NO. 07-01-0283 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D SEPTE MBE R 20, 2001

______________________________ IN RE E NERGASCOMPANY, R ELATOR

_________________________________ ON PETITION FOR WRIT OF MANDA MUS

Before BOY D, C.J., and QUINN and R EAVIS , JJ.
In this original proceeding, rel at or Energas Com pany, seeks a writ of mandam us requesting that weorder the Honorable David L. Gleason, Judge of the 47 th District C ourt of Potter County , to vacate his ord er requi ring rel ator to produce docum ents covering its pipelines in the entire city of Am arillo for a 12-year period of time and docum ents relating to thedec ision to cath odically pro tec t pip eline s w ithin Am arillofor the past 30 years

. For the reasons set forth, we conditionally grant in part and deny in part the relief requested.2

Relator, a public utili ty, is engaged in the business of supp lying na tural ga s to business and residential customers in the city of Am arillo and elsewhere. Forest H arvey Miller, deceased, resided at an apartm ent located at 2713 West 9 th Street in Am arillo. On Septem ber 13, 1999, he w as severely injured by

an explosion at his apartm ent and died sixteen days later as a result of burns received in the explosion. Contending that t he explosion w as caus ed b y a leak ing g as m ain p ipelin e locate d ap pro xi m ate ly17 feet from the apar tm ent, rea l party in inte rest, M aryMiller Speed, Dependent Adm inistratrix of the Estate of F ore st H arv ey M iller, Deceas ed ( her eaf ter rea l p a rty), filed suit in the 47th Distri ctCourt of

Potter County

styled Mary M iller Speed, Dependent Adm inistratrix of the Estate of Forest Harvey M iller, Deceased versus Energas Com pany , b earing cause numbe r 87-247-A, seeki ng to recover or dinary an d exem plary damages. Byher plead ings, real par ty a llege d th at t he in

j urie s toMr . M iller r

esu lting in hi s de ath w ere pro xi m ate ly caused by the negl igence of re lator as fol lows: (A) faili ng to make sufficient i nsp ect io ns to dis cover t he le aksin t he m ain before harm resulted to the decedent from these conditions. (B) failing to maintain or properly utilize avail able monitoring equipment an d devices that would have alerted the Defendant of the da ngerous gas leakage by show ing the existing gas pressure in the m ain. (C) operating and m aintaining the main in a dangerous and defect ive condition. (D) failure to perform proper repair and m aintenance of the m ain. (E) failure to stop the flow of ga s through the m ain after learni ng of i ts leaking condition, until the leaks could be repaired.1 Energas com plains about the ruling of the trial court on 22 requests for production. Eleven of the requestsare express ly based on 49 C.F. R. Part 192, Sec tion 192.457 or Section 192.465, and app licab le Texas Rail road Comm ission Supplements, which regulations contain provisions for cathodic protection of buried gas pipelines and pipeli ne inspections to discover areas of corrosion. The rema ining eleven requests relate to the efforts of Energasto com ply with the regulations.

2 Cathodicprotection. A m eans of protecting a buried pipe against corrosion. A currentis directed onto the pipe by sacrificial ann od es (m etal ribbons) placed in the ground, parallel to and con nected to the pipe. Pipe will not corrode if sufficient current fl ows onto the pipe. H. Will iams , C. M eyers, P. M artin, B . Kram er, Oil & Gas Law, Vol 8, 3 (F) faili ng to re pair

them ain s o asto p rev ent gasleak in g from it , after learning of its leaking conditi on. (G) failing to warn the decedent of the peril or danger caused by the leaking main, after learning of its leaking conditi on. In addition to the allegations of ordinary neglige nce , re al party also alleged that the negligence of Energas was com mitted w ith malice and/or gross neglect.
In response to real party’s t hird request for production of docum ents, E nerga s responded with obj ections on March 12, 2001. 1 Re al pa rt y f i l ed he r mo ti on to co mp e l discover yon A pril 4, 2001. After a hearing, the trial court signed its order on June 7, 2001, granting real party’s m otion to com pel and overruled Energas’s obj ections to discovery and prayer for protection. As m aterial her e, Ene rg as cont end s th e tr ial c our t er red in concluding that real party’s requests for discovery w ere narrowly tailored and relevant to issues invo lved in the underlying case and in ordering Energas to produce docum ents pertaining to the entire city of Am arillo for a 12-year period of tim e and docum ents relating to the decisi on to cathodi cally pr otect 2 lines within Am arillo for a 30-year period.1998.
3 Energas challenges request num bers 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17,

