Opinion filed February 15 , 20 2 4



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 23

- 002 82

- C V

__________
IN RE RICHARD SCHERER

Original Mandamus Proceeding

O P I N I O N
In this mandamus proceeding , Relator , Richard Scherer , requests that we
order the Honorable Leah G. Robertson, the presiding judge of the 385th District Court of Midland County, Texas, to vacate her order compelling him to respond to several written discovery requests propounded to him by Real Parties in Interest , Endeavor Energy Resources, L.P. and Endeavor Petroleum, LLC ( hereinafter referred to collectively as Endeavor)

. For the reasons discussed below, we grant Relator’s petition in part , and we deny it in part.
I. Factual and Procedural Background Scherer brought a suit for unlawful employment practices against Endeavor under the Texas Commission on Human Rights Act (T CHR A). See T EX

. L AB

.2 C ODE A NN

. § 21.001, et. seq (West 2021 )

. His suit alleges that , after the retirement of Joel Castello, Endeavor’s Manager of Business Development & Reserves, Scherer assumed Castello’s job responsibilities but was not promoted to Castello’s position

. Scherer , who is in his late fifties , was born in Iran. He was a German citizen at birth , and his mother was Iranian

. Scherer alleges that Endeavo r’s elimination of the position formerly held by Castello constitutes discrimination based on both his age and his national origin. See L AB . 21.051 (“An employer commits an unlawful employment practice if because of

. . . national origin, or age the employer

. . . limits, segregates, or classifies an employee

. . . in a manner that would deprive or tend to deprive an individual of any employment opportunity

. ”)

. He further alleges tha t his
claims of discrimination against Endeavor have resulted in the creation of a hostile
work environment that limited his interaction with his co

- workers and the resources
that were available to him for the complet ion of his work. T he record suggests that Scherer’s employment has now been terminated.
Scherer raises two issues in his petition , asserting that (1) the trial court abused its discretion by order ing the discovery of various forms of information and , (2) as a result, he is therefore entitled to mandamus relief. Scherer’s complaints concern two requests for written discovery : Endeavor ’ s First Requests for Production to
Scherer and Endeavor ’ s First Set of Interrogatories to Scherer. After Scherer objected to virtually all of the discovery sought in these requests , Endeavor filed a motion to compe l , which was largely granted by the trial court

. 1

1 Endeavor verbally withdrew several complaint s asserted in its motion to compel at the hearing. T he trial court granted Endeavor ’ s motion with respect to the remaining discovery requests of which it complained , with one exception : it limited the scope of an interrogatory that inquired about Scherer’s criminal history

.3 II. Mandamus

– Standard of Review Mandamus is an “extraordinary” remedy that is “available only in limited
circumstances.” Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A writ of mandamus will issue only if the trial court clearly abused its
discretion , and the relator has no adequate remedy on appeal. In re Prudential Ins.
Co . of Am ., 148 S.W.3d 124, 135

– 36 (Tex. 2004) (orig. proceeding). With respect to the first requirement, 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. In re Cerberus Capital Mgmt., L.P ., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). In addition, because a trial court has no discretion in determining what the law is or in applying it to the facts, a trial court abuses its discretion if it f ails to correctly analyze or apply the law. See Prudential , 148 S.W.3d at 135; see also In re J.B. Hunt Transp., Inc ., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). “If the trial court issues an erroneous order requiring the production of privileged documents, the party claiming the privilege is left without an adequate appellate remedy.” In re Christus Santa Rosa Health Sys ., 492 S.W.3d 276, 279 (Tex. 2016) ; see als o In re Christus Santa Rosa Healthcare Corp ., 617 S.W.3d 586, 591 (Tex. App.

— San Antonio 2020, orig. proceeding ). Likewise, “an order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy.” In re UPS Ground Freight, Inc ., 646 S.W.3d 828, 831 (Tex. 2022) (quoting In re Deere & Co ., 299 S.W.3d 819, 820 (Tex. 2009))

. III. Asserting Privileges Expansive d iscovery disputes in civil cases have become increasingly common during the last few decades, in part due to the ev olution of “Rambo ” litigation tactics and other overly aggressive practices , leading to considerable4 conster nation within the judiciary. 2 Such behavior has provided new meaning to the
term “advers arial process.” Th e case before us is no exception. E ndeavor served a discovery request on Scherer that included seventy

- one categories of requested
documents. Scherer responded by serving a ninety

- nine

- page treatise in which he

assert ed well over two hundred objections to Endeavor ’ s requests , along with an extensive series of supporting citations and footnotes.

“ Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case.”
T EX

. R. C IV

. P . 191.2. Toward that end, prior to filing a motion to compel or a similar discove ry motion , the part ies to the underlying litigation should confer and engage in reasonable effort s to resolve the ir dispute s without the necessity of , and before seeking, trial court intervention. Id

. In cases such as this one, which involv e wide

- ranging disputes that concern dozens of voluminous written discovery requests, it is particularly important for counsel , as the rule requires, to first confer
and engage in reasonable discussions with each other in an attempt to resolve
whatever diffe rences exist between them , the result of which may effectuate the efficient administration of discovery

. This requirement should not be ignored , nor should it be observed in a pro forma fashion

. Wh ile the parties in this case may claim to have satisfied their obligations to
confer and cooperate in good faith, the record show s that they failed to follow at least one significant process that may have streamline d the resolution of th eir dispute s : the process for the assertion of privilege

. Id. R . 193.3

. For that reason, we

2 See
, e.g. , Dahl v. City of Huntington Beach , 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp ., No. CIV

- 87

- 2385

- A (W.D. Okla. Feb 24, 1989) (Hon. Wayne E. Alley) (ord er denying motion to dismiss) ( “If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” ).5 believe it is important to review the necessary process for asserting privileges before we proceed further

. If a party believes that some of the materials that are responsive to a discovery request are subject to a privilege, the party may withhold the materials.
Id. R

. 193.3(a). However, in its response to the request, the withholding party must (1) indicate that materials have been withheld, (2) describe the request to which the material relates, and (3) describe the privilege assert ed. Id

. A statement asserting a privilege should not be made unless specific, responsive material is protected by the privilege. Id. R

. 193, cmt. 3. The responding party may then submit a request to the withholding party and seek a privilege log, which describes the materials that are
withheld a nd the privilege that appl ies to each withheld item or group of items. Id. R

. 193.3(b). It is improper to r aise an objection to a discovery request on the grounds that it calls for the production of material that is privileged. Id. R . 193.2(f) ; In re
Monsanto Co ., 998 S.W.2d 917, 924 (Tex. App.

