NO. 12-20-00129-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE:

UPS GROUND FREIGHT, INC., 

RELATOR

§

§

§

ORIGINAL PROCEEDING

OPINION

On the court’s own motion, we 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., Relator, filed a petition for writ of mandamus 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 his April 23, 2020 order compelling 

discovery. The parties agreed to stay enforcement of the order. Real party in interest Jacintha 

Nicole McElduff, as independent administrator of the estate of Nathan Dean Clark, filed a 

response. Relator contends Respondent abused his discretion by ordering disclosure of 

information regarding persons who are not connected to the case. We conditionally grant the 

petition in part and deny it in part. 

BACKGROUND

A UPS driver, Phillip Villareal, was involved in a car accident that resulted in multiple 

injuries and one fatality. Litigation ensued, and McElduff served Relator with the following 

discovery requests:

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

please Identify all Commercial Motor Vehicle drivers who drove Commercial 
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Motor Vehicles under Your authority and were dispatched out of the UPS

Freight/UPS Ground Freight facility in Irving, Texas (the same facility from 

which Defendant Phillip Villareal 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 pre-employment, random, reasonable suspicion, 

periodic and post-accident testing.

Respondent ordered Relator to comply with these requests. Instead, Relator filed a 

petition for writ of mandamus with this court complaining that the trial court abused its 

discretion by requiring the disclosure of drug and alcohol testing data, including records of nonparties. This court determined that the order was overbroad and conditionally granted the 

petition. See In re UPS Ground Freight, Inc., No. 12-19-00412-CV, 2020 WL 975357 (Tex.

App.―Tyler Feb. 28, 2020, orig. proceeding) (mem. op.). Thereafter, Respondent vacated his 

December 6, 2019 discovery order and this court dismissed the petition for writ of mandamus as 

moot.

McElduff filed a motion for entry of a revised order on her motion to compel discovery. 

After a hearing, Respondent granted her motion in part. The order’s first through fourth decretal 

paragraphs are as follows:

IT IS THEREFORE ORDERED that in response to Interrogatory 

Number 1 of McElduff’s Second Set of Interrogatories, UPS Ground Freight, 

Inc. must 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 the five years prior to the accident in question. 

IT IS FURTHER ORDERED that in response to Request Number 1 of 

McElduff’s Second Request for Production, Defendant UPS Ground Freight, 

Inc. must produce all positive drug tests for five years prior to the accident in 

question for all the drivers who worked out of the same facility as Defendant 

Phillip Villareal.

IT IS FURTHER ORDERED that in response to Request Number 1 of 

McElduff’s Second Request for Production, Defendant UPS Ground Freight, 

Inc. must produce records related to any controlled substances collection process 

for two years prior to the accident in question for all the drivers who worked out 

of the same facility as Defendant Phillip Villarreal.

IT IS FURTHER ORDERED that in response to Request Number 1 of 

McElduff’s Second Request for Production, Defendant UPS Ground Freight, 
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Inc. must produce all negative drug tests for one year prior to the accident in 

question for all the drivers who worked out of the same facility as Defendant 

Phillip Villarreal.

Relator filed its petition for writ of mandamus asserting that Respondent abused his 

discretion by rendering a discovery order that requires Relator to violate federal law, invades the 

privacy rights of third persons, and requires the disclosure of irrelevant information. The parties

agreed to stay discovery pending a ruling on the petition.

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 Daisy Mfg. Co., 17 S.W.3d 654, 658 

(Tex. 2000) (orig. proceeding) (per curiam). 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 v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). 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) (orig. 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). An appellate remedy is 

adequate when any benefits to mandamus review are outweighed by the detriments. See In re 

Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). 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 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 
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record or the trial court, after proper request, refuses to make it a 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

Relator asserts that Respondent abused his discretion by rendering an order that requires 

Relator to violate federal law by producing irrelevant and federally privileged documents 

containing the private health information of hundreds of UPS drivers who were not involved in 

the accident at issue in the underlying lawsuit and who have not consented to disclosure of their 

records.

Preemption

Relator argues that federal law prohibits it from disclosing testing results about drivers 

not involved in this lawsuit without their consent, and therefore preempts the trial court’s 

discovery order. Alternatively, Relator argues that, even if the information sought is otherwise 

discoverable, it is prohibited due to public interest considerations regarding those drivers’ right 

to confidentiality.

