In Re Jacobs

MAJORITY OPINION

In this original proceeding, the relators, Mark A. Jacobs, M.D., Debra C. Gunn, M.D., and Obstetrical and Gynecologist Associates, P.A., seek a writ of mandamus ordering the Honorable Mike Wood, presiding judge of Probate Court No. 2 of Harris County, to set aside his two orders of January 23, 2009 — one compelling the deposition of Dr. Jacobs and one compelling net-worth discovery for the past two years — and his order of January 30, 2009, clarifying the two January 23 orders. We conditionally grant the petition in part and deny it in part.

I

Real parties in interest, Andre McCoy, Individually and as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person (the “McCoys”), have sued the re-lators and others1 for negligence and gross negligence in providing medical care and treatment to Shannon while she was an obstetrical patient at Woman’s Hospital of Texas from September 13, 2004 to September 14, 2004. On November 16, 2007, the McCoys served the relators with requests for discovery of net-worth information. When the relators objected to the requests for production, the McCoys filed a motion to compel discovery.

*39On January 23, 2009, the trial court held a hearing and signed an order directing the McCoys to amend their pleadings to provide more specific allegations of gross negligence against the relators following the completion of the depositions of Dr. Jacobs and Dr. Gunn. Subject to the filing of a sufficient pleading as to gross negligence, the trial court further ordered the relators to produce “the actual financial statements they have provided to a lender within the past two (2) years that identifies the assets and liabilities of each Defendant.” Alternatively, if the relators had not submitted any such financial statement to a lender within the two years preceding the date of the order, the court ordered each relator to:

(i) Produce an affidavit swearing that no such financial statement has actually been submitted to a lender in the past two (2) years; and

(ii) Produce an affidavit under oath in the format of what would have been provided to a lender as to net worth.

The order directed that the relators produce such net-worth information no later than thirty days after the McCoys sufficiently pleaded gross negligence. In the order, Judge Wood also prohibited the McCoys from seeking to compel any additional responses to their outstanding net-worth discovery requests, and announced that any net-worth information provided to the McCoys would be “safeguarded by a protective order.” On January 23, Judge Wood signed another order granting the McCoys’ motion to compel the deposition of Dr. Jacobs, and directed that the deposition may not exceed three hours on the record.

On January 26, the relators filed a motion to clarify the order regarding the discoverability of net worth. The relators stated they did not understand when to produce the net-worth information to comply with the order and requested the trial court to so specify. Also, the relators requested a written order on what net-worth matters, if any, the McCoys would be allowed to cover during the depositions of Dr. Jacobs and Dr. Gunn.

On January 30, the trial court signed an order clarifying its prior orders regarding the discoverability of net-worth information. The trial court directed the relators to produce the information by February 6, 2009, and ruled that the McCoys would be permitted to depose Dr. Gunn and Dr. Jacobs about their net worth.

In their petition, the relators argue that the trial court abused its discretion with respect to the orders of January 23 and 30 by directing the relators to (1) produce net-worth information for the past two years in the form of actual financial statements they have provided to lenders; (2) create a net-worth document in the format of what would have been provided to a lender; and (3) present Dr. Jacobs and Dr. Gunn for deposition regarding their net worth without any temporal or subject-matter limitations. The relators further assert they have no adequate remedy by appeal because their rights to due process and privacy are in jeopardy of being permanently lost or compromised.

II

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex.2008) (orig. proceeding). The party resisting discovery bears the heavy burden of establishing an abuse of discretion and an inadequate remedy by appeal. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a *40decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding).

Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.2008) (orig. proceeding). Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. Id. “Mandamus review of significant rulings in exceptional eases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig. proceeding); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex.2009) (orig. proceeding) (“Used selectively, mandamus can ‘correct clear errors in exceptional cases and afford appropriate guidance to the law without the disruption and burden of interlocutory appeal.’ ”) (quoting In re Prudential, 148 S.W.3d at 138). Thus, in determining whether appeal is an adequate remedy, we consider whether the benefits of mandamus review outweigh the detriments. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding). Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court’s discovery error. In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) (per curiam) (orig. proceeding); In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003) (orig. proceeding).

A

The relators assert the trial court abused its discretion by ordering them to produce their net-worth information to the McCoys. A defendant’s net worth is relevant in a suit involving exemplary damages. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988) (orig. proceeding), overruled on other grounds, Walker, 827 S.W.2d at 842; Miller v. O’Neill, 775 S.W.2d 56, 58 (Tex.App.-Houston [1st Dist.] 1989, orig. proceeding). Therefore, in cases where punitive or exemplary damages may be awarded, parties may discover and offer evidence of a defendant’s net worth. Lunsford, 746 S.W.2d at 473. Generally, in cases concerning the production of financial records, the burden rests upon the party seeking to prevent production. In re Brewer Leasing, Inc., 255 S.W.3d 708, 712 (Tex.App.-Houston [1st Dist.] 2008, orig. proceeding [mand. denied] ); In re Patel, 218 S.W.3d 911, 916 (Tex.App.-Corpus Christi 2007, orig. proceeding).

