OPINION
IRVINE, Judge.
¶ 1 Ryan Jacobsen seeks relief from the trial court's order limiting his invocation of his rights against self-incrimination in a polygraph examination and determining that his rights are protected by Arizona Revised Statutes ("A.R.S.") section 13-4066. We reiterate our supreme court's previous holding that a waiver of the privilege against self-incrimination may not be made a condition of probation. We also hold that A.R.S. § 13-4066 does not adequately protect a probationer's rights against self-incrimination.
¶ 2 Jacobsen was indicted on several counts of Luring a Minor for Sexual Exploitation. He eventually pled guilty in a plea agreement that included sex offender conditions. Two of those terms are relevant here:
6. Actively participate in sex offender treatment and remain in such treatment at the direction of the probation officer.
7. Submit to any program of psychological or physiological assessment at the direction of the probation officer, including but not limited to Abel/penile plethysmograph testing and/or the polygraph, to assist in treatment, planning and case monitoring.
Pursuant to these provisions, Jacobsen's probation officer directed him to enroll in a sex offender treatment program that included periodic polygraph examinations.
¶ 3 Jacobsen was asked to complete several forms before undergoing a polygraph examination. One was a consent to participate which included a waiver of confidentiality that noted his probation officer would be fully informed of his issues and progress. It also noted: "I understand that distressed polygraphs cannot and will not be used in court or for probation revocation or treatment termination." Jacobsen asked his counselor what the consequence would be if he exercised his right against self-incrimination and refused to answer questions in the polygraph and was told that a refusal to answer any question for any reason would constitute a failure of the polygraph.
¶ 4 Jacobsen was also asked to complete a fifteen page questionnaire before taking the polygraph. The questions covered a wide range of topics. Some related to the offenses to which he had pled guilty, but others addressed other potentially illegal activities such as sex acts with or abuse of minors, use of prostitutes, stealing property, and secretly photographing others. Other questions addressed legal, non-deviant sex acts.
¶ 5 Eventually, Jacobsen filed a Motion to Preclude Polygraph Examination and PrePolygraph Questionnaire, arguing that requiring him to answer all the questions violated his rights under the Fifth Amendment to the United States Constitution. The trial court initially responded by issuing an order "granting Defendant immunity according to A.R.S. § 13-4066." Jacobsen filed an additional pleading questioning the court's authority to give him immunity and arguing that the protections of A.R.S. § 13-4066 were not broad enough to protect his Fifth Amendment rights. After further argument, the trial court ruled that A.R.S. § 13-4066 provides a probationer with adequate Fifth Amendment protection as to information or statements elicited during sex offender treatment. Specifically, the court stated:
The Court finds that the Defendant has not consented, absent the Order of the Court, to answer the questions as a matter of fact in this case, except the statement or evidence may be used pursuant to Rule 404 B and C. In connection with questions that may be asked in the course of probation services, plethysmograph, or polygraph, the Court believes that the Defendant has a right to invoke Fifth Amendment privilege if to answer the question would possibly incriminate him with regard to statements that are made pertaining to activities that have or may have occurred subsequent to being placed on probation and undergoing the treatment that was prescribed by the Plea Agreement and the Court's probation terms mandated by that agreement. The Court believes that a person, without violating terms of the Plea Agreement or the probation terms, can invoke the Fifth Amendment rights with regard to those areas that are not protected, which would be the areas covered by A.R.S. § 13-4066(B). The Court believes that A.R.S. § 13-4066(B) provides protection commensurate with the Defendant's Fifth Amendment rights and that he is required to answer those questions so that treatment can occur and rehabilitation services can be provided and directed at the kind of issues
that may have occurred in a particular person's history. The Court believes that the Defendant is protected in terms of the subsequent use of the information pertaining to this case or preceding cases, by the protections provided by A.R.S. § 13-4066. The Court believes that the Defendant may, without violating the conditions of his probation, invoke the Fifth Amendment with regard to questions that concern what may have occurred after the point in time where he started undergoing treatment and after the time when he was put on probation.
The trial court granted a stay of the polygraph while Jacobsen sought relief from this court.
¶ 6 The interplay between the right against self-incrimination and the requirement that a probationer undergo a polygraph examination is not an issue of first impression. In State v. Eccles, which also involved a probationer required to take a polygraph, our supreme court stated that "the state cannot make waiver of the privilege against self-incrimination a condition of probation." 179 Ariz. 226, 227, 877 P.2cl 799, 800 (1994) (citing Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). The court explained:
The state may not force defendant to choose between incriminating himself and losing his probationary status by remaining silent. The fact that defendant has not yet been presented with the dilemma of either incriminating himself or jeopardizing his probation does not affect our decision. The Supreme Court has held that "the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment."
