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Petition for Writ of Mandamus Denied, = and Majority=20 and Concurring Opinions filed October 9, 2008.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-08-00204 = -CV

____________

 

IN RE MEMORIAL = HERMANN=20 HEALTHCARE SYSTEM

and MEMORIAL HERMANN HOSPITAL SYSTEM,=20 Relators

 

 

 

ORIGINAL=20 PROCEEDING

WRIT OF=20 MANDAMUS

 

 

M A J O R=20 I T Y   O P I N I O N

Relators Memorial = Hermann=20 Healthcare System and Memorial Hermann Hospital System = (collectively,=20 AMemorial = Hermann@) received a civil=20 investigative demand (ACID@) from the Texas = attorney=20 general following the demise of a rival hospital that was owned = and=20 operated by real party in interest Stealth, L.P.  Suing = Memorial=20 Hermann under the Texas antitrust statute, Stealth has requested = that=20 Memorial Hermann produce copies of all materials previously = disclosed to=20 the attorney general in response to the CID.  Memorial = Hermann=20 contends that those materials are privileged from discovery in = private=20 antitrust litigation and that Stealth=3Ds requests were = overly=20 broad.  Because the respondent[1] = ordered=20 production, Memorial Hermann asks that we issue a writ of mandamus = to=20 vacate the trial court=3Ds discovery = order.  We=20 hold that any privilege created by section 15.10(i) of the Texas = Free=20 Enterprise and Antitrust Act does not extend to CID materials held = by the=20 defendant in private antitrust litigation.  We further hold = that the=20 requests are not facially overbroad.  Therefore, we deny the = petition=20 for writ of mandamus.

BACKGROUND

Memorial Hermann is a = non-profit corporation that owns and operates a chain of hospitals = in and=20 around the Houston area.  In 2006, Memorial Hermann was sued = by=20 Stealth, L.P., for alleged antitrust violations under the Texas = Free=20 Enterprise and Antitrust Act (the AAct@).  Stealth had = been=20 formed in 2002 by a collection of physicians who sought to open = and=20 operate a for-profit hospital near one of Memorial = Hermann=3Ds facilities.  = Stealth=20 opened Town & Country Hospital in November 2005, but the = hospital=20 floundered immediately and was closed only a few months = later.  In=20 the underlying antitrust suit, Stealth has blamed Memorial Hermann = for the=20 failure of Town & Country Hospital.  Specifically, = Stealth has=20 accused Memorial Hermann of violating the Act by arranging a = Ahorizontal = boycott@ that precluded = health=20 insurance companies from contracting with the fledgling = hospital. =20

The Act, which = provides for=20 public and private lawsuits[2] = for=20 alleged antitrust action, also empowers the Texas attorney general = to=20 investigate possible antitrust violations through the issuance of = a=20 CID.  See Tex. Bus. & Comm. Code Ann. ' 15.10(b) (Vernon = 2002). =20 After Stealth filed suit, the attorney general opened an antitrust = investigation and issued a CID to Memorial Hermann.  Memorial = Hermann=20 produced roughly 87,000 pages of responsive documents to the = attorney=20 general.

In its private = action, Stealth=20 propounded requests for production to Memorial Hermann, seeking = copies of=20 the CID documents that Memorial Hermann had disclosed to the = attorney=20 general.  Memorial Hermann produced 54,000 pages of CID = materials to=20 Stealth but resisted further production under the claim that the = remaining=20 33,000 pages are privileged from disclosure under section 15.10(i) = of the=20 Act.  Memorial Hermann also objected that Stealth=3Ds requests were = overly broad,=20 but it produced no evidence in support of its objection.  The = trial=20 court ordered Memorial Hermann to fully respond to the requests = for=20 production.  This mandamus action followed.

Memorial Hermann = advances two=20 arguments in this proceeding.  First, it contends that the = Act=20 contains a Ablanket = privilege@ under which a = defendant may=20 decline to turn over CID materials unless its opponent can = demonstrate=20 Agood = cause@ for such = production. =20 Second, Memorial Hermann argues that the trial court abused its = discretion=20 in overruling its objection that the requests were overly=20 broad.