21, 22, 24, 30, 34, 36 , 37, 38, and 41. 4 Standard of Review
A writ of m andam us will only issue to correct a clear abuse of discretion or violation of a duty im posed by law

w hen the re isno adequate rem edy by appeal, and the relator has the burden to present the appellate court with a record sufficient toestablish the right to mandam us. W alker v. Packer, 827 S.W .2 d 8 33 , 8 37 -3 9 ( Te x. 1992) (o rig. proce eding). W ith respect to fac

tual m atterscom m itted to t he trial cour t’s disc retion, th e appellate court may not substitute its j udgme nt for that of the trial court. Id . How ever, a review of a t rial court’s determ inat ion of co ntr olling lega l prin ciple s isentitl ed to much less deference. Id

. at840. In our analysis, we “mus t fo c us on the record that w as before the court and whether thedecision w as not only arbitrar

ybut also am ounted ‘to a clear and prej udicial error of law.’” In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998).
As is com mon in original proceedings, the record presented h ere is not as com plete
as a record presented after a trial on the m erits. The record here consists only of (1) real party’s original petiti on, (2) real party’s m otion to com pel responses to her third request for production, with eight ex hibits attached including Energas’s answers to s ome request for admissions, objections to discovery requests, and E nergas’s obj ections to the 22 requests for production 3 that E nergas c hallenges he re, (3) E nergas’ s respo nse to re al p arty’s m otion4 See Kern v. Gleason, 840 S .W .2d 730, 734 (Tex .App.--Am arillo 1992, no pet.)

(holding that

argum ent of counsel is no t evidence).
5 All rule references herein are to the Texas R ules of Civil Procedure. 5 to com pel, with the aff

idav itof Dav id Gates, a vice pr esident f or Ener gas attached, (4) a reporter’s record of the argum ent of counsel 4 upon the presentation of the m o tion to
com pel and E nergas’ s oppos ition to them otion, and (5) the t rial court’s order. Byits soleissue, Energas conten ds the trial court abused its discretion in ordering itto produce do cu men ts pe rt ai ni ng to th e e nt i re ci ty of Ama ri l l o f or a 1 2- ye ar pe ri od of ti me and docum ents relating to the decision to catho dically protec t lines w ithin Am arillo for a 30-year period o f time. In sum mary , Energas obj ected to production of the records contending that the requested docum ents were not relevant, and were overly broad and burdens om e. Rule 1 92.3(b) of the Tex as Rulesof Civil Pro cedure 5 provides: (b) Documents and Ta ng ib le Things

. A party m ay obtain discovery of the existence, descripti on, nature, custod y, condition, location, and contents of docum ents and tan giblethin gs ( inclu d ing paper s, books, accounts, drawings, graphs, charts, ph otographs, el ectronic or videotape r ecording s, data, and data com pilations) that constitute or contain m atters relevant to the subject ma tter of the action. A person is required to produce a doc ument or tan giblethin g th at is

w ithin theper

son ’s pos ses sion , cu sto dy, or cont rol.
Because therulereq uire s th at d ocu m ents an d ta ngib le th ingsm ust be r ele van t to the subject ma tter of the action, w e first address the question of relevance.6 All regulation references herein are to Title 49 of the Code of Federal Regulati ons. 6 Relevance
As summ arized ab ove, the underl ying act ion was com menced following a gas explosion at 2 713 W est 9 th Street in Am arillo resul ting in fatal injuries to Forest Harvey Miller. By answe rs to request for adm issions, Energas adm itted:

• itowned and operated thelow pre ssu re s tee l m ain located at or near 2713 W est 9 th Street involved in the lawsuit;

• a leak detection survey perform ed in August 199 8 on th e system which included the line at or near 2713 West 9 th Street found over 80 leaks over an area of approximately thr ee square miles;

• there was nocathodic pro tection and no effective external coating on the low pressure steel main located at or nea r 2713 W est9 th Street on Septem ber 13, 1999;

• thaton Septe m ber 13, 1 999, or within a day o r two therea fter, the low pressur e steel ma in located at or near 2713 West 9 th Street, w as found to h aveact ive extern al co rro sion w ith h olesand larg e-s cale pitting; and

