IN RE: GRECON

Reset A A Font size: Print

Court of Appeals of Texas, Houston (14th Dist.).

IN RE: GRECON, INC., Relator

NO. 14-17-00639-CV

Decided: January 12, 2018

Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Frost, C.J., concurring) (Boyce, J., joining section I of the majority opinion).

MAJORITY OPINION

The issue presented in this original proceeding is whether settlement agreements between the plaintiff and settling defendants are relevant and discoverable before trial. After real party in interest Ralph Figgs refused to produce the settlement agreements, relator GreCon, Inc. moved to compel Figgs to produce them. The trial court denied the motion. GreCon asks this court to grant mandamus relief compelling the Honorable Michael Gomez, presiding judge of the 129th District Court of Harris County, to vacate the order denying GreCon's motion to compel and to sign an order compelling Figgs to supplement his disclosure responses and produce the settlement agreements.1 We conditionally grant this mandamus relief, though the grounds for conditionally granting relief divide the panel. Justices Boyce and Jewell conclude that mandamus should conditionally issue for the reasons stated in section I, whereas Chief Justice Frost and Justice Jewell conclude mandamus should conditionally issue for the reasons stated in section II.

BACKGROUND

Figgs suffered injuries during a fire at a plywood manufacturing plant owned by Georgia Pacific South. Seeking recovery for his injuries, Figgs sued GreCon, asserting claims for negligence, gross negligence, strict liability, and breach of express and implied warranties in connection with the sale, installation, and maintenance of the detection, prevention, and suppression systems, which Figgs claims failed to prevent, warn, or eliminate hazards that caused the explosion. Figgs also sued a number of other defendants.

Figgs settled with defendants Georgia Pacific LLC, Georgia Pacific Building Products, LLC, Georgia Pacific Wood Products LLC, Georgia Pacific Wood Products South LLC, Georgia Pacific Equity Holdings LLC, International Paper Company, and Mid-South Engineering, Inc. (collectively the “Settling Parties”). Under Rule of Civil Procedure 194.2, GreCon requested disclosure from Figgs of “any settlement agreements described in Rule 192.3(g).” Tex. R. Civ. P. 194.2(h). Rule 192.3(g) provides that “[a] party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement.” Tex. R. Civ. P. 192.3(g). When Figgs refused to produce any of his settlement agreements with one or more of the Settling Parties (collectively the “Settlement Agreements”), GreCon filed its motion to compel Figgs to supplement his response to the request for disclosure under Rule 194.2(h) and to produce copies of all the Settlement Agreements.

The trial court held a hearing on June 12, 2017, and a few months later denied GreCon's motion to compel the Settlement Agreements, stating the following:

After having conducted an in camera review of the proffered settlement agreements, and after considering the motions, responses, and arguments of counsel, the Court is of the opinion that the motions should be DENIED, at this time.

IT IS THEREFORE, ORDERED AND ADJUDGED that Defendant GreCon's (and all other Defendants') Motions to Compel Settlement Agreements are hereby DENIED, at this time.

The trial further stated in a footnote in the order that “Defendants may be entitled to the settlement agreements at trial and may re-urge the same at that time.”

In this mandamus proceeding, GreCon asserts that the Settlement Agreements are relevant because GreCon needs them to: (1) prove up its entitlement to settlement credits; (2) evaluate any potential witness bias; and (3) evaluate GreCon's potential exposure before trial. GreCon asks this court to grant mandamus relief compelling the respondent to vacate his order denying GreCon's motion to compel and to sign an order compelling Figgs to supplement his disclosure responses and produce the Settlement Agreements.2

MANDAMUS STANDARD OF REVIEW

Generally, to be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) (orig. proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The relator may not have an adequate remedy by appeal when the trial court has not allowed discovery because such discovery cannot be made part of the appellate record, and because the reviewing court is not able to evaluate the effect of the trial court's error on the record before it. Walker v. Packer, 827 S.W.2d 833, 843−44 (Tex. 1992) (orig. proceeding).

ABUSE OF DISCRETION

I. Relevance and the Burden of Proof

We first consider the relevant burden of proof in the context of requests for disclosure, an issue the parties disputed in the trial court and dispute in our court.

Added to the discovery rules in 1999, Rule 194, entitled “Request for Disclosure,” provides the mechanism for requesting the disclosure of certain information in litigation:

A party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party—no later than 30 days before the end of any applicable discovery period—the following request: “Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)–(g) ].”

Tex. R. Civ. P. 194.1. Among the information or material for which a party may request disclosure is “any settlement agreements described in Rule 192.3(g).” Tex. R. Civ. P. 194.2(h).

Rule 192.3 addresses the scope of discovery. See Tex. R. Civ. P. 192.3. Specifically, Rule 192.3(g) provides that “[a] party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement.” Tex. R. Civ. P. 192.3(g).

As to the response to the request for disclosure, Rule 194.3 provides that “[t]he responding party must serve a written response on the requesting party within 30 days after service of the request[.]” Tex. R. Civ. P. 194.3.3 Under Rule 194.4, the responding party “ordinarily must” serve documents and other tangible items with the response, and “must produce the documents at the time and place stated, unless otherwise agreed by the parties ordered by the court[.]” Tex. R. Civ. P. 194.4. No objection is permitted to a request for disclosure. Tex. R. Civ. P. 194.5; see also In re Univar USA, Inc., 311 S.W.3d 175, 180 (Tex. App.—Beaumont 2010, orig. proceeding).