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;      =20 STANDARD OF REVIEW

To obtain mandamus = relief,=20 relators must demonstrate that the trial court clearly abused its=20 discretion and that they have no adequate remedy by appeal.  = In re=20 Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig.=20 proceeding).  A trial court abuses its discretion if it = reaches a=20 decision that is arbitrary, unreasonable, or without basis or = reference to=20 guiding principles of law.  Walker v. Packer, 827 = S.W.2d 833,=20 839 (Tex. 1992) (orig. proceeding); Johnson v. Fourth Court of=20 Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. = proceeding).  A=20 trial court has no discretion in determining what the law is or in = applying the law to the facts; therefore, a clear failure by the = trial=20 court to analyze or apply the law correctly constitutes an abuse = of=20 discretion.  Walker, 827 S.W.2d at = 840.

A party has no = adequate remedy=20 by appeal where a trial court erroneously orders the disclosure of = privileged information.  In re Perry, 60 S.W.3d 857, = 862 (Tex.=20 2001) (orig. proceeding).  Likewise, there may be no adequate = remedy=20 by appeal from a trial court=3Ds order compelling = production=20 in response to an overly-broad discovery request.  In re = CSX=20 Corp., 124 S.W.3d 149, 153 (Tex. 2003) (orig. = proceeding). =20

           &= nbsp;           &n= bsp;           &nb= sp;     =20 APPLICABILITY OF CID PRIVILEGE

The statute in = question=20 provides as follows:

Except as provided in this section or = ordered by a=20 court for good cause shown, no documentary material, answers to=20 interrogatories, or transcripts of oral testimony, or copies or = contents=20 thereof, shall be available for examination or used by any person = without=20 the consent of the person who produced the material, answers, or = testimony=20 and, in the case of any product of discovery, of the person from = whom the=20 discovery was obtained.

Tex. Bus. & Comm. = Code Ann.=20 ' 15.10(i)(1).  = Memorial=20 Hermann asks that we interpret this section as privileging all CID = materials, no matter who possesses them.  In contrast, = Stealth=20 contends that this section creates a privilege that inures to the = benefit=20 of the attorney general only and may not be claimed by the person = who=20 produced CID materials to the attorney general.

A.       =20 Plain Statutory Language

In interpreting this = statute,=20 we begin with the plain meaning, which we derive from the entire = act and=20 not from isolated portions.  See Mid-Century Ins. Co. of = Tex. v.=20 Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).  We read the = statute as=20 a whole, interpreting it to give effect to every part.  = See=20 id.; City of Houston v. Fletcher, 63 S.W.3d 920, 922 = (Tex.=20 App.CHouston [14th Dist.] = 2002, no=20 pet.).  Accordingly, we consider the role of this statute in = the=20 broader statutory scheme.  See 20801, Inc. v. Parker, = 249=20 S.W.3d 392, 396 (Tex. 2008).  Because words in a vacuum mean = nothing,=20 we must read section (i)(1) in the context of the remainder of the = statute.  See Bridgestone/Firestone, Inc. v. = Glyn-Jones, 878=20 S.W.2d 132, 133 (Tex. 1994); Tex. Dep=3Dt of Mental Health = & Mental=20 Retardation,=20 58 S.W.3d 278, 282 (Tex. App.CFort Worth 2001, pet. = dism=3Dd by = agr.).

Section 15.10 governs = the=20 attorney general=3Ds use of a CID to = probe=20 possible antitrust violations.  See generally Tex. = Bus. &=20 Comm. Code Ann. ' 15.10(b).  Read = as a=20 whole, section 15.10(i) contemplates the manner in which the = attorney=20 general, as opposed to a private litigant, may use and disclose = CID=20 materials:

$         =20 AThe attorney general may make available for inspection or = prepare=20 copies of [CID materials] ... in the course of any investigation = or a=20 judicial proceeding in which the state is a party.@  Id. ' 15.10(i)(2) (emphasis = added).

$         =20 AThe attorney general may make available for inspection or = prepare=20 copies of [CID materials] ... for official use by any officer of = the State=20 of Texas or of the United States charged with the enforcement of = the laws=20 of the State of Texas or the United States[.]@ Id. ' 15.10(i)(3) (emphasis = added).

