In Re Houstonian Campus, LLC's--Appeal from 129th District Court of Harris County
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Petition for Writ of Mandamus Conditionally Granted and Majority and Concurring
and Dissenting Opinions filed April 16, 2010.
In The
Fourteenth Court of Appeals
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NO. 14-09-00631-CV
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IN RE HOUSTONIAN CAMPUS, L.L.C., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
CONCURRING AND DISSENTING OPINION
Mandamus relief is not an all-or-nothing proposition. Appellate courts can and do
grant mandamus as to part of a trial court’s discovery order and deny mandamus as to the
part of the order in which the trial court did not abuse its discretion. See In re Carbo
Ceramics, Inc., 81 S.W.3d 369, 379–80 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding) (granting mandamus as to part of trial court’s discovery order compelling
production of one document and denying mandamus as to part of same order that
compelled production of other documents); In re Brewer Leasing, Inc., 255 S.W.3d 708,
715–16 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (granting
mandamus relief as to some of the documents the trial court required a party to produce in
an order and denying mandamus relief as to other documents the trial court ordered the
party to produce in that order). Even though the majority concludes that the trial court did
not abuse its discretion in part of the discovery order, the majority grants mandamus relief
as to the entire order. This court instead should grant relief only insofar as the trial court
abused its discretion and deny relief insofar as the trial court did not abuse its discretion.
This mandamus proceeding arises out of a discovery dispute over the relator’s
redaction of names from two groups of documents produced to the real party in interest.
The trial court ordered the relator to produce unredacted copies of both groups. The
relator is entitled to mandamus relief as to the second group, and I respectfully concur in
this court’s decision to grant mandamus relief as to those documents. As to certain
documents in the first group, however, the trial court did not abuse its discretion in ordering
unredacted copies produced, and I respectfully dissent to this court’s grant of mandamus
relief as to those documents. The majority does not fully address whether the trial court
clearly abused its discretion as to the first group. Rather, this court, relying on an
argument not asserted by the relator, grants mandamus relief as to both groups based on an
abuse-of-discretion finding as to only the second group. Instead of granting mandamus
relief as to the entire order, this court should deny mandamus relief as to certain documents
in the first group.
OVERVIEW OF OPERATIVE FACTS
Relator Houstonian Campus, L.L.C. (―The Houstonian‖), a defendant in the
underlying litigation, complains of a discovery order requiring it to produce unredacted
copies of certain documents. Production of the unredacted documents would reveal the
identities of some of The Houstonian’s members whose names were blacked out when
these documents were produced. The Houstonian asks this court to compel the Honorable
Michael Gomez, presiding judge of the 129th District Court of Harris County, to set aside
his discovery order of June 18, 2009, or, alternatively, to instruct Judge Gomez to vacate
his order as to one of the two groups of documents. See TEX. GOV’T CODE ANN. § 22.221
(Vernon 2004); see also TEX. R. APP. P. 52.
2
Requests for Production of Documents
Real party in interest Deana Pollard Sacks, the plaintiff in the underlying suit, is
asserting defamation claims against The Houstonian, a members-only social and fitness
club. Sacks also has filed defamation claims against two named individuals and ―Does
1-10.‖ The defamation claims relate to the termination of Sacks’s membership with The
Houstonian.
During discovery, Sacks propounded various requests for production.
Ultimately, The Houstonian produced 1,713 pages of responsive documents; however, The
Houstonian redacted from these documents all references to the names of individual club
members.
These redacted documents fall into two groups.
One group includes
complaints and other documents involving or arising from Sacks’s membership at The
Houstonian (hereinafter ―First Group‖).1 The other group includes documents relating to
(1) all parking garage incidents or accidents during the previous five years, (2) all
complaints filed with The Houstonian by its members during the previous five years, (3) all
members of The Houstonian whose memberships were terminated, whether voluntarily or
involuntarily, during the previous five years, and (4) all incidents of sexual activity,
drunkenness, and illegal drug transactions on the premises of The Houstonian during the
previous five years (hereinafter ―Second Group‖).2
The Houstonian’s Objections to Production of Unredacted Documents
Regarding the First Group, The Houstonian objected to revealing the names of the
individual club members who filed the complaints about Sacks, and, prior to production,
The Houstonian redacted these names on documents relating to these complaints.
