in Re K.L. & J. Limited Partnership and David Torres, Relators

• Court: Court of Appeals of Texas
• Decided: December 10, 2010
• Docket: 04-10-00070-CV
• Status: Published

Opinion

OPINION No. 04-10-00070-CV

IN RE K.L. & J. LIMITED PARTNERSHIP and David TORRES

Original Mandamus Proceeding 1

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2010

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART

Relators, and defendants in the underlying case, K.L. & J. Limited Partnership and David

Torres filed a petition for writ of mandamus, complaining of: (1) the trial court’s denial of their

motion to compel plaintiff Bella Viveros to answer deposition questions regarding her

citizenship and alienage status, and the authenticity of the social security number she provided;

(2) the trial court’s denial of their motion to compel Viveros to amend her petition pursuant to

Texas Civil Practice and Remedies Code section 30.014; and (3) the trial court’s grant of

Viveros’ motion to quash notices of deposition upon written questions and the motion for

1 This proceeding arises out of Cause No. 2009-CI-01327, styled Bella Viveros v. KL & J Construction and David Torres, pending in the 45th Judicial District Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding. However, the orders complained of were signed by the Honorable Gloria Saldaña, presiding judge of the 224th Judicial District Court, Bexar County, Texas. 04-10-00070-CV

protective order regarding Viveros’ prior employment records. We conditionally grant

mandamus relief in part.

FACTUAL AND PROCEDURAL BACKGROUND

This original proceeding arises out of a lawsuit filed by Bella Viveros against her former

employer, K.L. & J. Limited Partnership, and its employee, David Torres. Viveros asserted

causes of action for sexual harassment, discrimination, retaliation, unlawful employment

practices, sexual assault, intentional infliction of emotional distress, negligent training, and

negligent supervision. During Viveros’ oral deposition, relators’ counsel asked Viveros a series

of questions, one of which was whether or not she is a United States citizen. Viveros’ counsel

objected and instructed her not to answer, and the deposition was subsequently recessed.

Following an off-the-record discussion, the parties agreed they would schedule a hearing to

obtain a resolution of the disputed discovery issues.

Relators then filed a motion to compel, seeking to require Viveros to answer deposition

questions and for her to amend her petition to include the last three digits of her social security

number and the last three digits of her driver’s license number pursuant to Texas Civil Practice

and Remedies Code section 30.014. Specifically, relators sought to compel Viveros “to respond

to questions regarding her citizenship and alienage status in the United States, and the

authenticity of social security numbers utilized by Plaintiff.” In addition, relators sought

Viveros’ employment records from various former employers in notices of deposition upon

written questions. Viveros filed a motion to quash the deposition notices and sought a protective

order.

On October 1, 2009, the trial court held a hearing on the motions. On October 7, 2009,

the trial court’s notes indicate relators’ motions were denied, although it appears from the record

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no order was signed. Following relators filing a motion for reconsideration and a supplemental

motion for reconsideration, the trial court conducted a second hearing on November 6, 2009, and

on December 1, 2009 entered orders: (1) denying relators’ motion to compel, and (2) granting

Viveros’ motion to quash and motion for protective order. This petition for writ of mandamus

ensued. 2

ANALYSIS

I. Standard of Review

Mandamus will issue only to correct a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

Relators have the heavy burden of establishing the trial court abused its discretion and that they

have no adequate remedy by appeal. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). A clear abuse of discretion occurs when the trial court’s action is “‘so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.’” Id. (quoting CSR Ltd. v.

Link, 925 S.W.2d 591, 596 (Tex. 1996)).

However, even if the relator establishes the trial court abused its discretion, the relator

must still establish it has no adequate remedy by appeal. See In re Prudential, 148 S.W.3d at

135. Generally, a relator has no adequate remedy by appeal in a discovery context when: (1) the

appellate court would not be able to cure the trial court’s discovery error; (2) the party’s ability

to present a viable claim or defense is vitiated or severely compromised by the erroneous

discovery ruling to the extent that the party is effectively denied the ability to develop the merits

of its case; or (3) the trial court’s discovery order disallows discovery which cannot be made a

2 This petition for writ of mandamus was initially filed on February 1, 2010. However, we abated the original proceeding because K.L.&J. was in bankruptcy. Subsequently, the bankruptcy court lifted the stay as to this case, and this court reinstated the original proceeding on the court’s docket.

