## NO. 12

- 20

- 00129

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE:
UPS GROUND FREIGHT, INC. ,
RELA TOR §
§
§ ORIGINAL PROCEEDING

OPINIO N
On the court ’ s own motion, w e withdraw our opinion issued September 16, 2020 and vacate our judgment of that date. The following is now the opinion of this court. UPS Ground Freight, Inc., Rela tor, filed a pe tition for writ of mandamus in the above

caus e, seeking to compel the Respondent, the Honorable J. Clay Gossett, Judge of the 4 th Judicial District Court of Rusk County, T e x as to vacate his April 2 3 , 2020 order compelling discovery. The parties agree d to stay enforcement of the order. Re al party in interest Jacintha
Nicole McEl duff, as independent administrator of the estate of Nathan Dean Clark, filed a response. Relator contends Respondent abus e d hi s discretion by ord ering disclosure of
informatio n reg arding persons who are not connect ed to the c ase. We c onditionally grant the petition in part and deny it in part

.

B ACKG ROUND A UPS d river, Phillip Villareal, was involved in a car accident tha t resu lted i n multiple injuries and one fatal ity. Liti gatio n ensued, and McElduff served Rel ator with t he follo wing discovery requests :

INTERROGATORY NO. 1: For the time period of 2006 to 2017, please I dentify all Commer cial Motor Vehicle drivers who dr o ve Commercial2 Motor Vehicles under Your author ity and w ere d ispa tched out of the UPS Fr eight /UPS Ground Freight facility in Irving, Texas (the same facility f rom which Defendant Phi llip Villareal was dispatched), and the time from [sic] each driver was em p loyed (e.g. January 2003 to present, or Ja nuary 1997 to Oc t o ber 2017 )

.

REQUEST FOR P RODU CTI O N NO. 1: Copies of all documentat ion of all alco hol, drug and /or controlled substance tests of the drives [sic] identified in Your response to Cross

- Plaintiff ’ s S e cond Set of Interrogator ies, including pre

- employment, rando m, reasonable suspicion, per iod i c and post

- accident testing.

Respondent ordered Relator to comply with these requests. Instead, Relator filed a petition for writ of mandamus with this court co m plaining that the trial court abused its discretion by r e quir ing the disclosure of drug and alcohol te sting dat a , including records of non

pa rties. This court determined that the order was over broad and conditionally granted the petit ion. See In re UPS G round Freight, Inc. , No. 12

- 19

- 00412

- CV, 2020 WL 975357 (Tex. Ap p. ― Tyler Feb. 28, 2020, orig. proceeding) (mem. op.). Thereafter, Respondent vacated h i s December 6, 2019 discovery order and this court dismissed the peti tion for writ of mandamus as

moot. McElduff filed a motion for entry of a r evised order on h er mo tion to compel discovery. After a hearing, Respondent granted her motion in part

. T he o rder ’ s fir st through fourth decretal

pa ragraphs are as follows:

IT IS THEREFORE ORDERED that i n response to Interrogatory N umb er 1 of McElduff ’ s Second Set of I nt errog ator ies, UPS Ground Freight, In c. must provide the names, addresses , and telephone numbers of all UPS Ground Freight, I nc. drivers who worked out of the same facility as Defendant Phillip Villa r real, limited to the five years prior to the accident i n quest ion.

IT IS FURTHER ORDERED that i n response to R equ est N umber 1 of McElduff ’ s Second Request for Production, Defendant UPS Ground Freight , Inc. must produc e all positive drug tests for five years prior to the accident in question for all the driv er s who wor ked out of the same facility as Defendant Phil l ip V illareal

.
IT IS F URTHER ORDERED that in response to Request Number 1 of McElduff ’ s Second Request for Production, De fendant UPS Groun d Freight, Inc. must produce rec ords related to any controll ed subs tanc e s collection process for two years pr ior to the accident in question for all the drivers who wor k ed out of the same facility as Defendant Phillip Villarreal.

IT IS FURTHER ORDERED that in response to Request Number 1 of McElduff ’ s Second Requ es t for Pro duction, Defendant UPS Ground Freight,3 Inc. must produce al l negative drug tests for one year pr ior to the accident in question for all the drivers who worked out of t he same facility as Defendant Phillip Villarreal.