— Waco 1999, orig. proceeding );
see also In re Christus Health Se. T ex ., 167 S.W.3d 596, 599 (Tex. App.

— Beaumont 2005, orig. proceeding ) (“Although St. Mary should not have objected on the basis of privilege, this was not fatal to its privilege assertion.”). There is a significant
dis ti nction between raising objections and asserting privileges. However, a party that erroneously assert s an o bjection in that instance does not necessarily waive any applicable privilege. T EX

. R. C IV

. P . 193.2(f). Instead, the withhold ing party is
under an obligation to comply with the procedures for withholding privileged
documents once the error is brought to their attention

. Id

. When Rule 193 is properly followed, a part y requesting documents that may be privileged should then have a general idea about the nature of the documents, if

any, that are the subject of the parties’ dispute well before the matter is brought to6 the trial court’s attention

. Se e id. R . 193.2(b). Access to this information will hopefully serve to narrow the scope of the parties’ dispute. Additionally , the process may help the parties avoid a situation where judicial resources, not to mention the parties’ time and expenses, are unnecessarily consumed and exhausted in hypothetical dispute s over the existence of a privilege that, in reality, does not apply to any existing documents

. With the foregoing principles in mind, we now turn to the matters in dispute.
IV. Disputed Discovery Requests
A. Income Tax Returns
Endeavor ’ s sixth request for production seeks “[a]ll federal and state income tax returns of [ Scherer], including all schedules [and] W

- 2 and 1099 forms, for the years 2018 through the present.” Scherer objected to th is request on the grounds that his income tax returns are “subject to a qualified privilege,” but his response did not follow the procedure for asserting privilege s a s described in Rule 193.3(b). Likewise, there is no indication that Endeavor attempted to point out this error to Scherer or otherwise request that he comply with the correct procedure for asserting privileges. Se e id. R . 193.3

. It is well

- settled that t he discovery of f ederal income tax returns is treated differently from other financial information because federal income tax returns are priva te , and the protection of that privacy is determined to be of constitutional importance. Maresca v. Marks , 362 S.W.2d 299, 301 (Tex. 1962) ; In re Brewer Leasing, Inc ., 255 S.W.3d 708, 714 (Tex. App.

— Houston [1st Dist.] 2008, orig. proceeding ) ; see also Se ars, Roebuck & Co. v. Ramirez , 824 S.W.2d 558, 559 (Tex. 1992) (“ Our opinion in this case is guided by our reluctance to allow uncontrolled and unnecessary discovery of federal income tax returns. ”)

. Thus , the discovery of
federal income tax returns is permissible only when they are both relevant and7 material to the issues in the case. Hall v. Lawlis , 907 S.W.2d 493, 494 (Tex. 1995) ; In re House of Yahweh , 266 S.W.3d 668, 674 (Tex. App.

— Eastland 2008, orig. proceeding ). As we have said, “ [ t ] ax returns are not material or relevant if the same information can be obtained from other sources, such as a financial statement. ” House of Yahweh , 266 S.W.3d at 674

. Furthermore, unlike other forms of discovery, the burden is on the party seeking the d iscovery of the tax returns to show that they
are both relevant and material. Hall , 907 S.W.2d at 495; House of Yahweh , 266 S.W.3d at 674; Brewer Leasing , 255 S.W.3d at 713

– 1 4 ; El Centro del Barrio, Inc. v. Barlow , 894 S.W.2d 775, 779 (Tex. App.

— San Antonio 1994, no writ)

. Endeavor maintains that it is entitled to discover Scherer’s federal income tax returns because they are relevant to Scherer’s claims for loss of compensation, as
well as his efforts to mitigat e damages

. Endeavor also poin ts out that Scherer has a “side consulting business” and that he has likely earned income from this business. In response, Scherer has indicated that he is willing to produce other documents that
show the natu re of his income , including any forms that are related to income that is reported on his income tax returns (e.g., any W

- 2, 1099, and K

- 1 forms)

. Because Scherer has improperly objected to this request, rather than following the procedures described in Rule 193.3, the trial court did not abuse its di scretion in overruling the “ objection. ” See T EX

. R. C IV

. P . 193.2(f); In re Monsanto Co ., 998 S.W.2d at 924; In re Christus Health Se. Tex ., 167 S.W.3d at 599. However, by only objecting, Scherer has not waived his right to assert a qualified privilege. T EX

. R.
C IV

. P . 193.2(f). As such, Scherer may still properly assert the necessary privilege (s) using the procedures described in Rule 193. Once he has done so, the parties can proceed to resolve any remaining disputes. Additionally , the trial court and the parties should be mindful that, once any
of the documents in dispute have been identified, Endeavor will carr y the burden to8 demonstrat e that the production of other documents that would indicate Scherer’s
taxable income would be insufficient. See Hall , 907 S.W.2d at 495. Scherer’s general claim for loss of compensation, as well as Endeavor ’ s need for discovery
that relat e s to the “side consulting business” do not satisfy that burden

. 3
B

. Medical /Mental Health Treatment Information
Scherer maintains that the trial court has improperly order ed him to produce a list of medical providers in response to interrogatory no. 8 and to produce “medical
records” in response to request for production n o s

. 7 and 24

. Under R ules 509 and 510 of the Texas Rules of Evidence , a patient such as Scherer may assert a privilege to refuse to disclose confidential communications that
relate to their medical or mental health treatment, as well as the records that are generated by the pa tient ’ s treating health care providers. T EX

. R

. E VID . 509(c), 510(b). T hese rules also contain a provision known as the patient

- litigant exception, which applies when a party relies on the patient’s “physical, mental, or emotional condition” as part of a n asserted claim or defense

. T EX

. R. E V ID . 509(e)(4), 510(d)(5). Even then, however, th is exception is applicable only when the patient’s

“ condition ” plays a significant role in the claim or defense that is asserted

. In R.K. v. Ramirez , the s upreme c ou rt held that the patient

- litigant exception is not applicable “if the patient’s condition is merely an evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue for a claim or defense.” 887 S.W.2d 836, 842 (Tex. 1994) (emphasis added)

. L ikewise, it is not applicable “if the condition is merely tangential to a claim rather than ‘central’ to it.” Id

. (emphasis added).

