Home Depot was recently entangled in a personal injury lawsuit filed against it by an employee who hurt his back loading a lawn mower onto a customer’s trailer. Discovery [pretrial fact finding] ensued, which is where important lessons—for all Texas employers, not just those that opt out of workers’ compensation—were dealt out by the Beaumont Court of Appeals.
Corp Rep Dep? What’s That?
Recall that around 30% of employers doing business in Texas don’t subscribe to workers’ comp. Texas is one of a few states allowing this opt-out. Such employers are called nonsubscribers. As a result, employees injured on the job are free to file negligence lawsuits against their employers and aren’t limited to receipt of workers’ comp benefits.
The rules of procedure in Texas empower an employee to ask an employer to produce a witness—or corporate representative—to testify on topics related to the lawsuit. Often, HR is called upon to perform this task. Note that the witness testifies in a deposition on behalf of the company: corporate representative deposition = corp rep dep.
The witness is required to testify on all topics listed even if not within their personal knowledge. The company’s lawyer is obligated to educate the witness on all the topics. Trust me, it’s a lot of work for the lawyer but especially a lot of work for the witness. But the deposition is important because the answers given or not given bind the company!
Is there any relief? Good question, and the answer is “yes.” And as you might have surmised, the key is the language about “relating” to the lawsuit.
Would You Like That Item in ‘Broad’ or ‘Narrow’?
An employe always wants broad coverage of topics, while the employer always wants narrow, as was the case here.
The injured employee wanted the corporate rep to testify on all safety matters at Home Depot. The company objected before the deposition, stating it would limit the rep’s testimony to safety matters involving lifting lawn mowers into a customer’s vehicle. The fireworks started when the deposition commenced.
When the employee’s lawyer began to inquire about safety in general, Home Depot’s lawyer said:
We gave you our objection yesterday. If you want to ask her about lawn mowers, go ahead. She’s not testifying—and I’m going to instruct her not to answer—about heavy merchandise.
I can only imagine the tone. The employee’s lawyer hit back. Here is the appeals court’s summary of what he said:
“[I have] information from numerous other suits” showing that Home Depot engaged in discovery abuse. He continued that [this deposition] was simply another example of how Home Depot has an “overwhelming amount of arrogance and refusal to follow the rules because, in [his view, it] thinks it’s just too big and powerful to care.”
Oh boy. Next stop: the trial court.
And the Winner Is . . .
The trial court sided with the employee, ordering broad discovery to proceed and the corp rep to answer broad-based safety questions. Home Depot filed what is called a writ of mandamus asking the appeals court to correct the decision. It did so.
After expounding in detail on the rules of civil procedure, the appeals court held that Home Depot didn’t waive its objections in the manner in which it proceeded and that it followed the Texas rules of civil procedure. Here is the court:
The trial court’s order—which requires Home Depot’s corporate representative to answer questions that relate to [the employee’s] training on matters of safety regardless of whether the training is related to his handling of the lawn mower or to his injury—goes far beyond the permissible scope of proper discovery.
To sum up, the employee’s discovery requests were so broad, they weren’t merely a fishing expedition but rather an “effort to dredge the lake in hopes of finding a fish.” (Texans have a way of expressing themselves, do they not?) In Re Home Depot, (Tex. App – Beaumont, August 3, 2023).
Yes, it’s expensive to pay lawyers to fight these fights. But they are worthwhile. If irrelevant documents or testimonies are obtained in discovery, that’s the first step in getting them admitted at a trial. Once discovered, the court can be tempted to say: Oh well, let them in. The way to stay out of trouble is to stay out of situations that can bring trouble. Ture in life, and true in lawsuits.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at firstname.lastname@example.org.