in Re UPS Ground Freight, Inc.

Supreme Court of Texas
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No. 20-0827
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In re UPS Ground Freight, Inc.,
Relator

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On Petition for Writ of Mandamus
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PER CURIAM

Justice Lehrmann and Justice Busby did not participate in the
decision.

In this wrongful-death suit, the trial court ordered UPS Ground
Freight, Inc. to produce the results of all alcohol and drug tests
conducted on all current and former drivers at its Irving, Texas facility
for stated time periods preceding a fatal multi-vehicle accident. We
conditionally grant mandamus relief because the discovery requests are
overbroad in seeking irrelevant information about uninvolved UPS
drivers, and UPS has no adequate remedy by appeal.
On September 21, 2017, a UPS driver operating out of the Irving
facility was involved in a multi-vehicle collision that resulted in the
death of Nathan Dean Clark. Post-accident drug testing for UPS’s
employee came back positive for THC, but UPS disputes whether any
impairment was a causative factor in the accident.
Clark’s mother, Jacintha Nicole McElduff, sued the driver, Phillip
Villarreal, for negligence and gross negligence and UPS for (1) negligent
retention and training of Villarreal; (2) negligent entrustment of a
vehicle to Villarreal; and (3) gross negligence. McElduff alleges that
Villarreal knowingly drove UPS trucks while under the influence of
drugs; UPS knowingly failed to properly drug test Villareal and
knowingly allowed him to drive while under the influence of drugs; and
UPS knowingly failed to comply with its own policies and federal law,
including the failure to properly drug test.
In discovery, UPS produced information about its federally
mandated alcohol-and-drug testing program, which is administered by
a third-party vendor for a nationwide pool of UPS drivers. UPS also
made corporate representatives available for examination about the
company’s testing process and procedures and produced all of
Villarreal’s alcohol-and-drug test records, including random drug tests
and post-accident testing from the day of the accident. In deposition
testimony, Villareal, a 25-year employee, admitted that he had been
using marijuana for two to five years before the fatal collision. During
that time period, he had been randomly drug tested only one time.
Villareal also testified that he had provided marijuana to other drivers
in the workplace and identified by name one such driver, who similarly
admitted to using marijuana.
To establish a pattern and practice of failing to adequately drug
test at the Irving facility over a period of years, McElduff served
discovery requests seeking (1) the names, addresses, and telephone
numbers of “all Commercial Vehicle drivers who drove Commercial

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Vehicles” for UPS who were “dispatched out of the [UPS] facility in
Irving, Texas” during the 11-year period preceding the accident and
(2) “all documentation of all alcohol, drug, and/or controlled-substance
tests” for each of those drivers—including pre-employment, random,
reasonable-suspicion, periodic, and post-accident testing—without any
time restriction. In compelling production, the trial court overruled
UPS’s objections, which included that the requests were overbroad,
sought irrelevant information, sought information protected from
disclosure under federal law, and violated constitutional and
common-law privacy rights of uninvolved, nonparty drivers.
The court of appeals twice conditionally granted mandamus
relief—once in whole and once in part. In the first original proceeding,
the court held that the discovery requests were “not appropriately
limited in time” and, therefore, overbroad. No. 12-19-00412-CV, 2020
WL 975357, at *4 (Tex. App.—Tyler Feb. 28, 2020, orig. proceeding).
The court suggested that current federal-law mandates were
“instructive on the question of what constitutes an appropriate time
period for discovery” and required employers like UPS “to retain positive
drug test results for five years, records related to the controlled
substances collection process for two years, and negative drug test
results for only one year.” Id. at *3. Ruling only on overbreadth, the
court expressly declined to address UPS’s other objections to production.
Id. at *3 n.1.
Back before the trial court, UPS reasserted its objections, but once
again, the court compelled production of the same information. This
time, however, the court limited the scope of discovery to (1) five years

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before the accident for names, addresses, and telephone numbers of
drivers at the Irving facility; (2) five years for positive alcohol-and-drug
test results from those drivers; (3) two years for records pertaining to
controlled-substance collection processes; and (4) one year for all
negative alcohol-and-drug test results for Irving facility drivers.
In the second mandamus proceeding, UPS challenged the revised
discovery order, and the court of appeals conditionally granted
mandamus relief in part. The court ruled adversely to UPS on its
preemption, relevance, and overbreadth objections but found some merit
to its privacy objections, holding that the trial court abused its discretion
by compelling production of unredacted records of drug-and-alcohol test
results and collection processes. 629 S.W.3d 441, 446-51 (Tex. App.—
Tyler 2020). The court concluded that “McElduff has not shown any
legitimate right to the identities of the non-party drivers whose test
results are to be provided” and required the trial court to protect the
identities of the drivers involved by modifying its order to permit
production of test results and test-collection processes only with
identifying information redacted. Id. at 451-52.
The trial court complied with the appellate court’s directive and,
just as it had before, ordered production of information pertaining to
hundreds of current and former UPS drivers subject only to the
appellate court’s time-period and redaction mandates. On the trial
court’s rendition of a compliant discovery order, the court of appeals
dismissed UPS’s mandamus petition as moot. ___ S.W.3d ___, 2020 WL
5949240, at *1 (Tex. App.—Tyler Oct. 7, 2020).