The condition of probation that requires defendant to waive his Fifth Amendment rights is unconstitutional and must be removed from the terms of his probation. The condition thus sanitized would read: as a "critical part of the Sexual Offender Treatment Program," defendant must agree to "answer [] truthfully, any questions [asked by] the probation officer, counselors, polygraph examiners, or any other agent of the Probation Department's treatment programs." Like the condition at issue in
Murphy, this sanitized condition would merely proscribe false statements and require defendant to respond to questions that could not incriminate him in future criminal proceedings; it would not prohibit him from validly asserting the privilege against self-incrimination and would not penalize him for so doing.
The state correctly concedes that defendant's probation cannot be revoked for a
valid assertion of the privilege against selfincrimination. We emphasize the word valid. Defendant must truthfully answer all questions that could not incriminate him in future criminal proceedings. To the extent he has lost the privilege on offenses for which he has been convicted, he must answer, even if his answers may be evidence of probation violations and result in revocation. Furthermore, we do not hold that defendant may not incriminate himself; to avoid doing so, he must assert the privilege at the appropriate time. Without the impermissible condition of probation, defendant is free to claim the privilege and must do so if he desires not to incriminate himself.
We recognize that by asserting the privilege, defendant may be refusing to disclose conduct which constitutes both a probation violation and a new criminal offense. The Supreme Court addressed this concern in a footnote in
Murphy and stated that "a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination."
Murphy, 465 U.S. at 436 n. 7, b
104 S.Ct. at 1147 n. 7. Thus, the state may compel answers to incriminating questions only if it offers the probationer use immunity.
See id. at 439,
104 S.Ct. at 1148 ("We have not been advised of any case in which Minnesota has attempted to revoke probation merely because a probationer refused to make nonimmunized disclosures ").
Ecdes, 179 Ariz, at 228-29, 877 P.2d at 801-02 (internal citation and footnote omitted). We conclude that this analysis applies here. The State cannot require Jacobsen to waive his Fifth Amendment rights as a condition of probation and cannot require him to answer questions that could incriminate him in future proceedings. Nor must Jacobsen wait to have his probation revoked before he can seek relief from the trial court's order compelling him to take the exam.
¶ 7 The State argues that Ecdes is distinguishable because in that case the written plea agreement did not specifically provide for a waiver of the right against self-incrimination. In Ecdes, the trial judge orally told the defendant he must waive his rights. Here the specific term in the Plea Agreement required polygraph examinations, so, the State argues, Jacobsen gave up his rights against self-incrimination. We disagree.
¶ 8 Nothing in Ecdes makes its ruling hinge on the oral nature of the probation term. Nor, as the supreme court explained, does agreeing to take polygraph examinations automatically waive the privilege against self-incrimination. The polygraph examination may explore a defendant's background and actions that are not incriminatory, or a defendant may choose not to exercise his full rights. In either case, the polygraph may still be given. Ecdes clearly holds that a waiver of the right against self-incrimination may not be required as a condition of probation, except for the crime at issue in the plea agreement. 179 Ariz, at 229, 877 P.2d at 802 ("We cannot harmonize a constitutional rule forbidding a requirement that a probationer waive his privilege against self-incrimination with a holding that a probationer nevertheless waives the illegality by not expressly rejecting the forbidden condition and opting for additional imprisonment"). This holding applies here and Jacobsen may assert his right against self-incrimination as detailed by the supreme court in Ecdes.
¶ 9 The State also argues that this case is different from Ecdes because A.R.S. § 13-4066 (2010) adequately protects Jacobsen's rights. That statute was not enacted until after Ecdes was decided, so it was not at issue in that case. The statute provides:
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
A. Any statement that is made by a person who undergoes sex offender treatment that is ordered by the court or that is provided by the state department of corrections or the department of juvenile corrections to a person who is convicted of an offense listed in chapter 14 or 35.1 of this title and any evidence that results from that treatment is not admissible against the person in any criminal or juvenile delinquency proceeding unless the person consents, except that the statement or evidence may be used pursuant to rule 404(b) and (c), Arizona rules of evidence.
B. This section does not apply if there is a reasonable belief that the person has committed a new violation of chapter 14 or 35.1 of this title during the course of the person's treatment. A treatment provider who complies with this subsection does not violate any privilege established by law.
A.R.S. § 13-4066. Jacobsen responds that this statute is not adequate to protect his rights against self-incrimination because it does not provide adequate immunity and, in any event, it allows incriminatory statements to be used against him. We agree.
