Appellate Court Rejects ‘Fishing Expedition’ Discovery Request to Home Depot

A Texas appellate court threw out a trial court order that approved a plaintiff’s overly broad discovery request in an employee’s personal injury lawsuit against Home Depot.

A panel of the 9th Court of Appeals in Beaumont vacated a judge’s discovery order as requested by Home Depot, whose lawyers called Brandon Giard’s discovery request “a textbook fishing expedition.”

“Even though we recognize that parties have some latitude in fashioning proper discovery requests, the trial court’s order compels Home Depot to produce over a hundred items Home Depot used during Giard’s training that might possibly be said to relate to ‘safety’ in a general sense, but given the documents’ titles, we cannot see how subjects ranging from defibrillators to workplace violence are relevant to the facts of consequence in this dispute,” the opinion, released Thursday, says.

Giard alleges he severely injured his back while pushing a Cub Cadet Zero-Turn lawn mower up onto a customer’s trailer at the retailers store in The Woodlands, Texas. The 570-lb. riding mower rolled backward onto Giard when customers let go of it, the suit says. He says he had to undergo back surgery for his injury.

Home Depot does not subscribe to Texas’ workers’ compensation system, which is voluntary for employers. Work injury claims are often settled through personal injury suits.

Giard’s attorneys sent Home Depot a request to make a corporate representative available to answer a wide range of questions, including how many zero-turn lawnmowers it sold at The Woodlands store, all safety training offered to employees what kind of equipment could feasibly be used to assist employees in loading riding mowers onto customers’ vehicles.

Home Depot objected to specific requests that went beyond the dispute at hand, but did not seek a protective order before making a store manager available for questioning during a deposition. Defense attorneys objected when the plaintiff’s attorney asked questions about irrelevant subjects and instructed store manager Zulema Portillo not to answer them. She complied.

Giard’s team responded by filing a motion to compel testimony on the requested topics. Judge Kristin Bays, with the 284th District Court in Montgomery County, ruled that by failing to request a protective order, Home Depot had waived its right to object to the discovery requests.

Home Depot appealed. It argued that nothing in the Texas Rules of Civil Procedure require it to file a request for a protective order before objecting to a discovery request as overly broad.

The appellate panel agreed. The opinion says Rule 199.5 specifically allows defense attorneys to object when attorneys during a deposition ask questions that go beyond the scope of permissible discovery. The appellate panel said it also agreed with Home Depot that Giard’s discovery request went “well outside the proper bounds of discovery.”

The appellate panel remanded the case back to Judge Bays saying it is “confident” that she will vacate her order granting Giard’s motion to compel discovery. The panel said it will grant Home Depot’s requested writ of mandamus only if she does not.