in Re BNSF Railway Company

• Court: Court of Appeals of Texas
• Decided: December 31, 2009
• Docket: 09-09-00439-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00439-CV

IN RE BNSF RAILWAY COMPANY

Original Proceeding

MEMORANDUM OPINION

BNSF Railway Company ("BNSF") filed a petition for a writ of mandamus to compel the trial court to vacate its order compelling production of documents in a suit filed pursuant to the Federal Employers' Liability Act ("FELA"). ⁽¹⁾ In a single issue, BNSF argues the trial court abused its discretion by ordering BNSF to respond to discovery requests on matters not relevant to the subject matter of the suit, by ordering BNSF to produce documents that are not in its possession, and in ordering BNSF to produce documents that are undiscoverable by statute. We conditionally grant the petition.

The real party in interest, Charles Simmons, alleges that during the course of his employment as a conductor with BNSF he "suffered a repetitive trauma injury to his hands, arms, shoulders, back and neck and other parts of his body." On February 12, 2009, the trial court ordered BNSF to produce a list showing the number of injuries, claims, and lawsuits filed by conductors alleging cumulative/repetitive trauma injuries to the shoulders, arms, and hands for the previous ten years. On September 16, 2009, the trial court compelled BNSF to produce the following:

1. Copies of any and all reports, memoranda, letters, summaries, findings, data, audio recordings, video recordings, computer files, computer simulations, studies, programs, inquiries, requests for information, reports, minutes, and/or other recorded data, from whatever source derived, regarding or relating to ergonomics, cumulative trauma and/or repetitive stress injuries to the shoulders, arms, and/or hands of conductors.

2. Any and all documents, memoranda, summaries, compilations, categorical reviews, findings, data, audio recordings, video recordings, computer files or other recorded data filed with Defendant and/or completed by any employee(s) of Defendant over the last ten (10) years, including but not limited to, accident forms containing information regarding any repetitive and/or cumulative trauma injuries to the shoulders, arms[,] [a]nd/or hands suffered by any Conductor over the last ten (10) years, treatment for any repetitive and/or cumulative trauma suffered by any Conductors over the last ten (10) years and/or time taken off work for any repetitive and/or cumulative trauma to [the] shoulders, arms[,] and/or hands suffered by any Conductors over the last ten (10) years.

3. Any and all documents, reports, memoranda, summaries, findings, data, audio recordings, video recordings, computer files, computer simulations and/or other recorded data regarding any and all ergonomic studies of the railroad work place, specifically including any and all tasks affecting a railroad worker's shoulders, arms and/or hands. This request includes any and all reports, memoranda, summaries, findings, data[,] audio recordings, video recordings, computer files, computer simulations and/or other recorded data in the possession of Defendant and/or any organization to which Defendant is associated, including but not limited to the Association of American Railroads.

4. Any and all data and/or statistics pertaining to the number of injuries, claims, and lawsuits brought and/or filed against Defendant by Conductors alleging cumulative/repetitive trauma injuries to the shoulders, arms and/or hands, including the names of the parties, court and case number for the last ten (10) years.

5. All photographs, videotapes, or movies relevant to this lawsuit, including but not limited to, any photographs of the equipment, tools, and/or other devices used by Plaintiff as well as any movies, video tapes, motion pictures, and/or photographs taken of the Plaintiff at any time based on the alleged occurrence made the basis of this suit or any other matter relevant to this lawsuit.

"Mandamus relief is appropriate only if a trial court abuses its discretion[,] and there is no adequate appellate remedy." In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). Although the scope of discovery is generally within the trial court's discretion, the trial court "must make an effort to impose reasonable discovery limits." Id. at 152. "The trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure." Id. Requests for discovery "must show a reasonable expectation of obtaining information that will aid the dispute's resolution" and therefore "must be 'reasonably tailored' to include only relevant matters." Id. (quoting In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998)). Because the trial court may compel discovery only on matters that are relevant to the subject matter of the pending action, we place the burden on the discovery proponent to show that the requested discovery is within the scope of permissible discovery. In re TIG Ins. Co., 172 S.W.3d 160, 168 (Tex. App.--Beaumont 2005, orig. proceeding).