Because these names are redacted, the record does not reflect how many members made
these complaints; however, in its discovery objections, The Houstonian represented that
the names of four individual members had been redacted from these ten pages of
1
These documents were produced in response to requests for production numbers 1, 2, 6, 7, 8, 9, 11, and
12.
2
These documents were produced in response to requests for production numbers 3, 4, 5, 10, 13, 14, 15, and
16.
3
documents (hereinafter ―Complaint Documents‖).3 The Houstonian asserted that these
four members had a reasonable expectation of privacy when they made their complaints.
The Houstonian stated that, if it were to disclose the names of these four members, then
Sacks likely would add these members as defendants in this suit. The Houstonian argued
that any such suit would lack merit because there is no evidence that the complaints by the
four members were ever published to third parties.
As to the First Group and the Second Group, The Houstonian redacted the names of
its members based on the following stated objections: (1) the members’ alleged right to
privacy under their contracts with The Houstonian, (2) the members’ alleged general right
to privacy, (3) the members’ right to freedom of association, and (4) the alleged irrelevance
of the names of these members because they are not reasonably calculated to lead to the
discovery of admissible evidence. As to the Second Group, The Houstonian asserted
additional objections, including an objection that these requests were overly broad.
Trial Court’s Order Compelling Production of Unredacted Documents
In response to the redactions, Sacks moved to compel The Houstonian to reveal the
members’ names on the complaints and also moved for sanctions for redacting the names.
The trial court subsequently agreed with Sacks as to the disclosure of names and signed an
order compelling the production of the documents without the names redacted.4
The Houstonian then filed a motion for clarification.
In this motion, The
Houstonian noted that the redacted documents it produced can be classified into two
groups (the First Group and the Second Group) and that it believed the trial court’s order
applied only to the documents in the First Group, which The Houstonian acknowledged are
―reasonably related to the pending litigation.‖ The Houstonian noted that the Second
Group contains complaints and information that are completely unrelated to Sacks’s
3
The ten pages of documents that fall into this category are contained in Exhibit 48 of the mandamus
record, page numbers 113–14, 119, 121–24, and 137–39.
4
In its discovery order, the trial court indicated that ―nothing in this order precludes redaction of personal
identifiers (i.e. social security [and] driver’s license numbers). In addition, the Court requests the parties
submit to the Court an agreed protection order . . . maintaining the confidential[ity] of the documents as to
third-parties, if . . . the documents contain allegations of a sensitive and confidential nature.‖
4
lawsuit. The Houstonian asked the trial court to clarify that its order applied only to the
First Group and not to the Second Group. The trial court stated that its order applied to all
of the documents.
ARGUMENTS ASSERTED AND RELIEF REQUESTED IN MANDAMUS PETITION
In its petition for mandamus, The Houstonian asks this court to grant mandamus
relief against Judge Gomez by instructing him to vacate his decision ordering The
Houstonian to disclose the names of its members contained in the First Group and the
Second Group and to hold that these names are confidential and irrelevant to Sacks’s
claims. In the alternative, The Houstonian requests that this court instruct Judge Gomez
to exclude the Second Group from his order compelling production because the requests to
which those documents are responsive are overly broad as a matter of law.5
In its mandamus petition, The Houstonian asserts that it has no adequate appellate
remedy and that the trial court clearly abused its discretion by ruling that the member
names should be produced, even though this information (1) is private and sensitive; (2) is
not relevant and not reasonably calculated to lead to the discovery of admissible evidence;
and (3) is protected by the members’ associational rights under the First Amendment of the
United States Constitution. The Houstonian also asserts that the production of this
information would encroach upon its interest as a private club in managing its own affairs.
In the alternative, The Houstonian asks this court to grant mandamus vacating the trial
court’s order as to the Second Group only.
5
The Houstonian does not argue that the trial court abused its discretion because some of the names the
court ordered The Houstonian to produce are discoverable while other names the court ordered The
Houstonian to produce are not discoverable. Indeed, in its alternative request for relief, The Houstonian
asserts that, if this court concludes that the trial court did not abuse its discretion as to the First Group, this
court should grant mandamus in part and vacate the part of the order pertaining to the Second Group. This
alternative request is contrary to an argument that error only as to the Second Group would entitle The
Houstonian to mandamus as to the entire order. Nonetheless, the majority concludes that, although the
trial court did not abuse its discretion in ordering disclosure of some of the names, the fact that it ordered
disclosure of all of the names renders the order ―overbroad‖ such that this court must grant mandamus as to
the whole order. See ante at pp. 4–5. The Houstonian has not made this argument, nor has The
Houstonian requested this relief.
