Court of Appeals of Texas, San Antonio.
IN RE: BAPTIST HEALTH SYSTEM
No. 04-98-00280-CV.
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June 24, 1998.
PETITION FOR WRIT OF MANDAMUS DENIED
ANGELINI, Justice.
*1 Baptist Health Systems (Baptist) seeks mandamus relief from Judge Berchelmann’s discovery order which requires the production of over two-hundred wage statements that were supplied to the Texas Workers’ Compensation Commission (TWCC) by Baptist on behalf of injured Baptist employees. The statements disclose the name, social security number, and salary information of each of these employees. Because none of the employees is a party to this litigation, Baptist contends that the disclosure of their names is an unnecessary invasion of their privacy and is immaterial to the issues raised in this suit. We deny the petition for writ of mandamus.
Factual and Procedural Background
Olga Felan sued Baptist for wrongful discharge in retaliation for her workers’ compensation claim. After discovery began, Felan amended her petition, alleging that Baptist committed fraud when it withheld information regarding her fringe benefits1 from its workers’ compensation carrier and the TWCC. The withholding of such information resulted in Felan receiving a smaller amount of workers’ compensation benefits than she would have been entitled to had the fringe benefits been reported. Felan seeks exemplary damages for, among other things, Baptist’s intentionally fraudulent pattern or practice of omitting fringe benefits from wage statements in order to defraud workers’ compensation claimants of their rightful benefits. The discovery dispute at issue relates to information Felan claims is necessary to the maintenance of her fraud cause of action.
During discovery, Felan sent Baptist a request for production, asking for all wage statements filed by Baptist on behalf of its employees who had filed workers’ compensation claims with the TWCC from 1991 to the present. Baptist objected, and a hearing was held on Felan’s motion to compel. Felan argued to Judge Berchelmann that she was entitled to other claimants’ wage statements because, through discovery, it had become apparent that Baptist regularly excluded fringe benefits information from the wage statements. Felan argued that this failure was “probative of a pattern or practice for Baptist to short change people that are workers’ comp. claimants.” Baptist argued that the wage statements were not relevant. Judge Berchelmann ordered Baptist to produce 40 wage statements, filed on behalf of its employees who had sued for retaliatory discharge, and that, if these statements showed a regular pattern of failure to fill out the fringe benefits information, Felan could request that more wage statements be produced.
On February 24, 1998, Felan informed Judge Berchelmann that the fringe benefits portion of each of the wage statements produced was left blank. Accordingly, Judge Berchelmann ordered Baptist to produce all wage statements from July, 1995, to July, 1997. He later clarified this order, stating that Baptist could redact names, social security numbers, and addresses from the statements.
After Felan received the redacted statements, she filed a motion to shorten time for the production of documents. At the hearing on the motion, Felan reported to Judge Berchelmann that only 6 of the 250 wage statements produced included fringe benefit information. Judge Berchelmann then ordered Baptist to produce all 250 wage statements without the redactions. It is from this order that Baptist seeks mandamus relief.
Argument and Authority
A. Availability of Mandamus
*2 A writ of mandamus will issue to correct a clear abuse of discretion by the trial court or to correct the violation of a duty imposed by law if no other remedy at law is available to the relator. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Relator bears the burden of showing both an inadequate remedy at law and an abuse of discretion. Canadian Helicopters, 876 S.W.2d at 304. A party has no adequate remedy by appeal when the appellate court would not be able to cure the trial court’s error after a judgment has been entered. Transamerican Natural Gas Corp. v. Flores, 870 S.W.2d 10, 12 (Tex.1994).
In cases involving discovery disputes, a “litigant so subjected to an invasion of privacy has a clear legal right to an extraordinary remedy since there can be no relief on appeal; privacy once broken by the inspection and copying … by an adversary cannot be retrieved.” Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex.1996) (quoting Maresca v. Marks, 362 S.W.2d 299, 301 (Tex.1962)). Accordingly, mandamus relief would be appropriate in this case if Baptist had demonstrated a clear abuse of discretion on the part of the trial court. We conclude, however, that Baptist has failed to satisfy this burden.
B. Privacy
Baptist argues that the judge abused his discretion when he ordered that the unredacted wage statements be disclosed to Felan because this information is protected by the employees’ privacy rights. Baptist initially argues that such information is statutorily protected. In support of its position, Baptist notes the summary of rights and responsibilities that the TWCC requires employers to provide to employees at the time an injury is reported:
Only people who need to know-such as your doctor, your employer or your employer’s insurance carrier-may see information in the commission’s files. A prospective employer may get limited information from the commission about your claims. If you wish someone who is assisting you to have access to your file you must provide written approval for them to do so.
28 T.A.C. 120.2(e), fig. 1. This language, however, applies only to TWCC files, not to the employer’s files, thus raising the question of whether this information is confidential as it sits in Baptist’s files.
The TWCC provides the wage statement form to the employer for use in reporting a claim. See 28 T.A.C. 128.2(b). Baptist completed the form because it was required to send the form to its workers’ compensation carrier, the injured employee, and the TWCC. Id. While it does seem that the fact that Baptist kept a copy of the form should not sacrifice the confidentiality of the claimants’ identification, the Workers’ Compensation Act states that “information in or derived from a claim file regarding an employee is confidential and may not be disclosed by the commission except as provided by” the Workers’ Compensation Act. Tex. Labor Code Ann. § 402.083(a) (Vernon 1996) (emphasis added).
