceeding). Whether discovery is overbroad in a products liability case depends on whether the order covers products relevant to the case and is reasonable in its scope. In re Graco Children ’ s Prods., Inc. , 210 S.W.3d 598, 600

- 01 (Tex. 2006) (orig. proceeding)

. A trial court abuses its discretion if there is no apparent connection between the alleged defect and the discovery ord ered. Id . at 601. Requests that are not tied to the product at issue in the case and the time period when the use occurred are overbroad. Am. Optical Corp. , 988 S.W.2d at 713. DTNA argues the trial court abused its discretion by compelling discovery responsive to request s for virtually all of the documents from Lawrence , but, as DTNA acknowledges, the trial court carve d out some categories of case

- specific
Lawrence documents that the trial court concluded were irrelevant to the present

case. When a party propounds overly broad requests, the trial court must either sustain the objection or act to narrowly tailor the requests. In re Mallin c k r odt, Inc. , 262 S.W.3d 469, 474 (Tex. App.

— Beaumont 2008, orig. proceeding). We review8 the trial court’s discovery order for an abuse of discretion. In re Deere & Co. , 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding)

. In Deere , t he Texas Supreme Court conducted a mandamus review of the discovery ordered by the trial court, not the discovery requested by the plaintiff. 299 S.W.3d at 821. The Court considered the trial court’s effort to be a “proper effort to narrow discovery [

. ] ” Id

. Accordingly, we consider R elators’ complaints regarding overbroad discovery requests as tailored by the trial court in its order of May 12, 2020

. In a product liability case, evidence of other incidents involving a product may be relevant if the incidents occurred under reasonably similar conditions. Kia Motors Corp. v. Ruiz , 432 S.W.3d 865, 881 (Tex. 201 4 ). Th e D oirons allege DTNA’s 2006
C olumbia 120 Tandem Axle truck , which was involved in the 2014 accident that resulted in Doiron’s death, was unreasonably dangerous due to defects including: (1) placement of the fuel tanks immediately behind the vehicle ’ s front wheels and under the doors to the passenger compartment, (2) inadequately shielding the fuel tanks to protect the integrity of the fuel tank system; (3) o therwise designing and manufacturing the fuel tank system of the vehicle model with co mponents that are compromised under survivable collision forces that then expose vehicle occupants to post

- collision fuel fed fires, the extreme risk of burn injuries, and death; and (4) failing to equip the subject truck with emergency exit doors to allow egress from the sleeper compartment in the event of an emergency. The Real Parties argue that information about other accidents is relevant to their claim that the product was unreasonably dangerous. The product at issue in
Doiron is a 2006 Columbia 120 Tandem Axle truck , and the Doiron accident9 occurred in 2014

. The pro duct involved in the Lawrence case was a 2009 Columbia truck . In Lawrence , the accident occurred in 2010, and generally the plaintiffs alleged the 2009 Columbia truck was unreasonably dangerous because it lacked a sleeper access door, had a battery system located where it was likely to be damaged in a collision, and had a fuel tank that was not equipped with a fire suppression system and that was located in an unsafe position

. The allegations in Lawrence concerned a similar product and at least one defect t hat was alleged to be the cause of the injury in Lawrence has also been alleged as a defect in Doiron . That said , t he scope of discovery the trial court permitted in Lawrence included documents from twenty

- two other suits, only some of which involved a Columbia tr uck

. The documents from the other cases that were produced in the Lawrence case d id not involve the same product as the product involved in the accident in Doiron

. Furthermore, in Doiron the plaintiffs have alleged the Colum bia truck was defective d u e to the placement of the fuel tank, inadequate shielding of the fuel tanks, flammable components, and failing to eq uip the truck with emergency exit doors.
T he relevance of evidence of other accidents would further depend upon wh ether each accident involved the same product in a n accident under the same or substantially similar conditions

. See Ruiz , 432 S.W.3d at 881. O nly discovery produced in cases with at least one of the Doiron allegations would bear any relevance to the case before the tri a l court.10 We conclude that t he scope of the discovery ordered by the trial court in the May 12, 2020 Order is overbroad because it requires production of documents from

cases that did not involve a Columbia truck with one of the four defects identified in the Doirons’ petition . As explained above , those suits are not substantially similar to this case. Id .; see generally Graco , 210 S.W.3d at 601 (there must be an apparent connection between the alleged defect and the discovery ordered)

. O nly documents relating to the Columbia truck and with a common alleged defect are discoverable by the Doirons. See In re Caterpillar, Inc. , No. 09

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- CV, 2013 WL 1932819, at *2 (Tex. App.