Relator filed it s petition fo r wri t o f mandamus asserting that Respondent abused h i s discretion by rendering a discovery or der that requires Relator to violate federal law, invades the pri vacy rights of third persons, and requires the disclosure of irrelevant information. The parties

agre ed to stay discovery pending a r uling on the petition.

P REREQUISITES TO M ANDAM US Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of
discretion and there is no ade quate reme dy by appeal. In re Daisy Mfg. Co. , 17 S.W. 3d 654, 658 (Tex. 2000) (orig. pro ceeding) (per curiam) . A trial court abus es its discretion if it reaches a
decision so arbitra ry and unreasonable as to amount to a c lear and prejudicial error of law.
Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (o ri g. pro c eedi ng). A trial court has no
dis cretion 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 m ay resu l t in mandamus. Id . The relator h as the burden to establish the prerequisites to mandamus. Canadian Helicopters Ltd. v . Wittig , 876 S.W.2d 304, 305 (Tex.
199 4) (orig. proceeding).
Mandamus relief from a non

- appealable interlocutory order requires t he sho w ing of a
serious denial of a r ight for which the remedy by appeal is inadequate. See United Mexican States v. Ashley , 556 S.W. 2d 784, 785 (Tex. 19 77) (orig. proceeding). An appellate rem edy is adequate when any benefits to mandamus review are ou tw eighed by t he detriments. See In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). The

req ui rement that th ere 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 reme dy by appeal: (1) when the appellate court would not be able to cure the trial

court ’ s d is covery er ro r; (2) where the party ’ s ability to present a viable claim or defense at trial is
vitiated or sever ely compromised by the trial court ’ s discovery error; a nd (3) where the trial court disallows discovery and the missing discovery cannot be made a part o f th e appellate4 record or the trial court, after proper request, refuses to ma ke it a part of the reco rd. In re Ford
Moto r Co. , 988 S.W.2d 714, 721 (Tex. 199 8) (orig. proceeding); Walker , 827 S.W.2d at 843.

D ISCOVERY O RDER Relator asserts that R e s pondent abus ed hi s discretion by render ing an order that requires Relator to violate federal law by producing irrele vant and federally privileged documents containing the private health information of hundreds of UPS drivers who were not involved in
the a c cident a t is sue in the underlying lawsuit and who have not consented to disclosure of their
records. Preemption
Relator argue s that federal law prohibits i t f r o m dis clo sing testing results about drivers
not involved in this lawsuit withou t their consent , and the r efor e preempts the trial court ’ s disco very order . Alternatively, Relator argues that, ev en if t he information sought is otherwise discoverable, it is prohibi ted due to public interest considerations regarding those drivers ’ right
to confidentiali t y

. App l icab le Law Part 382 of the Federal Motor Carrier Safety R egulations establish es programs designed to help prevent accide nts and injuries resulting from t h e mi suse of alco hol or use of controlled substances by drivers of commercial motor vehicles. 49 C

. F

. R

. § 382.101 (2020) . The regulations requi re certain testing of drivers. See id

. §§ 382.301

- .311. Employers must retain the testing records for specified time peri ods. S ee id

. § 382.401. There are restrictions on an

e mployer ’ s authority to rel e as e the test r e sult s. See id

. § 382.405 (a)

. Except as otherwise provided in the regulations, the employer is prohibited from releasing individual test results or
medical i nformation about an employee to third parties without the employees ’ specific writ t en
consent. I d

. § 40.321. However, t he regulations authorize release of information in some
instances. A n em plo yer may disclose information in criminal or civil actions i n accordance with
Section 40.323(a)(2) of T itle 49

. Id

. § 382.405(g). Section 40

. 323(a)(2) prov i des :

(a) As an employer, you may release inf ormation pertai ning to an employee ’ s drug or alcohol test without the employee ’ s consent in certain le gal proceedings.

. . . .5 (2) These proceedings also include a criminal or civil action resulting f rom an employee ’ s pe rformance of safety

- sensitive duti es, in which a court of competent jurisdiction de termines th at the drug or al cohol test information sought is relevant t o the case, and issues an order directing the employer to produce the information

. For example, i n pe rsonal i n jury litigation following a truck or bus collision, the court could determine that a post

accident drug test result of an employee is relevant to determining whether the driver or the driver ’ s emplo yer was negligent. The empl o yer is authoriz e d to respond to the court ’ s order to produce the recor ds.

