Court of Appeals of Texas,

Houston (1st Dist.).

Walter THOMASON, Relator,

v.

The Honorable Hugo TOUCHY, Presiding Judge of the 129th District Court of Harris County, Texas, Respondent.

No. 01-92-00607-CV.

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November 25, 1992.

O P I N I O N

DUNN, Justice.

*1 This is an original mandamus proceeding concerning denial of discovery. Relator Thomason seeks relief from the actions of respondent, Judge Hugo Touchy, by which respondent denied Thomason’s motion to compel answers to 15 interrogatories propounded by Thomason to Transcontinental Insurance Company, the real party in interest. We conditionally grant the writ.

Transcontinental is the defendant in Thomason’s underlying suit for breach of the duty of good faith and fair dealing arising from Transcontinental’s handling of Thomason’s workers’ compensation claim. Thomason served a set of 16 interrogatories on Transcontinental. In response to interrogatory number 12, Transcontinental gave an answer satisfactory to Thomason.¹ Transcontinental’s answers to the remaining interrogatories consisted entirely of objections, except for very limited information contained in its answers to interrogatories numbers 6 and 7. Thomason filed a motion to compel answers to the remaining interrogatories, which the trial court denied, except as to a single subpart of a single interrogatory.² We then granted Thomason leave to file his petition for writ of mandamus.

In the trial court, the burden fell upon Transcontinental, as the party resisting discovery, to establish the privilege, immunity, or other basis upon which the discovery sought should be denied. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989). In this proceeding, however, Thomason, as relator, has the burden to show himself entitled to the relief he seeks. Decker v. Lindsey, 824 S.W.2d 247, 249 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). Thomason must show that Transcontinental did not establish that the discovery sought should have been denied-that is, that the trial court’s refusal to compel answers to the interrogatories at issue was erroneous-and that mandamus is an appropriate remedy for that error.

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law, and even then only if the aggrieved party has no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A judicial decision is an abuse of discretion if it was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A mere error of judgment is not an abuse of discretion. Id. An erroneous decision is an abuse of discretion, however, when made without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); Underwood v. Cartwright, 795 S.W.2d 34, 35 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding). Where there is an erroneous denial of discovery amounting to an abuse of discretion, remedy by appeal may be inadequate when a party shows either (1) that the discovery “goes to the heart of” the aggrieved party’s case or (2) that it would not be possible on appeal for an appellate court to evaluate the effect of the trial court’s error because either (a) the missing discovery cannot be made a part of the record or (b) the trial court, after proper request, refuses to make it part of the record. Walker, 827 S.W.2d at 843. An appellate remedy is not inadequate merely because it may involve more expense or delay than mandamus. Id. at 842.

*2 With the foregoing principles in mind, we turn to the merits of Thomason’s petition. Interrogatories numbers 1 through 5 inquired about allegations in various paragraphs of Transcontinental’s third amended answer, and each sought to discover “all facts upon which you base such contention” and the name, address, and telephone number of each person having knowledge of those facts. The general scope of discovery is governed by TEX. R. CIV. P. 166b(2)(a), which provides, in pertinent part, that

[p]arties may obtain discovery regarding any matter which is relevant to the subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. It is also not ground for objection that an interrogatory propounded pursuant to Rule 168 involves an opinion or contention that relates to fact or the application of law to fact[.]

Relevance is in turn determined under TEX. R. CIV. EVID. 401, which provides that “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Plainly, the evidence supporting Transcontinental’s own allegations is relevant under TEX. R. CIV. EVID. 401 and properly discoverable under TEX. R. CIV. P. 166b(2)(a).

We next consider whether the trial court abused its discretion in refusing to compel answers to interrogatories numbers 1 through 5. We note that Transcontinental raised no claim of privilege with respect to any of these five interrogatories. Transcontinental objected globally to interrogatories numbers 1, 2, 3, 4, and 5, as well as others, on the basis that they were “overly broad, vague, burdensome, ambiguous, and exceed the allowable scope of discovery … [in that they were] similar, if not the same, as” the request held vague, ambiguous, and overbroad by the supreme court in Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). The particular language from Loftin on which Transcontinental relied is:

Loftin has requested all evidence that supports Lumbermen’s allegations. The request does not identify any particular class or type of documents, but is merely a request that Loftin be allowed to generally peruse all evidence Lumbermen’s might have. We hold that such a request was vague, ambiguous, and overbroad and that the trial court was within its sound discretion in sustaining Lumbermens’ objection.