Comment 1 to Rule 194 explains the purpose of the disclosure rule:

1. Disclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request, without preparation of a lengthy inquiry, and without objection or assertion of work product. In those extremely rare cases when information ordinarily discoverable should be protected, such as when revealing a person's residence might result in harm to the person, a party may move for protection. A party may assert any applicable privileges other than work product using the procedures of Rule 193.3 applicable to other written discovery. Otherwise, to fail to respond fully to a request for disclosure would be an abuse of the discovery process.

Tex. R. Civ. P. 194 cmt. 1.

This method is intended to streamline the discovery process as to the matters covered by requests for disclosure. In those “extremely rare cases” when settlement agreements ordinarily covered by the mandatory disclosure rule ought to be withheld, the responding party may file a motion for protection. See id.; Tex. R. Civ. P. 192.6 (explaining procedure to obtain “an order protecting that person from the discovery sought”). Such a motion is generally required to be filed before the deadline to respond to the discovery request. Tex. R. Civ. P. 192.6(a) (person affected by discovery request may move for protection “within the time permitted for response to the discovery request.”). If a party does not move for protection or assert any applicable privileges by the thirty-day deadline for responding to the request, a failure to “respond fully” to a request for disclosure is considered an “abuse of the discovery process.” Tex. R. Civ. P. 194 cmt. 1.4

GreCon is one of several defendants in Figgs's lawsuit, which alleges various tort claims arising out of an explosion. Figgs signed a settlement agreement with defendants International Paper Company, Georgia-Pacific LLC, Georgia-Pacific Building Products LLC, Georgia-Pacific Equity Holdings LLC, Georgia-Pacific Wood Products LLC, and Georgia-Pacific Wood Products South LLC (among other Georgia-Pacific entities) on February 22, 2017. Figgs also settled with Mid-South Engineering Company in a separate agreement, but our copy of that settlement agreement is not dated.5 According to GreCon, it learned of at least the International Paper and Georgia-Pacific entities settlements in early March 2017. GreCon served Figgs with requests for disclosure on March 3, which included a request under Rule 194.2(h) for “settlement agreements described in Rule 192.3(g).” Three days later, on March 6, Figgs filed a non-suit of the International Paper and Georgia-Pacific entities without disclosing that a settlement had occurred. Figgs's responses to GreCon's requests for disclosure were due April 3. Figgs timely served a response, which stated as to “discoverable settlement agreements,” “none at this time.” By April 3, Figgs did not file a motion for protection (or any other motion) arguing that any portion of the undisclosed Settlement Agreements ought to be withheld from production on relevancy or other grounds.

GreCon filed a motion to compel, to which Figgs responded. In the relevant documents, GreCon argued that Settlement Agreements existed, they were relevant and discoverable, and they were past due because the mandatory thirty-day deadline for production had expired and Figgs had not disclosed the agreements. GreCon argued in its motion to compel that the Settlement Agreements were discoverable under Rule 194.2(h) and that Figgs had failed to supplement his disclosure responses. In Figgs's response, filed June 9, 2017, he argued that it was GreCon's burden to prove the Settlement Agreements' relevance. In reply, GreCon urged that it was Figgs's burden to prove that any portion of the Settlement Agreements ought to be withheld from disclosure.

The existence and contents of relevant portions of settlement agreements are presumptively discoverable. See Tex. R. Civ. P. 192.3(g). We agree with GreCon that the burden of proof regarding relevance, or lack thereof, generally rests on the party resisting discovery. See, e.g., Univar, 311 S.W.3d at 180 (citing State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991)); In re Frank A. Smith Sales, Inc., 32 S.W.3d 871, 874 (Tex. App.—Corpus Christi 2000, orig. proceeding) (“Generally, the party resisting discovery has the burden to plead and prove the basis of its objection.”); In re Continental Ins. Co., 994 S.W.2d 423, 428 (Tex. App.—Waco 1999, orig. proceeding) (party resisting discovery of settlement agreement had burden to show agreement not relevant); Valley Forge Ins. Co. v. Jones, 733 S.W.2d 319, 321 (Tex. App.—Texarkana 1987, orig. proceeding). It is logical to place the burden on the party resisting discovery because a settling party has a copy of the settlement agreement and is in the best position to demonstrate why any portions are irrelevant. See In re Continental, 994 S.W.2d at 428.

Additionally, civil litigants must plead and prove their entitlement to protection from discovery in a timely fashion. See Tex. R. Civ. P. 192.6, 193.2, 193.3, 193.4; In re Gore, 251 S.W.3d 696, 700 (Tex. App.—San Antonio 2007, orig. proceeding). As mentioned, motions for protection are generally required to be filed before the deadline to respond to the discovery request. Tex. R. Civ. P. 192.6(a) (person affected by discovery request may move for protection “within the time permitted for response to the discovery request”).

Figgs did not meet his burden of proof because he did not timely or properly assert his relevancy arguments for two reasons. First, Figgs did not file a motion for protection. Figgs's first filing challenging the relevance of the Settlement Agreements was his response to GreCon's motion to compel. Even construing Figgs's response as a motion for protection, it came too late because it was filed after the April 3, 2017 disclosure deadline. The deadline to fully respond to the disclosure requests having passed, any attempt by Figgs to meet his burden in the response to the motion to compel was moot. Figgs did not invoke the protections available under rule 192.6. See In re Morse, 153 S.W.3d 578, 582 (Tex. App.—Amarillo 2004, orig. proceeding) (party's failure to fully respond to request for disclosure or move for protection constituted abuse of discovery process). Thus, Figgs's arguments asserted for the first time in response to GreCon's motion to compel were insufficient to establish that any portion of the Settlement Agreements—“information ordinarily discoverable”—should be protected from disclosure on relevancy grounds. See Tex. R. Civ. P. 194, 194.5.