3 Endeavor also complains that Scherer has not produced other income

- related documents during the period in which he was employed by Endeavor. However, Scherer does not complain about the trial court’s order compelling him to produce other income

- related documents, such as W

- 2s and 1099 s

. T herefore , we do not address or dispose of any ongoing disputes that may relate to the production of such documents.9 “ C ourts applying R.K . have consistently found that a claim for mental anguish will not, standing alone, make a plaintiff ’ s mental or emotional condition a part of their claim.” In re Whipple , 373 S.W.3d 119, 123 (Tex. App.

— San Antonio 2012, orig. proceeding ); In re Toyota Motor Corp ., 191 S.W.3d 498, 502 (Tex. App.

— Waco 2006, orig. proceeding ) (“A claim for mental anguish or emotional distress will not, standing alone, make a plaintiff ’ s mental or emotional condition a part of the plaintiff ’ s claim.”); see also Coates v. Whittington , 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding) ( one’s mental condition is not at issue merely because a party pleads for mental anguish damages). Thus, a “routine allegation of mental anguish does not place a party’s mental condition in controversy.” Whipple , 373 S.W.3d at 124; see also In re Barnes , 655 S.W.3d 658, 672 (Tex. App.

— Dallas 2022, orig. proceeding) ( a routine allegation of mental anguish in a personal injury case did not waive the privilege). In this case, Endeavor has narrowly tailored its discovery requests for medical
information. Interrogatory no. 8 asks Scherer t o identify each health care provider
that Scherer has consulted or that has treated Scherer “ as a result of the ailments [he] claim [s] to have suffered as a result of [Endeavor’s] alleged conduct ” (emphasis added). Likewise, request for production no. 7 s eeks “[d]ocuments which support your claim for damages,” including “medical records and bills reflecting the injuries or damages asserted ” (emphasis added). In the same way, request for production no. 24 requests the production of medical records that sho w the treatment for each “illness, disability, injury, ailment or pain, whether physical, psychological [ , ] or psychiatric” which Scherer claims “to have suffered as a result of [Endeavor’s] alleged conduct ” (emphasis added). Each request make s it clear that medical information is sought only if it i s indicative of Scherer’s treatment for conditions, if any, which he claims to have suffered as a result of Endeavor ’ s10 conduct. Thus, if Scherer is not asserting a claim here regarding a particular physical
or mental condition for which he has received treatment , then no information could
be sought or w ould need to be produced

. Scherer objected to interrogatory no. 8 on the grounds that it sought
information in violation of Rules 509 and 510 of the T exas Rules of Evidence

. He
then indicated that he was amenable to produc ing a list of health care providers that
he had seen “because of [Endeavor ’s ] conduct,” effectively acknowledging that he is required to identify providers whose treatment falls withi n the patient

- litigant exception. However, even then, Scherer adds that he will only do so “if he intends to use any such person as a witness or use any such person’s records as evidence.” Based on this statement, and subject to his objections, Scherer r esponds to the interrogatory itself with the words “ [n] ot applicable.” The cumulative effect of th is limitation and response is to create an ambiguity as to whether Scherer has received

no treatment at all “as a result of the ailments [he ] claim [ s] to have suffered as a result of [Endeavor’s] alleged conduct” or whether he is, in fact, making such a
clai m, and merely has no intention of present ing any medical witnesses at trial

. Scherer’s response is insufficient in at least two re spects

. First, Scherer improperly objected to the interrogatory on the basis that a privilege applies

. See
T EX

. R. C IV

. P

. 193.2( f ). Second, Scherer arbitrarily limited his response to health

care providers that he only intend s to present as witness es

. Rules 509 and 510 do not limit the patient

- litigant exception to th e manner which Scherer advances here

. Given the conditional nature of Endeavor ’ s request, and because Scherer improperly asserted an objection based on privilege, we conclude that the trial court
did not abuse its discretion when it order ed Scherer to respond to interrogatory no. 8. However, on remand , both the trial court and the parties should be mindful that Scherer’s answer of “[n]ot applicable” may be sufficient, if Scherer clearly indicates11 that he is making no claim in this case that he has received any treatment as a result
of a medical or menta l health condition that would satisfy the patient

- litigant exception. See T EX

. R. E V ID . 509(e)(4), 510(d)(5). In responding to request for production n o s

. 7(f) and 24, Scherer again failed

to follow the procedure for asserting privileges that is described in Rule 193.3(b)

. Instead, Scherer improperly objected to these requests on the grounds that they sought information that was protected by the physician

- patient and mental

- health

information privileges in Rules 509 and 510. There is also no indication t hat Endeavor requested compliance with Rule 193.3(b) in connection with these requests. We likewise conclude that the trial court did not abuse its discretion when
it overrul ed Scherer’s improper objections to these requests. See T EX

. R.
C IV

. P

. 193.2(f). Additionally, as was the case with interrogatory no. 8, we construe these requests for production as seeking only those records that are discoverable under the patient

- litiga nt exception. As such, we do not believe that the trial court
abused its discretion when it order ed Scherer to respond to these requests. Again, however, we note that if Scherer unequivocally responds that he has received no treatment as a result of any physical or mental health conditions that are a result of
Endeavor’s conduct , he may respond to these requests by so indicating. 4
C