$         =20 AUpon request, the attorney = general shall=20 make available [CID materials] for inspection by the person who = produced=20 such material or information[.]@ Id. ' 15.10(i)(4) (emphasis = added).

$         =20 A[T]he attorney general = shall notify=20 the person who produced the material of the attorney = general=3Ds intent to make such = disclosure.@  Id. ' 15.10(i)(5) (emphasis = added).

$         =20 AUpon written request, the attorney = general=20 shall return documentary material produced under this section in=20 connection with an antitrust investigation to the person who = produced=20 it[.]@  Id. ' 15.10(i)(6) (emphasis = added).

Read in context, = section (i)(1)=20 precludes the attorney generalCbut nobody = elseCfrom disclosing CID = materials=20 unless either (1) the producing person consents, or (2) the person = seeking=20 to examine the materials obtains a court order permitting = access. =20 See id. ' 15.10(i)(1).  = Section=20 15.10 does not discuss or reference private antitrust lawsuits = but,=20 rather, concerns the attorney general=3Ds use of a CID prior = to the=20 institution of a public antitrust suit.  See, e.g., = id.=20 ' 15.10(b).  = Therefore, the=20 plain statutory language does not confer a privilege upon the = producing=20 person (here, Memorial Hermann) in a subsequent=20 lawsuit.

B.       =20 Legislative Purpose

Because section = 15.10(i) is=20 clear and unambiguous, we need not resort to rules of = construction. =20 In re Canales, 52 S.W.3d 698, 702 (Tex. 2001) (orig.=20 proceeding).  We may still consider, among other things, the=20 statute=3Ds objectives and the=20 consequences of a particular construction.  Id.  = We=20 conclude that Memorial Hermann=3Ds suggested = interpretation=20 would not further the legislative objectives of section = 15.10.

We need look no = further than=20 the statute itself to ascertain its statutory objectives: = AThe purpose of this = Act is to=20 maintain and promote economic competition in trade and commerce = occurring=20 wholly or partly within the State of Texas and to provide the = benefits of=20 that competition to consumers in the state.@  Tex. Bus. = & Comm.=20 Code Ann. ' 15.04 (Vernon = 2002). =20 Consistent with this purpose, the Act empowers the attorney = general to=20 prosecute a public lawsuit against persons who are thought to have = violated certain of the Act=3Ds provisions.  = See=20 id. ' 15.20(a).  The = Act also=20 creates a private cause of action in favor of any person whose = business or=20 property was injured because of an antitrust violation.  = See=20 id. ' = 15.21(a)(1).

The Act specifically = includes=20 several express procedural safeguards for CID recipients.  = For=20 example, production is limited to those materials that would be=20 discoverable under the Texas Rules of Civil Procedure.  = See=20 id. ' 15.10(d)(1).  A = recipient=20 may petition the district court for an order modifying or setting = aside=20 the CID.  See id. ' 15.10(f).  A = witness who=20 is asked to give testimony may be accompanied, represented, and = advised by=20 counsel.  See id. ' = 15.10(g)(5)(C).  A=20 testifying witness may object to any question or assert a = privilege. =20 See id. ' = 15.10(g)(5)(E).  Finally,=20 the attorney general is prohibited from disclosing materials = gathered=20 pursuant to a CID, except in certain circumstances.  See = id.=20 '=20 15.10(i).

Memorial Hermann = contends that=20 the Legislature intended to create a statutory privilege in=20 businesses=3D favor to encourage = candid=20 cooperation with a CID.  However, because such cooperation is = required by law, no additional incentive is needed.  See = id.=20 ' 15.10(g)(1).  = Further,=20 the Act imposes criminal penalties on any person who deliberately = evades=20 or withholds information from a CID.  See id. = ' 15.10(h)(2). =20 Accordingly, we are not persuaded by this argument.[3]  Had=20 the Legislature intended to prohibit all dissemination of = CID=20 materials, even those held by a private antitrust defendant, it = could have=20 expressly crafted such a privilege.  It did not.