Second, Figgs's response to the request for disclosure, though timely, also did not advance his burden of proof. He responded that no “discoverable” settlement agreements existed. Although, as discussed infra in Section II, Figgs's argument against disclosure focuses on the relevance of the settlement amounts, other aspects of the Settlement Agreements were unquestionably relevant and discoverable at the time Figgs served his response to the requests for disclosure. See White v. Zhou Pei, 452 S.W.3d 527, 548 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Settlement agreements are generally discoverable, and not just once a settlement credit is deemed to apply.”). These include, at a minimum, the identity of all settling parties and the scope of the claims released. In GreCon's answer, it pleaded comparative fault and proportionate responsibility under Texas Civil Practice and Remedies Code chapter 33. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (West 2015). GreCon also pleaded its right to credits or offsets resulting from settlements with co-defendants. See id. §§ 33.012, 33.013 (West 2105). Given those pleadings, GreCon was entitled to know the identity of all settling parties because the court is required to include a jury submission in the charge as to settling persons, assuming the evidence supports it. See id. § 33.003(a)(3). GreCon has a right to know that information before trial. It was due thirty days after the requests for disclosure were served, absent a motion for protection, which Figgs did not file. Figgs has not contested this point yet he nonetheless failed to disclose even the existence of the Settlement Agreements when he served his timely response. Accordingly, Figgs's disclosure response, which disclosed no portion of the Settlement Agreements and stated that no “discoverable” settlement agreements existed as of April 3, was misleading and an abuse of the discovery process. See Tex. R. Civ. P. 194 cmt. 1; Morse, 153 S.W.3d at 581.

Rule 194 does not contain any exceptions for settlement agreements other than the motion for protection procedure. If it were true, as Figgs argues, that settlement agreements were not relevant “before trial,” then the rules would not require their disclosure thirty days following a valid request, and Rule 193.5 would not require their supplementation thirty days before trial. Tex. R. Civ. P. 193.5. The burden was on Figgs to show why the Settlement Agreements should not be disclosed, and to make that showing by the deadline to respond to the requests for disclosure. Because Figgs did not meet his burden to demonstrate by the applicable deadline that any portion of the Settlement Agreements should be withheld from disclosure, GreCon was entitled to full and unredacted disclosure of all Settlement Agreements on or before April 3, 2017. The trial court's refusal to compel production of the Settlement Agreements was a clear abuse of discretion.

II. The Settlement Agreements Are Relevant and Discoverable Before Trial

GreCon contends that the Settlement Agreements are relevant: (1) for determining settlement credits; (2) evaluating whether any witness at trial will be biased against GreCon; and (3) determining GreCon's potential exposure and evaluating its trial strategy.

A. Determination of Settlement Credits

GreCon asserts that the Settlement Agreements are discoverable for the purpose of determining settlement credits. A prevailing party is entitled to only “one satisfaction” for an injury. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993). “[W]hen a plaintiff files suit alleging that multiple tortfeasors are responsible for the plaintiff's injury, any settlements are to be credited against the amount for which the liable parties as a whole are found responsible, but which only the non-settling defendant remains in court.” Id. “[T]he plaintiff should not receive a windfall by recovering an amount in court that covers the plaintiff's entire damages, but to which a settling defendants has already partially contributed.” Id. “[I]f settling parties are partially responsible for such an injury, then as a matter of law the judgment should be reduced by the amount of any settlements so as to prevent double recovery by the prevailing plaintiff.” Id.

The reduction of the plaintiff's recovery may be achieved by settlement credits under Chapter 33 of the Texas Civil Practice and Remedies Code. Bus. Staffing, Inc. v. Viesca, 394 S.W.3d 733, 752 (Tex. App.—San Antonio 2012, no pet.). Under section 33.012(b), “[i]f the claimant has settled with one or more persons, the [trial] court shall ․ reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements.” Tex. Civ. Prac. & Rem. Code Ann. § 33.012.

The defendant shoulders the burden to prove its right to a settlement credit, including the amount of the settlement credit. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998). Thus, settlement agreements containing the dollar amount exchanged are relevant to the remaining defendants for the purpose of determining the amount of the settlement credit.

Figgs acknowledges that the settlement amounts may become relevant after trial for calculating settlement credits in the event he prevails, but Figgs argues that, notwithstanding the request for disclosure, he does not have to disclose portions of Settlement Agreements concerning settlement amounts before trial because they are not relevant before trial. Figgs relies on two pre-Rule 194 cases. See Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995) (orig. proceeding); Palo Duro Pipeline Co. v. Cochran, 785 S.W.2d 455 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding).

In Leggat, the decedent's estate and survivors sued Ford for products liability after the decedent's Bronco II flipped and rolled over, killing him. 904 S.W.2d at 645. The trial court ordered Ford to produce the amounts Ford had paid in every Bronco II roll-over settlement. Id.

The Supreme Court of Texas stated that settlement agreements are discoverable to the extent they are relevant. Id. at 649 (citing former Tex. R. Civ. P. 166b(2)(a), 166b(2)(f)(2)). Settlement credits were not at issue in Leggat. Instead, the plaintiffs wanted the information to evaluate the case for trial and for facilitating settlement. The court held that crafting a settlement strategy is not a purpose of discovery, and “specifically disapprove [d] of the request for the information under these circumstances.” Id.