5
STANDARD OF REVIEW
Mandamus will issue to correct a trial court’s discovery ruling if the relator shows
that the ruling constitutes a clear abuse of discretion and that there is no adequate appellate
remedy. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.
proceeding); see also In re Maurer, 15 S.W.3d 256, 259 (Tex. App.—Houston [14th Dist.]
2000, orig. proceeding). The Houstonian, as relator, has the burden of presenting a record
and petition that show it is entitled to mandamus relief to correct a clear abuse of discretion
by the trial court. See TEX. R. APP. P. 52.3, 52.7; Canadian Helicopters, Ltd. v. Wittig,
876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,
837 (Tex. 1992) (orig. proceeding); In re Nelson, No. 14-04-00578-CV, 2004 WL
1516156, at *1 (Tex. App.—Houston [14th Dist.] July 8, 2004, orig. proceeding) (mem.
op.). The inquiry mandated by precedent is whether The Houstonian, as relator, has
established its entitlement to the extraordinary relief of a writ of mandamus, not whether
the real party in interest (Sacks) has shown that The Houstonian is not entitled to
mandamus relief. See Canadian Helicopters, Ltd., 876 S.W.2d at 305; In re Yamin, No.
14-07-01035-CV, 2008 WL 442575, at *1 (Tex. App. —Houston [14th Dist.] Feb. 19,
2008, orig. proceeding) (mem. op.).
ANALYSIS AS TO THE COMPLAINT DOCUMENTS
With respect to the Complaint Documents, The Houstonian argues the trial court
abused its discretion by overruling its objections that the names of the four members who
filed written complaints regarding Sacks are irrelevant and not reasonably calculated to
lead to the discovery of admissible evidence. In her live pleading, Sacks has sued various
Doe defendants whose names she does not know, but who, she alleges on information and
belief, have made false and defamatory complaints against her.
Under a liberal
construction of this pleading, Sacks alleges that these Doe defendants published false and
defamatory statements about her to third parties. Discovery regarding the members who
have complained about Sacks might not yield evidence sufficient to raise a fact issue as to
whether these individuals defamed Sacks. Nonetheless, on this record, the trial court did
6
not abuse its discretion to the extent it concluded that the discovery of the names of these
members is reasonably calculated to lead to the discovery of admissible evidence. 6 See
Griffin v. Smith, 688 S.W.2d 112, 113–14 (Tex. 1985) (orig. proceeding) (per curiam)
(conditionally granting mandamus relief ordering discovery of the identities of persons
having knowledge relating to plaintiff’s slander claim and compelling answers to questions
regarding potentially slanderous communications); In re Maurer, 15 S.W.3d at 261
(denying mandamus as to discovery of names of individuals involved in incident who
might have defamed the claimants who already were asserting defamation claims against
other parties).
Indeed, in the trial court, The Houstonian itself characterized these
documents as ―reasonably related to the pending litigation.‖7
The Houstonian has not shown that the trial court abused its discretion by ordering
discovery of the names of members who made complaints against Sacks, over The
Houstonian’s objection that the names of these members are private and sensitive
information.8
6
Notably, the majority does not conclude that the trial court properly ordered disclosure of the names of all
four members whose names were redacted in the Complaint Documents. Rather, the majority concludes
that the trial court did not abuse its discretion by ordering the disclosure of the names of the member or
members who complained that Sacks drove recklessly and made a racist comment. See ante at pp. 4–5. The
majority does not address whether the trial court abused its discretion in ordering the disclosure of the other
names in the Complaint Documents. Though this court grants mandamus relief vacating the entire order,
the majority does not address whether the trial court abused its discretion as to all the Complaint
Documents, even though The Houstonian acknowledged in the trial court that these documents are related
to the pending claims.
