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In re National Collegiate Athletic Association

Court of Appeals of Texas, Fifth District, Dallas

March 1, 2018

IN RE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Relator

         Original Proceeding from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-00676

          Before Justices Lang, Stoddart, and Boatright

          OPINION

          DOUGLAS S. LANG JUSTICE.

         Before the Court is a petition for writ of mandamus brought by the National Collegiate Athletic Association (NCAA). The underlying proceeding is a negligence, wrongful death, and survival action in which real party in interest Debra Ploetz asserts that her husband Greg's death in 2015 from Chronic Traumatic Encephalopathy (CTE) was a result of concussions he sustained while playing football at the University of Texas from 1968 to 1972. Debra argues that the NCAA knew or should have known about the long-term dangers to student athletes from concussive and sub-concussive blows to the head, the causal connection between head trauma sustained in college sports and the development of CTE, and the rules, procedures, and protocols to prevent head trauma and prevent or slow the progression of CTE. She maintains that the NCAA's acts and omissions proximately caused Greg's death.

         In this original proceeding, the NCAA complains of a July 30, 2017 discovery order requiring the NCAA to produce documents for a 67-year time period (1950 to present) regarding head trauma suffered by student athletes in any NCAA sport. The NCAA avers the time period is overbroad and the order is not properly limited to Greg's injury (CTE), the NCAA sport he played (football), or the dates of his alleged injury (1968-1972). After reviewing the petition, Debra's response, the NCAA's reply, and the mandamus record, we conclude the NCAA is entitled to some of the relief requested. Specifically, we deny the relief requested as to temporal scope and types of sports, but conditionally grant the writ to the extent the order permits discovery of injuries other than injuries resulting from blows to the head that cause or can cause brain injuries like the injuries suffered by Greg, i.e., concussive and sub-concussive blows to the head that may result in brain diseases, such as dementia or CTE.

         Background

         Greg Ploetz played football at the University of Texas from 1968 to 1972. Greg died in 2015 from CTE. Debra argues that CTE and Greg's death were caused by concussions Greg sustained while playing football at the University of Texas. She asserts that the NCAA knew or should have known of the risks of head trauma to student athletes, ways to prevent head injuries, and the causal connection between head injuries and the risk of developing brain diseases such as CTE and dementia before Greg played NCAA football. Debra maintains that the NCAA breached duties of care to Greg and fraudulently concealed information from Greg and that those acts and omissions proximately caused Greg's CTE, injuries, and death. Debra sought discovery of all documents in the NCAA's possession from 1906 to the present relating to student health and welfare. The NCAA objected to the discovery requests, arguing that the time period is overbroad and the order is not properly limited to Greg's injury (CTE), the college sport he played (football), or the dates of his alleged injury (1968-1972). Debra moved to compel discovery responses to her interrogatories and requests for production, and the trial court granted the motion to compel in part.

         The order granting the motion to compel orders the NCAA to produce (1) all information sought from 1950 "to the ending date of the particular inquiry, including post-career information" and "shall include information for all sports categories requested by the plaintiffs, " (2) discs of the documents produced in a federal class action (the Arrington litigation) and a pending West Virginia case (the Geishauser litigation), (3) the NCAA's communications with the University of Texas and the National Football League "which are at issue herein, " and (4) all indices and catalogues currently available of materials maintained at any NCAA library or archive. The trial court also determined that Debra's requests for information concerning health and safety issues, including and not limited to head trauma, were overly broad. The trial court stated in the order that the NCAA is "under no obligation to provide information untethered to the issue that is central to this lawsuit namely head trauma."

         At the hearing on the motion to compel, the NCAA's counsel agreed to produce documents from 1963 through January 1974, stating that "with respect to those 10 years, we have very few, if any, arguments on the substantive scope. We're essentially willing to give them whatever it is in that time period related to head trauma, concussions, football, football rules, all of these things that they're asking for during that 10-year time period." In its reply brief, the NCAA stated that it has produced the 185, 000 pages of documents produced in the Arrington litigation for the period of 1994 forward and 35, 000 pages of documents produced in the Geishauser litigation "for an overlapping time period." In her response brief, Debra noted that the NCAA has provided her counsel with a hard drive "purporting to contain" the documents produced by the NCAA in the Arrington and Geishauser lawsuits. The parties conceded in their briefs that, in light of those agreements and production, any disputes regarding the trial court's order compelling production of documents from 1963 through 1974 and from 1994 through the present have been eliminated. Based on these concessions, we construe the NCAA's complaint about the discovery order to be the requirement to produce documents: (1) related to any head trauma in any sport, and (2) for the periods from 1950 to 1963 and from 1974 to 1994.

         Availability of Mandamus Review

         Mandamus relief is available if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding) (per curiam). Generally, the scope of discovery is within the trial court's discretion. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding). However, the trial court must make an effort to impose reasonable discovery limits. In re Graco Children's Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam); In re Am. Optical, 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam). A trial court abuses its discretion by ordering discovery that exceeds what is permitted by the rules of procedure. "When a trial court orders discovery that exceeds that permitted by the rules of procedure, it abuses its discretion and the resisting party has no adequate remedy by appeal." In re Arpin Am. Moving Sys., LLC, 416 S.W.3d 927, 930 (Tex. App.-Dallas 2013, orig. proceeding) (citing In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam)); see also In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding) ("Mandamus relief is available when the trial court compels production beyond the permissible bounds of discovery").

         Applicable Law

         A. Scope of discovery

         A party may generally obtain discovery of any unprivileged information relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is "reasonably calculated to lead to the discovery of admissible evidence." CSX Corp., 124 S.W.3d at 152 (quoting Tex.R.Civ.P. 192.3(a)); see also Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993). Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute's resolution. Am. Optical, 988 S.W.2d at 713. Thus, discovery requests must be "reasonably tailored" to include only relevant matters. Id. Evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." In re Nat'l Lloyds Ins. Co., 529 S.W.3d 794, 808 (Tex. 2017) (orig. ...


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