776 S.W.2d at 148. The particular request for production at issue in Loftin was that which requested “all notes, records, memoranda, documents and communications made that the carrier contends support its allegations [that the award of the Industrial Accident Board was contrary to the undisputed evidence]. Id.

*3 The Loftin case concerned a request for production, not interrogatories. The Loftin court was careful to draw that distinction, saying, inter alia, that “[u]nlike interrogatories and depositions, Rule 167 is not a fishing rule. It cannot be used simply to explore.” 776 S.W.2d at 148 (quoting the 1966 General Commentary to TEX. R. CIV. P. 167, which itself was quoting from Steely and Gayle, Operation of the Discovery Rules, 2 Houston L. Rev. 222, 223 (1964)) (emphasis added). Because these were interrogatories and not requests for production, Transcontinental’s objection was invalid. See Loftin.

To the extent, if any, that Transcontinental’s global objection raised an objection to vagueness, ambiguity, burdensomeness, or overbreadth not based exclusively on Loftin, it appears that any vagueness, ambiguousness, burdensomeness, or overbreadth in Thomason’s interrogatories numbers 1 through 5 was wholly the product of what vagueness, ambiguousness, and overbreadth was embodied in the portions of Transcontinental’s own pleading about which those interrogatories inquired.

Subject to its global objection, Transcontinental also raised a specific objection, repeated separately as to each of these interrogatories but in identical language, that “pursuant to [TEX. R. CIV. P.] 168(2)(b), you are referred to the documents which have previously been produced to plaintiff in response to prior request for production of information which documents are not voluminous, or easily read by you or on your behalf by your attorney.” Thomason has neither asserted nor shown that no documents had already been produced to Thomason by Transcontinental when the interrogatories were answered by Transcontinental. We therefore presume that there were some such documents. Thomason has not provided those documents to this Court. Nor has Thomason shown that, upon proper tender by Thomason, the trial court failed or refused to examine those same documents and thus arbitrarily sustained the objection without having the proper information before it to make a decision. For these reasons, Thomason has failed to demonstrate that the trial court erred in sustaining this objection as to subpart C of each of interrogatories numbers 1, 2, 4, and 5; and subpart D of interrogatory number 3. Those subparts of those interrogatories sought “a description of each document which you believe supports” the contention in the pleading paragraph about which the interrogatory asked, and noted parenthetically that, “You may attach copies of any such documents in lieu of answering this subpart.”

Transcontinental’s specific objection was invalid as to subpart A of interrogatories numbers 1 through 5, which in each instance asked about “all facts upon which you base such contention”; subpart B of each of interrogatories numbers 2, 4, and 5, and subpart C of interrogatory number 3, which sought “the name, address and phone number of each person who has knowledge of the facts upon which you base such contention”; and subpart B of interrogatory number 3, inquiring about identification of the specific administrative provisions or regulations of the Texas Industrial Accident Board and Texas Workers’ Compensation Commission to which Transcontinental refers in paragraph VI of its answer, in which Transcontinental had said it relied upon those provisions and regulations and the workers’ compensation laws of Texas. Thomason was entitled to have answers to these interrogatories, unless, in accordance with TEX. R. CIV. P. 168(2)(b), the burden of deriving or ascertaining the answer was substantially the same for Thomason, the party serving the interrogatories, as for Transcontinental, the party served. Where the “answer” sought is the basis of a contention made by the party serving the interrogatory, the burden of deriving that answer would seldom, if ever, be substantially the same for the party serving as for the served party that made the contention in the first place-unless the served party had, prior to making the contention in question, omitted to make the reasonable inquiry, required under TEX. R. CIV. P. 13, to ascertain facts giving rise to grounds for that contention.

*4 The order at issue here denied clearly discoverable information on the basis of a misreading of Loftin as applying to interrogatories as well as requests for production. That misreading was much like the trial court’s misreading of Russell v. Young, 452 S.W.2d 434 (Tex. 1970) that was at issue in Walker itself. See 827 S.W.2d at 838-39 (trial court read Russell as an absolute bar to discovery under circumstances quite distinguishable from those in which Russell was properly applicable). We conclude, as did the Walker court, that the trial court’s erroneous interpretation of the law in such a fashion constitutes a clear abuse of discretion.