            = Moreover, the consequences of Memorial Hermann=3Ds proposed = construction are=20 undesirable and obviously contrary to legislative intent.  = See=20 Bridgestone/Firestone, Inc., 878 S.W.2d at 134.  Memorial = Hermann=20 admits that the attorney general=3Ds antitrust = investigation=20 captured 87,000 pages of responsive materials.  If we were to = hold=20 that section 15.10(i)(1) creates a Ablanket = privilege,@ every document = produced to the=20 attorney general would not be available to a plaintiff who seeks = to=20 promote economic competition by enforcing the Act through a = private=20 antitrust suit.  See id. ' 15.04.  The = Legislature=20 could not have intended to hamstring private plaintiffs by = requiring them=20 to demonstrate Agood = cause@ why they should be = permitted=20 to conduct discovery in support of their antitrust = contentions. =20 Therefore, we cannot accept Memorial Hermann=3Ds interpretation of = section=20 15.10(i)(1).

C.       =20 Harmony with Federal Judicial Interpretations

The Act instructs = courts to=20 construe its provisions Ain harmony with = federal=20 judicial interpretations of comparable federal antitrust=20 statutes@ to the extent = consistent with=20 the Act=3Ds purpose.  = See=20 id.  The comparable federal antitrust statute provides as = follows:

Except as otherwise provided in this = section,=20 while in the possession of the custodian, no documentary material, = answers=20 to interrogatories, or transcripts of oral testimony, or copies = thereof,=20 so produced shall be available for examination, without the = consent of the=20 person who produced such material, answers, or transcripts, and, = in the=20 case of any product of discovery produced pursuant to an express = demand=20 for such material, of the person from whom the discovery was = obtained, by=20 any individual other than a duly authorized official, employee, or = agent=20 of the Department of Justice.  Nothing in this section is = intended to=20 prevent disclosure to either body of the Congress or to any = authorized=20 committee or subcommittee thereof.

15 U.S.C.A. = ' 1313(c)(3) = (1998).  As=20 Memorial Hermann notes, section 15.10 is not identical to the = federal=20 version.  See State v. Lowry, 802 S.W.2d 669, 672 = (Tex.=20 1991).  Section 15.10 omits the verbiage Awhile in the = possession of the=20 custodian,@ and includes the = Agood = cause@ standard commonly = found in=20 Texas statutes.  See id.  However, these = differences are=20 not material to our privilege inquiry.  Rather, the = differences=20 between the state and federal statutes reflect a state legislative = intent=20 to depart from one federal standard B the federal = distinction=20 between pre-suit and post-suit disclosure.  See = id.  That=20 is, federal courts have drawn a distinction between the United = States=20 attorney general=3Ds pre-suit and = post-suit=20 disclosure of CID materials to an antitrust defendant.  = See=20 id.  Until suit is filed, all materials gathered under = the=20 federal CID remain confidential.  See, e.g., Massachusetts = v.=20 First Nat=3Dl Supermarkets,=20 Inc., 116=20 F.R.D. 357, 362 (D. Mass. 1987).  After suit is filed, = however, the=20 antitrust defendant may obtain all CID materials relevant to its=20 defense.  See id.; Lowry, 802 S.W.2d at = 672.  The=20 Texas Legislature sought to eliminate this distinction:

Not found in the federal statute is the=20 Agood cause@ predicate to disclosure of CID = materials which=20 was added to the state statute.  Rather than adopting the = distinction=20 between presuit and postsuit that was engrafted upon its federal=20 counterpart to determine what CID materials must be made = available, the=20 Texas CID statute hinges the issue of disclosure [by the attorney = general]=20 on the existence of good cause.

Lowry, 802 S.W.2d at = 672. =20 Removal of this federal distinction does not extend the attorney=20 general=3Ds privilege to the = producing=20 party.

We are reminded that = section=20 15.04 exhorts us to construe the Act in harmony with federal = judicial=20 interpretations of comparable B not necessarily=20 identical B federal antitrust=20 statutes.  See Tex. Bus. & Comm. Code Ann. = ' 15.04.  The = Fifth Court=20 of Appeals has previously noted that section 15.10 of the Act is=20 Avery = similar@ to the federal = version. =20 See Att=3Dy Gen. of Tex. v. = Allstate Ins.=20 Co., = 687=20 S.W.2d 803, 806B07 (Tex. = App.CDallas 1985, writ=20 ref=3Dd n.r.e.). We agree;=20 accordingly, we will construe section 15.10 in harmony with = federal=20 judicial interpretations of title 15, section 1313(c)(3) of the = United=20 States Code.