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part of the appellate record, thereby denying the appellate court’s ability to evaluate the effect of

the trial court’s error. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.

proceeding).

II. Answers to Deposition Questions Regarding Social Security Number

We first consider whether the trial court erred in refusing to compel Viveros to answer

deposition questions regarding the authenticity of the social security number she previously

provided. Relators allege the social security number Viveros provided when she applied for

employment with K.L. & J. has never been issued by the United States government, and the

name Bella Viveros is not associated with any person in a national name database. As a result,

relators seek to have Viveros answer questions regarding the authenticity of the social security

number she provided in order to conduct a background investigation, to impeach her credibility,

and to determine whether the suit should be dismissed. Relators complain the information is

basic discoverable information that is relevant and reasonably calculated to lead to the discovery

of admissible evidence. See TEX. R. CIV. P. 192.3(a).

In response to relators’ motion to compel, Viveros failed to specifically object to the

deposition questions regarding the social security number she previously provided, but at the

hearing it appears she objected based on relevancy. In responding to the petition for writ of

mandamus, Viveros contends relators know Viveros’ identity, and this court should reject

relators’ contention that without the social security number relators are in the indefensible

position of being sued by a complete stranger.

Generally, the scope of discovery is within the trial court’s discretion. In re CSX Corp.,

124 S.W.3d at 152. A party is typically entitled to obtain discovery on any matter that is not

privileged and is relevant to the subject matter of the pending action and appears to be reasonable

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calculated to lead to the discovery of admissible evidence. See TEX. R. CIV. P. 192.3(a). The

Texas Supreme Court has consistently held that “‘ the ultimate purpose of discovery is to seek

the truth, so that disputes may be decided by what the facts reveal, not by what facts are

concealed.’” In re Colonial, 968 S.W.2d at 941 (quoting Jampole v. Touchy, 673 S.W.2d 569,

573 (Tex. 1984)).

We conclude the trial court abused its discretion in not compelling Viveros to answer

deposition questions regarding the social security number she previously provided. Viveros

already voluntarily provided relators a social security number when she applied for employment,

which relators now allege is false or non-existent. Without the ability to ask Viveros questions

regarding the authenticity of the social security number she provided, relators are unable to

determine her true identity or to properly investigate her background to determine whether she

has made similar claims or whether she has a criminal history. As a result, we conclude the

questions are relevant and reasonable calculated to lead to the discovery of admissible evidence.

See TEX. R. CIV. P. 192.3(a). Therefore, we find the trial court clearly abused its discretion in

failing to compel Viveros to answer the questions regarding the social security number she

previously provided. See In re CSX Corp., 124 S.W.3d at 151.

As to whether relators have an adequate remedy by appeal, relators contend that without

the information, their defense has been severely compromised or vitiated to the extent that they

have been effectively denied the ability to develop the merits of their case, and without the

answers they cannot make a record sufficient for appellate review. See In re Colonial, 968

S.W.2d at 941. We conclude relators do not have an adequate remedy by appeal because without

the answers to deposition questions regarding the authenticity of the social security number

Viveros previously provided, relators’ defense will be severely compromised or vitiated because

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relators will be effectively denied the ability to develop the merits of their case because they are

prevented from properly investigating Viveros’ true identity and her background. Id. Therefore,

mandamus relief on this issue is appropriate.

III. Answers to Deposition Questions Regarding Citizenship and Alienage Status

With regard to the deposition questions regarding Viveros’ citizenship and alienage

status, we conclude relators failed to meet their burden in establishing they have no adequate

remedy by appeal. Id. As a result, it is not necessary for us to consider whether the trial court

abused its discretion.