¶ 10 We need not determine the exact scope of the protections provided by A.R.S. § 13-4066. For purposes of this decision, it is sufficient to hold that it is not broad enough to provide the immunity that is required to force a defendant invoking his rights against self-incrimination to speak. As noted in Ecdes, a probationer can only be compelled to answer incriminating questions if the probationer is offered use immunity. Ecdes, 179 Ariz, at 229, 877 P.2d at 802.
¶ 11 The State has declined to offer Jacobsen immunity under the general immunity statute, A.R.S. § 13-4064 (2010). That statute provides that "any information directly or indirectly derived from such testimony or evidence, shall not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order." Arizona Revised Statutes § 13-4066 is plainly not as broad. As Jacobsen notes, to be effective, "a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination." Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 54, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Section 13-4064 appears to lay out a procedure for the prosecution to offer court-approved immunity that will satisfy the requirements of the Fifth Amendment. Section 13-4066 does not. It only applies to the statements made by the person, not information indirectly derived from those statements. Nor does it include sufficient detail as to the limits, if any, on the prosecution's use of statements. Consequently, A.R.S. § 13-4066 does not provide immunity coextensive with the privilege against self-incrimination.
Jacobsen also argues the statute does not adequately protect against prosecution for out-of-state offenses. Because we conclude that A.R.S. § 13-4066 does not prevent the assertion of the right against self-incrimination even for in-state offenses, we need not address that question. Whether a grant of use immunity in Arizona protects against out-of-state or federal use of evidence obtained by the grant of immunity is not at issue in this case.
¶ 12 Section 13-4066 also specifically allows a probationer's statements to be used pursuant to Rule 404(b) and (c) of the Arizona Rules of Evidence. With regard to 404(c), such evidence may be admitted "if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Rule 404(c); See also State v. Aguilar, 209 Ariz. 40, 97 P.3d 865 (2004). Thus, if compelled to answer questions about prior sexual acts, a defendant is being compelled to provide evidence that may be used against him. Indeed, it is simple to envision a situation in which the polygraph answers provide prosecutors with indirect information of new offenses that are not covered by A.R.S. § 13-4066, those crimes are charged, and then the defendant's actual statements are used as Rule 404(c) evidence to show a propensity to commit the charged offense. We do not believe the Fifth Amendment allows such compulsion.
¶ 13 We conclude that the trial court erred in ruling that A.R.S. § 13-4066 adequately protected Jacobsen's rights against self-incrimination. Jacobsen may assert the privilege against self-incrimination as to polygraph questions that may incriminate him. The trial court should apply the guidelines set out by the supreme court in Eccles in determining which questions are properly objectionable. Therefore, we accept jurisdiction of the petition for special action and grant relief.
CONCURRING: DIANE M. JOHNSEN, Presiding Judge, and PHILIP HALL, Judge.
rights of the relator; when discovery imposes a burden that is disproportionate to any benefit received by the requesting party; and when the trial court's discovery order compromises the relator's ability to present a viable claim or defense.
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex. 2008). Accordingly, mandamus relief is proper when a trial court signs an order compelling discovery that is outside the proper bounds of discovery.
In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) ("An order compelling discovery that is well outside the proper bounds is reviewable by mandamus.");
see In re Kuntz, V2A S.W.3d 179, 184 (Tex. 2003) (mandamus appropriate to correct trial court order compelling person to produce documents not in his "possession, custody, or control");
Coates v. Whittington, 758 S.W.2d 749, 750 (Tex. 1988) (mandamus relief appropriate to set aside order for psychological examination). Mandamus relief also is appropriate when a trial court orders discovery procedures unrecognized within Texas.
See In re Does 1-10, 242 S.W.3d 805, 819 (Tex.App.-Texarkana 2007, orig. proceeding) (mandamus appropriate when trial court disregarded Texas procedure for discovery and employed irrelevant federal statute).
Order Compelling Discovery
In his first issue, Stern contends that the trial court abused its discretion by ordering him to deliver his computer hard drive, located outside the state of Texas, to a forensic examiner located in the forum state while his special appearance was pending. He argues that the discovery ordered exceeds the scope of discovery relevant to establish the trial court's personal jurisdiction over him. In his second issue, Stern contends that the trial court abused its discretion by ordering production of his hard drive when there was no predicate showing that he had defaulted in his obligation to respond to discovery or had responded in bad faith. We consider these issues together.
A. Jurisdictional Discovery Pending Ruling on Special Appearance
Texas Rule of Civil Procedure 120a governs special appearances. Subsection (1) of the rule provides that a special appearance may be made "for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such person or property is not amenable to process issued by the courts of this State." TEX.R. CTV. P. 120a(1). The Rule also states in subsection (1) that "[t]he issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of [a] special appearance." Id.; see also Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 307 (Tex. 2004) (stating, "[A] trial court's resolution of discovery matters related to the special appearance does not amount to a general appearance by the party contesting personal jurisdiction."). Subsection (2) of Rule 120a requires that "[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heards' and that "[n]o determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof." TEX.R. CIV. P. 120a(2).