Id

. § 40.323(a)

. With the exception of application of s tate criminal law , Part 382 preempts any

s t ate or l ocal law, rule, regulation, or order to the extent that: “ (1) C ompl ianc e w ith both the
S t a te o r local requirem ent in this p art is not possible; or (2) C ompliance with the S tate or local

req uirement is an obstacle to the accomplishment and execution of any requirement in this p art

. ”
Id

. § 382.109 ; see also 49 U.S.C.A. 31306 ; MCI S a le s & Serv., Inc. v. Hinton , 329 S.W.3d 475,
48 2 (Tex. 2010). Further, s tate procedural rul es may not be used to impose unnecessary burdens upon rights of r ecove ry authorized by federal law. See Kansas City S. Ry. Co. v. Oney , 380 S.W.3d 795, 799 ( Tex. A pp.

— Houston [14 th Dist.] 2012, no pet. ).
A nalysis
Relator b egins with the assertion that the regulations allow an employer to disclose only
the records of the dr iv er wh o i s inv olved in the lawsuit, that is, the driver who was i nvolved in
the acciden t

. Th e lawsuit brought by plaintiffs against UPS and Villareal is a c ivil ac tion resulting from an employee ’ s performance of safety

- sensitive duties, the trial cour t has juri sdiction, the trial court determined that the test information sought is relevant to th e case, and
the court issued an ord er directing UPS to produce the informa tion. The regulation does not forbid emp loyers from disclosing test results of employees not i nvolv ed in the lawsuit. The example included in Section 40.323(a)(2) does not pr eclu de other sce n arios. The trial court complied with Section 40.323(a) , and f ederal law does not prohibit Relator from disclosing

t esting results about drivers not inv olv ed in th is lawsuit without their cons ent. Here, compliance
with both the trial cour t ’ s order and th e applicable federal regulat ions is possible. The order and regulations do not conflict, and the regulations do not preempt the trial court ’ s order. See
H

int on , 3 29 S.W.3d at 482. Relator further argues that Res pondent failed to consider the public inter e st in protecting driver confidentiality that underlies the regulations. Relator ’ s emphasis on driver confidentiality6 is misplaced. The rules regarding retention a nd use of test results are part of a stat ut ory scheme
i n place to help pre ve nt a ccidents and injuries resu lting from the misuse of alco hol or use of controlled substances by drivers of commercial mot or vehicles. 49 C.F.R. § 382.101. The primary public in ter est at issue in Part 382 of the Federa l Motor Carrie r Safety Regulations is

s afety. If s a fety inf ormation is withheld in order to p rotect the confidentiality of non

- party dr ivers , the result could be at odds with the statutory scheme which focuses on s afety

. T he trial

cour t ’ s order requiring UPS to disclo se test results of no n
- pa rties is con s istent with the goals of
Pa rt 382. See id

. Relevance and Overbreadth
Relator contends Re spondent abused h i s discretion by ordering irrele vant and overbroa d discovery a bout testing

. Relator asserts the order is overly b road as to subject matt er. 1 It

comp l ains that the order requires it to disclose the identity and contact information and produce drug test re sults and records related to any controlled substa nce c ollection process as to numerous drivers who had nothing to do with this accid e nt. Regarding re l evance, Relator argues that there is no evidence that any UPS driver other than Villarreal was negligent, or that drug use by any oth er driver caused or contributed to this

acc ident or any alleged in juries . Therefore, the evidence sought ha s no probat ive value and would be unfairly prejudicial. It further argues that the issues here are not made more or les s probable by evid ence that other drivers who were complete ly uni n vo lve d in this accident passed or failed drug or alco hol tests at o t he r times. F ina l ly, Relator argues that McElduff cannot justify
her discovery requests by alleging that UPS failed to cre ate a safe, drug

- free culture for its
drivers. Applicable Law A party m ay obtain discovery regarding any matter that is not privileg e d a n d is relev ant to the subject matter of the pending action. T EX

. R. C IV

. P. 192.3(a). The rules governing discovery do not require as a prerequisite to discovery that the information sought be admissible evidence; it is enough that the information ap p ear s reasonabl y c a lculated to lead to the discovery
of admissible eviden ce. Id