Interrogatory number 6, like subpart B of each of interrogatories numbers 2, 4, and 5, and subpart C of interrogatory number 3, sought the name, address and phone number of each person having knowledge of facts relevant to the case. Transcontinental’s response was that, “To our knowledge, at this time, persons with knowledge of relevant facts have previously been identified in response to a proper request or are contained within Defendant’s Designation of Expert Witnesses which is incorporated herein by reference as if set forth verbatim.” Though the interrogatory does not refer to a specific contention in a paragraph of Transcontinental’s live pleading, and though the response is not precisely like the specific objection Transcontinental raised to interrogatories 1 through 5, the same logic supports the same result where interrogatory number 6 is concerned. A sufficiently-articulated objection, based on TEX. R. CIV. P. 168(b)(2) and referring Thomason to some collection of documents identified with greater particularity than simply “any prior ‘proper request,’ ” might have been a valid objection to interrogatory number 6. The response Transcontinental actually made was not such a valid objection. The trial court’s contrary conclusion was a clear abuse of discretion.

Relator has established that the trial court could reasonably have reached only one decision concerning interrogatories numbers 1(A), 2(A), 2(B), 3(A), 3(B), 3(C), 4(A), 4(B), 5(A), 5(B), and 6-that is, to grant Thomason’s motion to compel answers to those interrogatories. There remains, however, the question of whether, with respect to that abuse of discretion, Thomason has an adequate remedy by appeal.

“The ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.” Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984). That a trial judge “conscientiously heard argument from both sides” prior to ruling, standing alone, is not sufficient to establish that no abuse of discretion occurred. Jampole, 673 S.W.2d at 574. The issue is not “the degree of care exercised. Rather, the focus is on the effect of the trial court’s action on the substantial rights of the parties.” Id.

The inquiries embodied in interrogatories numbers 1(A), 2(A), 2(B), 3(A), 3(B), 3(C), 4(A), 4(B), 5(A), 5(B), and 6 all inquired about support for the allegations of Transcontinental’s third amended answer, and they all went to the heart of the case. See Owens v. Wallace, 821 S.W.2d 746, 748 (Tex. App.-Tyler 1992, orig. proceeding) (the facts of a dispute constitute the very core of discovery); see also Williamson v. O’Neill, 696 S.W.2d 431, 432 (Tex. App.-Houston [14th Dist.] 1985, orig. proceeding) (the position an adverse party will take on issues involved in the cause of action is properly discoverable). In this instance Thomason was denied discovery going to the heart of his case when the trial court denied his motion to compel answers to those interrogatories. Overall, the effect of the trial court’s order was to deny Thomason any effective use of his interrogatories. The trial court granted Thomason’s motion to compel only with respect to interrogatory 1(B), allowing Thomason to discover only the name, address, and phone number of each person who has knowledge of the facts forming the basis for Transcontinental’s contention that Thomason “failed to provide [Transcontinental] … with pertinent information regarding his prior medical condition, refused to allow [Transcontinental] access to … medical records pertaining to his medical condition and medical history, and failed to properly and timely make responses to [Transcontinental’s] other requests for information reasonably necessary in order to allow [Transcontinental] to … evaluate his claims.” It appears that Thomason had had some documents produced to him in response to an earlier request or requests for production, and sought to follow up with interrogatories designed both to clarify the issues raised after Transcontintental’s amendment of its pleadings and to enable him to determine which potential fact and expert witnesses to depose in preparation for trial. The trial court’s order denying Thomason’s motion to compel answers to those interrogatories, if allowed to stand, would force Thomason to go forward with depositions without having the issues for trial clearly framed and without a clear picture of who were Transcontinental’s prospective fact witnesses, thereby largely vitiating the usefulness of those contemplated depositions to Thomason as a tool for seeking the truth about the facts of his dispute with Transcontinental. Any trial which might follow would have been decided by “what facts are concealed” and have been rendered a “certain nullity” on appeal. Jampole, 673 S.W.2d at 573, 576; see also Loffland Bros. Co. v. Downey, 822 S.W.2d 249 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding).

