Dissenting Opinion Filed August 31, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00536-CV

IN RE PIONEER NATURAL RESOURCES USA, INC., Relator

Original Proceeding from the 101st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-05255

DISSENTING OPINION

Before Justices Schenck, Partida-Kipness, and Nowell

Dissenting Opinion by Justice Partida-Kipness

Based on the record before us, I would deny the petition for writ of mandamus 

in its entirety. Because the majority does not, I dissent.

Mandamus “is intended to be an extraordinary remedy, available only in 

limited circumstances. The writ will issue ‘only in situations involving manifest and 

urgent necessity and not for grievances that may be addressed by other remedies.’” 

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (quoting 

Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989)). This case

does not present such a circumstance. Accordingly, I conclude relator has not met 

its heavy burden to show the trial court clearly abused its discretion here.
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EMPLOYMENT RECORDS

In Requests for Production 21, 22, and 23, Intervenor Gilbert Lara sought the 

redacted hiring, training, disciplinary, and employment files of the employees and 

two supervisors who were present at the incident site on the day of the fatal explosion

that killed his son, Anthony. My colleagues conclude those documents are per se 

undiscoverable. I disagree. The mandamus record shows that Noel Olivas and 

Anthony Lara died while working at a site owned, controlled, and operated by 

relator. Noel and Anthony were killed after oil spewed out of Heater Treater #7, the 

equipment they were repairing, and landed on Heater Treater #8, which ignited a fire 

and explosion. It is undisputed that one of relator’s employees, Jesse Nevarez, 

ordered repairs for Heater Treater #7 the morning of the explosion, took various 

steps to prepare the equipment for repair by the repair crew, and left the jobsite 

approximately ten minutes before the explosion. The mandamus record does not 

show, however, how many of relator’s employees were at the incident site the day 

of the incident, though relator contends supervisors Michael Lively and Preston 

Bridges arrived after the explosion. 

In seeking hiring, training, disciplinary, and employment files of relator’s 

employees who were on the job site that day, Intervenor was not on a fishing 

expedition. On the contrary, Intervenor sought information regarding what training, 

if any, the employees present that day had on heater/treater lockout/tagout 

procedures, and whether they had been disciplined for workplace safety violations
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in order to determine what role relator’s training of its employees and worksite safety 

protocols played in this incident. Such information is reasonably calculated to lead 

to the discovery of admissible evidence regarding Intervenor’s negligence, premise 

liability, and gross negligence claims against relator. My colleagues conclude that 

this information is irrelevant and exceeds the bounds of discovery because the 

employees were not at the job site at the time of the accident, and the record does 

not show that Lively and Bridges were the supervisors of Nevarez or any of the 

employees “who may have been responsible for the accident . . . .” (Slip Op. at 6). I

respectfully disagree. 

Information is relevant if it tends to make the existence of a fact that is of 

consequence to the determination of the action more or less probable than it would 

be without the information. TEX. R. EVID. 401. The phrase “relevant to the subject 

matter” is to be “liberally construed to allow the litigants to obtain the fullest 

knowledge of the facts and issues prior to trial.” In re HEB Grocery Co., L.P., 375 

S.W.3d 497, 500 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) (quoting 

Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009)). How and if on-site 

employees were trained on the equipment and procedures involved in the explosion 

and if they have been disciplined for workplace safety violations will, at a minimum, 

provide Intervenor with relevant information from which to determine whether 

employee training, discipline, hiring, or supervision played a role in causing this 

tragic accident. Such information is certainly relevant to the subject matter of the 
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action, even if it may not ultimately be admissible at trial. See, e.g., In re HEB 

Grocery Co., L.P., 375 S.W.3d at 506 (no abuse of discretion to compel production 

of floor safety training records of managers, maintenance partners, and partners who 

were working in the area where the plaintiff fell “nothwithstanding the volume of 

employees present on the date of the event” where H.E.B. conceded store safety 

procedures require those employees to monitor store for safety hazards).