Applicable Law

Part 382 of the Federal Motor Carrier Safety Regulations establishes programs designed 

to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled

substances by drivers of commercial motor vehicles. 49 C.F.R. § 382.101 (2020). The 

regulations require certain testing of drivers. See id. §§ 382.301-.311. Employers must retain 

the testing records for specified time periods. See id. § 382.401. There are restrictions on an 

employer’s authority to release the test results. See id. § 382.405(a). Except as otherwise 

provided in the regulations, the employer is prohibited from releasing individual test results or 

medical information about an employee to third parties without the employees’ specific written 

consent. Id. § 40.321. However, the regulations authorize release of information in some 

instances. An employer may disclose information in criminal or civil actions in accordance with 

Section 40.323(a)(2) of Title 49. Id. § 382.405(g). Section 40.323(a)(2) provides:

(a) As an employer, you may release information pertaining to an 

employee’s drug or alcohol test without the employee’s consent in 

certain legal proceedings.

. . . .
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(2) These proceedings also include a criminal or civil action 

resulting from an employee’s performance of safety-sensitive 

duties, in which a court of competent jurisdiction determines that 

the drug or alcohol test information sought is relevant to the case, 

and issues an order directing the employer to produce the 

information. For example, in personal injury litigation following a 

truck or bus collision, the court could determine that a postaccident drug test result of an employee is relevant to determining 

whether the driver or the driver’s employer was negligent. The 

employer is authorized to respond to the court’s order to produce 

the records.

Id. § 40.323(a). With the exception of application of state criminal law, Part 382 preempts any 

state or local law, rule, regulation, or order to the extent that: “(1) Compliance with both the 

State or local requirement in this part is not possible; or (2) Compliance with the State or local 

requirement is an obstacle to the accomplishment and execution of any requirement in this part.” 

Id. § 382.109; see also 49 U.S.C.A. 31306; MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 

482 (Tex. 2010). Further, state procedural rules may not be used to impose unnecessary burdens 

upon rights of recovery authorized by federal law. See Kansas City S. Ry. Co. v. Oney, 380

S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Analysis

Relator begins with the assertion that the regulations allow an employer to disclose only

the records of the driver who is involved in the lawsuit, that is, the driver who was involved in 

the accident. The lawsuit brought by plaintiffs against UPS and Villareal is a civil action 

resulting from an employee’s performance of safety-sensitive duties, the trial court has

jurisdiction, the trial court determined that the test information sought is relevant to the case, and 

the court issued an order directing UPS to produce the information. The regulation does not 

forbid employers from disclosing test results of employees not involved in the lawsuit. The 

example included in Section 40.323(a)(2) does not preclude other scenarios. The trial court 

complied with Section 40.323(a), and federal law does not prohibit Relator from disclosing 

testing results about drivers not involved in this lawsuit without their consent. Here, compliance

with both the trial court’s order and the applicable federal regulations is possible. The order and 

regulations do not conflict, and the regulations do not preempt the trial court’s order. See 

Hinton, 329 S.W.3d at 482.

Relator further argues that Respondent failed to consider the public interest in protecting 

driver confidentiality that underlies the regulations. Relator’s emphasis on driver confidentiality 
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is misplaced. The rules regarding retention and use of test results are part of a statutory scheme 

in place to help prevent accidents and injuries resulting from the misuse of alcohol or use of 

controlled substances by drivers of commercial motor vehicles. 49 C.F.R. § 382.101. The 

primary public interest at issue in Part 382 of the Federal Motor Carrier Safety Regulations is 

safety. If safety information is withheld in order to protect the confidentiality of non-party 

drivers, the result could be at odds with the statutory scheme which focuses on safety. The trial 

court’s order requiring UPS to disclose test results of non-parties is consistent with the goals of 

Part 382. See id.

Relevance and Overbreadth

Relator contends Respondent abused his discretion by ordering irrelevant and overbroad 

discovery about testing. Relator asserts the order is overly broad as to subject matter.1

 It 

complains that the order requires it to disclose the identity and contact information and produce 

drug test results and records related to any controlled substance collection process as to 

numerous drivers who had nothing to do with this accident.

Regarding relevance, Relator argues that there is no evidence that any UPS driver other 

than Villarreal was negligent, or that drug use by any other driver caused or contributed to this 

accident or any alleged injuries. Therefore, the evidence sought has no probative value and 

would be unfairly prejudicial. It further argues that the issues here are not made more or less 

probable by evidence that other drivers who were completely uninvolved in this accident passed 

or failed drug or alcohol tests at other times. Finally, Relator argues that McElduff cannot justify 

her discovery requests by alleging that UPS failed to create a safe, drug-free culture for its 

drivers.