. “ Witness Interviews ” Endeavor propounded three written discovery requests that relate to Scherer’s
communications with witnesses and/or to statements that were made by witnesses

4 Endeavor’s request s for production also included a request for Scherer to provide an executed “Authorization for Disclosure of Protected Health Information Psychotherapy Notes.” Scherer complains that the trial court abused its discretion when it order ed him to produce such an authorization. W e will address this complaint below, in connection with Scherer’s argument that he should not be required to produce the requested authorizations.12 either to him or to a member of his litigation team. Among other things, Scherer objected to these requests on the grounds that they sought “work product.” The trial

court ove rruled Scherer’s objections and ordered him to respond to each of the items in question

. In his petition for mandamus, Scherer maintains that the trial court
abused its discretion because the se request s seek documents that are protected by the work produc t privilege. The Texas Rules of Civil Procedure no longer contain a blanket exemption from discovery that explicitly applies to “witness state ments.” See T EX

. R.
C IV

. P

. 192, cmt. 9

. Indeed , all statements that are signed or otherwise adopted by a person with knowledge of relevant facts, as well as all such stenographic, mechanical, or electrical recordings of oral statements, are within the scope of permissible discovery , subject to the assertion of any relevant privilege , and certain other limitations, which are not applicable here

. Id. R . 192.3( h) ; R. 192, cmt. 9

. For example, n otes taken during a conversation or interview with a witness or a person with knowledge of relevant facts do not constitute a “ witness statement”
for purposes of Rule 192. Id. R

. 192.3(h). Nevertheless, and regardless of whether they are properly understood to be “witness s tatements,” such notes may still be subject to protection under the work product privilege ( or conceivab ly some other applicable p rivilege )

. Se e id. R

. 192.5; R. 192, cmt. 9

. “Work product” is defined in relevant part as “material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives.”
Id. R . 192.5(a)(1). Thus, w hen claim ing that material or information constitutes work product, a party is asserting a privilege under Rule 193. Id. R . 192.5(d). Interrogatory no. 6 seeks the name of each “agent, s ervant, or employee” of
Endeavor with which Scherer has communicated concerning the “subject matter of
th is lawsuit

. ” It also seeks an indication of whether any such conversation was13 verbal or written. However , i t does not seek any information about the contents of such communications, nor does it require the disclosure of any mental impressions regarding such conversation s , if any

. Scherer did not provide a response to interrogatory no. 6, even in a limited form

. In his response to Endeavor ’ s motion to compel, Scherer argued that , because
it would require disclosing the names of any witnesses that were interviewed by Scherer or his attorneys in prepar ation for litigation or trial , interrogatory no. 6 necessarily sought the disclosure of mental impressions regarding which witnesses he or his attorneys consider to be important

. Whi le the interrogatory may result in
the incidental disclosure of mental impressions regarding the relative importance of potential witnesses, not every conversation between Scherer and an employee , agent,

or servant of Endeavor regarding Scherer’s suit would necessarily indicate an effort
to ide ntify and interview “witnesses.” As such, it is conceivable that Scherer has engaged in conversations with employees , agents, or servants of Endeavor that are not encompassed by or within the scope of his objection. Furthermore, Scherer’s use of an objec tion to assert a privilege is , again , improper under Rule 193. 2(f) , and Scherer does not argue in his petition for
mandamus that the trial court abused its discretion when it grant ed any of the other objections to interrogatory no. 6

. Therefore , we conclude that the trial court did not
abuse its discretion when it overrul ed Scherer’s “objection” to producing privileged
information and ordered Scherer to respond to interrogatory no. 6

. On remand, Scherer is not prohibited from assert ing the work pr oduct privile ge in connection with interrogatory no. 6 if he utiliz es the procedures in
Rule 193.3

. However, if he does so , he should be mindful that he should not assert the privilege unless there are one or more specific witness contacts to which the14 pr ivilege applies. 5 See T EX

. R. C IV

. P . 193, cmt. 3. He should also be prepared, on request, to provide a privilege log to opposing counsel so that any disputes over the production of the requested information can be properly addressed and possibly
resolved. Id. R . 193.3(b). Scherer also alleges that reques t for production n o s

. 8 and 9 seek information
that constitutes work product

. Request for production no. 8 seeks “[a]ny statements, whether written, typed, recorded, or otherwise that [Scherer] or any person on [his] behalf has taken or received from any current or former employee of [Endeavor], including [Scherer ’s ] former co

- workers and supervisors. ” Request for production

no. 9 seeks documents that “reflect communications” between current or former employees of Endeavor, and which discuss or reference Scherer, his employment with Endeavor, or any other facts set out in his p leadings

. Again, Scherer improperly objected to each of these requests on the basis of
the work product privilege , arguing that they “seem” to include “ notes of witness
interviews.” Likewise, although Scherer lodged several other objections to these requests, Scherer ’s petition for mandamus does not argue that the trial court abused
its discretion when it overrul ed such objections

. As such, t he trial court did not abuse
its discretion in that regard

. If Scherer has any “notes of witness interviews” that he
seeks to withhold from discovery under the work product privilege , Scherer may
assert the work product privilege and withhold production u nder Rule 193.3

. Endeavor may then pursue appropriate relief based on the procedures outlined in the
same rule.