• t hatsoon after Septem ber 13, 1999, Energas replaced t he lo w pressur e stee l main located at or n ear 2713 West 9 th Street w ith polyethylene pipe. Although the first 11 of the challenged production requests expressly reference sections 192.457 and 192.465 of Title 49 of the Code of Fe deral Regu lati ons, 6 and the following requests also seek docum ents within the context of cathodic protection and inspection of buried lines, Energas did not obje ct on the grounds tha t se ctio ns 1 92. 457 and 192 .46 5 did notapply to the subj ect line or otherwise q ues tion the app licab ili ty of the regul ations.7

Although Energas contends here that relevant information is limited to the history of the particularline serving 2713 W est 9 th Street, it doe s not argue or contend t hat records relating to Energas operations in the c ontext of section 192.457 entitled “External corrosion control: Buried or subm er ged pipelines install ed before August 1, 1971,” or section 192.465 entitled “External corrosion control: M onitoring” are not relevant. Moreo ver, based upon this record, records applying to “the particular line serving 2713 W est9 th Street,” m ay include records of Energasop erations as they relate to the regulat ions. Considering the adm issions of Energas and the abs ence of any obj ection or evid enc e in t his record questioning the applicabili ty of the regulations , we conc lude that sections 192.457 and 192.465 are f acial ly relevant to the claims of real party and, according ly, the trial court did not abuse its discretion in hol ding that th e relevan cy requirement of R ule 192.3(b) was sat isfied.
Ov er l y B ro ad an d B ur de ns ome
The discovery rules do not contem plate the exclusion of relevant evi dence unless the evidence sought is unf air ly prej udicial, privileged, or incom petent. Further, discove rab le information is also limited by legitimate interests of opposing parties such as avoiding harassm entor overly-broad requests. Kern v. Gleason, 840 S.W.2d 730, 736 (Tex .A pp. --A m arillo1992, no pet.). W hile discussi ng the n ew d iscovery rules, in In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999), the Court held:8

A party resisting discovery, however, cannot sim ply make conc lusor y allegations that the requested discove ry is und ulyburdensom e or unn ece ssa ril y harassing . The party must produce some evidence support ing its reque st for aprotec tive order

. Rule 192.4 allows the trial court to limit discovery if it determ ines that: (a) the discove ry sou ght is u nre aso nab ly c um ulat ive o r du plica tive , or is obtaina ble from som e other sourc e that is more convenie nt, less burdensom e, or less expens ive; or (b) the burden or expense of th e propose d d isc ove ry o utw eigh s it s lik ely benefit, taki ng intoaccoun t th e ne edsof t he case , th e am oun t in controversy, the partie s’ resources, the i mportance of the issues at stake in the liti gation and the importance of the proposed discovery in resolving the issues.
The affidavi t of Davi d Gate s is the only evidence provided by Energas to support its objections to the requ ested discover y. As m aterial here, the affi ant states: (a) In the City of Am arillo, Energas has approxim ately 5,062,906 total feet, or 958.88 miles, of ga s mains. (b) Energas perform s leak surveys on its pipe in the City of A marillo as fre que ntly

as tw ice per year ranging to a m axim um time of f ive yea r s between surveys. The frequency of leak surveys depends upon the type of pipe and the area being surveyed. (c) Energas, in responses to discovery, has provided Plai nti ff with docum ents relating to leaksurveys, leaks found a nd repaired reports, and cat hod icprotection in an area with a 500 yard r adiu s from 2713 West 9 th Street, Am arillo, Texas, which is the site of the incide nt i n question. To requi re Energas to respond to Plainti ff’s requests aimed at the Ci ty of Amarilloas a whole would burden Energ as and its personnel, in that Energas9

would incur trav

el expenses plus work t ime that i

s lost, i n additi on to the expense of locating and copying thousands of pages of docu ments. (Em pha sis added). Signi ficantl y absent from the affidavi t is any evidence that the requested records are cum ulative or duplicative or supporting the grounds for limiting discovery set forth in Rule 192.4(b). A lthough thesta tem ent in (a ) fr om Gates’ s af

fida vit constitutes a fact state ment concerning the size of the E nergas systemin Am arillo, the statem entin (b) does notimplicate Energas’ s claims that the requests for

product ion we re overly bro ad and b urdenso m e. M oreover, the statement that pipe i s inspected twice per year is no evidence of Energas’s practice ten years before the explosion on Septem ber 13, 1999. The first po r tion of (c) of the affidavit does not address the question of burdensomeness or that the reque sts are overl y broad, and the emphasized portion of(c) constitutes only a conclusory allegation that production of the req ues ted doc um ents w ould be bu rd en so me , contrar y to In re Allford Chevro let-Geo, 9 97 S.W.2d at 18 1. Furth er, the affidavit does not address or discuss 49 C.F.R. § 192.465, which provides in part that: (a) Ea ch p ipelin e th at is und er cath odic

pro tec tio n m ust be tested at least once each calendar year, but w ith intervals not exceeding 15 m onths . . .