The relators argue the McCoys are not entitled to discovery on net worth until they have established a prima facie case of gross negligence. However, the Texas Supreme Court has expressly rejected this contention. See Lunsford, 746 S.W.2d at 473 (rejecting requirement of prima facie showing because “[o]ur rules of civil procedure and evidence do not require similar practices before net worth may be discovered”).2 Therefore, under Texas law, a party seeking discovery of net-worth *41information need not satisfy any evidentia-ry prerequisite, such as making a prima facie showing of entitlement to punitive damages, before discovery of net worth is permitted. In re House of Yahweh, 266 S.W.3d 668, 673 (Tex.App.-Eastland 2008, orig. proceeding); In re Garth, 214 S.W.3d 190, 192 (Tex.App.-Beaumont 2007, orig. proceeding [mand. dism’d]); In re W. Star Trucks US, Inc., 112 S.W.3d 756, 763 (Tex.App.-Eastland 2003, orig. proceeding); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 131 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding).

The relators acknowledge the Texas Supreme Court’s express holding in Luns-ford, but argue that we should follow other jurisdictions that require a plaintiff to demonstrate a factual basis for punitive damages before being allowed to do net-worth discovery.3 Even though Lunsford is over twenty years old, the Texas Supreme Court has not revisited this issue.4 As an intermediate court of appeals, we are bound by the supreme court’s ruling in Lunsford and, therefore, we decline the relators’ invitation. See Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex.2008), cert. denied, — U.S. —, 129 S.Ct. 2767, 174 L.Ed.2d 284 (2009) (“It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts.”); *42Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (“It is not the function of a court of appeals to abrogate or modify established precedent.... That function lies solely with this Court.”). In accordance with Lunsford, the McCoys are not required to make a prima facie case, or any other evidentiary showing, of entitlement to punitive damages before seeking discovery of the relators’ net-worth information.

B

The relators also argue evidence of their net worth is not relevant because the McCoys have not alleged sufficient facts to support their claim of gross negligence under section 41.001(11) of the Texas Civil Practices and Remedies Code. Section 41.001(11) defines “gross negligence”:

(11) “Gross negligence” means an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Id.

The McCoys allege Dr. Jacobs and Dr. Gunn knowingly failed to: (1) adequately and appropriately treat Shannon’s disseminated intravascular coagulo-pathy (“DIC”)5; (2) appreciate the severity of Shannon’s coagulopathy in light of abnormal lab values indicating that she was actively bleeding and suffering from DIC; (3) aggressively treat Shannon’s DIC with adequate blood products and blood-volume replacement; and (4) repeatedly order appropriate coagulation profiles and to serially re-check Shannon’s blood work or to monitor and evaluate her clotting factors6 to determine how well, or how poorly, she was responding to treatment.

The McCoys further allege Dr. Jacobs knowingly failed to: (1) verify that his orders for blood-volume replacement were being carried out and Shannon was being administered blood products as ordered; and (2) appropriately and aggressively manage Shannon’s DIC from the outset of her admission by ordering and administering additional units of fresh frozen plasma to increase Shannon’s blood volume and to correct her consumptive coagulopathy before the delivery of her baby.

The McCoys also allege Dr. Gunn knowingly failed to: (1) appreciate that Shannon’s DIC was depleting and consuming her clotting factors and that if these clotting factors were not replaced through aggressive blood-volume replacement and clotting-factor replacement, *43Shannon’s blood would not be able to coagulate effectively at the time she delivered her baby; (2) recognize and appreciate that Dr. Jacobs had undertreated Shannon; (3) recognize, appreciate, and appropriately respond to Shannon’s tachycardia on September 14, 2004, by more aggressively treating her DIC; (4) order Laisix (a diuretic medication that increases urine output) for Shannon, even though she knew that Shannon was suffering from DIC and actively bleeding, and did not need to be administered a diuretic medication; (5) recognize, appreciate, and properly respond to the fact that Shannon’s condition was deteriorating (as evidenced by her tachycardia (rapid heartbeat) and urine output), and that she was developing hypovolemic shock (shock caused by reduction in blood volume); and (6) recognize that she was not qualified to treat and manage Shannon’s DIC and to request the help of a more specialized physician to treat and manage Shannon’s DIC.

Finally, the McCoys allege the conduct of Dr. Jacobs and Dr. Gunn, when viewed objectively from their standpoint at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. The McCoys further allege Dr. Jacobs and Dr. Gunn had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to Shannon’s rights, safety, or welfare.