5 We do not comment on whether Scherer can be required to disclose the identity of witnesses that he or his at torneys have interviewed. Instead, we believe that such an issue is best resolved after the general nature of the alleged witness interview/statement dilemma has been disclosed pursuant to the procedures described in Rule 193.3. We do note, however, that a party must disclose the identity of any person that i t intends to present as a witness at trial. See T EX

. R. C IV

. P. 192.3 (d).15 D

. Calculation of Non

- Economic Damages In interrogatory no. 4, Endeavor sought a description of each element of damages sought by Scherer, alo ng with the amount claimed by him for each element, and “the manner in which [Scherer] calculated the amounts claimed.” Scherer complains that the trial court abused its discretion to the extent this request order s him to provide “calculations” of his non

- economic damages. Because they are a measure of non

- pecuniary harm, non

- economic damages are not amenable to calculation with “precise mathematical precision.” Anderson v.
Durant , 550 S.W.3d 605, 618 (Tex. 2018) (quoting Brady v. Klentzman , 515 S.W.3d 878, 887 (Tex. 2017) ). For that reason, our mandatory disclosure rules indicate that the parties should provide “the amount and any method of calculating economic damages” (emphasis added), but do not require a similar disclosure obligation for

non
- economic damages. T EX

. R. C IV

. P . 194.2(b). However, n on
- economic damages may sometimes be the subject of less

- than

- precise calculations. For example, when establishing a rational basis for the award of mental anguish, a party may offer evidence suggesting a quantifiable amount of damages. Gregory v.
Chohan , 670 S.W.3d 546, 5 60

– 61 (Tex. 2023). In that instance , a party might ask a jury to consider “the potential financial consequences of severe emotional trauma.”
Id

. Endeavor’s briefing seems to assume that , because non

- economic damages must have a “rational basis,” all such damages are subject to some form of
calculation. See i d

. Although the distinction may not always be clear, w e do not
believe that all non

- economic damages can necessarily be expressed in the form of
verifiable calculations. On that basis, w e conclude that the trial court abuse d its
discretion when it order ed Scherer to provide calculations of his non

- economic
losses without qualification. On remand, the trial court may order Scherer to provide16 calculations of his non
- economic losses only to the extent that such calculations are verifiable and possible

. E

. E

- mail and Social Media Accounts Interrogatory no. 7 contains the following request: List all email addresses you have used during the last five years and provide all web addresses for any on

- line content with which you are associated, including, without limitation, social media websites (e.g., Facebook, Instagram, LinkedIn, Snapchat, TikTok). Scherer maintains that this request exceeds the scope of permissible discovery. See
T EX

. R. C IV

. P . 192.3(a). Under Rule 192.3(a), a party is allowed to discover m atters that are relevant to the subject matter of the litigation. Furthermore, “[i]t is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Thus, while the scope of discovery is broad, “it is nevertheless confined by the subject matter of the case and reasonable expectation s of obtaining information that
will aid [in the] resolution of the dispute.” Id

. R . 192, cmt. 1. For this reason, discovery requests must be “reasonably tailored” to seek the disclosure or production
of only relevant matters. In re USAA Gen. Indem. Co ., 624 S.W.3d 782, 793 (Tex. 2021) (orig. proceeding) (quoting In re CSX Corp ., 12 4 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) ); In re Am. Optical Corp ., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) ; In re Germania Select Ins. Co ., No. 11

- 20

- 00176

- CV, 2020 WL 5741595, at *2 (Tex. App.

— Eastland Sept. 25, 2020, orig. proceeding ) (mem. op.). Based on these principles, requests for social media posts that are not limited
in time or scope can be overly broad and therefore improper. See In re Christus
Health Se. Tex ., 399 S.W.3d 343, 348 (Tex. App.

— Beaumont 2013, orig. proceeding )

. Furthermore, requests for social media posts which are limited in time17 or scope , but which bear no restriction as to the requested subject matter are properly
denied. In re Indeco Sales, Inc ., No. 09

- 14

- 00405

- CV, 2014 WL 5490943, at *2 (Tex. App.

— Beaumont Oct. 30, 2014, orig. proceeding ) ( mem. op. ) ( the trial court reasonably concluded that a request was overly broad when it required a party to “pr oduce every post, message or chat conversatio n authored, sent, or received by her, no matter how mundane or remote, regardless of the topic, content, or subject, includ[ ing] everything anyone sent or posted to her account. ”).
Endeavor characterizes its request as merely seeking “a list of email addre sses and social media accounts.” This characterization is incorrect. Instead , the request seeks the “web addresses” for all online content with which Scherer is associated, including social media websites. That is, it effectively seeks a list of every w eb page

a nd any piece of information generated by or associated with Scherer that has been posted within the last five years , with out any limitation as to its scope or content

. Among other things, it obligates Scherer and /or his attorneys to identify the uniform
resource locator of every piece of social media content in which Scherer is “ tagged, ” mentioned, or otherwise involved, no matter how remote such involvement may be. See Akamai Techs., Inc. v. Cable & Wireless Internet Servs

. , Inc ., 344 F.3d 1186, 1188 (Fed. Cir. 2003) (a user accesses an individual web page by entering its uniform
resource locator

— or “ URL ”

— in an internet browser). Under these circumstances,

we conclude that the trial court abused its discretion when i t order ed Scherer to

res pond to i nterrogatory n o. 7 in its current form

. F. Form s of Income Request for production no. 22 s eeks “documents that reflect or evidence any

or all income” earned by Scherer during the four

- year period pr eceding the end of his employment. Endeavor lis t ed several specific categories of documents that are included within this request

. They included pension payments, disability income,18 “insurance proceeds,” inheritances , workers’ compensation, and unemployment compensation. Scherer objected to th is request on the grounds that it exceeds the scope of permissible discovery. See T EX

. R. C IV

. P . 192.3(a). However, he agreed to produce several income

- related documents, inc luding, among other things,
various IRS forms that would show his sources of income, payroll documents
show ing post

- termination income , and documents sufficient to show any unemployment benefits or workers’ compensation benefits received

. An employee that asserts a claim under the T CHRA may recover back pay as a form of equitable relief. L AB

. § 21.258. The measure of such damages is the amount of money the employee would have earned had they not been terminated, less the sum the employee did earn after te rmination. Hertz Equip. Rental Corp. v.
Barousse , 365 S.W.3d 46, 57 (Tex. App.

— Houston [1st Dist.] 2011, pet. denied); Shear Cuts, Inc. v. Littlejohn , 141 S.W.3d 264, 271 (Tex. App.