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In this original proceeding, we agree with UPS that the discovery
requested and compelled by the trial court was insufficiently narrowed
and remains overly broad in scope. Accordingly, we do not reach UPS’s
remaining objections to production.
Although the scope of discovery is generally within the trial
court’s discretion, “an order that compels overly broad discovery is an
abuse of discretion for which mandamus is the proper remedy.” In re
Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009). An overbroad discovery
request is, in essence, one that seeks irrelevant information. In re K&L
Auto Crushers, LLC, 627 S.W.3d 239, 251 (Tex. 2021); see In re Alford
Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (“[O]verbroad
requests [include those] encompassing time periods, products, or
activities beyond those at issue in the case—in other words, matters of
questionable relevancy to the case at hand.”). Evidence is relevant if it
tends to make a consequential fact “more or less probable than it would
be without the evidence.” TEX. R. EVID. 401.
What is “relevant to the subject matter” is broadly construed, but
there are limits. In re Nat’l Lloyds Ins., 507 S.W.3d 219, 223 (Tex. 2016).
As this Court “has repeatedly emphasized,” “discovery may not be used
as a fishing expedition.” In re Am. Optical Corp., 988 S.W.2d 711, 713
(Tex. 1998). Accordingly, “[a] central consideration in determining
overbreadth is whether the request could have been more narrowly
tailored to avoid including tenuous information and still obtain the
necessary, pertinent information.” In re CSX Corp., 124 S.W.3d 149, 153
(Tex. 2003); see Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.

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1995) (explaining that discovery requests should be “reasonably tailored
to include only matters relevant to the case”).
The information McElduff seeks is tantamount to a fishing
expedition. This lawsuit arises from a motor-vehicle accident involving
a single UPS driver. Confidential drug-test results for UPS drivers who
were neither involved nor implicated in causing the accident that
claimed Clark’s life are irrelevant, as they do not make any fact
consequential to McElduff’s claims more or less probable than it would
be without the results. TEX. R. EVID. 401. Whether any other UPS
driver tested positive or negative for drugs or alcohol on unrelated
occasions does not make it more or less probable that Villareal was
negligent on the occasion in question. The test results that actually bear
on the defendants’ alleged culpability—Villarreal’s test results—have
already been produced. Drug use, or not, of any other driver is not
probative of allegations that UPS negligently trained, retained, and
entrusted a vehicle to Villarreal or was grossly negligent in these
regards.
McElduff nonetheless argues that drug-test records for
nonculpable nonparties are relevant to her broader claims that UPS was
negligent or grossly negligent in generally “failing to properly train,
supervise, monitor, and evaluate its commercial motor vehicle drivers”
and in “failing to comply with federal regulations concerning its drivers.”
More particularly, she asserts that discovery of test results for hundreds
of current and former UPS drivers at the Irving facility is relevant to
UPS’s compliance with federal regulations governing mandatory drug
testing of commercial vehicle drivers. The record does not bear out this

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contention. Even if the compelled discovery had some tenuous
relevance—and it does not—the results of drug tests conducted only in
the Irving facility represent merely a small piece of the company’s
national testing program and thus reveal nothing about whether that
program complies with federal regulations. McElduff may be entitled to
discovery about UPS’s testing program—and at least some of that
information has already been produced or made available—but the
record does not substantiate that test results from individual drivers at
a single UPS facility have any bearing on the national testing program’s
compliance with federal mandates.
We thus hold that, even as narrowed by the amended discovery
order, the trial court erred in compelling disclosure of confidential
drug-test records of nonparty UPS employees who have no alleged
involvement in the accident that caused Clark’s death. Accordingly,
without hearing oral argument, see TEX. R. APP. P. 52.8(c), we
conditionally grant UPS’s petition for writ of mandamus and direct the
trial court to vacate the portion of the September 30, 2020 discovery
order compelling production of information and records pertaining to
drug-and-alcohol test results for current and former UPS drivers who
are not parties to the litigation and who were not involved in the
September 2017 accident. The writ will issue only if the trial court does
not comply.

OPINION DELIVERED: June 17, 2022

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