In response to the McCoys’ gross-negligence allegations, the relators argue that merely adding the word “knowingly” to existing allegations of negligence is not enough. Texas follows the “fair notice” standard for pleadings, which looks to whether the opposing party can ascertain from the pleadings the nature and basic issues of the controversy and the type of evidence that might be relevant to the controversy. Low v. Henry, 221 S.W.3d 609, 612 (Tex.2007); Horizon/CMS Healthcare Corp. of Am. v. Auld, 34 S.W.3d 887, 896 (Tex.2000). “ ‘A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.’ ” Horizon/CMS Healthcare, 34 S.W.3d at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)). Exemplary damages are special damages that must be supported by express allegations of willfulness, malice, or gross negligence that go beyond the allegations necessary to recover compensatory damages. Al Parker Buick Co., 788 S.W.2d at 130. Texas law requires a plaintiff seeking production of net worth information to “ ‘allege facts showing that relator is liable for punitive damages.’ ” Delgado v. Kitzman, 793 S.W.2d 332, 333 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (quoting Al Parker Buick Co., 788 S.W.2d at 131).

Under Texas’ basic pleading requirements, the McCoys’ live pleadings sufficiently allege specific facts supporting gross negligence and invoke the objective and subjective standards as set forth in section 41.001(H).7 See Tex. Civ. Prac. & Rem. Code Ann. Therefore, we conclude the McCoys have pleaded facts sufficient for purposes of showing they are entitled to discovery of net-worth information from *44the relators. See In re Garth, 214 S.W.3d at 192 (holding plaintiff’s pleadings were sufficient to notify defendants that she sought to hold them liable for punitive damages through conspiracy theory); In re W. Star Trucks US, Inc., 112 S.W.3d at 763-64 (holding allegations in petition that defendant had engaged in fraudulent and malicious conduct were sufficient to permit discovery of net worth); Delgado, 793 S.W.2d at 333 (holding plaintiffs pleading alleging defendant was “consciously indifferent” to safety of others was sufficient to entitle plaintiff to discovery of net worth information).8

C

The relators also contend the trial court’s order directing them to provide net-worth information for the past two years is overly broad and unduly burdensome because it goes beyond what is necessary to demonstrate their respective current net worths. Discovery is limited to matters relevant to the case. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex.1995) (orig. proceeding) (per curiam); see also Tex.R. Civ. P. 192 cmt. 1 (“While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute.”). A party’s requests must show a reasonable expectation of obtaining information that will aid in the resolution of the dispute. In re CSX Corp., 124 S.W.3d at 152. Therefore, discovery requests must be reasonably tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (orig. proceeding) (per curiam). The Texas Supreme Court has repeatedly admonished that discovery may not be used as a fishing expedition. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (orig. proceeding) (per curiam); Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (orig. proceeding) (per curiam); Texaco, Inc., 898 S.W.2d at 815.

The scope of discovery is a matter of trial-court discretion. In re CSX Corp., 124 S.W.3d at 152. However, a trial court abuses its discretion when it compels overly broad discovery. In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex.2006) (orig. proceeding) (per curiam); Dillard Dep’t Stores, Inc., 909 S.W.2d at 492. “A central question in determining overbreadth is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary information.” In re CSX Corp., 124 S.W.3d at 153. Overbroad requests encompass time periods or activities beyond those at issue in the case — in other words, matters of questionable relevance. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n. 1 (Tex.1999) (orig. proceeding).

The McCoys sought five years’ worth of financial information from the relators. The trial court narrowed the scope of discovery to two years’ worth. But we do not believe the trial court sufficiently narrowed the scope of production because only the relators’ current9 net *45worth is relevant. See In re House of Yahweh, 266 S.W.3d at 673 (holding trial court erred in failing to limit discovery to relators’ current balance sheets because earlier balance sheets would not be relevant to relators’ current net worth).10 Therefore, we conclude the trial court abused its discretion by ordering the rela-tors to produce net-worth information beyond the relators’ current net worth. See In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 669 (Tex.2007) (orig. proceeding) (per curiam) (holding trial court’s order was abuse of discretion because it did not limit discovery requests which were overbroad as to time and scope). Moreover, the relators do not have an adequate remedy by appeal from the production of their net worth from previous years. See In re Weekley Homes, L.P., 295 S.W.3d 309, 322-23 (Tex.2009) (orig. proceeding) (“Intrusive discovery measures ... require at a minimum, that the benefits of the discovery measure outweigh the burden imposed upon the discovered party.”); In re CSX Corp., 124 S.W.3d at 153 (holding relator lacked adequate remedy by appeal where discovery order compelled production of “patently irrelevant” documents); Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex.1996) (orig. proceeding) (op. on reh’g) (“ ‘[w]here ... discovery order imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party,’ ” mandamus relief may be justified) (quoting Walker, 827 S.W.2d at 843).