— Fort Worth 2004, no pet.); Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores , 951 S.W.2d 542, 547 (Tex. App.

— El Paso 1997, no writ). Likewise, the TCHRA provides that “[ i ]nterim earnings, workers’ compensation benefits, and unemployment compensation benefits received operate to reduce the back pay otherwise allowable.”
L AB

. § 21.258(c).
T he measure of damages articulated in Barous s e , Littlejohn , and Flores , as well as the Labor Code’s description of allowable reductions, indicate that offsets
are limited to earned income or forms of inco me that serve as a substitute for earned income during the claimant’s periods of disability or unemployment. Back pay damages are not reduced or limited by other forms of income. Thus, for example, 401k benefits paid to a claimant cannot serve as the bas is for an offset. Stanley Stores, Inc. v. Chavana , 909 S.W.2d 554, 563 (Tex. App.

— Corpus Christi

– Edinburg 1995, writ denied). Likewise, income received from inheritance , property and19 casualty insurance payments, and pensions are not relevant to the measu re of damages. Cf. Littlejohn , 141 S.W.3d at 271; see L AB

. § 21.258(c). 6 Although relevant documents were included within the scope of request for production no. 22, the request also sought documentation f or unearned income,
which is not relevant to the damage claims that have been asserted by Scherer. Likewise, Endeavor failed to demonstrate how the discovery of unearned income could otherwise lead to the discovery of admissible evidence. See T EX

. R.
C IV . P. 192.3(a). As such, the trial court abused its discretion when it ordered Scherer to produce documents in response to request for production no. 22.
G. Documents “Supporting” Claims Endeavor also served a series of requests for production that asked Sc herer to produce documents “support [ ing ] ” or “substantiat [ ing ] ” various claims that are set out in Scherer’s pleadings. The requests at issue include the following: Document Request 55 : Documents that support or otherwise substantiate your allegation that “Endeavor violated and is violating the TCHRA by discriminating against [ Scherer ] by using his age as a motivating factor in connection with compensation, terms, conditions, or privileges of employment.” Document Request 56 : Doc uments that support or othe rwise substantiate your allegation that "Endeavor violated and is violating the TCHRA by limiting, segregating, or classifying [Scherer] for employment in a manner that tends to deprive [Scherer] of employment opportunities – or adversely effects [Scherer’ s] status as an employee.” Document Request 57 : Doc uments that support or otherwise substantiate your allegation that “Endeavor caused harm to [Scherer] and is continuing to cause harm to [Scherer].”

6 Scherer argues that allowable offsets for back pay are necessarily limited to the three categories that are described in Se ction 21.258(c): interim earnings, workers’ compensation, and unemployment benefits. We do not comment on whether forms of earned income that are outside the scope of these three categories limit the claimant’s recovery of back pay.20 Document Request 58 : Documents that support or otherwi se substantiate your allegation that “Endeavor violated and is violating the TCHRA by discriminating against [Scherer] by using [Scherer’s] national origin as a motivating factor in connection with compensation, terms, conditions, or privileges of employme nt.” Document Request 59 : Doc uments that support or otherwise substantiate your allegation that “Endeavor violated and is violating the TCHRA by limiting, segregating, or classifying [Scherer] for employment in a manner that tends to deprive [Scherer] of employment opportunities – or adversely affects [Scherer’s] status as an employee.” Document Request 60 : Doc uments that support or otherwise substantiate your allegation that “Endeavor caused harm to [Scherer].” Document Request 61 : Doc uments that support or otherwise substantiate your allegation that “Endeavor violated and is violating the TCHRA by retaliating or discriminating against [Scherer] for opposing a discriminatory practice, making or filing a charge of discrimination, assisting, or participating in any manner in an investigation or proceedings.” Document Request 67 : Doc uments that support or otherwise substantiate your allegation that “Endeavor engaged in discriminatory and retaliatory practices wit [sic] malice or with reckless indi fference to the state

- protected rights of its employees, including [Scherer].” These requests are imprope r. A lthough a requesting party is entitled to discover the
factual basis for another party’s contentions, a requesting party may not simply
demand tha t an opposing party marshal its evidence in support of a particular
contention. T EX

. R. C IV

. P . 192 .3 (j) ; R . 192 , cmt. 5

. Likewise, requests for the production of documents must describe the documents that are sought with “reasonable particularity.” Id. R . 196.1(b).
In Loftin v. Martin , the supreme c ourt considered whether it was proper for an injured worker to request that an insurance carrier produce all documents that support ed its allegation that the Industrial Accident Board (IAB) had rendered an21 award that was contrary to the undisputed evidence. 776 S.W.2d 145, 148 (Tex. 1989)

. After noting that requests under the rules of civil procedure “must be specific,
must establish mate riality, and must recite precisely what is wanted,” t he c ourt held
that the request for documents in support of the carrier’s allegation regarding the
IAB award failed to “identify any particular class or type of document s ” and that, instead, it was “merel y a request

. . . to generally peruse all evidence” that the carrier might have. Id

. (quoting Steely and Gayle, Operation of the Discovery Rules , 2 H OUSTON L. R EV . 222, 223 (1964) ) ; see also T EX

. R. C IV

. P. 196.1(b) (A request for production must “describe with reasonable particularity each item and category” of documents that must be produced

. ).
Since Loftin , Texas courts have consistently held that r equests that demand
the production of all evidence in sup port of a party’s allegations are beyond the scope of permissible discovery

. S ee , e.g. , In re Master Flo Valve Inc ., 485 S.W.3d 207, 218 (Tex. App.

— Houston [14th Dist.] 2016, orig. proceeding) ( a request for “all documents, communications, tangible or int angible evidence relating in any way
to defendants ’ claims, defenses, or alleged damages” was overly broad) ; In re TIG
Ins. Co ., 172 S.W.3d 160, 168 (Tex. App.