“The requirement that persons seeking mandamus relief establish the lack of an adequate

remedy is a ‘fundamental tenet’ of mandamus practice.” Walker, 827 S.W.2d at 840. Relators

globally argue to this court that without all of the answers to the deposition questions they

sought, their defense will be severely compromised or vitiated because they need the answers to

impeach Viveros’ credibility, conduct a background investigation, cross-examine her, and to

determine whether the suit should be dismissed. However, relators provide no specifics as to

how Viveros’ citizenship or alienage status will aid their defense in each of these areas. Unlike a

social security number, which provides identifying information on an individual, we cannot

conclude that the inability to obtain information regarding a party’s citizenship or alienage status

severely compromises their defense. See In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.

1998); In re Colonial, 968 S.W.2d at 941.

Relators also contend that due to the trial court’s failure to order Viveros to answer the

deposition questions, the discovery cannot be made a part of the appellate record, and, therefore

this court will not have the ability to evaluate the effect of the trial court’s error. However,

relators provide no specific argument as to what evidence might have been disclosed, if

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discovery regarding Viveros’ citizenship or alienage status had been allowed, that would prevent

this court from being able to fully review the issue. Id. Therefore, we conclude relators have

failed to establish they do not have an adequate remedy by appeal as to the trial court’s failure to

compel Viveros to answer deposition questions regarding her citizenship and alienage status.

See In re Colonial, 968 S.W.2d at 941. According, we deny mandamus relief on this ground.

IV. Amendment of Petition to Include Social Security Number Pursuant to TEX. CIV. PRAC. & REM. CODE § 30.014

Relators further contend the trial court erred in not requiring Viveros to amend her

petition to include the last three digits of her social security number pursuant to Texas Civil

Practice and Remedies Code Section 30.014. Section 30.014 provides as follows:

(a) In a civil action filed in a district court, county court, or statutory county court, each party or the party’s attorney shall include in its initial pleading: (1) the last three numbers of the party’s driver’s license number, if the party has been issued a driver’s license; and (2) the last three numbers of the party’s social security number, if the party has been issued a social security number. (b) A court may, on its own motion or the motion of a party, order that an initial pleading be amended to contain the information listed under Subsection (a) if the court determines that the pleading does not contain that information. A court may find a party in contempt if the party does not amend the pleading as ordered by the court under this subsection.

TEX. CIV. PRAC. & REM. CODE § 30.014 (West 2008).

Relators conclude the trial court was mandated to require Viveros to amend her petition

because the statute provides that “each party or the party’s attorney shall” include the last three

numbers of the party’s social security number on the petition. Id. We conclude the trial court

did not abuse its discretion in failing to order Viveros to provide the last three digits of her social

security number on the front of her petition. The statute makes it clear the court may order a

party to amend its petition, but it does not mandate that the court do so. Id. § 30.014(b).

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Furthermore, relators fail to address how they lack an adequate remedy by appeal regarding the

trial court’s failure to require Viveros to amend her petition to include the last three digits of her

petition. Accordingly, we deny mandamus relief on this ground.

V. Employment Records

Finally, relators assert the trial court erred in granting Viveros’ motion to quash and

motion for protective order with regard to the employment records relators sought in the notices

of deposition upon written questions. In the requests, relators sought the following:

Any and all personnel records, payroll records, including but not limited to W-2 forms, 1099 forms, business records, applications for employment, time sheets, files, resumes, pre-employment screening/testing forms, questionnaires, and results, employment physical examination reports, medical records, attendance records, evaluation reports, training manuals, reprimands, insurance records, benefits, injury reports, workers’ compensation records, correspondence to or from any other person/entity, or any other information, letters and other writings, instruments and/or documents of any and every kind or character whatsoever which pertains to: Bella Viveros.

Viveros objected to the discovery of the employment records, asserting the records were: (1)

personal, (2) confidential, (3) irrelevant, and (4) immaterial.

At the November 6, 2009 hearing, relators’ counsel argued the employment records are

relevant and discoverable because the records would allow relators to determine whether Viveros

had any prior performance issues or whether she made similar allegations of sexual misconduct.