Figgs also relies on an opinion from this court, in which the real parties in interest sued the relators, intrastate natural gas pipelines companies, for damages for breach of a “take or pay” purchase contract, tortious interference with the contract, conversion, and drainage of a common reservoir. Palo Duro Pipeline Co., 785 S.W.2d at 456. The trial court ordered the relators to produce all settlement agreements in all other take-or-pay litigation involving the relators. Id.

Quoting former Texas Rule of Civil Procedure 166b(2)(f)(2), which provided that “ ‘[a] party may obtain discovery of the existence and contents of any settlement agreement,’ ” the court explained that, “[i]n the context of material relevant to a claim or defense, Rule 166b(2)(f)(2) provides for the discovery of settlement agreements, with no specific wording of limitation.” Id. at 457. Still, the court noted that “[t]he litmus test for discoverability is relevancy.” Id.

The real parties in interest alleged the relators had conspired to take more gas from larger producers to the detriment of smaller producers. Id. To the extent that the settlement agreements contained evidence of the amount of gas the relators had agreed to take from the larger producers under the settlement terms, we held that, under the specific and limited facts of the case, the settlement agreements met the relevancy test with regard to the alleged conspiracy. Id.

As to the cash amounts contained in the settlement agreements, we held such information was not relevant to the issue of conspiracy. Id. As with Leggat, settlement credits were not at issue in Palo Duro.

Figgs asserts that the general scope of discovery remained substantively unchanged after the 1999 amendments to the Texas Rules of Civil Procedure. Former Rule 166b(2)(a) provided with regard to scope of discovery:

Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence.

Tex. R. Civ. P. 166b(2)(a) (repealed). Current Rule 192.3(a) similarly states:

In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Tex. R. Civ. P. 192.3(a).

Thus, Figgs asserts that the standard for relevance did not change with the 1999 amendments. Figgs further contends that a reading of former Rule 166b(2)(2) suggests that settlement agreements were discoverable without limitation:

A party may obtain discovery of the ․ existence and contents of any settlement agreement. Information concerning the settlement agreement is not by reason of disclosure admissible in evidence at trial.

Tex. R. Civ. P. 166b(2)(2) (repealed). The current Rule 192.3(g) limits discovery of settlement agreements to “any relevant portions of a settlement agreement.” Tex. R. Civ. P. 192.3(g). Figgs posits that Rule 192.3(g) essentially codifies the holdings in Ford and Palo Duro.

Figgs points to In re BDPJ Houston, LLC, in which this court applied the 1999 amended rules, and contends we followed Leggat and Palo Duro. See 420 S.W.3d 309 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding). In BDPJ Houston, the trial court ordered the production of documents in response to requests for production, which evidenced the location, amount, and expenditure of settlement funds, but not the settlement agreement itself. Id. at 312. In the mandamus proceeding that followed, this court reviewed the record to determine whether the discovery was relevant to a claim or defense in the underlying suit or whether it was reasonably calculated to lead to the discovery of admissible evidence. Id. The court held that the trial court abused its discretion by compelling discovery that was neither relevant to a claim or defense in the underlying case, nor reasonably calculated to lead to the discovery of admissible evidence. Id. at 314. We cited Palo Duro for the proposition that cash amounts were not relevant to the claims and were not reasonably calculated to lead to the discovery of admissible evidence. BDPJ Houston, however, did not involve settlement credits. See id. at 311–14.

We do not agree with Figgs's argument that settlement agreements are not relevant until after the plaintiff prevails at trial. The cases on which Figgs relies did not involve the determination of settlement credits. See Frank A. Smith Sales, 32 S.W.3d at 875 (observing that the parties seeking discovery in Leggat and Palo Duro did not assert that the settlement agreements were relevant under the common law “one satisfaction” rule). Rule 194.3 does not state that settlement agreements are relevant on the condition that the nonsettling defendant is entitled to a credit, i.e., the jury has returned a verdict and determined the plaintiff's damages. Univar, 311 S.W.3d at 179–80. Instead, after service of a request for disclosure under Rule 194.2(h), a party must disclose the existence and contents of any relevant portions of a settlement agreement. See Tex. R. Civ. P. 192. 3(g), 194.2(h), 194.3.

As to Figgs's contention that only the “amounts” of the settlements may become relevant if he prevails at trial, producing the “amounts” rather than the agreements would preclude GreCon from verifying the accuracy of the amounts. See Univar, 311 S.W.3d at 181. Likewise, it would preclude judicial oversight of any dispute between the parties concerning the proper amount of any settlement credit. Id. Therefore, the contents of any relevant portions of a settlement agreement, not just settlement “amounts,” must be produced before trial in response to a request for disclosure under Rule 194.2(h). We conclude that all portions of the Settlement Agreements are relevant to determining settlement credits and that GreCon is entitled to obtain a copy of all portions of the Settlement Agreements. See Tex. R. Civ. P. 192.3 (g), 194.2(h), 194.3.

B. Demonstration of Witness Bias or Prejudice

GreCon further contends that it is entitled to the Settlement Agreements to demonstrate bias or prejudice of a party or witness, or to establish the existence of a promise or agreement made by nonparties to the settled suit.