*3 The Act further provides that “information relating to a claim that is confidential … remains confidential when released to any person, except when used in court for the purposes of an appeal.” Id. at § 402.086(a). However, the Attorney General has interpreted this language to mean that the confidentiality applies only to the TWCC, and not to “information concerning a claimant file that is held by other entities that have not acquired the information from the board.” Tex. Att’y Gen. ORD-533 (1989). Accordingly, the wage statements retained by Baptist are not subject to a statutory confidentiality requirement.
Nevertheless, the employees whose personal information will be disclosed as a result of the trial court’s order, do maintain a personal privacy interest in such information. It is the duty of the trial court to determine whether a discovery request unnecessarily invades those personal privacy rights. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988). An individual’s privacy interest in the requested information must, therefore, be weighed against the relevancy of such information to the litigation at issue in determining whether the trial court abused its discretion in finding it discoverable. Id.
Baptist argues that the unredacted wage statements should be protected from disclosure at the same level tax returns are protected. While relevant portions of tax returns are discoverable, scrupulous limitation of discovery is required to protect the highly personal and private nature of an individual’s tax information. See Maresca v. Marks, 363 S.W.2d 299, 301 (Tex.1962); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (Tex.1959). The same rigorous standard has been held to apply to tithing records. See Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex.1996). In such cases, it is the plaintiff’s burden to show that the tax returns or other sensitive documents are relevant and material to the issues in the case. El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 779 (Tex.App.-San Antonio 1994, orig. proceeding).
We do not believe that the information at issue in this case rises to the level of sensitivity associated with income tax returns and tithing records. The information sought in this case identifies each employee, the date of his or her injury, whether he or she returned to work, and his or her weekly wages. Such information is more closely akin to financial records or net worth. See Barlow, 894 S.W.2d at 781 (finding information regarding amount of compensation paid equivalent to a financial record). The burden on the discovery of financial records lies with the party seeking to prevent production. See id. (citing Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985)). Accordingly, the burden is on Baptist to demonstrate that the relevancy of the unredacted wage statements to Felan’s case is outweighed by the unnecessary invasion of the employees’ privacy.
*4 C. Relevancy
Baptist first argues that the unredacted wage statements are irrelevant to Felan’s case because the trial court does not have jurisdiction over her fraud claim. Specifically, Baptist contends that because a complaint concerning the amount of benefits an injured worker has received is within the exclusive jurisdiction of the TWCC, Felan may not maintain her fraud cause of action in the trial court.
Courts have consistently maintained that questions of subject matter jurisdiction are not appropriate for mandamus relief because of the existence of an adequate remedy by appeal. See Canadian Helicopters v. Wittig, 876 S.W.2d 304 (Tex.1994); Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990); Sharm, Inc. v. Euresti, 883 S.W.2d 701, 703 (Tex.App.-Corpus Christi 1994)(orig. proceeding); City of Houston v. Meister, 882 S.W.2d 29, 31 (Tex.App.-Houston [14th Dist.] 1994)(orig. proceeding). In such case, a motion for summary judgment on jurisdictional grounds provides an adequate remedy at law.2 See Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169, 176 (Tex.App.-Houston [14th Dist.] 1994)(orig. proceeding).
To hold otherwise would not only provide legal precedent for the unnecessary interruption of the trial process, but would give Baptist a vehicle by which it could circumvent procedural requirements and obtain a shortcut to appellate relief. Accordingly, Baptist’s jurisdictional argument is not properly before us and we will not consider it.
Baptist next contends that the identities of the employees whose wage statements have been ordered disclosed are immaterial to Felan’s claim of fraud. Baptist argues that Felan does not need the names of the employees in order to prove a pattern or practice to defraud workers’ compensation claimants because Baptist offered to stipulate to the fact that it left out relevant information on other wage statements. The stipulation Baptist offered was that “beginning in February 1996, when Bill Willrodt became the workers’ compensation specialist at Baptist Health System, and ending with the date in mid-August of 1997, when the new TWCC Form 3 Wage Statement was issued, that during that period, it was customary for Baptist Health System to leave the fringe benefits portion box 13 … to leave the questions in that box on the form unanswered.” Felan argues that the stipulation is inadequate because it does not demonstrate that any individual employee suffered damages as a result of Baptist’s misreporting benefits to the TWCC or the amount of those damages.
Pre-trial discovery is not limited to what may be admissible at trial, but may include any information relevant to the pending subject matter that is reasonably calculated to lead to the discovery of admissible evidence. Eli Lilly and Co. v. Marshall, 850 S.W.2d 155, 160 (Tex.1993); Tex.R. Civ. P. 166b(2)(a). In fact, “certain fishing expeditions are permissible” at this stage of litigation. Kern v. Gleason, 840 S.W.2d 730, 736 (Tex.App.-Amarillo 1992) (orig. proceeding). In this case, the unredacted wage statements will provide Felan with enough information to discover what benefits each of the employees received so that she can determine the extent, if any, of Baptist’s fraud and the financial impact of its alleged pattern of misrepresentation. Such information will be necessary to Felan in substantiating her claim for exemplary damages.
*5 The trial court considered arguments of both parties at more than one hearing and determined that the unredacted wage statements were relevant to Felan’s case. When weighed against the limited privacy rights implicated by the information sought, we cannot say that the trial court’s decision to allow discovery of the unredacted wage statements was a clear abuse of discretion. Baptist’s writ of mandamus is denied.
Footnotes |
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| 1 | The fringe benefits that Felan is claiming should have been indicated on her wage statement are vacation, holidays, and sick leave. | |
| 2 | In fact, the parties informed us during oral submission of this case that a motion for summary judgment based on Baptist’s challenge to the trial court’s jurisdiction has been filed and considered by the trial court. | |