Opinion issued October 29, 2007
In The
Alvarez is=20
a truck driver for Louisiana Transportation, Inc. On April 1, =
2006,=20
Alvarez was involved in an accident in which Michelle McKinley, =
Paige=20
McKinley, and Jay Hoyle were killed. The real parties in interest =
filed=20
suit against Alvarez and Louisiana Transportation on April 21, =
2006. On=20
May 23, 2007, Alvarez was indicted for injury=20
to a child and two counts of criminally negligent =
homicide. Alvarez=20
filed multiple motions to quash his deposition. Judge Dorfman =
granted=20
three of those motions on December 13, 2006, February 13, 2007, =
and March=20
20, 2007. On June 25, 2007, Judge Dorfman denied Alvarez's motion =
for=20
protection from discovery, but also stated, "In accordance with =
the=20
Court's prior statement on this matter, the Court will take into =
account=20
the defendant's assertion, if any, of his Fifth Amendment =
privilege, and=20
the pendency of any parallel criminal proceeding, before =
proceeding to=20
trial or hearing pretrial dispositive motions that might place =
defendant=20
Alvarez at substantial disadvantage due to such =
assertion." Alvarez=20
claims that Judge Dorfman abused his discretion in denying the =
motion for=20
protection from discovery based on the Fifth Amendment. Alvarez =
has yet to=20
assert a Fifth Amendment privilege in response to discovery, but =
instead=20
asserts he is entitled to protection from all discovery while the =
criminal=20
proceedings are pending. This is not Texas law. See, =
e.g., In=20
re Edge Capital Group, Inc., 161 S.W.3d 764, 768 (Tex. =
App.--Beaumont=20
2005, orig. proceeding) (blanket assertions of Fifth Amendment =
privilege=20
generally are not permitted in civil cases); In re R.R.,=20
26 S.W.3d=20
569, 574 (Tex. App.--Dallas 2000, orig. proceeding) (blanket =
denial of all=20
discovery in civil case due to pending criminal case is not good =
public=20
policy); Burton v. West, 749 S.W.2d 505, 508 (Tex. =
App.--Houston=20
[1st Dist.] 1988, orig. proceeding) (holding relator may not make =
blanket=20
Fifth Amendment objection to all interrogatories propounded, but =
must=20
instead state objections to each individual =
interrogatory). We deny the=20
petition for a writ of mandamus. The stay issued September 19, =
2007 is=20
vacated. Panel=20
consists of Justice Nuchia, Jennings, and Keyes.=20