— Beaumont 2013 , orig. proceeding) (mem. op.) ( A

r equest for all records in other lawsuit s was overly broad because it was not limited to information about the component common or similar to the machine in both lawsuits.).
E ven though Doiron and Lawrence may have both concerned a post

- collision fuel

- fed fire, that does not mean that d iscovery produced in Lawrence from cases that are not substantially similar to Doiron would be discoverable. Nor would such information necessarily be relevant for purposes of showing a safer alternative design

. See Tex. Civ . Prac. & Rem. Code Ann. § 82.005(b) ( “ ‘ [S]afer alternative design ’ means a product design other than the one actually used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the claimant’s personal injury, proper ty damage, or death without substantially11 impairing the product’s utility; and (2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.”). T he trial court abused its discretion by ordering discovery regarding products with no apparent connection between the alleged defect and the discovery ordered. See
Graco , 210 S.W.3d at 600

- 01.
DTNA also argues the trial court clearly abused its discretion by ordering production of expert reports, expert depositions, and DTNA corporate representative depositions from Lawrence because the trial court circumvented the procedure established by the Texas Rules of Civil Procedure for expert discovery

. See Tex. R. Civ. P. 194 and 195.1. “T h e Rules of Civil Procedure define the scope and metho ds of discovery about expert witnesses.” In re Ford Motor Co. , 427 S.W.3d 396, 397 (Tex

. 2014) (orig. proceeding)

. Information relied upon by a testifying expert is discoverable only through a request for disclosure or through depositions and reports of th e testifying expert. See In re Nat ’ l Lloyds Ins. Co. , 532 S.W.3d 794, 8 1 4 (Tex. 2017) (orig. proceeding)

. The Doirons suggest information from expert reports in similar cases could be used to impeach DTNA’s witnesses in Doiron , but the mandamus record does not show that a testifying expert in this case relied on the testimony and reports of expert witnesses in any of the other lawsuits. The Doirons suggest that information gleaned from the other case m ay or m ay not impact their12 e xperts’ opinions, but this argument sounds like a fishing expedition , which is not allowed

. See Am. Optical Corp. , 988 S.W.2d at 713. We conclude the trial court abused its discretion by requiring production of the Lawrence expert reports, expert depositio ns, and DTNA corporate representative depositions

. See Nat ’ l Lloyds , 532 S.W.3d at 814; Ford Motor Co. , 427 S.W

. 3d at 397.
DTNA also complains that the trial court clearly abused its discretion by ordering DTNA to produce documents that are in the possess ion of its parent company, Daimler AG. DTNA contends Texas Rule of Civil Procedure 205 provides the exclusive vehicle for obtaining discovery in the trial court from a non

- party such as Daimler AG. See generally Tex. R. Civ. P. 205. 1 (A party may compel di scovery from a non

- party only by obtaining a court order or by serving a subpoena.). DTNA further argues that the trial court abused its discretion by ordering production of Daimler AG’s documents when the documents are not relevant to this lawsuit. The documents produced by Daimler AG in Lawrence concern Mercedes trucks, not the Freightliner Columbia truck that is the product at issue in the Doirons’ lawsuit against DTNA. Under the facts of the Doiron suit, the o nly Daimler AG documents produced in the Lawrence suit that are discoverable in the Doiron suit would be those documents relating to the product and common alleged defect . The trial court abused its discretion by ordering production of other Daimler AG documen ts. See Caterpillar, Inc. , 2013 WL 1932819, at *2.13 For the reasons explained above, we conditionally grant DTNA’s request for mandamus relief and lift the stay that we issued to stop the proceedings in the trial court pending our resolution of the mandam us petition . We are confident the trial court will vacate the May 12, 2020 discovery order. A writ of mandamus shall issue only in the event the trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM

Submitted on June 1 2, 2020 Opinion Delivered December 10, 2020 Before Kreger, Horton and Johnson, JJ.