Those federal = judicial=20 interpretations consistently hold that the federal antitrust = statute does=20 not establish a privilege for CID materials held by = defendants. =20 See NASDAQ, 929 F. Supp. at 725 (AIndeed, the few cases = that have=20 addressed this question have come down squarely in favor of = compelling the=20 production of CID materials in the hands of = Defendants.@); see also In re = Air=20 Passenger Computer Reservations Sys. Antitrust Litig., 116 = F.R.D. 390,=20 393 (C.D. Cal. 1986) (ANeither the statutory = language=20 nor the legislative history supports defendants=3D view that CID = deposition=20 transcripts are not discoverable when held by defendants in civil=20 actions.@); In re Domestic = Air=20 Transp. Antitrust Litig., 142 F.R.D. 354, 356 (N.D. Ga. 1992)=20 (AThe statute provides = no=20 protection against release [of CID materials] by any other party = who has=20 possession of the document.@).[4]

Accordingly, we = overrule=20 relators=3D first issue.  = Because of=20 our resolution of this issue, we need not address Memorial=20 Hermann=3Ds contention that = Stealth=20 failed to show Agood = cause@ for the disclosure = of the CID=20 materials.

 

 

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ; =20 OVERBREADTH

In their second = issue, Memorial=20 Hermann contends that because Stealth=3Ds requests for = production=20 numbers 40 and 70 are overly broad, the trial court abused its = discretion=20 in compelling production.  Stealth responds that Memorial = Hermann was=20 required to produce evidence to support its discovery = objection. =20 See Tex. R. Civ. P. 193.4(a).  Evidence is not = necessary to=20 support an objection if the discovery requests themselves = demonstrate=20 overbreadth as a matter of law.  In re Union Pac. Res. = Co., 22=20 S.W.3d 338, 341 (Tex. 1999) (orig. proceeding).  Because = Memorial=20 Hermann produced no evidence to support its resistence to = discovery, we=20 are limited to the wording of the requests in determining=20 overbreadth.  See Tjernagel v. Roberts, 928 S.W.2d = 297, 301=20 (Tex. App.CAmarillo 1996, orig.=20 proceeding).

The Requests in = question are as=20 follows:

Request for Production = 40.  Documents reflecting any = oversight of=20 MHHS=3Ds charitable mission by the Attorney = General of=20 the State of Texas, including documents submitted to the Attorney = General,=20 documents received from the Attorney General, and documents = reflecting=20 communications with the Attorney General on this topic.

Request for Production = 70.  To the extent not already = requested and/or=20 produced in this litigation, all documents and all answers to=20 interrogatories produced or provided by MHHS to the Attorney = General of=20 Texas or its attorneys in connection with the Civil Investigative = Demand=20 issued to you or MHHS in 2006 (or thereafter) by the Antitrust and = Civil=20 Medicaid Fraud Division.

Notwithstanding the = different=20 subjects covered by these requests, Memorial Hermann asserts that = the only=20 remaining documents responsive to request 40 consist of the CID = materials=20 also sought by request 70.  Consequently, our resolution of = request=20 40 is dependent upon our ruling with respect to request 70.[5]