*5 Interrogatory number 10 asked that Transcontinental “[s]et out all communications, written or oral, including the dates of any such communications and documentation, that in any way provides support for [Transcontinental’s] claim that it did not act in violation of the duty of good faith and fair dealing.” Transcontinental objected as follows:

Defendant objects … on the grounds that this interrogatory requests information which is not relevant or material to any issue to be determined in this case and is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory is vague and ambiguous. The interrogatory is objectionable because it is overly broad and nebulous. The interrogatory is not limited in time and does not define the “issues” being referred to and does not specify in any respect what issues are considered “similar to those raised in the case that is the subject of this discovery.”^[[[[[[[^3] Defendant further objects to this interrogatory because it is not limited, in any respect, in scope and is harassing.

Relator has not shown that the trial court abused its discretion in concluding that interrogatory number 10 was vague and overbroad. We do not reach the question of whether Thomason had an adequate remedy by appeal with respect to interrogatory number 10. Thomason has not met his burden to show himself entitled to mandamus relief with respect to this interrogatory.

With respect to interrogatories numbers 7 through 9, 11, and 13 through 16, relator has not shown that he has no adequate remedy by appeal under the standards set forth in Walker v. Packer. The discovery sought in those interrogatories does not go to the heart of Thomason’s case. Interrogatories numbers 7 through 9, 11, and 13 through 16, respectively, sought to discover (number 7) the identity and specific authority of those Transcontinental employees who had the authority to deny or delay payment of Thomason’s claim; (number 8) how many other lawsuits Transcontinental and/or related entities had been involved in with issues similar to Thomason’s claim; (number 9) the identity of those who had reviewed Thomason’s file; (number 11) a description of all documentation not previously produced which “in any way” related to Thomason’s claim; (number 13) whether, to Transcontinental’s knowledge, any person had within the past 10 years made contentions that Transcontinental had in bad faith failed to settle a workers’ compensation claim like Thompson’s; (number 14) information about the time, method, and other details of any such contentions; (number 15) whether any person had within the past 10 years initiated any legal proceeding against Transcontinental alleging breach of the duty of good faith and fair dealing in the handling of a workers’ compensation claim; and (number 16) information about the time, method, and other details of any such legal proceeding.

*6 Thomason has not made the alternative Walker showing -i.e., that it would not be possible on appeal for an appellate court to evaluate the effect of the trial court’s error because either the missing discovery cannot be made a part of the record or the trial court, after proper request, refuses to make it part of the record. Thomason states that if the discovery is not granted, he will not be able to place before the appellate court evidence to support reversal on appeal. Other than this one statement, Thomason does not make argument or provide authorities addressed specifically to the alternative Walker showing. Thomason has not shown that he was unable to make the missing discovery-the information he sought to obtain through interrogatories 7 through 9, 11, and 13 through 16-a part of the appellate record by some other means. Moreover, Thomason has not made the showing which renders any such inability on his part cognizable under Walker ; Thomason has not shown that the absence of the missing discovery from the appellate record would render it impossible on appeal for an appellate court to evaluate the effect of the trial court’s error in denying that discovery. The absence of the missing discovery, standing alone, does not render the appellate remedy inadequate under Walker.

Because we hold that Thomason had an adequate remedy by appeal with respect to interrogatories numbers 7 through 9, 11, and 13 through 16, we do not reach the question of whether the trial court abused its discretion in refusing to compel answers to those interrogatories. Thomason has not met his burden to show himself entitled to mandamus relief with respect to those interrogatories.

Under our traditional standards of mandamus review, as measured under Walker, Thomason has shown that mandamus is appropriate with respect to interrogatories numbers 1(A), 2(A), 2(B), 3(A), 3(B), 3(C), 4(A), 4(B), 5(A), 5(B), and 6, but no others. We expect that Judge Touchy will vacate his order denying relator’s motion to compel answers to those interrogatories and enter an order consistent with this opinion. Should he fail to do so, the clerk of this court is directed to issue the writ of mandamus.

DO NOT PUBLISH-TEX. R. APP. P. 90.

	Footnotes
1		Interrogatory number 12 asked, “If anything whatsoever has been removed from Walter Thomason’s claim file, identify in detail each and every item that has been so removed and who removed it and why it was removed and who gave the instructions for it to be removed?” Transcontinental answered, “To our knowledge no documents have been removed from the underlying workers compensation claim file.”
2		The trial court granted Thomason’s motion to compel an answer to interrogatory 1(B).
3		The language of this sentence evidently was copied from a was, in full, “How many other lawsuits has [Transcontinental] been involved in with issues similar to those raised in the case that is the subject of this discovery?”