. Evidence is relevant if “ (a) it has any t endency to make a fact more

1 As noted by UP S in its petition, this court, in the firs t mandamus proceeding, determined that the trial court ’ s December 6, 2019 discovery order was overly broad as to time. S ee In re UPS Ground Freight, Inc. , 2020 WL 975357, at *4. We are not revisiting that d etermi nation in this proceedin g. The time lim it s imposed by the trial court ’ s April 23, 2020 order , p roduction of specified documents for one, two, or five years before the accident, remain in tact.7 or less probable than it would be without t he evidence; and (b) the fact is of conseque nce in
determinin g th e action. ” T E X

. R

. E VID . 401. Evidence is probative if it is relevant to a part y ’ s actions in conform ing or failing to conform to an appropriate standard of care

. JBS Carriers,
Inc. v. Was hington , 564 S.W.3d 830, 83 7 (Tex. 2018 ). A request for info r mati on must show a

re asonable expectation of obtaining information that will aid the dispute ’ s res olution. In re CXS
Co rp. , 124 S.W.3d 149, 152 (Tex. 2003) (orig . proceeding) (per curiam). A discovery order that compels overly b road discovery is an abus e of discretion fo r which mand amus is appropriate. Dillard Dep ’ t St o res , Inc. v. Hall , 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding) (per curiam)

. Further, w here a discovery order c omp els production of “ patently irre levant ”
document s ther e is no ade q uate remedy by ap p eal. In re CXS Corp. , 124 S.W.3d at 153. Analysis In her petition, McElduff alleged that Relator was negligent and grossly negligent in failing to comply with federal and state laws and regulations conce rning drivers . She also alleged t hat R e lator negli g ently undertook ob ligations to train, supervise, direct, ins truct, and/or control the performance of workers and/or the operation of equipment or vehicles. Further, she alleged that UPS committed gross n egligence by knowingly requiring a nd per mitting i t s

comme r cial motor vehicle drivers to d rive while under the influence of drugs and knowingly failing to comply with its own corporate p olicies and federal law with respect to hiring, training, supervising, retaining dri vers , and driving c o mmer c ial motor v eh i cles

. In his deposition , Villareal adm itted he , at times, gave drugs to other drivers at the UPS
distribution site , and , at times, ot her drivers g ave him drugs at the UPS distribution site. He agreed that no on e at the UPS distribution site st o pped this t ransference of drugs. Villarreal

test ified that he knew from other drivers that he would not get cau ght smoking pot while continuing to drive.
Mc Elduff argues that Relator ’ s history of drug testing is a f act that is “ o f consequence in
d e ter mini ng the act i on, ” and this information is discoverable

. She seeks the information to show that Relator was negligent and grossly negligent in its retention, t raining, and supervision of its
drivers. Specifically, McE l duff seeks th e information to e stab lish whether R e lator failed to properly implement a drug testing program that could have prevented the accident Vi llarreal was
involved in , and that Relator permitted drivers to drive under the influence of drugs and fai led to comply with company poli c y an d fe deral laws

. She argues that the test result evidence has a8 tenden cy to show that it was more or less probable that R elator was properly monitor ing the drug
use of its drivers. That is, t est results f or other driver s would hel p v erify the frequen c y of tes ting
and d e monstrate how Rela tor responded to positive tests. F u rther, she argues that the information sought is directly relevant to Relator ’ s defense that it fully complied with federal
d rug testing require ments

. Additionally, she asserts t est resu lts would be r e levant to show gross negligence if the y show Relator was aware of a pervasive drug problem but was indiffe rent to it.
Evidence shows that some of the other drivers who worked out of the Irving facility wer e drug us ers. McElduff alleged that Rel ator permi t ted its drivers to drive under the influence of drugs. Test results of other drivers would h ave a tendency to make this allegation m ore or less probable. See T EX

. R. E VID

. 401. The tr ial court reasonabl y could have f ound that the res u lts of

o ther drive r s ’ drug tests is reasonably calculated to lead to the discovery of admissible evidence

. S

ee T EX

. R. C IV

. P. 192.3(a). T he extent to which Relator drug

- tested its drivers and wh at it did
with the results is probative o f Relator ’ s defen s e th at i t complied with federal drug

- testi ng requirements and McEl d uff ’ s negligence claims. See JBS Carriers, Inc. , 564 S.W.3d at 837; In re CXS Corp. , 124 S.W

. 3d at 152. The test result information of other drivers is relevant.
T herefore, the trial co u rt d i d not abuse i t s discretion in ordering R elator to produce th e test results of other drivers showing the positive and negative drug test results of non