Applicable Law

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 do not require as a prerequisite to discovery that the information sought be admissible 

evidence; it is enough that the information appears 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 

1 As noted by UPS in its petition, this court, in the first mandamus proceeding, determined that the trial 

court’s December 6, 2019 discovery order was overly broad as to time. See In re UPS Ground Freight, Inc., 2020 

WL 975357, at *4. We are not revisiting that determination in this proceeding. The time limits imposed by the trial 

court’s April 23, 2020 order, production of specified documents for one, two, or five years before the accident, 

remain intact.
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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. Evidence is probative if it is relevant to a party’s 

actions in conforming or failing to conform to an appropriate standard of care. JBS Carriers, 

Inc. v. Washington, 564 S.W.3d 830, 837 (Tex. 2018). A request for information must show a

reasonable expectation of obtaining information that will aid the dispute’s resolution. In re CXS 

Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). A discovery order that 

compels overly broad discovery is an abuse of discretion for which mandamus is appropriate. 

Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding) (per 

curiam). Further, where a discovery order compels production of “patently irrelevant”

documents there is no adequate remedy by appeal. 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 concerning drivers. She also 

alleged that Relator negligently undertook obligations to train, supervise, direct, instruct, and/or 

control the performance of workers and/or the operation of equipment or vehicles. Further, she 

alleged that UPS committed gross negligence by knowingly requiring and permitting its

commercial motor vehicle drivers to drive while under the influence of drugs and knowingly 

failing to comply with its own corporate policies and federal law with respect to hiring, training, 

supervising, retaining drivers, and driving commercial motor vehicles.

In his deposition, Villareal admitted he, at times, gave drugs to other drivers at the UPS 

distribution site, and, at times, other drivers gave him drugs at the UPS distribution site. He 

agreed that no one at the UPS distribution site stopped this transference of drugs. Villarreal 

testified that he knew from other drivers that he would not get caught smoking pot while 

continuing to drive.

McElduff argues that Relator’s history of drug testing is a fact that is “of consequence in 

determining the action,” and this information is discoverable. She seeks the information to show 

that Relator was negligent and grossly negligent in its retention, training, and supervision of its 

drivers. Specifically, McElduff seeks the information to establish whether Relator failed to 

properly implement a drug testing program that could have prevented the accident Villarreal was 

involved in, and that Relator permitted drivers to drive under the influence of drugs and failed to 

comply with company policy and federal laws. She argues that the test result evidence has a 
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tendency to show that it was more or less probable that Relator was properly monitoring the drug 

use of its drivers. That is, test results for other drivers would help verify the frequency of testing 

and demonstrate how Relator responded to positive tests. Further, she argues that the 

information sought is directly relevant to Relator’s defense that it fully complied with federal 

drug testing requirements. Additionally, she asserts test results would be relevant to show gross 

negligence if they show Relator was aware of a pervasive drug problem but was indifferent to it.

Evidence shows that some of the other drivers who worked out of the Irving facility were 

drug users. McElduff alleged that Relator permitted its drivers to drive under the influence of 

drugs. Test results of other drivers would have a tendency to make this allegation more or less 

probable. See TEX. R. EVID. 401. The trial court reasonably could have found that the results of

other drivers’ drug tests is reasonably calculated to lead to the discovery of admissible evidence. 

See TEX. R. CIV. P. 192.3(a). The extent to which Relator drug-tested its drivers and what it did 

with the results is probative of Relator’s defense that it complied with federal drug-testing 

requirements and McElduff’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. 

Therefore, the trial court did not abuse its discretion in ordering Relator to produce the test 

results of other drivers showing the positive and negative drug test results of non-party drivers.

McElduff sought drug testing information to establish that Relator did not adequately

drug test all of its drivers as required. Relator’s duty to protect public safety by drug testing and 

ensuring that impaired drivers do not drive applies to all its drivers. We agree with McElduff’s 

assertion that, because the discovery requests are related to the subject matter of the case, the 

requests for test results and Relator’s controlled substances collection process are not overbroad. 

Furthermore, the allegations refer to Relator’s training and supervision of all its drivers at the 

Irving facility. Names, addresses, and telephone numbers of all drivers who worked out of the 

Irving facility constitute relevant information. Therefore, the first decretal paragraph, which

orders Relator to disclose the names, addresses, and telephone numbers of those drivers, is not

overbroad. Additionally, to the extent the second, third, and fourth decretal paragraphs order 

Relator to disclose test results and records related to Relator’s controlled substance collection 

process, these paragraphs are not overbroad.