“[S]ettlement agreements and offers may be discoverable for purposes other than to establish liability, such as to demonstrate bias or prejudice of a party or witness, or, to establish the existence of a promise or agreement made by nonparties to the settled lawsuit.” Univar, 311 S.W.3d at 182. Not producing settlement agreements prevents the nonsettling defendant the opportunity to examine the contents of the settlement agreements, thereby depriving the nonsettling defendant the opportunity to evaluate whether some portions of the settlement agreements demonstrate the presence of bias. Id. If the agreements contain provisions that affect the testimony of the trial witnesses, the order denying production will prevent the nonsettling defendant from using the settlement agreements during trial. Id. “[B]y neither having the agreements in the record nor having them to utilize in examining the witnesses at trial, the nonsettling defendant is restricted of its subsequent ability to demonstrate on appeal that it did not receive a fair trial.” Id.

Whether witness bias or prejudice exists as a result of Figgs's settlement with Georgia-Pacific and Mid-South Engineering is relevant to GreCon's defenses and strategy at trial. GreCon asserts that if it cannot examine all provisions in the Settlement Agreements, it will not be able to evaluate whether any provision exists that might influence a witness to testify more favorably for Figgs.

We examined in camera the Settlement Agreements submitted by Figgs under seal. We do not find any provision that would show an agreement to cooperate between Figgs and the settling defendants. Still, GreCon should have the opportunity to examine the Settlement Agreements to determine whether they contain anything that would raise issues of witness bias or prejudice. See Burlington N., Inc. v. Hyde, 799 S.W.2d 477, 480–81 (Tex. App.—El Paso 1990, orig. proceeding) (explaining, with respect to contention that settlement agreement may contain or lead to a Mary Carter agreement, that “[a]lthough our inspection of the document reveals nothing of the kind, we conclude that Hartman should have the opportunity to examine the agreement to determine for himself whether there is any relevant, admissible material or information that might lead to the discovery of admissible evidence”); Nermyr v. Hyde, 799 S.W.2d 472, 476 (Tex. App.—El Paso 1990, orig. proceeding) (same); see also In re DCP Midstream, L.P., No. 13-14-00502-CV, 2014 WL 5019947, at *12 (Tex. App.—Corpus Christ Oct. 7, 2014, orig. proceeding) (mem. op.) (holding that portions of settlement agreement concerning the existence of potential witness bias were reasonably calculated to lead to the discovery of relevant impeachment or bias evidence). We conclude that all portions of the Settlement Agreements are relevant to determining the existence of witness bias or prejudice and that GreCon is entitled to obtain a copy of all portions of the Settlement Agreements. See Tex. R. Civ. P. 192.3 (g), 194.2(h), 194.3.

C. Evaluation of Potential Exposure and Engagement in Settlement Negotiations

GreCon contends that the Settlement Agreements are relevant for evaluating exposure and for engaging in meaningful settlement negotiations. Figgs asserts that the Supreme Court and this court already have rejected this argument. See Leggat, 904 S.W.2d at 649 (holding that discovery of settlement amounts between Ford and other claimants “to determine a settlement strategy for their own case” was “not a proper purpose of discovery,” and “specifically disapproved of the request for the information under these circumstances”); Palo Duro, 785 S.W.2d at 457 (“Admittedly, the cash amounts might be of interest to the parties here as a comparative bargaining tool for their settlement purpose, but such an interest does not, in our opinion, satisfy the relevancy test for discovery.”).

We do not read Leggat to definitively preclude discovery of settlement agreements when the requesting party desires the agreements, among other reasons, for creating a settlement strategy. The court emphasized that it “should not be interpreted to mean that the amount of a settlement could never be relevant, only that the [plaintiffs] have offered no explanation of how such information is relevant to their claims in this case.” Leggat, 904 S.W.2d at 649. Moreover, in Leggat, the plaintiffs sought discovery of the amount Ford paid to settle every Bronco II roll-over claim. In today's mandamus proceeding, the Settlement Agreements at issue only include settlements with parties to this suit, not settlement agreements in unrelated cases.

A nonsettling defendant should be entitled to make its own independent assessment of its settlement credits to evaluate a settlement offer to avoid trial. Univar, 311 S.W.3d at 181. “Because the sole source of a nonsettling defendant's knowledge about its settlement credits is based on what a party with an incentive to minimize that amount tells the nonsettling defendant, without being given the opportunity to verify that information, a nonsettling defendant might be pressured into settling.” Id. “Such a settlement, procured by darkness, is neither just, fair, equitable, or impartial, and appears to be inconsistent with the objective of the Texas Rules of Civil Procedure.” Id.

An improper motive in seeking a settlement agreement is not relevant in deciding whether settlement agreements should be produced if there are other valid bases for producing the agreements. See Frank A. Smith Sales, 32 S.W.3d at 875. Even if seeking settlement agreements for the purpose of determining GreCon's exposure, standing alone, does not meet the test for relevancy, all portions of the Settlement Agreements are relevant to the determination of settlement credits and the existence of witness bias or prejudice.

D. Abuse of Discretion

At the very least, all portions of the Settlement Agreements are relevant to determining settlement credits and the existence of witness bias or prejudice, and GreCon is entitled to obtain a copy of all portions of the Settlement Agreements before trial.6 See Tex. R. Civ. P. 192.3 (g), 194.2(h), 194.3. Therefore, we hold that the trial court abused its discretion by denying GreCon's motion to compel Figgs to supplement his response to the request for disclosure under Rule 194.2(h) and to produce all portions of the Settlement Agreements.