- party drivers

. M cElduff sought dr ug testing information to establish that Relator did not adequatel y dru g test all of i ts drivers as required. R elator ’ s duty to pro tect public safety by drug testing and ensuring t hat impair ed drivers do not drive applies to all its drivers. We agree wit h McElduff ’ s

a ssertion that, because the discovery requests are re l ated to the subjec t matter of the case, the request s for test results and Relator ’ s controlled substances collection process are not over broad. Furthermore, t he allegations refer to Relato r ’ s training and supervision of all its drivers at the Irving faci l ity. Names, addre s ses, and telephone numbers of all drivers who worked out of the Irving facility constitute relevant information. Therefore, the first decretal paragraph , which
order s Re lator to disclose the names, addr esses, and telephone numbers of t h ose drivers , is no t overbroad. Add itionally, to the extent the second, third , and fourth decretal parag raphs order
Relator to disclose test results and records related to Rela tor ’ s control led substance collection

process , these paragraphs are not over bro a d.
H owever, the qu e stion of discoverabili ty of identification of non

- party dr ivers whose test results have been produced is separate from the question of disc ov er ability of the results of n on
-9 party drivers ’ tests. W e reach a different conclusion regardin g the relevancy and overbreadth of decretal paragraphs two, three , and four to the extent these paragraphs require disclosure of identifying information of non

- party drive rs who were tested

. This information is not probative
of McElduff ’ s claims agai nst R e lato r

. See T EX

. R

. E VID

. 401. There is no reasonable expectation that identification of tested non
- party drivers will lead to information that will aid the dispute ’ s resolut ion. See In r e CSX Corp

. , 124 S.W .3d at 15 2

. Because iden tifying information

o f non
- p arty drivers in co nnection with their test results is not relevant to M c Elduff ’ s suit again st Relator, to the extent paragrap hs two, three, and four order Relator t o produce that info rmation, Respondent abused his di s cretion

. Right to Privacy
Relato r a rg ues that dis cl o sure of other drivers ’ information violates th eir constitutio nal and common law privacy rights. It ass ert s that the uninvolved drivers have a fundamental

e xpec tation of privacy ab out their personal medical condition, including “ drug sc r eeni ng by
urinal ys i s. ” Applicable Law Americans have a constitutional right to privacy. Plante v. Gonzalez , 575 F.2d 1119, 1127 (5 th Cir. 1978). The right springs from several of the Bi ll of Rights amendments and is incorporated in the due process pr o tect ed by the fou rt e enth amendment. See Griswold v. Conn

. , 381 U.S. 4 79, 482

- 85 (1965). The Texas Constitution contains several provisions similar to
those in the Un ited States Constitutio n that have been recogni zed as implici t ly creating protected

zone s of privacy. See Te x

. State Emp s . Uni on v. Tex. Dep ’ t of Mental Health & Men tal
Retardation , 746 S.W.2d 203, 205 (Tex . 1987). Disclosural privacy encompasses the ability of
individuals to determine for themselves whe n, how, and to what extent informatio n a bou t them i s

com m unicated to others. See Indus. Found. o f the S. v. Tex. Indus . Accident Bd. , 540 S.W.2d
6 6 8, 679 (Tex. 1976). The medical records of an individual have been held to be w i thin the zone of privacy protec ted by the United States Constitu t io n. See In re X e l

ler , 6 S.W.3d 618 , 625 (Tex. App.

― Houston [14 th. Dist.] 1999 , orig. proceeding) ; see also Brooks v. E. Cha mbers Consol. Indep. Sch. Dist. , 730 F. Supp. 759 , 763 ( S

. D

. T ex. 1989) , aff ’ d , 930 F.2d 915 (5 th Cir. 1991) ( h eld that drug scree n in g by urinalysis c onstitu t es an infr ing e m ent on re asonable expectations of privacy)

. T o determine whether the pursuit of justice between l itigants outweighs the protection of privacy , t he courts balance the privacy interes t against competing10 claims of r e le vance and need

. See Maresca v. M arks , 362 S.W.2d 299, 301 (Tex. 1962) (orig.

procee ding). Because the protect i on of privacy is fundamental and of constitutional import, discovery must be scrupulously limited to what is m aterial and relevant to the c au s e of action at
iss u e. In re United Serv s . Auto A ss ’ n , 76 S.W.3d 112, 115 (Tex. App.