Rule 120a(3) governs jurisdictional discovery. The rule provides, "The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony." TEX.R. CIV. P. 120a(3). It further provides that if it appears from the affidavits of a party opposing the special appearance "that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Id. The grant or denial of a continuance of a special appearance hearing to obtain discovery authorized by Rule 120a will not be disturbed absent a showing of a clear abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Barron v. Vanier, 190 S.W.3d 841, 847 (Tex.App.-Fort Worth 2006, no pet.).
In Dawson-Austin v. Austin, the Texas Supreme Court indicated, without deciding, that discovery sought during the pendency of a special appearance but not directed to the discovery of jurisdictional facts may not be properly had before the special appearance is decided. See Dawson-Austin v. Austin, 968 S.W.2d 319, 321, 323 (Tex. 1998) (stating that party who had filed pro se instrument including special appearance, motion to quash service of citation, plea to jurisdiction of court, plea in abatement, and, subject to these, original answer, and who sought continuance to take necessary discovery on special appearance and on motion to quash was "entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash, provided she did not attempt to take that discovery before the special appearance was decided") (emphasis added).
However, prior to Dawson-Austin, a number of Texas appellate courts had held that "nothing in Rule 120a specifically limits discovery to matters relating to the special appearance," and a number of courts, including this Court, continued to so hold. Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex.App.-Houston [1st Dist] 2002, no pet.) (refusing to follow dicta in Dawson-Austin, 968 S.W.2d at 321, 323, interpreting Rule 120a as limiting discovery to facts relevant to special appearance); Case v. Grammar, 31 S.W.3d 304, 311 (Tex. App.-San Antonio 2000), abrogated by BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002); Minucci v. Sogevalor, S.A, 14 S.W.3d 790, 801 (Tex. App.-Houston [1st Dist.] 2000, no pet.). These cases, however, dealt with waiver of the special appearance by the taking of discovery pertaining to the merits of the case. See Silbaugh, 126 S.W.3d at 93; Case, 31 S.W.3d at 311; Minucci, 14 S.W.3d at 801.
In 2004, the Texas Supreme Court held that a trial court's resolution of discovery matters related to a special appearance does not amount to a general appearance that waives the special appearance by a party contesting personal jurisdiction and that a non-resident defendant's participation in the trial court's resolution of such discovery matters does not amount to a recognition that the action is properly pending or to a request for affirmative relief inconsistent with the jurisdictional challenge. Trejo, 142 S.W.3d at 307. But it also noted that the discovery in that case had concerned only the non-resident defendant's special appearance, and it pointedly expressed "no opinion on the effect of parties' participation in discovery that is unrelated to the special appearance before its resolution." Id. at 306 n. 24.
Subsequently, in a case in which a California corporation challenged personal jurisdiction, the Eastland Court of Appeals held that the trial court had abused its discretion by failing to hold a hearing on the corporation's special appearance before granting the plaintiffs motion to compel a deposition that was not limited to jurisdictional discovery and then sanctioning the corporation for failing to appear at the deposition when the plaintiff had not filed an affidavit stating she needed to depose the corporation's representative regarding jurisdiction to present facts essential to justify her opposition to the corporation's special appearance. IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 902-03 (Tex. App.-Eastland 2009, no pet.). The court pointed out that Rule 120a "specifically provides for the means to obtain a continuance of the special appearance so that a deposition may be conducted: affidavits of the party opposing the special appearance." Id. at 903. In IRN Realty, no affidavit had been filed stating that the plaintiff could not present facts essential to justify her opposition to the special appearance or that she needed to depose the defendant's corporate representative regarding jurisdiction. Id. Because the plaintiff did not comply with the provisions of Rule 120a, the court of appeals held that the trial court abused its discretion in abating the hearing on the special appearance, as well as in granting a motion to compel that was not limited to jurisdictional discovery and awarding sanctions against the non-resident defendant. Id.
In the opposite situation, in which jurisdictional discovery was denied, this Court held that the trial court clearly abused its discretion by denying jurisdictional discovery that was sought three times by the plaintiffs by motions supported by affidavits in accordance with the procedure set out in Rule 120a(3). Lamar v. Poncon, 305 S.W.3d 130, 139-40 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); see also Said v. Maria Investments, Inc., No. 01-08-00962-CV, 2010 WL 457463, at *3 (Tex. App.-Houston [1st Dist.] Feb. 11 2010, no pet.) (mem. op.) (observing that "Rule 120a(3) gives the trial court the discretion to continue a special appearance hearing and thereby extend the time in which evidence may be served, but this power applies only to a party opposing the special appearance who avers that he cannot adequately prepare for the special appearance hearing.").
