PROCEEDING WRIT OF MANDAMUS 129th District Court Harris
County, Texas Trial Court Cause No. 2016-26100
consists of Chief Justice Frost and Justices Boyce and
Jewell. (Frost, C. J, concurring) (Boyce, J., joining section
I of the majority opinion).
issue presented in this original proceeding is whether
settlement agreements between the plaintiff and settling
defendants are relevant and discoverable before trial. After
real party in interest Ralph Figgs refused to produce the
settlement agreements, relator GreCon, Inc. moved to compel
Figgs to produce them. The trial court denied the motion.
GreCon asks this court to grant mandamus relief compelling
the Honorable Michael Gomez, presiding judge of the 129th
District Court of Harris County, to vacate the order denying
GreCon's motion to compel and to sign an order compelling
Figgs to supplement his disclosure responses and produce the
settlement agreements. We conditionally grant this mandamus
relief, though the grounds for conditionally granting relief
divide the panel. Justices Boyce and Jewell conclude that
mandamus should conditionally issue for the reasons stated in
section I, whereas Chief Justice Frost and Justice Jewell
conclude mandamus should conditionally issue for the reasons
stated in section II.
suffered injuries during a fire at a plywood manufacturing
plant owned by Georgia Pacific South. Seeking recovery for
his injuries, Figgs sued GreCon, asserting claims for
negligence, gross negligence, strict liability, and breach of
express and implied warranties in connection with the sale,
installation, and maintenance of the detection, prevention,
and suppression systems, which Figgs claims failed to
prevent, warn, or eliminate hazards that caused the
explosion. Figgs also sued a number of other defendants.
settled with defendants Georgia Pacific LLC, Georgia Pacific
Building Products, LLC, Georgia Pacific Wood Products LLC,
Georgia Pacific Wood Products South LLC, Georgia Pacific
Equity Holdings LLC, International Paper Company, and
Mid-South Engineering, Inc. (collectively the "Settling
Parties"). Under Rule of Civil Procedure 194.2, GreCon
requested disclosure from Figgs of "any settlement
agreements described in Rule 192.3(g)." Tex.R.Civ.P.
194.2(h). Rule 192.3(g) provides that "[a] party may
obtain discovery of the existence and contents of any
relevant portions of a settlement agreement."
Tex.R.Civ.P. 192.3(g). When Figgs refused to produce any of
his settlement agreements with one or more of the Settling
Parties (collectively the "Settlement Agreements"),
GreCon filed its motion to compel Figgs to supplement his
response to the request for disclosure under Rule 194.2(h)
and to produce copies of all the Settlement Agreements.
trial court held a hearing on June 12, 2017, and a few months
later denied GreCon's motion to compel the Settlement
Agreements, stating the following:
After having conducted an in camera review of the proffered
settlement agreements, and after considering the motions,
responses, and arguments of counsel, the Court is of the
opinion that the motions should be DENIED, at this time.
IT IS THEREFORE, ORDERED AND ADJUDGED that
Defendant GreCon's (and all other Defendants')
Motions to Compel Settlement Agreements are hereby DENIED, at
trial further stated in a footnote in the order that
"Defendants may be entitled to the settlement agreements
at trial and may re-urge the same at that time."
mandamus proceeding, GreCon asserts that the Settlement
Agreements are relevant because GreCon needs them to: (1)
prove up its entitlement to settlement credits; (2) evaluate
any potential witness bias; and (3) evaluate GreCon's
potential exposure before trial. GreCon asks this court to
grant mandamus relief compelling the respondent to vacate his
order denying GreCon's motion to compel and to sign an
order compelling Figgs to supplement his disclosure responses
and produce the Settlement Agreements.
Standard of Review
to be entitled to mandamus relief, a relator must demonstrate
(1) the trial court clearly abused its discretion; and (2)
the relator has no adequate remedy by appeal. In re
Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex.
2016) (orig. proceeding) (per curiam). A trial court clearly
abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial
error of law or if it clearly fails to analyze the law
correctly or apply the law correctly to the facts. In re
H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302-03 (Tex.
2016) (orig. proceeding) (per curiam); In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding) (per curiam). The relator may not have an
adequate remedy by appeal when the trial court has not
allowed discovery because such discovery cannot be made part
of the appellate record, and because the reviewing court is
not able to evaluate the effect of the trial court's
error on the record before it. Walker v. Packer, 827
S.W.2d 833, 843-44 (Tex. 1992) (orig. proceeding).
Relevance and the Burden of Proof
first consider the relevant burden of proof in the context of
requests for disclosure, an issue the parties disputed in the
trial court and dispute in our court.
to the discovery rules in 1999, Rule 194, entitled
"Request for Disclosure, " provides the mechanism
for requesting the disclosure of certain information in
A party may obtain disclosure from another party of the
information or material listed in Rule 194.2 by serving the
other party-no later than 30 days before the end of any
applicable discovery period-the following request:
"Pursuant to Rule 194, you are requested to disclose,
within 30 days of service of this request, the information or
material described in Rule [state rule, e.g., 194.2, or
194.2(a), (c), and (f), or l94.2(d)-(g)]."
Tex. R. Civ. P. 194.1. Among the information or material for
which a party may request disclosure is "any settlement
agreements described in Rule 192.3(g)." Tex. R Civ. P.
192.3 addresses the scope of discovery. See Tex. R.
Civ. P. 192.3. Specifically, Rule 192.3(g) provides that
"[a] party may obtain discovery of the existence and
contents of any relevant portions of a settlement
agreement." Tex.R.Civ.P. 192.3(g).
the response to the request for disclosure, Rule 194.3
provides that "[t]he responding party must serve a
written response on the requesting party within 30 days after
service of the request[.]" Tex.R.Civ.P.
194.3. Under Rule 194.4, the responding party
"ordinarily must" serve documents and other
tangible items with the response, and "must produce the
documents at the time and place stated, unless otherwise
agreed by the parties ordered by the court[.]"
Tex.R.Civ.P. 194.4. No objection is permitted to a request
for disclosure. Tex.R.Civ.P. 194.5; see also In re Univar
USA, Inc., 311 S.W.3d 175, 180 (Tex. App.-Beaumont 2010,
Comment 1 to Rule 194 explains the purpose of the disclosure
1. Disclosure is designed to afford parties basic discovery
of specific categories of information, not automatically in
every case, but upon request, without preparation of a
lengthy inquiry, and without objection or assertion of work
product. In those extremely rare cases when information
ordinarily discoverable should be protected, such as when
revealing a person's residence might result in harm to
the person, a party may move for protection. A party may
assert any applicable privileges other than work product
using the procedures of Rule 193.3 applicable ...