In Re BNSF Railway Company, Union Pacific Railroad Company, William Thibodeaux, Anthony Baker and Chris Johnson--Appeal from 60th District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-424 CV
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IN RE BNSF RAILWAY COMPANY,
UNION PACIFIC RAILROAD COMPANY, WILLIAM THIBODEAUX,
ANTHONY BAKER, AND CHRIS JOHNSON
Original Proceeding
MEMORANDUM OPINION

This mandamus proceeding addresses a motion to abate and a discovery dispute in a suit arising out of a train-automobile accident that killed Patsy Ardoin and severely injured a minor passenger. Relators BNSF Railway Company and Union Pacific Railroad Company filed suit in state and federal court in Louisiana before Derek Cezar, acting individually and as next friend of the injured minor and as guardian of Ardoin's other children, sued the relators in Texas. The trial court denied the relators' motion to abate the case while litigation proceeded in Louisiana and compelled production of documents over the relators' time-and- scope objections.

After the relators filed their petition for writ of mandamus, the federal court dismissed the federal action. In the Louisiana state court action, BNSF and Union Pacific took a preliminary default judgment against Derek Cezar and another defendant. The City of Vinton, Louisiana, filed its answer on October 19, 2006. Neither of the Louisiana-filed cases is currently set for trial, and the relators have not demonstrated the sort of interference with jurisdiction for which mandamus relief is appropriate. See generally Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex. 2001). The relators' petition for writ of mandamus is denied as to the trial court's order denying the relators' motion to abate.

The relators contend a discovery order signed by the trial court on September 21, 2006, is patently overbroad and orders production of privileged documents. Relators objected to over one hundred requests for production. Rather than address the individual requests for production, the trial court ordered the relators to produce: "1) All documents regarding prior collisions at the Eddy Street Crossing from the year 1997 to the date of the underlying incident made the basis of this lawsuit, inclusive; 2) All documents related to any Defendant's contention that federal law preempts a claim in this case; 3) All documents regarding the design of, responsibility for, and maintenance of the Eddy Street Crossing, its warning devices, and its crossing control devices." The order requires production of all documents regarding any collision at the crossing from 1997 to the date of this accident. Production is not limited to train-automobile collisions, to collisions involving circumstances similar to those at issue in this case, or to particular types of documents that would logically contain matters relevant to the subject matter of Cezar's suit. The order also requires production of all documents in any way related to design of, responsibility for, and maintenance of the crossing. With no time limit and no specific subject matter or type of document to be produced, the order is so broad that it encompasses documents with no potential bearing on the issues actually in controversy in this case.

Requests to produce must describe with reasonable particularity the item or category of items to be produced. Tex. R. Civ. P. 196.1(b). The requests must be reasonably tailored to include only items relevant to the litigation. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998). No substantive scope-of-discovery analysis of the issues in the case or the particular documents sought can be found in this mandamus record. See Tex. R. Civ. P. 192.3(a), (b); In re TIG Ins. Co., 172 S.W.3d 160, 164 (Tex. App.-Beaumont 2005, orig. proceeding). Counsel for Cezar informed the trial court that there have been five other accidents and two fatalities at the crossing since 1997. According to counsel, "that's important because what happened in those incidents and accidents, the crossing hasn't changed." The trial court did not direct its order compelling production towards a category of documents relating to changing the crossing. Cezar's counsel expressed concern regarding who was responsible for the signage at the crossing, and told the trial court that "all we're asking from them is every document that they have for this crossing that shows their responsibility for the way the crossing's constructed and for the devices, the warning devices and the traffic control devices, that there are for this crossing. . . ." The trial court did not limit ordered production to documents that show the railroads' responsibility for the construction and warning or traffic control devices for the crossing. Instead, the relators were required to produce all documents of any kind regarding the design of, responsibility for, and maintenance of the crossing. There is no time limitation whatsoever on the documents to be produced.

The trial court failed to require more narrowly tailored requests for production to obtain necessary and pertinent information while avoiding the inclusion of documents of doubtful relevance. Mandamus is the proper remedy when the trial court abuses its discretion by compelling overly broad discovery. See In re Graco Children's Prods., Inc., No. 05-0479, 2006 WL 3040580 (Tex. Oct. 27, 2006); In re CSX Corp., 124 S.W.3d 149, 152-53 (Tex. 2003); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814-15 (Tex. 1995). We hold the trial court abused its discretion. We conditionally grant the petition for writ of mandamus on the discovery order. We are confident that the trial court will vacate its order of September 21, 2006. The writ will issue only if the trial court fails to comply.

WRIT CONDITIONALLY GRANTED IN PART.

PER CURIAM

Submitted on October 12, 2006

Opinion Delivered November 9, 2006

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