X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Henry C. Beck Co. is a defendant in numerous asbestos suits based on exposure to asbestos from between 1960 and 1990. Beck claims that Transamerica Insurance Co. (now known as TIG Insurance Co.) and four other insurers provided Beck with general liability insurance coverage during this period. Specifically, Beck alleged TIG provided coverage from November 1969 to November 1972. Pursuant to Texas Rule of Civil Procedure 192.3(b), Beck served TIG with 113 document-production requests. The requests asked for several records from up to 26 years ago, as well as some records dating back to TIG’s founding in 1911. TIG objected to 99 of the requests on the ground that they were overly broad because they asked for records outside the relevant three-year period during which TIG was alleged to have insured Beck. TIG objected to five more requests as being outside the scope of discovery. TIG lodged specific objections to nine requests for production. The trial court overruled all of TIG’s objections and ordered TIG to produce the records under all 113 requests without modification. The trial court also awarded Beck $10,000 in attorneys’ fees to be paid within 10 days of its order as a sanction. TIG now seeks a writ of mandamus for relief from the trial court’s orders on discovery and on sanctions. HOLDING:Writ denied in part; conditionally granted in part. After noting the principles espoused by the Texas Supreme Court on overly broad discovery requests, the court finds generally that all but a few of Beck’s requests for production suffer from one of four defects: 1. they are not restricted to the policy years for which TIG allegedly issued policies to Beck; consequently, they are overly broad in scope; 2. there was no evidence demonstrating that TIG might have liability under any of the policy years for which TIG was requested to produce policies because there was no showing that the people suing Beck were exposed to asbestos during any of the years that TIG provided general liability coverage to Beck; 3. many of the documents or categories of documents are insufficiently specific to put TIG on fair notice of what the court ordered it to produce; and 4. the trial court did not engage in the required Rule 192.3 scope-of-discovery analysis to determine whether the material requested by Beck was reasonably calculated to lead to the discovery of admissible evidence. The court then lists 18 examples of requests Beck made to demonstrate the nature of the rest of the requests. Additionally, the court notes that the definitions section broadly defined such terms as “you,” “your” and “the subject policy or policies.” The court agrees with TIG that these and other requests were overly broad on their face, noting that less broadly worded requests have been struck down by the Texas Supreme Court. The court then finds that 99 of the requests could have been more narrowly tailored to ask for the same records, but within the three-year period of alleged coverage. The court acknowledges that the time-period limit might even slightly exceed the three-year coverage period because some documents following the coverage period might be relevant. At any rate, the request could have been circumscribed at least in part. The court continues by stating that after the requests were narrowed, it would still be up to the trial court to determine whether the documents requested actually met the scope-of-discovery test of Rule 192.3(a). Such an analysis is not possible until the request is narrowed, and the court speculates that Beck could meet the threshold, but never was asked to since the trial court failed to narrow the requests in the first place. The court adds that on this record, there was no evidence of when the underlying asbestos plaintiffs claimed that Beck exposed them to asbestos. “It is the discovery proponent’s burden to demonstrate that the requested documents fall within the scope-of-discovery of Rule 192.3,” the court writes. TIG never got to “marshal its evidence” that five of the remaining 14 requests were beyond the scope of discovery since the trial court ordered full production. The court finds it inappropriate to place the burden of reforming these and the other 99 requests on the trial court, believing that the better practice is to direct the trial court to enter the ruling that should have been entered at the hearing, that is, to get Beck to narrow its requests. The court then reviews the nine requests for production to which TIG specifically objected. The trial court was correct in requiring production of six of them in full. Three of them, however, were issues not properly before the court. For instance, one involved records perhaps subject to the attorney work-product privilege. Yet, Beck did not follow the procedure for getting privileged information found under Rule 193.2(f). Thus, requests for these records were not properly before the trial court and the trial court abused its discretion in ordering TIG to produce the records. Finally, the court rules that the trial court abused its discretion in ordering the $10,000 sanction without making findings necessary for imposition of sanctions. “The trial court is not prohibited from revisiting the issue of whether discovery sanctions are justified with the benefit of the hindsight of this proceeding.” OPINION:Per curiam; Gaultney, Kreger and Horton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.