NO ADEQUATE REMEDY BY APPEAL

Having concluded that the trial court abused its discretion by denying GreCon's motion to compel, we now address whether GreCon has an adequate remedy by appeal. A relator may not have an adequate remedy by appeal if the trial court prohibits discovery, such discovery cannot be made part of the appellate record, and the appellate court cannot evaluate the effect of the trial court's error based on the record. Walker, 827 S.W.2d at 843−44. The appellate court must consider all relevant circumstances, including the claims and defense asserted, the type of discovery sought, what it is intended to prove, and the presence or lack of other discovery, to determine whether mandamus is appropriate. Id. at 844.

The Settlement Agreements are relevant to the determination of any potential settlement credits. Figgs acknowledges that settlement “amounts” may become relevant after trial and only if GreCon prevails. Yet, if the Settlement Agreements are not part of the record, their absence will frustrate GreCon's ability to have adequate appellate review of a claim that the trial court failed to give the proper settlement credit. See Univar, 311 S.W.3d at 181. GreCon also seeks to determine the existence of any potential witness bias or prejudice. Without access to the Settlement Agreements, GreCon will lose the ability to effectively evaluate the existence of any potential bias or prejudice before trial and to use the agreements at trial. We hold that GreCon does not have an adequate remedy by appeal.

CONCLUSION

Having determined that the trial court abused its discretion by denying GreCon's motion to compel Figgs to supplement his response to the request for disclosure under Rule 194.2(h) and to produce all portions of the Settlement Agreements, and that GreCon lacks an adequate remedy by appeal, we conditionally grant the mandamus relief requested by GreCon. We direct the trial court to (1) vacate its August 22, 2017 order denying GreCon's Motion to Compel, and (2) order Figgs to supplement his response to the request for disclosure under Rule 194.2(h) and to produce all portions of the Settlement Agreements. The writ will issue only if the trial court fails to act in accordance with this opinion.

This court is right to conditionally grant mandamus relief for the reasons stated in section II of the majority opinion, and I join that section. But, I respectfully decline to join section I of the majority opinion because in it the court relies upon a waiver argument not presented to the respondent trial judge, not argued in this mandamus proceeding, not necessary to the disposition of today's case, and not correct under applicable law.

The majority improperly grants mandamus relief based on a waiver argument that no party presented to the trial judge.

Real party in interest Ralph Figgs sued various parties, including Georgia Pacific LLC, Georgia Pacific Building Products, LLC, Georgia Pacific Wood Products LLC, Georgia Pacific Wood Products South LLC, Georgia Pacific Equity Holdings LLC, International Paper Company and Mid-South Engineering, Inc. (collectively the “Settling Parties”), as well as relator GreCon, Inc. Under Texas Rule of Civil Procedure 194.2, GreCon requested disclosure from Figgs of “any settlement agreements described in Rule 192.3(g).”1 Rule 192.3(g) provides that “[a] party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement.”2 Thus, GreCon asked Figgs to disclose the existence and contents of any relevant portions of a settlement agreement. Figgs timely responded to this request on April 2, 2017, asserting that there were no relevant portions of a settlement agreement at the time of Figgs's response.

After Figgs's counsel informed GreCon that Figgs had settled with various defendants, GreCon moved to compel Figgs to supplement his response to the request for disclosure with information as to Figgs's settlements with the Settling Parties and to “produce copies of all settlement agreements.” Figgs responded in opposition, arguing that at present no part of any settlement agreement with one of the Settling Parties was relevant. Figgs asserted that GreCon had not met its burden of establishing relevancy. In his response, Figgs expressly moved the court for protection from discovery based on the arguments asserted in the response. In its reply GreCon asserted that all portions of Figgs's settlement agreements with one or more of the Settling Parties (hereinafter the “Settlement Agreements”) were relevant and that Figgs had the burden to show that the Settlement Agreements were not relevant. Though GreCon argued that Figgs had not satisfied this burden in his response to GreCon's motion to compel, GreCon did not assert that Figgs had to satisfy this burden by April 3, 2017, the deadline for responding to the request for disclosure (hereinafter the “Request-for-Disclosure Deadline”).

At no time in the trial court did GreCon or any other party assert that Figgs had waived his argument that the Settlement Agreements are not relevant by failing to assert that argument in a motion for protection filed by the Request-for-Disclosure Deadline (hereinafter the “Waiver Argument”).

In section I of the majority opinion, the majority concludes that Figgs waived his argument that the Settlement Agreements are not relevant by failing to assert the argument in a motion for protection filed by the Request-for-Disclosure Deadline.3 The majority grants mandamus relief based on the Waiver Argument, an argument that no party presented to the respondent trial judge.4 In doing so the majority contradicts binding precedent under which this court may not grant mandamus relief based on an argument that the relator did not present to the trial judge.5 Under the majority's analysis, even if no part of the Settlement Agreements were relevant, the trial court still would have abused its discretion in denying the relator's motion to compel and Figgs still would have to produce the Settlement Agreements because Figgs waived his relevancy argument by not asserting it by the Request-for-Disclosure Deadline.

