Opinion
No. 01-06-00140-CV
Opinion issued September 1, 2006.
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
Relator BP Products North America, Inc. filed a petition for a writ of mandamus, complaining of Judge Criss's February 14, 2006 written order granting the real parties in interest's motion to compel relator to produce documents in response to request number 81 in the fourth set of written discovery. We grant the requested relief.
The Honorable Susan E. Criss, judge of the 212th District Court of Galveston County, Texas. The underlying proceeding is In re: Texas City Explosion, March 23, 2005, Coordinated Discovery Proceedings, No. 05-CV-0337-A (212th Dist. Ct., Galveston County, Texas).
This is a discovery dispute over the Plaintiffs Discovery Coordinating Committee's request for production of documents that BP Products provided to the independent panel BP Products created (the BP U.S. Independent Safety Review Panel, or "Baker Panel") headed by former Secretary of State James Baker III. The Baker Panel was created "[i]n response to the Urgent Recommendation of the U.S. Chemical Safety and Hazard Investigation Board ("CSB")" arising out of the Texas City explosion and fire on March 23, 2005.
The trial judge signed an agreed order for discovery in all cases arising out of the Texas City explosion and fire on March 23, 2005. The order appointed a "Plaintiffs Discovery Coordinating Committee" and a "Defendants Discovery Coordinating Committee" of attorneys for each side who are authorized under Texas Rule of Civil Procedure 11 agreements to conduct unified discovery that is binding on all plaintiffs and defendants. In this mandamus proceeding, the Defendants Discovery Coordinating Committee represents the approximately 475 plaintiffs/real parties in interest.
In creating the Baker Panel, BP Products stated the following in the Panel's charter:
The purpose of the Independent Panel is to make a thorough, independent and credible assessment of the effectiveness of BP Products North America's ("BP Products") corporate oversight of safety management systems at its refineries¹ and its corporate safety culture. The commissioning of this review and independent assessment reflects BP p.l.c.'s ongoing commitment to the safe operation of all its United States refining facilities.
¹ BP p.l.c. conducts its U.S. refinery operations through BP Products at five different locations: Texas City, Texas; Carson, California; Whiting, Indiana; Cherry Point, Washington; and Toledo, Ohio.
I. Purposes
• The Independent Panel's written report will examine and recommend any needed improvements to:
• Corporate safety oversight, including the safe management of refineries obtained through mergers and acquisitions;
• Corporate safety culture, including the degree to which:
• Corporate officials exercise appropriate leadership to promote adherence to safety management systems;
• Process safety is effectively incorporated into management decision — making at all levels;
• Employees at all levels are empowered to promote improved process safety; and
• Process safety programs receive adequate resources and are appropriately positioned within organizational structures.
• Corporate and site safety management systems, specifically:
• Near miss reporting and investigation programs;
• Mechanical integrity programs;
• Hazard analysis programs, management — of — change programs, and up to date operating procedures for processes with catastrophic potential; and
• Siting policies for occupied structures near hazardous operating units.
• The Independent Panel should avoid duplicating the efforts of the CSB to determine the specific root causes of the incident at Texas City on March 23, 2005. The Independent Panel should not seek to affix blame or apportion responsibility for any past event.
. . . .
V. Resources and Authority of the Independent Panel
. . . .
• The Independent Panel will have full and broad access to relevant documents, information, facilities and personnel, other than material that is subject to a good faith claim of attorney — client privilege or attorney work — product protection. The information to which the Independent Panel will have access will include the substantial amounts of information already gathered by the BP l.l.p., including the information already gathered by BP l.l.p. during the course of its own investigation of the March 23, 2005, explosion at Texas City. . . . .
The Plaintiffs Discovery Coordinating Committee propounded the following fourth set of written discovery request 81:
81. With respect to BP's compliance with the CSB's "urgent" recommendation to appoint an independent panel led by former Secretary of State James Baker, produce the following documents:
a. All documents reviewed by or produced to any member of the panel headed by James Baker;
b. All reports and drafts of reports issued to you by or from the panel headed by James Baker.
The response was, "BP Products objects to this overly broad request as outside the scope of discovery, because it is not reasonably calculated to lead to the discovery of admissible evidence pertaining to the March 23, 2005 ISOM incident."
On February 6, 2006, the trial judge orally granted the motion to compel by the Plaintiffs Discovery Coordinating Committee. On February 14, 2006, the trial judge signed a written order granting the motion to compel regarding request 81.
On February 16, 2006, BP Products filed a motion for temporary relief requesting this Court stay production of the Baker Panel documents. This Court denied the motion on February 17, 2006, because the reporter's record of the February 6, 2006 hearing indicated that the trial judge agreed to stay discovery pending any "appeal" BP Products might file. BP Products produced at least 5,000 Baker Panel documents before filing a motion for reconsideration on March 14, 2006. The motion for temporary relief was supplemented on March 16, 2006, in which BP Products stated that the certified reporter's record was inaccurate and the trial judge on February 6, 2006 refused to stay discovery. After the reporter's record was corrected pursuant to Texas Rule of Appellate Procedure 34.6(e), this Court granted the motion for reconsideration on March 23, 2006, staying further production of the Baker Panel documents.
We agree with BP Products that written discovery request 81 is overbroad because there are no limits as to time, location, and subject matter on what types of documents provided to the Baker Panel should be produced to the Plaintiffs Discovery Coordinating Committee. See In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003) (requiring discovery to be narrowly tailored). We therefore grant the requested relief in BP Products' petition for a writ of mandamus and direct the trial judge to vacate her February 14, 2006 granting the motion to compel regarding request 81.