Court of Appeals of Texas, Ninth District, Beaumont
IN RE NORTH HOUSTON POLE LINE, L.P. AND RYAN JAMES NOLAN
Submitted on November 21, 2019
Original Proceeding 58th District Court of Jefferson County,
Texas Trial Cause No. A-202961
McKeithen, C.J., Kreger and Johnson, JJ.
Houston Pole Line, L.P. ("NHPL") and Ryan James
Nolan, Relators, seek mandamus relief. They argue the trial
court clearly abused its discretion by excluding certain
evidence as a discovery sanction and in denying their request
for an inspection and re-download of data stored in an event
data recorder in one of the vehicles involved in the
automobile accident that is the subject of this personal
injury lawsuit. We conditionally grant mandamus relief
because we conclude that the trial court erred and Relators
lack an adequate remedy by appeal.
real party in interest, Megan Amber Martinez, sued Relators
for injuries she sustained in an automobile accident.
Martinez was driving a 2010 Ford Edge at the time of the
accident. The Ford Edge was owned by Martinez's mother,
Leah Ray Dawson. Relator NHPL's employee, James Nolan,
was driving a freightliner at the time of the accident.
Martinez alleges that Nolan was driving in the course and
scope of his employment with NHPL, and that the negligence of
Nolan and NHPL proximately caused the accident.
undisputed that on January 15, 2019, Relators had one of
their experts (Nicholas Schlechte) obtain data from the event
data recorder in the Ford Edge while the vehicle was in
storage. According to the Relators, the event recorder data
from the Ford Edge shows that Martinez "was going 93 mph
approximately four seconds prior to impact." Relators
did not seek permission or consent from the registered owner
of the vehicle before having their expert download or access
the data. Relators also did not disclose the data extraction
to Martinez until April 10, 2019, when Relators supplemented
discovery with a copy of Schlechte's report. This
supplementation occurred about a week before Martinez's
deposition and after Relators had deposed an eyewitness to
the accident. The eyewitness stated in his deposition that he
believed Martinez "was traveling at a normal
speed." Relators asked several questions of the
eyewitness in his deposition about whether his opinion about
the accident would change if the evidence showed Martinez was
speeding at the time of the accident.
moved to exclude the evidence and testimony as a discovery
sanction. Martinez argued that Schlechte, Relators'
expert, illegally downloaded data from the Ford Edge's
event data recorder without first obtaining Dawson's
consent or a court order and without Martinez's
knowledge. In Martinez's motion for sanctions, she
complained that Relators had violated state law on the
retrieval of the data from the event data recorder.
See Tex. Transp. Code Ann. § 547.615(c).
Martinez also referenced the federal "Driver Privacy Act
of 2015" and Texas Rule of Civil Procedure
196.7(d). Relators filed a response to Martinez's motion.
The trial court held a hearing on the motion for sanctions on
August 8, 2019.
support of her motion for sanctions, Martinez attached an
affidavit from her expert, April Yergin, that discussed
possible spoliation concerns with improperly downloaded data
but stated that it was impossible to determine with any
reasonable degree of engineering certainty whether the data
had been downloaded "correctly and
appropriately[.]" Relators countered with affidavits
from Schlechte and W.R. "Rusty" Haight, an accident
reconstructionist. In Schlechte's affidavit, Schlechte
described his experience and the procedure he used to access
the data. In Haight's affidavit, Haight stated his
opinion that Schlechte followed the proper procedures and
further that the hypothetical concerns described in
Yergin's affidavit would be dispelled by reviewing the
downloaded information. According to Haight, another download
would establish whether the veracity of the information had
been permanently destroyed.
attorney stated that the unauthorized download had been
performed on a good-faith belief that Relators' insurer
owned the vehicle and had consented to the inspection.
Relators argued that excluding all data from the event data
recorder would prevent the Relators from presenting their
defense. The trial court sanctioned Relators by striking the
expert (Schlechte) and the expert's report as a discovery
also sought a court order compelling an inspection and for a
"re-download" of the data, and the trial court held
another hearing on September 24, 2019. In the September 24th
hearing, the trial court denied the Relators' request for
an inspection and re-download of the data and stated that the
trial court was "striking anything related to" the
black box or event data recorder because the Relators had
"illegally" downloaded the data and used it during
Texas Rules of Civil Procedure authorize trial courts to
impose sanctions for discovery abuses. Tex.R.Civ.P. 215.3. A
trial court abuses its discretion by imposing a sanction that
is not just. TransAmerican Nat. Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). Two
measures determine whether an imposition of sanctions is
just. Id. "First, a direct relationship must
exist between the offensive conduct and the sanction
imposed." Id. A sanction must be directed
against the abuse and toward remedying the prejudice caused
the innocent party and against the offender. Id.
"Second, just sanctions must not be excessive. The
punishment should fit the crime." Id. A
sanction imposed for discovery abuse should be no more severe
than necessary to satisfy its legitimate purposes.
Id. The legitimate purposes of discovery sanctions
are to secure compliance with the discovery rules, deter
other litigants from abusing the discovery rules, and punish
parties who violate the discovery rules. Chrysler Corp.
v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992); Tex.
Integrated Conveyor Sys., Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 384 (Tex. App.-Dallas
2009, pet. denied). Generally, courts should first consider
the availability of less stringent sanctions. Cire v.
Cummings, 134 S.W.3d 835, 842 (Tex. 2004); Hamill v.
Level, 917 S.W.2d 15, 16 n.1 (Tex. 1996); Chrysler
Corp., 841 S.W.2d at 849; TransAmerican Nat. Gas
Corp., 811 S.W.2d at 917.
argued Martinez can have her own experts obtain the same data
and that they did not destroy any data because the data still
remains in the event data recorder. Martinez argues the trial
court acted within its discretion because Relators'
counsel acted in bad faith and used illegally obtained
information to contradict the testimony of the eyewitness.
Martinez also argues that Relators corrupted the integrity of
the process in that Martinez cannot know whether the data was
intentionally hacked or altered because she was not present
for the original download.
trial court could have disbelieved counsel's explanation
of why Relators' counsel believed he did not need to
secure the owner's consent or a court order, but the
trial court should have imposed a sanction upon only the
offender (the attorney) and should have considered and
explained that it considered lesser sanctions before imposing
sanctions that severely preclude a party's ability to
present the merits of its claims. See Primo v.
Rothenberg, No. 14-13-00794-CV & 14-13-00997-CV,
2015 WL 3799763, at *24 (Tex. App.-Houston [14th Dist.] June
18, 2015, pet. denied) (mem. op.). "[A] trial court
either must impose lesser sanctions first or must clearly
explain on the record why the case is an exceptional case
where it is fully ...