Court of Appeals of Texas, Dallas.

In re ASHLAND OIL d/b/a Ashland Chemical and Ashland Oil, Inc., Relator.

No. 05-98-00708-CV.

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July 2, 1998.

Before Justices LAGARDE, JAMES, and ROACH.

OPINION AND ORDER

TOM JAMES, JUSTICE.

*1 Relator contends the trial judge erred in compelling answers to two interrogatories because the interrogatories are overbroad. We conclude the trial judge abused his discretion in granting the motion to compel.

BACKGROUND

Nine employees (the plaintiffs) at a plant operated by the Ashland Chemical Electronics Division of Ashland Oil (Ashland) sued Ashland for discrimination due to their filing workers’ compensation claims.¹ Plaintiffs sent interrogatories to Ashland. The two interrogatories in question are:

21. Identify each and every present and/or former employee of Defendant who has made a workers’ compensation claim and/or gave information concerning any alleged work related injury or death within the last five (5) years in Texas, including the address and phone number. Please also state whether or not the named employees are still employed by the Defendant and, if not, why not,

22. State the name of each and every person employed by the Defendant and/or connected to the Defendant who has spoken to or provided information to the workers’ compensation carrier handling each of the Plaintiffs’ workers’ compensation claims.

Ashland answered interrogatory 21 with information regarding the plant at which the plaintiffs worked but objected to answering the rest of the question on several grounds, including overbreadth. Ashland answered question 22 with the names of persons who have discussed the plaintiffs’ case with the carrier but objected to further information on the same grounds as 21.

The plaintiffs filed a motion to compel. At a hearing in July, a visiting judge orally denied the objections. On August 13, 1997, the visiting judge signed an order denying the objection that interrogatories 21 and 22 are overbroad and ordered Ashland to answer. Ashland denies receiving notice of the signing of the order until February 18, 1998. Ashland then filed a motion to reconsider on interrogatories 21 and 22. This motion was heard and denied by another judge. The court again ordered Ashland to answer the interrogatories. Ashland then filed this mandamus asserting questions 21 and 22 are over broad. No record was made of any hearing.

Ashland raises two issues. First, Ashland asserts interrogatory 21 should be limited to information from the plant where the plaintiffs worked. Second, it asserts interrogatory 22 should be limited to discussions involving plaintiffs’ case because information about other plants or claims is not relevant to proving plaintiffs’ claims.

The plaintiffs assert Ashland’s request for relief should be denied because it delayed too long in filing for relief. Further, they contend the only support for Ashland’s argument on the corporate structure is the affidavit of Ashland employee Andrew Allen filed with the motion to reconsider, which is untimely. On the merits, plaintiffs argue interrogatory 21 is not facially overbroad and they stipulated at the first hearing to limit interrogatory 22 to discussions involving them. Finally, plaintiffs argue Ashland’s objections are too general to be valid because Ashland set forth several objections at the beginning of its objections and answers and objects “to the extent that” which is improper according to this Court’s holding in National Union Fire Ins. Co v. Hoffman.

TIMELINESS OF THIS MANDAMUS

*2 Plaintiffs argue this mandamus should be denied because Ashland was not diligent in filing it. There is no set time for filing for mandamus. But, the tardiness of a request may be considered in determining if relief should be granted. See Wadley Research v. Whittington, 843 S.W.2d 77, 83 (Tex.App.-Dallas 1992, orig. proceeding). Any hardship created by the delay is to be balanced with the interest in justice by allowing the trial court’s action to stand. See Zimmerman v. Otis, 941 S.W.2d 259, 262 (Tex.App.-Corpus Christi 1996, orig. proceeding) (delay between an oral order requiring production of document, signing of written order, and the filing of mandamus was unreasonable); Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442,443 (Tex.App.-El Paso 1995, orig. proceeding) (mandamus filed the day before discovery is due is unacceptable).

Ashland asserts its delay is because it had no notice of the court’s signed order. Plaintiffs contend Ashland should have contacted the court to see if the order had been signed. Plaintiffs also complain that seeking mandamus now will delay the trial setting for July 20, 1998. Plaintiffs do not, however reveal any action they took to bring the matter to Ashland’s attention. In fact, they state they waited patiently until February 13, 1998 for an answer. Thus, plaintiffs cannot be seen as diligent in their action either. Moreover, given that plaintiffs have not sought the answer before this, it is difficult to see how this information is so important that an answer either way should affect the setting.

ALLEN’S AFFIDAVIT

Plaintiffs argue Allen’s affidavit submitted with the motion to reconsider was untimely and should not be considered. The affidavit discusses the corporate structure of Ashland. Plaintiffs argue that without the affidavit, Ashland has failed to prove its right to relief because no evidence was presented at the July hearing. No record of this hearing is before the Court. Ashland objected that the interrogatory is overbroad, which requires, as discussed more fully below, a reading of the claims pleaded and not extraneous proof. The affidavit is late and will not be considered but this is not dispositive of the issue.