. Atleast 10 percent of t hese pro tected struct ures, d istributed o ver theentire systemmu st be surveyed eac h calendar year, with a different 10 percent checked each subsequ ent year, so that the e ntire system is tested i n each 10-year period.
Itis significant to note that the regulat ion cont emplates t hat “the entire system ,” or as presented here, the entire city of A marillo, be inspected at least every te n years.7 Request num ber 30 does not ex pressly include a time limita t ion; however, the

depos ition re ferenced in the request dem onstrates that records since 1995 would be sufficient to satisfy the request. 10 The fact that a discovery request is burdensom e is not enough to justify protection; “it is only undue burden that warrants nonproduction.” ISK Biotech Corp. v. Lindsay, 933 S. W .2d 565 , 568 (Tex.A pp.--Houslton [1 stDist.] 1996, no pet.). See also In re A lford Chevrolet-Ge o, 9 97 S.W.2d at 181 (requiring demonstration of undue burden or harassm ent). Accordingly, we conclude the trial court did not abu se it s dis cre tion in directing that the records be produced covering the entire systemof Energas in Am arillo.
We now turn to the question rega rding the pe riod of tim e for w hich reco rd production should berequired. Mos t of th e reques ts for p roduction wer e tailored torequire production of

records ten years prior to the ex plosion and from the date of the ex plosion to the time of record production. How ever, requests 4, 1 7, a nd 2 4 did not con tain an y t i me limitation for record production. 7 As to reque sts 4 a nd 17, t he trial cour t limite d record production to the ten years bef ore the explosion. How ever, as to request 24, w hether by oversightor otherwise, the trial court did notimpose any time lim itation. Therefore, under the order Energas is required to produce all docum ents regarding its de cis ion to cat hod icall yprotect lines within Am arillo that were installed prior to 1971 wi th ou t a ny ti me limitation.11

In Texaco, In c. v. Sanderso n , 89 8 S.W.2d 813, 815 (Tex. 1995), the plaintiffs soughtto prove a genera l “corpor ate strategy t o igno re safety laws .” Although acknowledging the plaintiffs’ rights to discover evidence of safety poli cies and pra ctices, the Co ur t h el d t ha t a re qu es t f or re co rd s “ wi th ou t l i mi ta ti on as to ti me , place or subject
m atter, is overbroad.” Then, in In re Am erican Optical Corp., 988 S.W .2 d 7 11 , 7 13 (T ex. 1998 ), th e Co ur t h el d th at re qu ir in g p ro du ct io n o f r ec or ds fo r a 50 -y ea r p er io d wa s a n abuse of discretion. Although the court recognized that parties m ust have som e latitude in fashioning discove ry reque sts, t he right is n ot unlim ited and “[ t]he tr ial court must

make an effort to im pose reasonable discovery limits.” (E mphas is added). Id. Considering that the trial court set a pattern of limiting record production to the ten years p rior to the explosion, and that 49 C .F.R. § 192.465(a) anticipates that the ent ir e systemis to be tested during each 10 year period, we conclude the trial court abused its discretion by not

m aking an e ffort to im pose rea sonable dis covery limits as to requests 24, as it did with requests 4 and 17. Accordingl y, th e wr it of m and am us is

con ditio nally

gra nte d in p art

and den ied in part. Although we have jurisdiction to direct the trial court to proceed to m ake an effort to impose reaso nable discovery limits, we m ay not tell the court wh at limits it should en ter. In re Ma rtinez Ra m irez, 994 S.W.2d 682, 68 4 (Tex .App. --San A ntonio 199 8, no pe t.). The trial court is directed to consider and determ ine, in the exercise of its discretion, the need forrea sonable discovery limits as to reques ts for production 24; otherw ise, the w rit i s denied. The writ w ill i ssue only if the trial court fails to comply w ith these instructions.12 Don H. Rea vis

Quinn, J., concurring. Justice Publish.