However, the question of discoverability of identification of non-party drivers whose test 

results have been produced is separate from the question of discoverability of the results of non-
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party drivers’ tests. We reach a different conclusion regarding the relevancy and overbreadth of 

decretal paragraphs two, three, and four to the extent these paragraphs require disclosure of 

identifying information of non-party drivers who were tested. This information is not probative 

of McElduff’s claims against Relator. See TEX. R. EVID. 401. There is no reasonable 

expectation that identification of tested non-party drivers will lead to information that will aid the 

dispute’s resolution. See In re CSX Corp., 124 S.W.3d at 152. Because identifying information 

of non-party drivers in connection with their test results is not relevant to McElduff’s suit against 

Relator, to the extent paragraphs two, three, and four order Relator to produce that information, 

Respondent abused his discretion.

Right to Privacy

Relator argues that disclosure of other drivers’ information violates their constitutional 

and common law privacy rights. It asserts that the uninvolved drivers have a fundamental 

expectation of privacy about their personal medical condition, including “drug screening by 

urinalysis.” 

Applicable Law

Americans have a constitutional right to privacy. Plante v. Gonzalez, 575 F.2d 1119, 

1127 (5th Cir. 1978). The right springs from several of the Bill of Rights amendments and is 

incorporated in the due process protected by the fourteenth amendment. See Griswold v. Conn., 

381 U.S. 479, 482-85 (1965). The Texas Constitution contains several provisions similar to

those in the United States Constitution that have been recognized as implicitly creating protected 

zones of privacy. See Tex. State Emps. Union v. Tex. Dep’t of Mental Health & Mental 

Retardation, 746 S.W.2d 203, 205 (Tex. 1987). Disclosural privacy encompasses the ability of 

individuals to determine for themselves when, how, and to what extent information about them is 

communicated to others. See Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 

668, 679 (Tex. 1976). The medical records of an individual have been held to be within the zone 

of privacy protected by the United States Constitution. See In re Xeller, 6 S.W.3d 618, 625

(Tex. App.―Houston [14th. Dist.] 1999, orig. proceeding); see also Brooks v. E. Chambers 

Consol. Indep. Sch. Dist., 730 F. Supp. 759, 763 (S.D. Tex. 1989), aff’d, 930 F.2d 915 (5th Cir. 

1991) (held that drug screening by urinalysis constitutes an infringement on reasonable 

expectations of privacy). To determine whether the pursuit of justice between litigants 

outweighs the protection of privacy, the courts balance the privacy interest against competing 
10

claims of relevance and need. See Maresca v. Marks, 362 S.W.2d 299, 301 (Tex. 1962) (orig. 

proceeding). Because the protection of privacy is fundamental and of constitutional import, 

discovery must be scrupulously limited to what is material and relevant to the cause of action at 

issue. In re United Servs. Auto Ass’n, 76 S.W.3d 112, 115 (Tex. App.―San Antonio 2002, 

orig. proceeding).

Analysis

McElduff asserts that Relator does not have standing to complain on behalf of the nonparty drivers. We disagree. Relator, the entity in possession of the requested documents, may 

assert rights to privacy on behalf of its employees. See Peeples v. Hon. Fourth Supreme 

Judicial Dist., 701 S.W.2d 635, 636 (Tex. 1985) (orig. proceeding) (corporation and its president 

asserting privilege on behalf of the corporation); Tarrant Cty. Hosp. Dist. v. Hughes, 734 

S.W.2d 675, 677 (Tex. App.―Fort Worth 1987, orig. proceeding) (hospital asserting privacy 

rights of its blood donors). 

McElduff implies that the confidentiality agreement between the parties nullifies 

concerns about privacy interests. Again, we disagree. That agreement, entitled “Confidentiality 

Agreement―Medical Records of the Parties,” merely provides that medical records produced in 

this case are confidential and that confidential medical records “about any party” will be 

disseminated only to certain persons. The agreement does not address confidential records of 

non-parties.