The discovery requests at issue in this case are not sufficiently specific regarding the documents being requested. The first request for production identifies "any and all" of a vast variety of different sorts of information "from whatever source derived" both "regarding or relating to" either "ergonomics", "cumulative trauma" or "repetitive stress injuries to the shoulders, arms, and/or hands of conductors." The request for documents regarding or relating to repetitive stress injuries is limited to "the shoulders, arms, and/or hands of conductors" but it is not clear that the request for "ergonomics" is so limited, nor is the request limited to injuries sustained in moving rail cars. The request for production of documents contains no geographical limitation, no limitation as to time period, and no limitation as to source. At the hearing on the motion to compel, counsel for Simmons claimed the first request for production was "specific about the job type" and "what area of the body" and, while conceding the request contained no time limitation, suggested "[i]f they want to put it at 10 years, that's fine by me." Simmons did not amend his requests for productions, however, and the order the trial court signed two days after the hearing did not limit the scope of any of the requests.

Similar defects plague the second request for production. Here, Simmons asks for information spanning a ten-year period, but the request contains no geographical limitation. Simmons requests "[a]ny and all" of a wide variety of information and media either "filed with" the railroad or "completed" by any railroad employee over the last ten years, "including but not limited to[,]" "accident forms." Rather than request an identifiable universe of documents, the requests describes an amorphous body of information that includes not only records of accidents but also "injuries" and "treatment" and "time taken off work."

In addition to the absence of any limits on time or geographic scope, the third request for production mentions "any and all tasks affecting a railroad worker's shoulders, arms and/or hands" as part of a non-exclusive list request for "any and all" information "regarding any and all ergonomic studies of the railroad work place." This request is not even limited to BNSF or to persons under its control, as the request requires production from "any organization" with which the railroad is "associated", "including but not limited to" the "Association of American Railroads."

The fourth request for production is limited to a ten-year period but requests "[a]ny and all" "data" or "statistics" "pertaining to the number of injuries, claims, and lawsuits" either "brought" or "filed" against BNSF by "Conductors alleging cumulative/repetitive trauma injuries to the shoulders, arms and/or hands." Again there is no geographical limit on the scope of the request, nor is the request limited to information generated by BNSF.

The fifth request for production suffers from a similar lack of precision. The request requires BNSF to determine what "photographs, videotapes, or movies" in its possession are "relevant to this lawsuit" "including but not limited to" photographs of the "equipment", "tools" or "other devices used by Plaintiff."

A discovery order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). Simmons propounded discovery requests that failed to describe with reasonable particularity each item and category requested. See Tex. R. Civ. P. 196.1(b). BNSF complained that the requests for production were overly broad as a matter of law. The trial court had two choices: (1) narrowly tailor the requests; or (2) sustain BNSF's objections. See In re Mallinckrodt, Inc., 262 S.W.3d 469, 474 (Tex. App.--Beaumont 2008, orig. proceeding). The trial court abused its discretion by compelling BNSF to respond to discovery requests that are not narrowly tailored "to avoid including tenuous information and still obtain the necessary, pertinent information." In re CSX, 124 S.W.3d at 153.

Simmons argues that BNSF is not entitled to relief because BNSF did not submit proof that the requested discovery is irrelevant or burdensome. Because "[o]verbroad requests for irrelevant information are improper whether they are burdensome or not," BNSF was not required to detail what the requests might encompass. In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007).

The trial court abused its discretion in ordering BNSF to comply with requests for production that are overly broad on their face as a matter of law. We conditionally grant the petition for writ of mandamus. ⁽²⁾ We are confident the trial court will vacate its order compelling production of documents and proceed in compliance with this opinion. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on October 16, 2009

Opinion Delivered December 31, 2009

Before McKeithen, C.J., Kreger and Horton, JJ.

1. See 45 U.S.C.A. §§ 51-60 (West 1986 & Supp. 2009).

2. We do not reach the alternative arguments raised in BNSF's petition.