In section I of the majority opinion, the majority concludes that Figgs did not meet his burden of proving that the Settlement Agreements were not relevant because Figgs failed to file a motion for protection asserting this relevancy argument by the Request-for-Disclosure Deadline.6 The term “burden of proof” refers to a party's duty to prove an assertion or charge; the term does not refer to any applicable deadline by which a party must make an assertion or charge.7 Presuming for the sake of argument that Figgs was required to assert the relevancy argument by the Request-for-Disclosure Deadline, Figgs's failure to timely assert this argument would not constitute a failure to satisfy a burden of proving it. 8 Rather, a failure to timely assert the argument would constitute a waiver of the argument, and there would be no need to determine whether Figgs satisfied his burden of proving the relevancy argument.9

In addition to incorrectly asserting that Figgs's alleged duty to assert his relevancy argument by the Request-for-Disclosure Deadline constitutes part of Figgs's burden of proving the relevancy argument, the majority also states that the parties disputed in the trial court and in this court whether Figgs had the burden of proving that the Settlement Agreements were not relevant.10 To the extent the majority is suggesting in section I that the parties raised the Waiver Argument in the trial court and in this court, this suggestion clashes with the record. The parties have disputed whether in responding to GreCon's motion to compel, Figgs had the burden to prove that the Settlement Agreements were not relevant or whether GreCon, in moving to compel, had the burden to prove that the Settlement Agreements were relevant. No party has argued that Figgs waived his relevancy argument by failing to assert the argument by the Request-for-Disclosure Deadline.

Requiring a relator to raise an issue in the trial court or forfeit the issue as a potential basis for obtaining mandamus relief against the trial judge gives the trial judge a chance to consider the claimed error and, if appropriate, correct it. The trial judge in today's case never got that chance. Nor did Figgs get the chance to respond to the Waiver Argument, which is an issue of apparent first impression in Texas jurisprudence. Thus, under applicable law, GreCon should not able to get mandamus relief based on an argument that GreCon did not raise in the proceedings before the trial judge.11 Nonetheless, in section I, the majority grants mandamus relief based on the Waiver Argument, even though GreCon did not present the argument to the respondent trial judge.12

The court improperly grants mandamus based on a waiver argument that GreCon waived by its failure to raise or brief the argument in its mandamus petition.

In GreCon's mandamus petition,13 GreCon does not assert that GreCon is entitled to mandamus relief based on the Waiver Argument. GreCon's petition contains no argument, analysis, record citations, or legal authority in support of the Waiver Argument.14 So, GreCon waived the Waiver Argument by not briefing it in the mandamus petition, and this court may not grant mandamus relief based on the Waiver Argument.15 The analysis in section II — based on arguments presented to the respondent trial judge and briefed in GreCon's mandamus petition — provides ample basis to grant mandamus relief. This court should not stretch for a reason to grant mandamus that was not raised in this court.16 Instead, the court should grant mandamus relief based only on the analysis in section II.

Even if it were proper to consider the Waiver Argument, the argument would not provide a basis for granting mandamus relief.

Presuming for the sake of argument that (1) GreCon presented the Waiver Argument to the respondent as a reason to grant GreCon's “Motion to Compel Production of Settlement Agreements”; (2) GreCon briefed the Waiver Argument in its mandamus petition; and (3) this court must reach the Waiver Argument because the other arguments in GreCon's mandamus petition lack merit, this court would have to address the issue. Yet, neither the parties nor the majority have cited any Texas case addressing the Waiver Argument, and research has not revealed any. The issue appears to be one of first impression under Texas law, and for this additional reason the Waiver Argument would be better left for another day and another case — one in which the parties have raised it and briefed it.17

As allowed under Rule 194.2(h), GreCon requested that Figgs disclose “the existence and contents of any relevant portions of a settlement agreement.” 18 Figgs responded before the Request-for-Disclosure Deadline. In his response to the request under Rule 194.2(h), Figgs asserted that there were no relevant portions of a settlement agreement at the time of Figgs's response.19 Even presuming for the sake of argument that Figgs had to assert by the Request-for-Disclosure Deadline any privilege, any ground for protection from discovery, or any basis for avoiding disclosure of all relevant portions of a settlement agreement, Figgs's failure to assert any of these matters would mean only that Figgs had a duty to disclose to GreCon “the existence and contents of any relevant portions of a settlement agreement.”20 The relevance of all or part of any settlement agreement in Figgs's possession is a matter subject to dispute. In his timely response and in his arguments in opposition to GreCon's motion to compel in the trial court and GreCon's mandamus petition in this court, Figgs has asserted that no part of the Settlement Agreements is relevant. Under the unambiguous text of the rules of civil procedure, by failing to file a motion for protection or assert a privilege by the Request-for Disclosure Deadline, Figgs did not waive his right to argue that the Settlement Agreements are not relevant in response to GreCon's motion to compel.21 No rule or other legal authority required Figgs to assert by the Request-for-Disclosure Deadline a motion for protection or other motion presenting argument and proof that the Settlement Agreements are not relevant.22 Figgs timely argued that the Settlement Agreements are not relevant in response to GreCon's motion to compel. Figgs did not waive this argument by failing to assert it in a motion before the Request-for-Disclosure Deadline.23

Though the majority concludes that Figgs waived this argument by failing to assert it and prove it in a motion filed by the Request-for-Disclosure Deadline, the majority cites no rule, case, or other legal authority that imposes this requirement.24 The majority cites In re Morse, but that case imposes no such requirement.25 In Morse, the real parties in interest did not fully respond to a request for disclosure of identity information as to potential parties under Rule 194.2(b); there was no issue as to a request for disclosure under Rule 194.2(h).26 In today's case, Figgs moved for protection and presented non-frivolous arguments in the trial court that the respondent trial judge should deny GreCon's motion to compel because the Settlement Agreements are not relevant. In Morse, the real parties in interest did not move for protection, nor did they assert in the mandamus proceeding that the requested information was privileged or that they had a valid basis for seeking protection.27 In Morse, Rule 194.2(b) required the disclosure of the name, address, and telephone number of any potential parties, and the real parties did not argue that the information at issue was not the name, address, and telephone number of any potential parties.28 In today's case, Rule 194.2(h) requires the disclosure of the existence and contents of any relevant portions of a settlement agreement, and Figgs argued in the trial court and in this proceeding that no part of the Settlement Agreements is relevant.29 Though the Morse court stated that the real parties in interest's failure either to file a motion for protection or to fully respond to the request for disclosure constituted an abuse of the discovery process, the Morse court did not hold that any argument had been waived, nor did the Morse court address whether an argument would have been untimely if the real parties had presented it to the respondent trial judge after the deadline for responding to the disclosure request.30 The Morse case does not address the Waiver Argument and so is not on point.31