The majority states that ―the trial court is in a far better position than this court to determine which of the
produced documents in fact relate to [certain] statements and to tailor an order more narrowly drawn.‖
Ante at p. 5. However, we are not presented with a situation in which the documents have yet to be produced
or identified or in which the nature or purpose of the redactions is unknown. All of the Complaint
Documents have been produced, and the nature of the redactions (names of individuals making complaints
against Sacks) is known to all parties, the trial court, and this court. The only thing in issue is the redaction
of names on these ten pages. Because these pages already have been produced in redacted form, no in
camera inspection or additional hearing is required to resolve this issue. Likewise, this court can rule that
certain documents in the First Group can remain redacted just as clearly and easily as the trial court.
7
The majority states that ―the record before us reflects that The Houstonian’s personnel and membership
files are kept in the strictest confidence, which includes reports and complaints made by individual
members.‖ The record does not support this statement. Instead, the record reflects that the membership
contracts and The Houstonian’s Rules and Regulations do not state that complaints and grievances will be
kept confidential.
8
7
Freedom of association for the purpose of advancing ideas and airing grievances is a
fundamental liberty guaranteed by the First Amendment. In re Bay Area Citizens Against
Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998) (orig. proceeding).
The First
Amendment requires that a compelling state interest be shown before a court may order
disclosure of membership in an organization engaged in the advocacy of particular beliefs.
Id. The Houstonian has not asserted in this original proceeding (or in the court below) that
it is an organization engaged in the advocacy of particular beliefs, and The Houstonian did
not prove this fact as a matter of law in the trial court. In addition, The Houstonian
concedes in its petition that this case does not involve state action. The Houstonian has
not shown itself entitled to mandamus relief based on the First Amendment.
The Houstonian asserts in this court that by compelling disclosure of member
names the trial court improperly encroached upon its interest as a private club in managing
its own affairs.9 The Houstonian did not object to the discovery on this basis in the trial
court. Though the trial court gave The Houstonian until June 2, 2009, to file objections to
the discovery in question, the trial court did not conclude that there was good cause to
excuse The Houstonian’s failure to assert any objections after that date. See TEX. R. CIV.
P. 193.2. Therefore, The Houstonian waived that objection. See id.; Bielamowicz v.
Cedar Hill Indep. Sch. Dist., 136 S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied).
The Houstonian’s arguments as to the Complaint Documents lack merit. The trial
court did not abuse its discretion in compelling the production of these documents in
unredacted form.10 The majority errs in its analysis to the extent it grants mandamus relief
and orders the trial court to vacate its order as to the Complaint Documents.
9
Sacks argues, among other things, that The Houstonian is not a private club. It is not necessary to
address this issue in this mandamus proceeding.
10
The majority concludes that mandamus should be granted as to the entire order even though the trial court
did not abuse its discretion in the part of the order compelling disclosure of certain names by the production
of unredacted documents. See ante at pp. 4–6. The majority cites no authority for this proposition, and it
is not a correct statement of Texas law. See In re Brewer Leasing, Inc., 255 S.W.3d 708, 715–16; In re
Carbo Ceramics, Inc., 81 S.W.3d at 379–80. In addition, though the majority states that some of the names
are discoverable, the majority also makes statements indicating that none of the names are discoverable.
See, e.g., ante at p. 6 (―Production of the documents without redaction would reveal the identities of an
8
ANALYSIS AS TO THE REMAINING DOCUMENTS
The remaining issue is whether mandamus relief should be granted as to the Second
Group and the redacted names in the First Group that are not in the Complaint Documents
(collectively the ―Remaining Documents‖).
In arguing for non-disclosure, The
Houstonian claims that the trial court clearly abused its discretion by compelling
production of private and sensitive information which The Houstonian claims is neither
relevant to the subject matter of the suit nor reasonably calculated to lead to the discovery
of admissible evidence. Though the scope of discovery is generally within the trial
court’s discretion, an order that compels discovery well outside the bounds of proper
discovery is an abuse of discretion for which mandamus is the proper remedy. 11 See In re
Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per
curiam). A party may obtain discovery of the contents of documents that constitute or
contain matters relevant to the subject matter of the action; however, it 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. See TEX.