— Beaumont 2005, orig. proceeding) ( a series of requests seeking all documents that support an insurer’s decision to deny a claim were improper under Loftin )

. The comments to our rules of civil procedure
likewise no te that “a party may object to a request for ‘all documents relevant to the
la wsuit’ as [being] overly broad and not in compliance with the rule requiring specific requests for documents and [may] refuse to comply with it entirely.”
T EX

. R. C IV

. P . 193 , cmt. 2

. Indeed, requests of this nature may be so vague that the responding pa rty is “unlikely to know what documents are required to be produced.”
TIG , 172 S.W.3d at 168.22 Here, Endeavor attempts to distinguish its approach from Loftin by pointing

out that , rather than serving Scherer with a single, global request for “all evidence,”
it has served a series of requests on Scherer, each of which asks for the disclosure and production of evidence that support s a particularized aspect of his allegations.
Endeavor argues that Loftin does not foreclose this approach

. In support of its argument, Endeavor relies on Davis v. Pate , 915 S.W.2d 76 (Tex. App.

— Corpus
Christi

– Edinburg 1996, no writ)

. In Davis , the Thirteenth Court of Appeals held
that a series of requests were appropriate when they asked for “any and all
documents” that evidenced various, particular aspects of a plaintiff’s claims

. Id. at
79. The Davis court reasoned that, while Loftin involved a request for “all evidence that supports an opposing party’s allegations,” some of the requests made by the
Davis defendant were acceptable because they specified “a particular aspect or element” of claims that had already been brought. Id

. We respectfully disagree with the holding in Davis for three reasons. First, Davis predate s the comprehensive 1999 amendments to the Texas Rules of Civil Procedure, which made numerous and significant modifica t ions to the rules for discovery. Among other th ings, the revis ed discovery rules include a comment to Rule 192 which note s that, although the factual contentions of a party are
discoverable , the rule does not require “a marshalling of evidence.” T EX

. R.
C IV

. P

. 192.3(j) ; R . 192.3 , cmt. 5. 7 The holding in Davis permits discovery requests
that call on the parties served with such requests to marshal documentary evidence. As such, Davis is no longer applicable in light of the 1999 amendments

.

7 The notes and comment s to the 1999 revisions are not merely advisory, but “are intended to inform the construction and application of these rules by both courts and practitioners.” Order of Final Approval of Revisions to the Texas Rules of Civil Procedure , Misc. Docket No. 98

- 9196 (Tex. Nov. 9, 1998 ), reprinted in 6 1 T EX

. B AR J . 1140 (1998); Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions (Nov. 11, 1998) , http://adrr.com/law1/rules.htm ; see also In re Am. State Bank to Obtain Testimony of Wade , No. 07

- 03

- 0483

- CV, 2005 WL 1967262, at *1 (Tex. App.

— Amarillo Aug. 16, 2005, pet. denied) (mem. op.).23 Second , while we agree with Davis that a single req uest for all documents in support of a party’s allegations is overly broad and burdensome , we do not interpret
the Loftin request to fit within that category

. To the contrary, the disputed request for production in Loftin was rejected even though it specified a “particular aspect or element” of the claims that were made by the insurance carrier. See Davis , 915
S.W.2d at 79 ; see also Loftin , 776 S.W.2d at 147

– 48

. Specifically, the court in Loftin rejected a request for “a ll evidence” of the carrier’s contention that the IAB had rendered an improper award. Loftin , 776 S.W.2d at 148

. As such, we believe that
the court in Davis did not distinguish the facts before it from th e facts and
circumstances in Loftin

. Finally , by allowing a party to survey every significant claim of its opponent by systematically seeking “all documents” that support each asserted claim, the holding in Davis readily provides a means by which civil litigants may continue to effectively is su e a comprehensive call for an opponent to produce “all evidence. ”
Davis , 915 S.W.2d at 77

– 79. We do not believe that this result is an intended

consequence or outcome under Loftin or our rules of civil procedure. See TIG , 172
S.W.3d at 167

– 68 ( a series of requests that essentially required the insurance carrier “to produce all documents supporting its contentions” that justif ied its denial of a
claim was not reasonably specific).
W e conclude that , regardless of whether they are global or particula rized, requests for production that seek all evidence (or documents) that support an opposing party’s allegations fail to describe the requested documents with “reasonable particularity,” as required by Rule 196.1(b) and Loftin

. Likewise, because such req uests require a party to marshal its evidence, they exceed the permissible scope of discovery under the rules

. T EX

. R. C IV

. P . 192.3 , cmt. 5. As24 such, t he trial court abused its discretion when it ordered Scherer to respond to request for production n o s

. 5 5 through 61 and 67.
H. Attorney

- Client Agreement Request for production no. 68 sought “[Scherer’s] contract with [his] attorneys, including a description of any fee agreement, related to [Scherer’s] claim of attorney’s fees.” Scherer lodged several objections to this request, including an objection based on the attorney

- client privilege. Nevertheless, Scherer agreed to produce a redacted copy of his fee agreement which only show ed the agreed upon fee and the fact that the agreement existed

. The attorney

- client privilege protects, among other things, communications between the client and the attorney. T EX

. R. E VID . 503(b)(1)(A). However, the privilege can be waived when it is used offensively. Republic Ins. Co. v. Davis , 856 S.W.2d 158, 163 (Tex. 1993). F or example, attorney billing records are generally discoverable when a party asserts a claim for attorneys’ fees. See In re Nat ’ l Lloyds
Ins. Co ., 532 S.W.3d 794, 813 (Tex. 2017) (“Attorney

- billing information may be discoverable by virtue of the opposing party designating its counsel as a testifying expert.”).
Similar to other discovery objections asserted by him, Scherer’s response does

not assert the attorney

- client privilege by using the procedure described in
Rule 193. 3(a). See T EX

. R. C IV

. P. 193.3(a). However, in this instance, Scherer is entitled to withhold privileged communications with his attorney without asserting the privilege in his response