We conclude that Rule 120a(3) by its plain language authorizes discovery by a party prior to a ruling on a special appearance only with respect to facts "essential to justify his opposition" to the special appearance. The trial court may permit a continuance so that the opposing party may obtain the necessary jurisdictional discovery. See TEX.R. CIV. P. 120a(3); Lamar, 305 S.W.3d at 139-40; IRN Realty, 300 S.W.3d at 903. However, Rule 120a(3) does not authorize postponement of a special appearance hearing to allow a party to obtain discovery prior to the court's ruling on the special appearance that is unnecessary or irrelevant to the establishment of jurisdictional facts.
We further conclude that those cases holding that "nothing in Rule 120a specifically limits discovery to matters relating to the special appearance" are limited to those situations in which the issue is whether a defendant waives a special appearance by participating in discovery and that they do not apply when the issue is, as here, whether a trial court abuses its discretion by ordering or failing to order discovery at the request of a party opposing a special appearance. Those cases are controlled by the plain language of Rule 120a(3) and by Dawson-Austin v. Austin and its progeny.
Here, over Stern's objections to the breadth of discovery sought, and despite Stern's agreement to limited discovery, Arthur filed a motion to compel discovery that far exceeded discovery of jurisdictional facts, including all emails on Stern's computer hard drive to or from 39 email addresses.
Although she appeared through her counsel at the December 11, 2008 hearing and argued that she needed the discovery sought in order to establish jurisdiction over Stern, Arthur provided no arguments or authorities that would support the contention that the discovery she sought was jurisdictional on any theory other than a broad-based conspiracy theory At the December 11, 2008 hearing, Arthur's counsel admitted that he had "lots of emails" showing Stern's indirect participation in the alleged conspiracy. He gave no cause to believe that "lots of emails" between Stern and Turner existed, nor did he base his pleading of jurisdictional facts on their existence. Stern's counsel stated on the record at the December 11 hearing that Stern had searched his computer and had turned over everything he had found related to the allegations pled; he offered to turn over to Arthur all email communications between Stern and all alleged participants in the conspiracy within the relevant time period up to the date on which this cause of action was filed; and he indicated that Yahoo! Business's records of emails within the agreed scope of discovery that were retained on its server could be obtained by subpoena.
There is no indication in the record that Arthur accepted Stern's representations or offer of cooperation at the December 2008 hearing or that any specific relevant and non-privileged jurisdictional discovery was withheld. All indications are that Arthur continued to assert that nothing less than the production of Stern's hard drive would satisfy her discovery demands. Indeed, at the hearing on March 20 at which Stern's special appearance was scheduled to be heard, Arthur, through her counsel, reiterated her opposition to the trial court's hearing the special appearance until she could obtain all of the discovery she had previously sought, as well as Stern's hard drive. Her counsel expressly reiterated Arthur's theory of jurisdiction, stated also at the December 11, 2008 hearing, as being "that Howard K. Stern acted conspiratorially with a Texas resident through his sister as an intermediary." Arthur's counsel admitted that Turner had produced her hard drive and that Arthur had explored it and obtained its contents, but he claimed that all of the additional discovery was necessary to establish jurisdiction over Stern on Arthur's conspiracy theory.
At the May 8, 2009 hearing on Arthur's motion to compel discovery from Stern, the same arguments were reiterated. The trial court granted the motion and entered the order that is the subject of this mandamus on May 11, 2009.
As Arthur's counsel stated in the opposition brief to Stern's special appearance and in open court during the hearings on Arthur's motion for continuance of Stern's special appearance and on her motion to compel, Arthur seeks to base the Texas courts' personal jurisdiction over Stern on his participation in a conspiracy to defame her, which Arthur alleges Stern conducted, in part, through indirect communications with Rose Turner in Texas made through his sister, Bonnie Stern. There is no indication in the mandamus record that Arthur has cause to believe that any significant number of emails from Stern to Turner in Texas existed or were necessary to establish jurisdiction.
Texas law holds, with respect to a conspiracy theory of personal jurisdiction, that the inquiry is restricted to whether the defendant " itself purposefully established minimum contacts such as would satisfy due process." See Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995); see also Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 10 (Tex.App.-San Antonio, 2004, pet. denied). Thus, Stern's emails to co-defendants Bonnie Stern, Larry Birkhead, or Art Harris — none of them Texas residents — are not relevant to the establishment of the Texas courts' jurisdiction over Stern and cannot be essential to justify Arthur's opposition to Stern's special appearance. See Gibson, 897 S.W.2d at 773 (emphasis added).