D

The relators also complain about the trial court’s order requiring Dr. Jacobs and Dr. Gunn to answer questions about their net worth at their depositions. Allowing such inquiries without any limitations as to time or subject matter, the relators argue, is overly broad and burdensome. See In re Alford Chevrolet-Geo, 997 S.W.2d at 180 n. 1 (explaining over-broad requests encompass time periods or activities beyond those at issue in case, i.e., matters of questionable relevance). Further, the relators contend that answering deposition questions about information they already have provided in written discovery responses would be unnecessarily cumulative. We address this issue by observing that we are concerned not only with determining the appropriate scope of discovery of the relators’ net worth under Lunsford, but also with employing the most efficient and least intrusive methods by which to permit the McCoys to discover that information. See Tex.R. Civ. P. 192 cmt. 1 (explaining scope of discovery is confined by subject matter of case and reasonable expectations of obtaining information that will aid resolution of dispute); *46In re Weeldey Homes, L.P., 295 S.W.3d at 321 (“[T]rial courts should be mindful of protecting sensitive information and utilize the least intrusive means necessary to facilitate discovery.”).

Allowing litigants to delve without limitation into personal finances not only raises serious privacy concerns, but also provides an opportunity for “needless abuse and harassment.” Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 331-32 (Tex.1993) (Gonzalez, J., concurring). In light of these concerns, we believe it is appropriate to limit the scope of oral-deposition inquiry into net worth. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex.1990) (orig. proceeding) (explaining scope of discovery is limited by legitimate interests of a party to avoid overly broad requests, harassment, or disclosure of privileged information). Accordingly, with respect to net-worth discovery during the oral depositions of Dr. Jacobs and Dr. Gunn, the McCoys are limited to asking each physician to state (1) his or her current net worth, i.e., the amount of current total assets less current total liabilities determined in accordance with generally accepted accounting principles (“GAAP”),11 and (2) the facts and methods used to calculate what each physician alleges is his or her current net worth. Any questioning beyond these two narrow inquiries shall be allowed only upon leave of the trial court after a showing that the McCoys have reason to believe that the information provided was incomplete or inaccurate. See In re Prudential, 148 S.W.3d at 136 (explaining mandamus is appropriate in exceptional cases “to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments”). And to the extent more specific limitations are appropriate, such as on the amount of on-the-record deposition time that may be devoted to questioning about net worth, we leave that to the sound discretion of the trial court.

E

Finally, the relators assert the trial court abused its discretion by ordering them to create and produce affidavits in a format of what would have been provided to a lender as to their respective net worth. The trial court ordered the rela-tors to produce “the actual financial statements they have provided to a lender within the past two-years.” Alternatively, the trial court directed the relators, if they had not submitted any such financial statements to a lender within the preceding two years, to produce (1) an affidavit swearing that no such financial statement has been submitted, and (2) an affidavit in the form of what would have been provided to a lender as to net worth. It is well-settled that a party cannot be forced to create documents that do not exist for the sole *47purpose of complying with a request for production.12 Therefore, the relators are not required to create affidavits in a format of what would have been provided to a lender to comply with the McCoys’ request for production.13 Instead, the relators are required to produce in response to the McCoys’ requests for production only documents that already exist. In keeping with our above-holding, any such information is limited to the relators’ respective current net worth, as well as whatever other limitations the trial court has set forth or may yet impose.

Ill

We deny the relators’ petition with regard to their assertions that the McCoys are precluded from seeking discovery of information of any net worth because Texas law requires a claimant first to make a prima facie showing of entitlement to punitive damages and the McCoys have not pleaded sufficient allegations of conduct entitling them to punitive damages.

We conditionally grant the relators’ petition with regard to the trial court’s order of January 23, 2009, requiring the relators to produce net-worth information for the past two years. The relators are required to produce only current net-worth information. Further, the relators are not required to create affidavits in a format of what would have been provided to a lender, but are required only to produce documents in response to the McCoys’ request for production that already exist. The trial court is directed to modify that portion of its order accordingly.

We further conditionally grant the rela-tors’ petition with regard to the trial court’s order of January 30, 2009, permitting the questioning of Dr. Jacobs and Dr. Gunn about their respective current net worth. Specifically, the McCoys are limited to asking each physician to (1) state his or her current net worth, i.e., the amount of current total assets less current total liabilities, and (2) the facts and methods used to calculate what each physician alleges is his or her current net worth. Moreover, any questioning beyond these two narrow inquiries shall be allowed only upon leave of the trial court after a showing that the McCoys have reason to believe that the information provided was incomplete or inaccurate. The trial court is directed to modify that portion of its order accordingly, and is free to otherwise impose whatever other limitations it determines, in its discretion, to be appropriate.

We lift our stays issued on February 4, 2009, and March 6, 2009. The writ will issue only if the trial court fails to act in accordance with this opinion.

SULLIVAN, J., concurring.