R. CIV. P. 192.3(a). Each discovery request must be tailored to include only matters
reasonably calculated to lead to the discovery of admissible evidence. See In re CSX
Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding); In re Am. Optical Corp., 988
S.W.2d 711, 713 (Tex. 1998) (orig. proceeding). It is not the burden of the responding
party to tailor a reasonable discovery request for the requesting party. See In re Sears,
Roebuck and Co., 146 S.W.3d 328, 333 (Tex. App.—Beaumont 2004, orig. proceeding).
indeterminate number of the Houstonian’s members . . . [t]his information is patently irrelevant to Pollard
Sack’s defamation suit‖), p. 8 n.6 (stating that the court has ―conditionally grant[ed] mandamus relief on the
relevancy ground‖).
At one point in its petition, The Houstonian asserts that the trial court’s order is ―overly broad.‖
However, The Houstonian explains that it is arguing the order is overly broad because the order ―requires
the production of documents that bear no relation to the facts and claims in Plaintiff’s Original Petition.‖
The Houstonian does not argue that the order is overly broad because the trial court orders the disclosure of
some names that are discoverable and of some names that are not discoverable. The Houstonian argues
that the order is overly broad because the trial court requires production of unredacted documents in
response to overly broad requests for production, not because part of the order is subject to mandamus and
part of it is not.
11
9
Rather, the requesting party has the responsibility to narrowly tailor each of its requests for
production. Id.
Abuse of Discretion
On this record, the trial court abused its discretion to the extent it found that the
member names in the Remaining Documents are relevant or reasonably calculated to lead
to the discovery of admissible evidence. Likewise, the trial court clearly abused its
discretion by ordering The Houstonian to produce the Remaining Documents in
unredacted form. This portion of the trial court’s order is not reasonably tailored to the
issues in the pending case and is therefore outside the bounds of proper discovery. See In
re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding); In re CSX, Corp., 124
S.W.3d at 152–53. Accordingly, as to the redacted documents other than the Complaint
Documents, The Houstonian has established that the trial court clearly abused its
discretion.12 Thus, the next issue in the mandamus inquiry is whether The Houstonian has
an adequate appellate remedy.
Adequate Remedy on Appeal
Whether a clear abuse of discretion can be adequately remedied by appeal depends
on a careful analysis of the costs and benefits of interlocutory review. See In re McAllen
Medical Center, Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this
balance depends heavily on circumstances, it must be guided by analysis of principles
rather than simple rules that treat cases as categories. See id. Appeal is not an adequate
remedy when the appellate court would not be able to cure the trial court’s discovery error.
In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding).
12
Sacks also argues that The Houstonian has waived any objection to producing unredacted copies of
documents that it has produced voluntarily, albeit in redacted form. Sacks is correct to the extent that The
Houstonian waived other objections when it voluntarily produced the documents. However, The
Houstonian expressly objected to disclosing the names of its members. By producing the documents with
the names redacted, The Houstonian complied ―with as much of the request to which the party [had] no
objection.‖ TEX. R. CIV. P. 193.2(b). A party is required to produce what is discoverable when only part
of a request is objectionable. See In re CI Host Inc., S.W.3d 514, 516 (Tex. 2002) (orig. proceeding). A
response in accordance with the rules does not constitute waiver of the objection. Sacks further claims The
Houstonian does not have a ―legal‖ objection to disclosing the names of its members. However, The
Houstonian objected to these documents on the ground that the requests were overly broad.
10
As noted above, the trial court’s order is not reasonably tailored to the issues
relevant to the pending case and thus falls outside the bounds of proper discovery.
Production of these documents without redaction would reveal the identities of an
indeterminate number of The Houstonian’s members, most of whom are nonparties. The
requests for production regarding these documents are overly broad. There is no adequate
appellate remedy as to the order compelling production of the Remaining Documents in
unredacted form. See In re Dana Corp., 138 S.W.3d at 301–02. Because there is no
adequate remedy by appeal, The Houstonian is entitled to relief by mandamus.
CONCLUSION
Instead of granting mandamus as to all of the trial court’s order, this court should
deny mandamus relief as to the Complaint Documents and conditionally grant mandamus
relief as to the Remaining Documents. Though I concur in the court’s decision to grant
mandamus relief as to the Remaining Documents, I disagree with the majority’s analysis
and disposition of relator’s request for relief. This court should direct the trial court to
vacate its order only as to the Remaining Documents. To the extent the court directs the
trial court to vacate its order as to the Complaint Documents, I respectfully dissent.
/s/
Kem Thompson Frost
Justice
Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Hedges, C.J.,
majority).
11
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