While the scope of = discovery is=20 Aquite = broad,@ it remains confined = by the=20 subject matter of the case and the reasonable expectations of = gathering=20 information that will aid in the resolution of the dispute. =20 See Tex. R. Civ. P. 192 cmt. 1.  Therefore, discovery = requests=20 must be reasonably tailored to include only matters relevant to = the=20 case.  CSX, 124 S.W.3d at 152.  A specific = discovery=20 request that is reasonably tailored to include only relevant = matters is=20 not overbroad merely because it may call for some information of = doubtful=20 relevance.  See Texaco, Inc. v. Sanderson, 898 S.W.2d = 813, 815=20 (Tex. 1995) (orig. proceeding).  A central consideration in=20 determining overbreadth is whether the discovery request could = have been=20 more narrowly tailored to avoid inclusion of tenuous information, = while=20 still capturing the necessary pertinent information.  = CSX, 124=20 S.W.3d at 153; In re Sears, Roebuck & Co., 123 S.W.3d = 573, 579=20 (Tex. App.CHouston [14th Dist.] = 2003,=20 orig. proceeding).  For example, requiring production from an = unreasonably long time period or from distant and unrelated = locales may be=20 facially overbroad.  See In re Am. Optical Corp., 988 = S.W.2d=20 711, 713 (Tex. 1998) (orig. proceeding).

Memorial Hermann = contends that,=20 because the attorney general is authorized to conduct a = Afishing = expedition@ through a civil = investigative=20 demand, any discovery request that echoes a CID therefore must be = patently=20 overbroad.  We disagree with this sweeping statement.  = The=20 attorney general=3Ds authority to issue = a CID=20 derives from the right to institute a public antitrust action and = conduct=20 a civil Aantitrust=20 investigation.@  See = Tex. Bus.=20 & Comm. Code Ann. '' 15.10(b), = 15.20.  An=20 Aantitrust=20 investigation@ is Aany inquiry conducted = by the=20 attorney general for the purpose of ascertaining whether any = person is or=20 has been engaged in or is actively preparing to engage in = activities which=20 may constitute an antitrust violation.@  See id. = ' 15.10(a)(1).  A = demand=20 may require the production of documents Aonly if the material = or=20 information sought would be discoverable under the Texas Rules of = Civil=20 Procedure or other state law relating to discovery.@  Id. = ' 15.10(d)(1).  = The=20 attorney general may then file a public lawsuitCusing the information = gathered=20 through a CIDCagainst any person = whom the=20 attorney general believes has violated subsections (a), (b), or = (c) or=20 Section 15.05.  See id. ' 15.20(a).  = Likewise, any=20 person may also bring a private suit for the same alleged = statutory=20 violations.  See id. ' 15.21(a)(1).  = Given the=20 similarities between public and private antitrust suits, and in = light of=20 section 15.10(d)(1), we are not convinced that the scope of the = attorney=20 general=3Ds investigative power = automatically exceeds the scope of permissible discovery = allowed to=20 a private party by the Rules.  See id.  = ' = 15.10(d)(1).

In support of its = contention=20 that Stealth=3Ds requests are = facially=20 overbroad, Memorial Hermann directs us to In re Graco=20 Children=3Ds Products,=20 Inc., 210=20 S.W.3d 598 (Tex. 2006) (orig. proceeding).  In that case the=20 plaintiff sued Graco, alleging that defects in a baby car = seat=3Ds five-point harness = caused the=20 death of her son.  See id. at 600.  Shortly = before the=20 trial setting, Graco paid a substantial civil penalty to the = Consumer=20 Products Safety for failing to report defects in more than a dozen = products, including high chairs, swings, strollers, toddler beds, = and=20 infant carriers.  See id.  None of the listed = defects=20 involved five-point harnesses.  See id.  The = plaintiff=20 nonetheless sought production of twenty categories of documents=20 Aincluding anything = that=20 mentioned or referred to@ any of the defects = or=20 products.  See id.  Graco objected that the civil = penalty=20 had nothing to do with the carrier or defect at issue, and that = production=20 would involve 20,000 pages of documents located in other = states. =20 See id.  The Supreme Court of Texas found the requests = overly=20 broad as a matter of law because there was Ano apparent = connection between=20 the alleged defect and the discovery ordered.@  Id. at=20 601.