SPECIFICITY OF OBJECTIONS

Plaintiffs argue that Ashland’s use of general objections to all interrogatories and its use of the phrase “to the extent that” make the objections improper due to this Court’s holding in National Union Fire Insurance Co. v. Hoffman. Hoffman involved privileges, which require specificity in their pleading. Nat’l Union Fire Ins. Co. v. Hoffman, 746 S.W.2d 305, 307 (Tex.App.-Dallas 1988, orig. proceeding). This Court held that a statement that an objection “to the extent that” with a list of privileges recognized by Texas law did not meet the specificity requirements. Hoffman, 746 S.W.2d at 307. This Court did not hold that the use of the phrase “to the extent that” renders an objection improper. In the present case, the objections are not privileges requiring specific support. The objections asserted, and their application to each question, are understandable and sufficient.

INTERROGATORY 21

*3 The standard to be applied is abuse of discretion. The party objecting to a discovery request bears the burden of proving the objection. General Motors Corp. v. Tanner, 892 S.W.2d 862, 863 (Tex.1995) (orig. proceeding) (per curiam). “A discovery order that compels overly broad discovery ‘well out of the bounds of proper discovery’ is an abuse of discretion for which mandamus is the proper remedy.” Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (orig. proceeding) (per curiam) quoting Texaco Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995) (orig. proceeding).

The broad right of discovery into any relevant matter reasonably calculated to lead to admissible evidence is to be balanced by the interest of the other party not to be subjected to overly broad requests. Axelson v. McIlhany, 798 S.W.2d 550 (Tex.1990) (orig. proceeding). A discovery request is not over broad merely because its relevance may be doubtful. Texaco, Inc., 898 S.W.2d at 815. But, fishing or exploring by interrogatory is not permitted. K Mart v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (orig. proceeding) (per curiam).

In K Mart, Stacy Thompson sued for negligence and gross negligence in failing to provide adequate security after her abduction and rape from a K Mart parking lot. K Mart, 937 S.W.2d at 431. Thompson requested all criminal activity reports regarding K Mart property in the state for seven years and abductions and rapes nationwide for ten years. The court held the request was over broad because criminal activity of other types and at other stores for up to ten years would not be likely to even have a minuscule bearing on the case. K Mart, 937 S.W.2d at 431.

In Dillard, Albert Parker sued Dillard for false arrest. Parker then sought discovery of every incident for five years of false arrest, civil rights, and use of excessive force for each of the 227 Dillard’s stores across the country. Dillard, 909 S.W.2d at 491. Parker claimed he needed the information to explore whether there was a corporate practice of racial discrimination. Dillard, 909 S.W.2d at 492. The Texas Supreme Court held the request was overbroad as a matter of law. Dillard, 909 S.W.2d at 492.

Plaintiffs argue “unlike negligence cases, a retaliatory discharge claim can be proven with evidence of prior acts or transactions.” This is not a completely true statement of the law. The plaintiff must prove she was discriminated against due to her filing of a workers’ compensation claim. She may prove intent or motive in the retaliatory action by other incidences of discrimination. The other acts must be connected in some way other than similar outcome. Methodist Home v. Marshall, 830 S.W.2d 220, 229 (Tex.App.-Dallas 1992, orig. proceeding) (pattern of conduct in adoptions). “The information might prove motive, opportunity, intent, preparation, plan, knowledge identity, or absence of mistake or accident.” Marshall, 830 S.W.2d at 229. Evidence of other incidents of discrimination is not probative unless the plaintiff can show her incident occurred under substantially similar circumstances. Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 616 (Tex.App.-El Paso 1992); Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 268-69 (Tex.App.-El Paso 1994). In a workers’ compensation retaliatory discharge case, this is shown by activity at the same plant, by the same supervisory personnel, and by the same pattern of conduct. Durbin, 871 S.W.2d at 269.

*4 In this case, there is no pleading of pattern or practice. Plaintiffs state that they want the information because to have a number of people testify “would be impressive to any jury.” In fact, the number plaintiffs use to show the impressiveness of the testimony is the total number of workers compensation claims filed against all Ashland divisions with plants in Texas, not ones where action may have been taken against the claimants or even within their division. Activity at other plants and within other divisions does not qualify as a substantially similar circumstance to be relevant discovery to support the plaintiffs’ claims. Plaintiffs are entitled to information for the plant at which they worked, not other unrelated facilities.

INTERROGATORY 22

The plaintiffs’ stated in their brief that they previously stipulated to limit question 22 to discussions about them. There is no stipulation in the record. This statement, however, can be interpreted as a concession to limit the question. The limitation would bring the interrogatory within the scope of permissible discovery. Thus, the Court adopts the concession.

Accordingly, mandamus is conditionally GRANTED on interrogatory 21 and the concession applied to interrogatory 22. If the trial judge enters an order vacating its order compelling the relator to answer interrogatory 21 and 22 as written, limiting interrogatory 21 to the plant where the plaintiffs worked, and adopting the concession for interrogatory 22, mandamus will not issue. The trial court is directed to file a certified copy of its order with this Court by July 16, 1998.

	Footnotes
1		Three of the plaintiffs have settled and are not parties to this proceeding.