holding, in original mandamus proceeding, that trial court’s erroneous sanctions order—prohibiting relator from offering evidence, questioning witnesses, or arguing to jury about reasonableness of real party in interest’s medical expenses—precluded relator “from engaging in meaningful adversarial adjudication of [real party in interest’s] claim for payment of medical expenses, vitiating or severely compromising [relator’s] defense” and thus entitling relator to mandamus relief
How later courts described this case
- holding, in original mandamus proceeding, that trial court’s erroneous sanctions order—prohibiting relator from offering evidence, questioning witnesses, or arguing to jury about reasonableness of real party in interest’s medical expenses—precluded relator “from engaging in meaningful adversarial adjudication of [real party in interest’s] claim for payment of medical expenses, vitiating or severely compromising [relator’s] defense” and thus entitling relator to mandamus relief
- holding that, to show remedy by appeal is inadequate, relator must show that its ability to present viable claim or defense at trial is vitiated or severely compromised by erroneous discovery order by “the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources.”
- stating that with respect to resolution of factual issues, the reviewing court may not substitute its judgment for that of the trial court, and that the relator must establish that the trial court could reasonably have reached only one decision
- holding that without the statement of facts from the evidentiary hearing on the movant=s motion to compel production, the reviewing court could not determine on what basis the trial judge and the special master reached their conclusions
Written by the judges who cited it.
The opinion
GONZALEZ, Justice,
concurring.
I agree with the court’s disposition of this cause but disagree with the court’s opinion regarding the “Obstetrics Faculty Records.” Specifically, I disagree with the court’s attempt to distinguish Russell v. Young, 452 S.W.2d 434 (Tex.1970). Nevertheless, I concur in the result.
Russell holds that wholesale discovery of the private records of a non-party witness is not permitted if the sole purpose for discovery is to impeach the credibility of the non-party. 1 452 S.W.2d at 435 . The policy considerations of Russell still apply today. By disapproving of Russell as “a mechanical approach to discovery rulings,” at 839, the court forces trial courts to get further involved in discovery matters. This increases the backlog, delay, and cost of litigation by creating the need for more hearings.
In the instant case, the plaintiffs sought to discover documents from the University of Texas Health Science Center to confirm the existence of a written policy restricting faculty members from testifying for plaintiffs in medical malpractice cases. This policy was sought for use in impeaching defendant’s expert witness, Dr. Gilstrap. In refusing discovery, the trial court con- *845 eluded that the relevance of this material was limited to impeachment. As such, the requested documents fell squarely within the prohibition of Russell .
Despite the court’s mischaracterization of Russell , the issues and type of evidence sought here and in Russell are identical. Just as in Russell , the records sought in the instant case did not relate directly to the subject matter of the suit. The only difference between the present case and Russell is the identity of the party seeking the information. In Russell , a defendant sought evidence to impeach the plaintiffs’ expert; here, the plaintiff sought evidence to impeach a defendant’s expert. Surely, we cannot have a rule that changes in application depending on whether the relator is a plaintiff or a defendant in the trial court.
In my opinion, the court strains to distinguish Russell . The court suggests that the trial judge made a mistake in her ruling by failing to read Russell in conjunction with the rules of civil procedure and evidence. However, when we adopted the new Texas Rules of Civil Evidence, there was no discussion whatsoever that, by their adoption, we intended to reject the settled rule that information sought solely for impeachment of a non-party is not discoverable. Russell, 452 S.W.2d at 435 ; see also W.W. Rodgers & Sons Produce Co. v. Johnson, 673 S.W.2d 291, 294-95 (Tex.App.—Dallas 1984, orig. proceeding). Furthermore, the scope of discovery has not changed in the twenty years since Russell has been on the books. When Russell was decided, the scope of discovery was codified in Texas Rule of Civil Procedure 186a. It provided in pertinent part that:
[pjarties may obtain discovery regarding any matter which is relevant to the subject matter in 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.
This same text is now codified in Rule 166b(2)(a). Clearly, impeachment evidence regarding collateral matters would not relate to the subject matter of the pending action.
Implicitly, the court concludes that the credibility of a non-party witness alone is a relevant avenue of inquiry and, thus, is a matter properly open to discovery under some new, broader definition of relevancy.
While I agree that the definition of relevance in Rule 401 of the Texas Rules of Civil Evidence includes matters bearing on credibility, this alone does not explain or distinguish Russell . A witness’ credibility has always been a relevant matter. As the United States Supreme Court has said: “[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v. Abel, 469 U.S. 45, 52 , 105 S.Ct. 465, 469 , 83 L.Ed.2d 450 (1984). Yet in Russell , we said that a trial court lacked “authority” to order discovery from a non-party solely for purposes of impeachment. 452 S.W.2d at 435 . We chose to withdraw all discretion in this particular area of discovery. Russell concedes that impeachment evidence may be relevant and admissible at trial, but holds that it cannot be discovered from a non-party for its own sake prior to trial. 452 S.W.2d at 436 .
The fact that a matter may have some relevance yet not be subject to discovery is hardly a novel concept. The basic premise of the rules of discovery is to weigh the legitimate needs of litigation against the other rights and values that would be irreparably harmed by unfettered discovery. Russell strikes the proper balance by protecting non-party witnesses from indiscriminate invasions into their private lives where the information sought would not appreciably shed light on the issues of the case.
Furthermore, the decision in Russell was not grounded on whether the credibility of the witness had been placed in doubt. Instead, the court highlighted the fact that *846 the witness had not offered testimony at trial nor was his deposition introduced into evidence at trial. The court said:
Relator has not yet taken the witness stand nor has his deposition been introduced into evidence because there has not yet been a trial; relator’s records cannot possibly have impeachment value because there is nothing yet to impeach and there may never be anything to impeach, depending upon the contents of the testimony, if any, which is introduced during the trial of the lawsuit.
Russell, 452 S.W.2d at 437 . Thus, it is evident that the court has today reinterpreted Russell with little or nothing to gain in a way that further obscures the proper scope of discovery.
I am concerned that as a result of today’s ruling, some non-parties will be subjected to harassment and intrusion into their private lives, and that trial courts will be inundated with hearings on collateral issues far afield from the merits of the cause of action or defense. The court has attempted to fix something that was not broken. This reinterpretation of Russell will further tax our overburdened judicial system without appreciably benefiting the litigants or the system.
Finally, for the reasons expressed in Joachim v. Chambers, 815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, J., dissenting), I agree with the clarification of the standards for the issuance of mandamus.
. If the records have relevance apart from their potential for impeachment, however, Russell does not bar discovery. See Ex Parte Shepperd, 513 S.W.2d 813, 816 (Tex.1974).