Unlike in = Graco,=20 Stealth=3Ds request is not = facially=20 overbroad.  Both the attorney general and Stealth may = prosecute=20 antitrust actions against Memorial Hermann for the same statutory=20 violations.  See Tex. Bus. & Comm. Code Ann. = '' 15.20(a), = 15.21(a)(1). =20 Memorial Hermann has not demonstrated that all or part of = the  CID=20 materials do not relate to Stealth=3Ds claims in this = lawsuit. =20 An overbreadth objection contemplates that certain responsive = documents=20 are relevant, but others are not; the request therefore should be = narrowly=20 tailored to include the former category and exclude the = latter. =20 See generally CSX, 124 S.W.3d at 153.  In sustaining = an=20 overbroad objection, a court usually draws that line for the = litigants or,=20 at the very least, determines that such a line can be drawn = in the=20 first place:

When a party=3Ds attempted reach exceeds its legal = grasp, we=20 routinely limit the reach; we do not amputate the hand.  So, = for=20 example, in American Optical we rejected = defendant=3Ds argument that Adue to the overbreadth, = plaintiffs=3D entire request for production should be = struck.@  Instead, we concluded that = Arather than ... attempting to set the = precise=20 bounds of discovery in the first instance, we believe the trial = court=20 should have an opportunity to reconsider its ruling in light of = our=20 opinion today.@

In re Alford=20 Chevrolet-Geo,=20 997 S.W.2d 173, 191B92 (Tex. 1999) (orig. = proceeding) (citations omitted) (Hecht, J., concurring in part and = dissenting in part).

In this case, = Memorial Hermann=20 has not demonstrated that Stealth=3Ds request would = capture=20 irrelevant documents.  We can envision a scenario in which a = trial=20 court could sustain an objection to requests like = Stealth=3Ds if presented with, = for=20 example, either the disputed documents in camera or the = attorney=20 general=3Ds CID.  = Examination of the=20 CID here might have permitted the trial court to conclude that the = attorney general=3Ds investigation went = beyond the=20 scope of Stealth=3Ds allegations.  = Without=20 such evidence, we cannot conclude that the trial court abused its=20 discretion in overruling Memorial Hermann=3Ds=20 objections.

We do not necessarily = approve=20 of the broad wording of requests 40 and 70.  However, absent = evidence=20 that Stealth=3Ds request would = capture=20 irrelevant documents, we are constrained to find that Memorial = Hermann has=20 not shown an abuse of discretion by the trial court warranting = mandamus=20 relief.

We overrule=20 relators=3D second = issue.

Accordingly, we deny = the=20 petition for writ of mandamus.

 

 

/s/     =20 Adele=20 = Hedges           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ; =20 =             &= nbsp;           &n= bsp;   =20 Chief Justice

 

 

Petition Denied, and = Majority=20 and Concurring Opinions filed, October 9, 2008.

Panel consists of = Chief Justice=20 Hedges, Justice Frost, and Senior Justice Hudson.*=20 (Frost, J., concurring).


 =20           [1]     &= nbsp;    =20 The Honorable John Donovan, presiding judge of the 61st District = Court of=20 Harris County.

 =20           [2]     &= nbsp;    =20 Herein we will refer to antitrust lawsuits filed by the attorney = general=20 as Apublic,@ and those filed by aggrieved persons = Aprivate.@  See Tex. Bus. & Comm. = Code Ann.=20 '' 15.20(a), 15.21(a)(1) (Vernon=20 2002).

 =20           [3]          =20 See also In re = NASDAQ=20 Market-Makers Antitrust Litig.,=20 929 F. Supp. 723, 726 (S.D.N.Y. 1996) (A[C]ooperation with CID demands is = required by law,=20 and the balance of incentives is thus relatively = unconvincing.@).

 =20           [4]     &= nbsp;    =20 See also Midwest Gas Svcs., Inc. v. Indiana Gas Co., No.=20 IP99-0690-C-Y/G, 2000 WL 760700, at *1 (S.D. Ind. March 7, 2000)=20 (AWe agree ... that section 1313(c)(3) = does not=20 create a privilege for C.I.D. materials in the hands of a private=20 person.@).

 =20           [5]     &= nbsp;    =20 Memorial Hermann conceded at oral argument that it has placed its=20 charitable mission at issue in the underlying lawsuit.  = See=20 also Tex. Bus. & Comm. Code Ann. ' 15.05(i) (permitting the court, in an = antitrust=20 suit, to consider whether a restraint to the delivery of physician = services lessens the cost of such services to benefit the public=20 interest).

  =          =20 *Senior = Justice Hudson=20 sitting by=20 assignment.

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