We conclude, on the basis of the plain language of Rule 120a, the mandamus record, and the foregoing authorities, that the trial court clearly abused its discretion by ordering the discovery from Stern sought by Arthur's motion to compel and supplemental motion without a showing that the discovery ordered was relevant to the jurisdictional facts pled and essential to justify Arthur's opposition to the special appearance. See TEX.R. CIV. P. 120a.
We sustain Stern's first and second issues.
B. Overbreadth and Appointment of Special Master and Forensic Examiner
In his third issue, Stern asserts that the trial court abused its discretion by authorizing a forensic examiner to determine the relevancy of the documents on Stern's hard drive. In his fourth issue, he asserts that the trial court abused its discretion by authorizing a forensic examiner to apply overbroad and irrelevant discovery requests to the determination of personal jurisdiction. In his fifth issue, Stern contends that there is no adequate remedy on appeal for the trial court's abuse of its discretion. Arthur responds that Stern defaulted in his obligation to respond to discovery and that Ball is not empowered to determine the relevancy of the documents on Stern's hard drive. We recast Stern's objections as (1) objections under the discovery rules to the scope of the discovery ordered to be made and (2) objections to the appointment of a special master and forensic examiner and to the trial court's order that Stern turn over his computer hard drive to the special master for inspection for discovery.
1. Scope of Discovery Under the Texas Discovery Rules
Discovery in this case is governed by Texas Rules of Civil Procedure 192.3, 192.4, 193, and 196.4. Rule 192.3 allows a party to "obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of 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." TEX.R. Civ. P. 192.3(a). The comments to Rule 192 state, "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." TEX.R. Civ. P. 192 cmt. 1; see also CSX, 124 S.W.3d at 152 ("Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute's resolution.").
Rule 192.4 imposes limitations on the scope of discovery. TEX.R. CIV. P. 192.4. It states:
The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Id. Determinations regarding the scope of discovery are largely within the trial court's discretion.
In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (citing
Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)).
Rule 193 "imposes a duty upon parties to make a complete response to written discovery based upon all information reasonably available, subject to objections and privileges." TEX.R. CIV. P. 193 cmt. 1. It permits a party to object to discovery as overbroad and to refuse to comply with it entirely. Id. cmt. 2 (citing Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989)). "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." CSX, 124 S.W.3d at 152. "[Discovery may not be used as a fishing expedition or to impose unreasonable discovery expenses on the opposing party." In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (holding that not only must discovery requests be reasonably tailored to include only matters relevant to case, but discovery requests may not be used as fishing expedition or to impose unreasonable discovery expenses on opposing party) (citing K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996)); see also In re Am. Optical Corp., 988 S.W.2d at 713.
The discovery rules "explicitly encourage trial courts to limit discovery when `the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.'" In re Alford Chevrolet-Geo, 997 S.W.2d at 181 (quoting TEX.R. CIV. P. 192.4(b)). "[A] discovery order that compels overly broad discovery `well outside the bounds of proper discovery' is an abuse of discretion for which mandamus is the proper remedy." Hall, 909 S.W.2d at 492 (quoting Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)).
Here, Arthur asserts that the requests for production are necessary for the determination of the trial court's personal jurisdiction over Stern because they may reveal his contacts with Turner, whose Texas residency is undisputed. Regards less of whether Stern's relationship with Turner could be determinative in assessing the question of personal jurisdiction, the trial court's May 11, 2009 order specifically requires Stern to produce all communications between himself and nearly forty individuals, only restricting the time period for these communications from September 20, 2006, to March 14, 2008, excluding only communications between Stern and his attorneys and communications "between Stern family members that are of a purely personal nature."
We conclude that requests for production one and three are not narrowly tailored to avoid inclusion of tenuous information irrelevant to the establishment of jurisdiction, and they are thus overbroad. See CSX, 124 S.W.3d at 152. Indeed, many of the documents Stern must produce will certainly be irrelevant to the determination of the trial court's jurisdiction over him. See Trejo, 142 S.W.3d at 307. Because of their overbreadth and likelihood of encompassing irrelevant communications, the trial court's order requiring essentially unrestricted production from Stern's hard drive in response to Arthur's requests one and three authorizes an impermissible "fishing expedition." See K Mart Corp., 937 S.W.2d at 431; Hall, 909 S.W.2d at 492; Texaco, Inc., 898 S.W.2d at 815. Accordingly, we hold that the trial court abused its discretion in ordering overly broad discovery in response to Arthur's requests for production one and three. See K Mart Corp., 937 S.W.2d at 431; Hall, 909 S.W.2d at 492; Texaco, Inc., 898 S.W.2d at 815.