I also disagree with the majority’s determination that these discovery requests 

“could have easily been more narrowly tailored to include only employees who had 

some conceivable role in the injury-causing events.” (Slip Op. at 7). This conclusion 

seems to envision a discovery request in which Intervenor asks relator / defendant 

to produce the employment records of the employees present the day of the incident 

who relator believes had a role in the injury-causing events. In other words, 

Intervenor must rely on the defendant he has sued to willingly produce the 

employment records of employees the defendant believes may be liable to 

Intervenor. That turns the discovery process on its head. One purpose of the requests 

for production at issue here is to gather information so Intervenor can determine 

which employees present that day, if any, played a role in the injury-causing events 

and, more importantly, to determine how and if relator’s policies, practices, and 

procedures contributed to causing this incident. See, e.g., In re Sun Coast Res., Inc., 

562 S.W.3d 138, 154 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) 

(“Because Williams was a manager with responsibility for formulating and 
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implementing Sun Coast’s safety rules, the trial court reasonably could have found 

that the listed items from his personnel file are reasonably calculated to lead to the 

discovery of admissible evidence.”). By granting mandamus relief, my colleagues 

unnecessarily deprive Intervenor of relevant and reasonably tailored discovery.

TRAINING RECORDS

I also disagree with my colleagues regarding the discoverability of Nevarez’s 

training records. Nevarez, relator’s employee, is at the center of Plaintiffs’ and 

Intervenor’s claims because he ordered repairs for Heater Treater #7 the morning of 

the explosion, took various steps to prepare the equipment for repair by the repair 

crew, handed the job over to the repair crew, and left the jobsite approximately ten 

minutes before the explosion. In his affidavit, Nevarez provided his version of events 

from the day of the explosion. This included a detailed account of the various steps 

he took and procedures he followed to prepare Heater Treater #7 for Noel, Anthony, 

and their crew to conduct their repairs. He also explained which steps in that process 

he was generally responsible for and which steps he left to the responsibility of the 

repair crew. Interrogatories 1 and 8 and Request for Production 1 asked relator to (1) 

identify the training relator provided to Nevarez encompassing the procedures 

Nevarez listed in paragraphs 4, 5, 6, 10, 11, 12, 14, 15, and 17 of his affidavit, (2) 

produce a copy of the training so identified, and (3) identify the trainers who 

provided that training. 
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Relator contends those requests are overbroad and patently irrelevant because 

Nevarez has worked for relator for many years and engaged in formal and informal 

training, some of which took place in the field and was undocumented. The majority 

agreed, concluding that the requests place an undue burden on relator because the 

requests “by their very nature would require investigation into every communication 

any person, whether an employee or not, had with Nevarez about his job.” I

respectfully disagree with my colleagues. 

Nevarez’s training records are not only relevant but central to the parties’ 

claims and defenses here. Intervenor narrowed the discovery requests to training 

information related to the tasks Nevarez states he undertook the day of the explosion. 

Relator does not contend this information is irrelevant and even told the trial court 

relator is “happy to provide the trainings that he has in his file.” Yet, when the trial 

judge signed the discovery order, the case had been on file for more than a year, and 

relator had not yet produced Nevarez’s employment file, let alone “the trainings that 

he has in his file.” Although I can understand counsel’s frustration at being told to 

“do the best you can” when one’s client insists discovery will be burdensome, the 

trial court’s point seems well taken in this case. These requests are reasonably 

tailored that seek highly relevant information that relator should respond to so the 

case can move forward. I conclude relator has not met its high burden to show an 

abuse of discretion here and would deny the petition for writ of mandamus.
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CONCLUSION

This is not a case in which a trial court has ordered a party to produce trade 

secrets or decades-worth of documents concerning irrelevant people or issues. 

Intervenor’s discovery requests seek relevant information, are reasonably tailored as 

to time, place, and subject matter, and are reasonably calculated to lead to the 

discovery of admissible evidence. We should rarely grant mandamus relief and

should do so only in those limited circumstances in which a relator has established 

a clear abuse of discretion by the trial court. I do not agree with my colleagues that 

mandamus relief is warranted here.

Accordingly, I respectfully dissent.

200536DF.P05

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS

JUSTICE