In response, Viveros’ counsel admitted to the trial court— “I don’t have a problem with them

going back and getting employment records and asking for any claims she’s ever made of sexual

harassment, for any claims she’s ever made of discrimination, of anything having to do with

claims she may have made, because that’s relevant to this cause of action.” However, with

regard to the payroll records and any other kind of records pertaining to her employment,

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Viveros’ counsel objected at the hearing based on relevancy. Towards the conclusion of the

hearing, relators’ counsel stated, “I will attempt to work with Javier on that then to fashion

something in the spirit of what the judge just said. And we have, I think, developed a

relationship where we have been able to work in that regard.” It is apparent from the record the

parties agreed there was some relevant information sought in the deposition notices, and that the

parties would work together to come to an agreement. However, the trial court summarily

denied the request by granting Viveros’ motion to quash and motion for protective order, rather

than allowing the parties to come to an agreement or conduct a full hearing to consider what, if

any, information was discoverable. See TEX. R. CIV. P. 192.6(b) (allowing the trial court to enter

a protective order that the requested discovery not be sought in whole or in part). 3

When granting a protective order, the trial judge may exercise some discretion, but that

discretion is not without bounds. See In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig.

proceeding). Texas Rule of Civil Procedure authorizes a trial court to grant an order of

protection, “[t]o protect the movant from undue burden, unnecessary expense, harassment,

annoyance, or invasion of personal, constitutional, or property rights.” TEX. R. CIV. P. 192.6(b).

However, “[a] party seeking a protective order ‘must show particular, specific and demonstrable

injury by facts sufficient to justify a protective order.’” See In re Collins, 286 S.W.3d at 919

(quoting Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990)).

The only arguments made by Viveros’ counsel at the hearing were that some of the

information sought was not relevant. Furthermore, while Viveros’ motion for protective order

alleged the information sought was personal, confidential, irrelevant, and immaterial, at no point

3 While Viveros entitled her motion “Plaintiff’s Motion to Quash Deposition Notice and Motion for Protective Order,” Rule 176.6 does not provide a party the remedy of seeking a motion to quash, but instead allows a party to object and/or seek a protective order. See TEX. R. CIV. P. 176.6(d)-(e); TEX. R. CIV. P. 177a (repealed 1999) (formerly allowing a court to quash a subpoena for production of documentary evidence).

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in the motion or at the hearing did Viveros specifically argue how her personal rights were being

invaded, nor did she show a particular, specific, and demonstrable injury by facts sufficient to

justify a protective order. Id. Therefore, we find Viveros failed to meet her burden to establish a

protective order was necessary to provide her protection under the provisions of Rule 192.6(b).

As a result, we conclude the trial abused its discretion in granting the motion for protective

order. 4

Furthermore, we conclude relators do not have an adequate remedy by appeal regarding

the employment records that the parties, at least in part, agreed were properly discoverable.

Relators’ defense will be severely compromised or vitiated because relators have been

effectively denied the ability to develop the merits of their case in this sexual harassment and

employment discrimination suit by not being able to discover documents both sides agreed were

in part relevant. See In re Colonial, 968 S.W.2d at 941. Therefore, we grant mandamus relief on

this ground.

CONCLUSION

We conditionally grant in part the petition for writ of mandamus and order the trial court

to: (1) withdraw in part its December 1, 2009 order denying relators’ motion to compel answers

to deposition questions as it pertains to questions regarding the authenticity of the social security

number Viveros previously provided; (2) enter an order compelling Viveros to answer deposition

questions regarding the authenticity of the social security number she previously provided; and

(3) withdraw the December 1, 2009 order Viveros’ motion to quash and motion

4 Our opinion in no way limits the parties’ ability to request a hearing from the trial court so that a determination can be made as to what information in whole or in part is relevant to the case.

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for protective order regarding the employment records. The writ will issue only if the trial court

fails to comply with this opinion within fourteen days.

Karen Angelini, Justice

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