As stated above, discoverability of the identification of non-party drivers and

discoverability of the results of non-party drivers’ tests are separate issues. McElduff has not 

shown any legitimate right to the identities of the non-party drivers whose test results are to be 

provided. Relator’s interest in protecting the privacy rights of those drivers outweighs any right

or need McElduff has to discover the identities of the non-party drivers who were tested. See 

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

provided with names and other identifying information redacted. Likewise, any records related 

to any controlled substance collection process for all drivers who worked out of the Irving 

facility must be redacted to protect the identities of the drivers involved. To the extent 

Respondent’s order requires disclosure of information identifying non-party drivers in 

connection with their test results, the order violates those drivers’ right to privacy and is 
11

overbroad. Mandamus is appropriate here because remedy by appeal is inadequate. See In re 

United Servs. Auto Ass’n, 76 S.W.3d at 115.

DISPOSITION

To the extent the trial court’s discovery order requires production of records showing 

names, addresses, and telephone numbers of all drivers who worked out of the Irving facility 

without reference to testing information, and separately, the number of tests performed, the dates 

those tests were performed and the positive and negative test results, Respondent did not abuse

his discretion. However, to the extent Respondent ordered Relator to produce unredacted copies 

of any records related to testing or any controlled substance collection process showing

irrelevant identifying information in violation of the non-party drivers’ right to privacy, 

Respondent abused his discretion. We also conclude that Relator does not have an adequate 

remedy by appeal.

We conditionally grant the petition for writ of mandamus in part as to the omission of an 

order to redact personal identifying information from the scope of the second, third, and fourth 

decretal paragraphs of Respondent’s order. We direct Respondent to issue a revised order for 

Relator 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 question. We further direct Respondent to vacate decretal paragraphs 

two, three, and four of the April 23, 2020 order granting McElduff’s second motion to compel. 

We further direct Respondent to issue an order for Relator to produce all positive drug tests for 

five years prior to the accident in question for all drivers who worked out of the same facility as 

Defendant Phillip Villarreal, all negative drug tests for one year prior to the accident in question 

for all drivers who worked out of the same facility as Defendant Phillip Villarreal, and records 

related to any controlled substance collection process for two years prior to the accident in 

question for all drivers who worked out of the same facility as Defendant Phillip Villareal, and to

redact those documents to prevent disclosure of any names or identifying information regarding 

the non-party drivers. We deny the remainder of the petition regarding McElduff’s request for 

test results. 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 shall furnish this 
12

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 September 23, 2020.

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

(PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ORDER

SEPTEMBER 23, 2020

NO. 12-20-00129-CV

UPS GROUND FREIGHT, INC.,

Relator

V.

HON. CLAY GOSSETT,

Respondent

ORIGINAL PROCEEDING

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

UPS GROUND FREIGHT, INC., relator in appellate cause number 12-20-00129-CV and 

defendant in trial court Cause No. 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 

May 22, 2020, and the same being duly considered, because it is the opinion of this Court that 

the petition is meritorious in part, it is therefore CONSIDERED, ADJUDGED and ORDERED 

that the said petition for writ of mandamus be, and the same is, hereby conditionally granted in

part.
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And it is further the opinion of this Court that Respondent will act promptly 

and issue 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 question, and vacating 

decretal paragraphs two, three, and four of his order of April 23, 2020 granting the second 

motion to compel filed by real party in interest, Jacintha Nicole McElduff, individually and as 

Independent Administrator of the Estate of Nathan Dean Clark. Further, this court is of the 

opinion that Respondent will issue an order for UPS Ground Freight, Inc. to produce all positive 

drug tests for five years prior to the accident in question for all drivers who worked out of the 

same facility as Defendant Phillip Villarreal, all negative drug tests for one year prior to the 

accident in question for all drivers who worked out of the same facility as Defendant Phillip 

Villarreal, and records related to any controlled substance collection process for two years prior 

to the accident in question for all drivers who 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 results and records produced to prevent disclosure of any 

names or identifying information regarding non-party drivers. 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.

We deny the petition to the extent UPS Ground Freight, Inc. requests that the 

April 23, 2020 order to produce drug test results should be vacated.

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.
15

THE STATE OF TEXAS

M A N D A T E

*********************************************

TO THE 4TH DISTRICT COURT OF RUSK COUNTY, GREETING:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the day 

of July, 2020, the cause upon appeal to revise or reverse your judgment between

IN RE: UPS GROUND FREIGHT, INC., Relator

NO. 12-20-00129-CV; Trial Court No. 2017-330

Opinion by Greg Neeley, Justice.

, Appellee

was determined; and therein our said Court made its order in these words:

“Text goes here.”

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals 

for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly 

recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court 

of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of 

Tyler, this the xx day of July, 2020.

By: _______________________________

KATRINA MCCLENNY, CLERK