. See T EX

. R. C IV

. P . 193.3(c) (a party need not comply with Rule 193.3(a) or (b) and may withhold a privileged communication to or from

a n attorney if the communication was made after consulting with the attorney and if it concerns the litigation in which the discovery is requested).25 In determining whether a waiver of the attorne y
- client privilege has occurred,
the trial court must consider the following factors: (1) whether the party asserting the privilege is seeking affirmative relief, (2) whether the privileged information sought is such that, if believed by the finder of fact , in all probability it would be outcome determinative of the cause of action asserted, and (3) whether disclosure of the confidential communication is the only means by which the aggrieved party may
obtain the requested information

. Republic , 856 S.W. 2 d at 163. In this instance, it
is clear that

— by seeking attorneys’ fees

— Scherer is asserting a claim for affirmative
relief. As such, the first element of the Republic test is satisfied. Id

. With respect to the second element, t he resolution of Scherer’s claim for attorneys’ fees will be based on the lodestar method articulated in Rohrmoos
Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 497

– 5 02 (Tex. 2019). Under the lodestar method, a base award is calculated by multiplying the reasonable number of hours worked by a reasonable hourly rate. Id

. at 498. As such , any hourly rate to which the attorney and client have agreed may be relevant to the determination of whether the hourly rate used in the calculation of fees is reasonable. However, “mere relevance” is not sufficient to justify disclosure. Republic , 856
S.W. 2 d at 163. Instead, it is normally incumbent upon the party seeking the discovery of the fee agreement to prove that the agreement would in all probability
be “outcome determina tive.” Id

. Here , Scherer has agreed to produce the portion of his fee agreement that
establishes the nature of the fee sought

. We presume tha t the materials he has voluntarily produced include a disclosure of whether the fee is a contingen cy arrangement and the terms of the contingency , or whether the fee sought is based on an hourly rate, and

— if the fee is based on an hourly rate

— the particular rate(s) that will be charged. We are unaware of any other information from the agreement that26 woul d be relevant to a lodestar calculation of attorneys’ fees, nor does Endeavor argue that the agreement is relevant for any other reason. Therefore , because Scherer has already agreed to produce any portions of his fee agreement that are relevant to
a lode star calculation of his fees, the trial court abused its discretion when it ordered Scherer to produce the unredacted fee agreement in its entirety.
I. Authorizations Finally, Endeavor ’ s request s for production include a request for Scherer to provide an executed “Authorization for Disclosure of Protected Health Information Psychotherapy Notes” ; the request indicat es that a copy of a proposed authorization
i s attached to the request (request for production no. 24)

. Additionally, Endeavor

reques ted an “executed Authorization for Release of Employment Records” (request for production no. 25). 8 In its motion to compel, Endeavor sought an order requiring Scherer to sign
and thereafter provide the requested authorization s

. Scherer complains that, by
order ing him to respond to the request s for production that contain ed request s for

“ executed authorization s , ” the trial court has essentially order ed him to sign the
authorization s in question in the form proposed by Endeavor

. H owever, a request for production may not require Scherer to create and produce documents that do not already exist. T EX

. R. C IV

. P . 192.3(b) (“A person is required to produce a document or tangible thing that is within the person’s possession, custody, or control.”) ; In re Preventative Pest Control Houston, LLC , 580 S.W.3d 455, 460 (Tex. App.

— Houston [14th Dist.] 2019, orig. proceeding) (“Under Rule 192.3(b), one cannot be forced to create a document that does not exist solely to comply with a request for production.”); In re Guzman , 19 S.W.3d 522, 524

– 25 (Tex. App.

— Corpus Christi

–

8 We have not had an opportunity to examine the proposed auth orizations because they are not included in the record before us.27 Edinburg 2000, orig. proceeding) ( the trial court cannot order the production of executed authorizations that do not exist, solely to comply with a request for production). Thus, a party cannot be required to create a document to satisfy a document request. Here , the trial court’s order, which required Scherer to respond to a request for production, is not an order to execute the authorizations that
Endeavor se eks

. Rather, although the intent of the order may have been otherwise,
it merely requires Scherer to produce such authorizations if they already exist

. We recently held that a trial court may, under appropriate circumstances, order a party to execute an authorization. In re Rius Rentals, LLC , No. 11

- 21

- 00211

- CV, 2021 WL 5115548, at *4 (Tex. App.

— Eastland Nov. 4, 2021, orig. proceeding) (“authorizations for the release of records related to a party may be an efficient
means to obtain records that are in t he possession of a third party, particularly if that third party requires such authorizations in order to avoid potential claims.”). However, because authorizations are not listed as a form of permissible discovery
under Rule 192.1 , we conclude d in Rius , as we do today, that the trial court may only compel the production of an executed authorization based on its finding that good

cause exists to modify the procedures set forth in our rules of discovery

. Id

. at *4;
see also T EX

. R. C IV

. P . 191.1 (“ the procedures

. . . set forth in the rules pertaining to discovery may be modified in any suit

. . . by court order for good cause ”). In this case, the trial court did not explicitly or implicitly find that there was good cause to permit the use of autho rizations as a form of permissible discovery. Despite this , other discovery tools exist for Endeavor to utilize to obtain the desired information
that it would otherwise seek if signed authorization s were or were not produced

. W e conclude that the trial court did not abuse its discretion when it ordered Scherer to respond to request for production n o s

. 24 and 25. However, i f executed authorizations do not exist, Scherer need only respond by indicating that no28 documents can be identified that are responsive to the se request s

. T EX

. R.
C IV

. P

. 196.2(b)(4). Likewise, if Endeavor seeks to compel Scherer to execute such authorizations in the future, it should seek an order for good cause under Rule 192.1.
V. This Court’s Ruling
We condition ally grant the petition for writ of mandamus , in part, and direct

t he trial court to modify its order , consistent with this opinion, with respect to interrogator y nos. 4 and 7 , and request for production nos. 22, 55 through 61 , 67 , and 68

. Mandamus will issue only if Judge Robertson fails to act by February 29 , 202 4

.

W. STACY TROTTER
JUSTICE

February 15 , 20 2 4
Panel consists of: Bailey , C.J., Trotter , J

. , and Williams , J.