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Click here for the full text of this decision FACTS:After years of smoking and being exposed to asbestos and asbestos-containing products, J. W. Andrews developed asbestosis and eventually lung cancer. The heirs and estate of Andrews brought suit against more than 40 defendants for wrongful death, survival and other causes of action. As part of the discovery effort, John Crane Inc. (Crane), one of the defendants, subpoenaed the University of Texas Health Center at Tyler (the hospital) not a named party to the Andrews suit for production of Andrews’ lung pathology materials in its possession. Over three months after being served with Crane’s subpoena, the hospital filed objections to the subpoena and moved for a protective order. After holding a hearing, the trial court overruled the objections to the subpoena, denied the motion for a protective order, and ordered the hospital to produce the materials. The hospital seeks a writ of mandamus directing the trial judge to vacate his order. HOLDING:Denied. Because the hospital’s objections to the subpoena were filed after subpoena compliance was due, and because the hospital failed to explain or justify its three-month delay in objecting to the subpoena, the hospital waived its objections to the subpoena. There was no abuse of discretion, because the trial court’s production order neither exceeds the scope of the discovery rules nor clearly places a burden on the hospital outweighing the benefit to be obtained from the production. The hospital argues that the production contemplated by Texas Rule of Civil Procedure 176.6(d) is limited to “inspection or copying of designated documents and things.” That reading is too limited, the court states. Rule 176.6(d) refers to an order “to produce and permit inspection or copying of designated documents and things.” The quoted language from the rule does not define “production.” Further, the hospital’s narrow interpretation would subvert explicit portions of rule 205.3. The plain language of Rule 205.3(b)(3) includes “testing” as one legitimate purpose of production of an item from a nonparty. By requiring notice of proposed testing and the manner and means of the proposed testing, the rules clearly indicate production is available to test tangible objects beyond simple inspection. “The question really is whether that testing may be done only while the item remains in the possession of the owner or original custodian. The rule is not so limited.” Because the production rules are broad enough to include transfer of possession of a tangible item for the purpose of testing it, the trial court’s order does not exceed the scope of the Texas Rules of Civil Procedure, the court concludes. The hospital argues it has a responsibility, as a research hospital, to preserve and protect pathology materials collected from patients. The hospital does not claim or demonstrate that Andrews’ tissue samples have unique value to its research, but claims only that they are part of its sample collection. The trial court has acted to protect the pathology materials. The pathology materials are critically important to the parties, and the hospital failed to show that the trial court clearly abused its discretion. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, J.J.

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