2. Appointment of Special Master for Forensic Examination
Finally, the trial court's May 11, 2009 discovery order required Stern to turn over his computer, located in California, and any other "repositories of electronic communications" for forensic examination by a special master, Craig Ball, appointed by the trial court. Stern was ordered either to contact the special master within 10 days "to make arrangements for capture and examination of [his] electronic media" in Texas or to "pay for First Class or Business Class airfare and a good hotel . . . for Ball's travel to California" and to "pay in advance for Ball's time, portal-to-portal, 24-hours per day, at the rate of $250 per hour." The order permitted Stern to obtain a copy of his "electronic media" from Ball to present to his own forensic expert so that expert could view the contents first. After that, Ball was given "discretion to employ or to modify search terms" and to "capture all remaining electronic communications, including but not limited to emails to or from the persons, entities and email addresses listed in parts 1 and 3 of [Arthur's] Requests for Production." After Ball had retrieved all that information, Stern was permitted to produce a privilege log to Ball and Arthur "listing all documents submitted by Ball to Stern, which Stern has not produced to [Arthur] and the reasons for withholding the documents from production." Any claim of privilege would then be subject to challenge by Arthur.
Rule of Civil Procedure 196.4 governs requests for production of "data or information that exists in electronic or magnetic form." TEX.R. CIV. P. 196.4. It provides:
To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot — through reasonable efforts — retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable
expenses of any extraordinary steps required to retrieve and produce the information.
TEX.R. Civ. P. 196.4.
In In re Weekley Homes, the Texas Supreme Court held that Rule 196.4 requires a specific request "to ensure that requests for electronic information are clearly understood and disputes avoided." 295 S.W.3d 309, 314 (Tex. 2009). It set out the appropriate procedure for requesting electronic information under the rules: .
When a specific request for electronic information has been lodged, Rule 196.4 requires the responding party to either produce responsive electronic information that is "reasonably available to the responding party in its ordinary course of business," or object on grounds that the information cannot through reasonable efforts be retrieved or produced in the form requested. Once the responding party raises a Rule 196.4 objection, either party may request a hearing at which the responding party must present evidence to support the objection. TEX.R. CIV. P. 193.4(a). To determine whether requested information is reasonably available in the ordinary course of business, the trial court may order discovery, such as requiring the responding party to sample or inspect the sources potentially containing information identified as not reasonably available.
Id. at 315. If the responding party fails to meet its burden of production, the trial court may order production subject to the discovery limitations imposed by Texas Rule of Civil Procedure 192.4.
Id.
The supreme court recognized that "[providing access to information by ordering examination of a party's electronic storage device is particularly intrusive and should be generally discouraged, just as permitting open access to a party's file cabinets for general perusal would be." Id. at 317. It stated:
As a threshold matter, the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data. The requesting party should also show that the responding party's production "has been inadequate and that a search of the opponent's [electronic storage device] could recover deleted relevant materials." Courts have been reluctant to rely on mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties. Even if the requesting party makes this threshold showing, courts should not permit the requesting party itself to access the opponent's storage device; rather, only a qualified expert should be afforded such access, and only when there is some indication that retrieval of the data sought is feasible. Due to the broad array of electronic information storage methodologies, the requesting party must become knowledgeable about the characteristics of the storage devices sought to be searched in order to demonstrate the feasibility of electronic retrieval in a particular case. And consistent with standard prohibitions against "fishing expeditions," a court may not give the expert carte blanche authorization to sort through the responding party's electronic storage device. Instead, courts are advised to impose reasonable limits on production. Courts must also address privilege, privacy, and confidentiality concerns. Finally, federal courts have been more likely to order direct access to a responding party's electronic storage devices when there is some direct relationship between the electronic storage device and the claim itself.
Id. at 317-18 (internal citations omitted). The court further held that even "[i]f the
responding party meets its burden by demonstrating that retrieval and production of the requested information would be overly burdensome, the trial court may nevertheless order targeted production upon a showing by the requesting party that the benefits of ordering production outweigh the costs."
Id. at 315.
Here, as discussed above, Arthur contended at the December 2008 hearing on her motion to compel that Stern had defaulted in his obligation to produce responsive emails. However, while objecting to overbroad discovery, Stern's counsel stated on the record that he had agreed to produce nonprivileged emails between himself and his co-defendants concerning Arthur dating from October 12, 2006 through March 14, 2008 and that he would produce any additional nonprivileged emails going to the jurisdictional issue. No showing was made to the trial court that Stern's counsel's representations were false or made in bad faith. And, as stated above, despite Stern's objections to the scope of the discovery sought, no showing was made that the discovery sought was essential to justify her opposition to Stern's special appearance or was within the scope of discovery permitted by the Texas discovery rules.