― San Antonio 2002, orig. proceeding). Analysis
McEl duff asserts that R elator does not have standing to complain on behalf o f the non

party drivers. We disagree. Relato r , t he entity in possess ion of the requested documents, may
assert rights to privacy on behalf of its emplo yees. See P eeples v. Hon. Fourth S upreme Judicial Di st. , 701 S.W .2d 635, 636 (Tex. 1985) (orig. proc eeding) (corporation and its president asserting pri vilege on behalf of the corpo ration); Tarrant Cty. Hosp. Dist. v . Hughes , 734
S.W.2d 675, 677 (Tex. App.

― Fort Worth 1987 , orig. proceedin g ) (hospital asserting priv acy rights of its blood donors).
McElduff implie s that the confidentiality agreement be twee n the parties nul l ifies
concerns about privacy i nterests. Again, we disagree. That agreement , entitle d “ Confidentiality Agreement

― Medical Records of the Parties, ” merely provide s that medical record s produced in
this case are confidential and that confidential medical records “ about any party ” will be
disseminated only to certain persons. The agreement d oes not address confidential records of

non
- parties.
As st ated above, d iscover abili ty of the identification of non

- party drivers and
di scoverability of the results of non

- party drivers ’ tests are separate issues

. McElduff has not shown any legitimate ri ght to the identities of the n o n
- pa rty drivers whose test results are to be provided . R elator ’ s interest in protecting the privacy right s of those drivers outweighs any rig ht
or need McElduff has to discover the identities of the non

- party drivers who wer e t ested

. See
Maresca , 362 S. W. 2 d at 301. McElduff ’ s case will not be prejudiced if the test result records are

pr ovided with names and other identi fying information redacted. Likewise, any records related to any controlled substance collection process for all drivers who worked o ut of the Irving facility must be redacted to protect the identities of the drivers inv olved. To the extent Respondent ’ s order requires disclosure of information identifying non

- party drivers in
connection with their test resul ts , the order violates those drivers ’ right to privacy and is11 overbroad. M andamus is appropriate here because remedy by appeal is inadeq uate. See In re
United Servs. Auto Ass ’ n , 76 S.W.3d at 115

.

D ISPOSITION To the extent the tr ial court ’ s discovery ord er requires production of re cords showing names, address es , and telephone numb e rs of all driver s who worked out of the Irving facility
wi thout reference to testing information, and separately, the number of tests performed, the dates those tests were perfo rmed and the positive and ne gat ive test results , Respondent did not abuse
hi s discretion. However, to the ex tent Res pond ent order ed R ela tor to produce unredacted copies
of any recor ds related to testing or any controlled substance collection process showi ng irrelevant identi fying in formation in vi olation of the non

- p arty drivers ’ right to privacy , Respondent abused his discretion

. We also conclude th a t Relator d oe s not have an adequate remedy by appeal.
We conditionally grant the petition for writ of mand amus in part as to the omiss ion of an order to redact personal identifying information from the scope of the second, third, and fourth
de cretal p aragraphs of Respondent ’ s order

. We direct Respondent to issue a revised order for Relator to provide the name s, addresses, and telephone numbers of all UPS Ground Freight, Inc. drivers who worked out of the same facility as Defendant Phillip Villarreal, limited to five years prior to the accident in question. We further direct Respondent to vacate decretal parag raphs two, three, and four of th e April 23, 2020 order granting McEldu ff ’ s second motion to compel. We further direct Responden t to i ssue an order for Relator to produce all positive drug tests for five years prior to the accident in question for all driv ers who worked out of the same f acility as
Defend ant Phillip Villarreal, all negative drug tests for on e y ear prior to the accident in question
for all d rivers who worked out of the same facility as Defendant Phillip Villarreal, and records related to any contr olled substance col lection proces s for two years prior to the accident in question for all drivers who worked out of the same facility as Defendant Phillip Villareal, and t o redact those documents to prevent disclosure of any names or identi fying i nfo rmation regarding
the non

- party driver s. We deny the remai nder of the petition regarding McElduff ’ s request for

test results. T he writ will issue only if the trial co urt fails to c o m p ly with the court ’ s opinion and
order within ten (10) days after the da te of the op inion and orde r. T h e court shall furnish this12 court, within the time fo r complian c e with the court ’ s opinion and order, a certified copy of its
order evide ncing such com pli ance. G REG N EELEY Justice
Opinion delivered September 23 , 2020. Pa nel consisted of Worthen, C.J., H o yle, J., and Neeley, J.