Nor did Arthur move prior to the December hearing, or even at the hearing, to compel production of Stern's "electronic media." Rather, Arthur specifically requested production of Stern's electronic data and hard drive, as required by Texas Rule of Civil Procedure 196.4, only after the hearing on her motion to compel had been held. See TEX.R. CIV. P. 196.4. Stern's counsel, however, anticipating such a request at the hearing, stated on the record that Stern used a web-based internet service and that copies of his emails were not retained on his hard drive. He also indicated that the relevant emails could be subpoenaed from Yahoo! Business, where he stated that any that exist could be found. There is no indication in the record that Stern's counsel's representations were false or that Arthur accepted his offer. Nor did the trial court require Arthur to make any showing that Stern's emails were stored on the hard drive in his computer rather than on the internet, where Stern stated they were located through representations by his counsel at the December 11, 2008 hearing and personally averred by affidavit in response to Arthur's supplemental motion to compel production of his "electronic media."
There was thus no showing that a search of Stern's computer hard drive could recover deleted relevant materials that would have shown jurisdiction, i.e., there was no showing of a direct relationship between the ordered search of Stern's hard drive and the establishment of the trial court's jurisdiction over Stern. Cf. In re Weekley Homes, 295 S.W.3d at 317-18. Rather, the court relied on Arthur's counsel's "bare allegations that [Stern] ha[d] failed to comply with [his] discovery duties." Id. On this basis alone the court ordered Stern to turn his hard drive over to a special master, Craig Ball.
Moreover, the court appointed Ball as special master without following any of the procedures required by Texas Rule of Civil Procedure 171 before a special master may be appointed. See TEX.R. CIV. P. 171. We have previously held, in an opinion on another petition for mandamus arising out of the same underlying case, that the failure to follow the requirements of Rule 171 in appointing a special master is an abuse of discretion. See In re Harris, 315 S.W.3d 685, 703-06 (Tex.App.-Houston [1st Dist] 2010, orig. proceeding). These requirements were not followed in this they were not in In re Harris. See id.
The court also gave the special master and forensic examiner "carte blanche authorization to sort through [Stern's] electronic storage device," directly contrary to the directive of In re Weekley Homes. See 295 S.W.3d at 318. Ball was instructed to image the hard drive for relevant documents, then to provide a list of these documents to Stern from which to construct a privilege log. This general procedure has been adopted by Texas courts. See In re Honza, 242 S.W.3d-578, 582 (Tex.App.-Waco 2008, orig. proceeding). However, Ball was given not only unrestricted access to all documents on Stern's hard drive but "discretion to employ or modify search terms." Because the order does not supply search terms, Ball was given virtually free reign to plumb Stern's hard drive. Cf. In re Honza, 242 S.W.3d at 583 (search explicitly limited to two documents). Granting a special master carte blanche authorization to sort through Stern's computer hard drive clearly violated the longstanding prohibition against impermissible "fishing expeditions." See TEX.R. CIV. P. 192.4; In re Weekley Homes, 295 S.W.3d at 317-18; Sanderson, 937 S.W.2d at 431.
Finally, a hard drive should not be produced unless the party seeking production shows that data retrieval from the hard drive is feasible. See In re Weekley Homes, 295 S.W.3d at 320 ("The missing step is a demonstration that the particularities of Weekley's electronic information storage methodology will allow retrieval of emails that have been deleted or overwritten, and what that retrieval will entail."). The trial court did not require of Arthur any showing that retrieval of the data sought was feasible, as required by In re Weekley Homes to justify appointment of a forensic examiner accessing an electronic storage device. See In re Weekley Homes, 295 S.W.3d at 317-18. Indeed, Stern offered an affidavit stating that retrieval of emails from his hard drive was not feasible because he uses Yahoo! Business for all email, which is a web-based interface that stores the emails of its users on Yahool's servers rather than on the user's hard drive. Id. Arthur did not provide contrary evidence challenging Stern's assertion that web-mail based applications, such as Yahoo! Business, do not save emails to a user's personal hard drive. Accordingly, Arthur failed to show that retrieval of emails from Stern's hard drive was feasible and the trial court clearly erred in ordering production of the hard drive. Id.
We conclude that the trial court clearly abused its discretion in appointing Craig Ball as special master and forensic examiner with power to search Stern's computer hard drive for documents and in ordering Stern to turn his hard drive over to him.
We sustain Stern's third, fourth, and fifth issues.
Conclusion
We conditionally grant the petition for writ of mandamus and direct the trial court to vacate its discovery order against Stern issued on May 11, 2009. All pending motions are denied as moot.