(PUBLISH)13 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ORDER

SEPTEMBER 23 , 2020

NO. 12

- 20

- 00129

- CV

UPS GROUND FREIGHT, INC. , Rela tor V. HON. CLAY GOSSETT , Respond ent

O RI GINAL P ROCE ED I N G

O N THI S DAY came to be he ard the p etitio n for writ of mandamus filed by
UP S GROUND FREI GHT, INC. , relator in appell ate cause nu mber 12

- 20

- 00129

- CV and
defendant in trial court C ause No. 2017

- 330, pe nding on the docket of t he 4 th J udicial D istrict
Cou rt o f Ru sk Co unty, Texas. Said pe tition for w rit of mandamus having been filed herein on
Ma y 22, 2020, and the sa me being du ly c ons idered, because it is the opinion of this Court that the petition is mer itori ous in part , it is therefore CONSID ERED, ADJUDG ED a nd O RDERE D
tha t the said petition for writ of man damus be, and the same is, hereby conditi onally granted in part

.14 And it is further t he opinion of this Court that Respondent will act pro mptly

an d iss ue an order for UPS Ground Freight, Inc. to provide the names, addresses, and telephone numbers of all UPS Ground Freight, Inc. drivers who worked out of the same facility as Defendant Phillip Villarreal, limited to five years prior to the accident in ques tion , and vacating
dec reta l paragraphs two, three, a n d fou r of h i s or der of Ap ril 23, 2020 granti ng the second
motion to co mpel filed by real party in interest, J acinth a Nicole Mc El du ff, individually and as Independent Ad ministrator of the Estate of Natha n Dea n Clark

. Further, this court is of the

op inion that Respon dent will issue an order for UPS Ground Freigh t, In c. to produ ce all positive drug tests for five years prior to the accident in question for all drivers who worked out of the
same f acility as Defe nd ant Phillip Vill arreal, all negative drug test s for on e y ear prior to the accident in question for all d rivers who worked out of the same facility as Defendant Phillip Villarreal, and records related to any contr olled substance col lection proces s for two years prior
to th e accident in question for all drivers wh o worked out of the same facility as Defendant Phillip Villareal . Further, this court is of the opinion that Respondent will issue an order for UPS Ground Freight, Inc. to redact all test resu lts and records produc ed to prevent disclosure of an y

names or identifying information regarding non

- party drivers . T he writ will not issue unless the
Hono ra ble J. Clay Go ssett, Ju dge of the 4 th Judi cial District Court of Rusk County, Texas fails
to do so wit hin t en (10) da ys from th e date of this order.
W e deny the petition to the extent UPS Ground Freight, Inc. requests that the April 23, 2020 order to pro du ce drug test r esults sho uld be vacated.
It is further O RDERED that all costs of this proceed ing ar e he reby adjud ged agai nst Real Party in Interest JAC INTHA NICOL E MCELDUF F, INDEPENDENTLY AN D
AS INDEPENDENT ADMINISTRA TOR OF THE ESTATE OF NATHAN DEAN
C LARK

. Greg Neeley , Just ice

. Pa nel consisted of Worthen, C.J. , Hoyle, J., and Neeley, J

.15 

# THE STA TE OF T EXAS M A N D A T E

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TO T HE 4TH DISTRICT COURT O F RUSK COUNTY, GREETING :
Before our Court of Appeals for th e 1 2th Court o f Appe als Di strict of Texas, o n the day of July, 2020 , the cause upon appeal to revise or reverse your judgment between

IN RE: UPS GROUND FREIGHT, INC. , Rel ator

NO. 12

- 20

- 00129

- C V ; Trial Court No. 2017

- 330

Opinion by Greg Neeley , Justice.

, App ellee

was de termined; and therein ou r said Court made its order in these words:

“Text goes here.”
WHEREAS, WE COMMAND YOU to ob serve the order of our said Court of Appeals for the Twelft h Court of Appeals Dist rict of Texas in this behalf, and in a l l thin gs have it du ly recognized, obeyed, a nd executed.
WITNESS, THE HONORABLE JAMES T. WORTH EN , Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal th ereof affixed, at the C ity of Tyler, this the xx day of July, 20 20.

B y:

_ _

________________________ _____ KATRIN A MCCLENNY , CLERK