In concluding that Figgs had the burden of proving that the Settlement Agreements were not relevant, the majority cites In re Univar USA, Inc., 311 S.W.3d 175 (Tex. App.—Beaumont 2010, orig. proceeding).32 In that case, the court of appeals granted mandamus relief compelling production of settlement agreements in response to a request for disclosure.33 The parties resisting discovery in In re Univar did not file a motion for protection asserting that the settlement agreements were not relevant by the deadline for responding to the request for disclosure.34 Thus, under the majority's analysis, the resisting parties waived their relevancy argument.35 Significantly, the In re Univar court did not conclude that the relevancy argument was waived; instead, the court addressed the merits of the argument and concluded that the settlement agreements were relevant.36 That is precisely what this court should do today.

In concluding that Figgs had the burden of proving that the Settlement Agreements were not relevant, the majority also cites cases involving requests for production and the resisting party's objections thereto.37 The majority thus analogizes Figgs's argument that the Settlement Agreements were not relevant to a party's objection that a settlement agreement is not relevant in response to a request for production.38 If GreCon had served requests for production of the Settlement Agreements on Figgs, and if Figgs had timely objected on the ground that the agreements are not relevant, then Figgs would have had until the hearing on GreCon's motion to compel to prove that the agreements are not relevant.39 So, under the majority's analogy, Figgs should have until the hearing on GreCon's motion to compel to prove that there were no relevant portions of a settlement agreement, as Figgs had timely asserted in response to GreCon's request for disclosure.40 Instead, the majority concludes that Figgs had to meet this burden of proof by the Request-for-Disclosure Deadline.41

The majority concludes that a party waives its argument that any settlement agreement is irrelevant in whole or in part if the party fails to assert and prove that argument in a motion for protection filed by the deadline for responding to a request for disclosure under Rule 194.2(h).42 If this waiver rule is applied in future cases, it likely will impose significant transaction costs on parties who enter into numerous settlement agreements and likely will present a trap for the unwary — a trap that will result in the waiver of valid arguments that settlement agreements are not relevant.

The Texas Rules of Civil Procedure do not define the term “settlement agreement,” as used in Rule 192.3(g) or Rule 194.2(h).43 As this court has noted, the plain meaning of this undefined term is broad and includes settlements of claims against other parties in other lawsuits.44 So, the plain meaning of this term would seemingly include all settlement agreements in the possession of the party on whom the disclosure request is served, even settlement agreements as to unrelated claims and even settlement agreements in which the party had no involvement.45 Under Rule 194.2(h), the sole factor for winnowing out which settlement agreements or portions thereof are discoverable is the requirement that they be relevant to the case in which disclosure is sought.46 Yet, under the majority's reasoning in section I, a party waives all relevancy arguments unless the party raises and proves these arguments in a motion for protection filed by the disclosure deadline. Parties undertaking to follow this rule may face transaction costs asserting and proving relevancy arguments as to settlement agreements that no party seriously could argue were relevant to the litigation. Parties who fail to follow this rule and simply respond that no part of any settlement agreement is relevant run the risk of the discovering party asserting that the responding party has waived all relevancy arguments and is required to produce every settlement agreement in the responding party's possession. For responding parties who have entered into many settlement agreements, this rule will impose significant transaction costs in either asserting and proving that all the settlement agreements are not relevant or in having to produce all of these settlement agreements if a court concludes that the party waived its relevancy arguments under this rule. In both scenarios, the rule puts litigants to unnecessary time and expense.

Figgs asserted that the Settlement Agreements were not relevant in a response and motion for protection filed within seventy days after the Request-for-Disclosure Deadline and before the respondent trial judge ruled on GreCon's motion to compel. GreCon has not said that Figgs waived his relevancy arguments, nor does any legal authority so provide. Though Figgs's relevancy arguments lack merit, under applicable law, Figgs did not waive these arguments by failing to assert them in a motion for protection filed by the deadline for responding to a request for disclosure under Rule 194.2(h).47

Conclusion

The analysis in section I of the majority opinion violates fundamental principles established in binding precedent by granting mandamus relief based on the Waiver Argument because (1) GreCon did not present the Waiver Argument to the respondent trial judge; (2) the trial judge did not rule on the Waiver Argument; (3) GreCon did not assert the Waiver Argument in this mandamus proceeding; (4) Figgs has not had the opportunity to respond to the Waiver Argument; and (5) this court may grant mandamus relief for the reasons stated in section II of the majority opinion, without relying upon the Waiver Argument. And, in any event, the Waiver Argument lacks merit.

FOOTNOTES

1.   See Tex. Gov't Code Ann. § 22.221 (West Supp. 2017); see also Tex. R. App. P. 52.

2.   GreCon filed its original mandamus petition before the trial court ruled on its motion to compel. In the original mandamus petition, GreCon asked this court to order the respondent to rule on GreCon's motion to compel. After the trial court denied the motion to compel, GreCon supplemented its mandamus petition to add a request for mandamus relief compelling the respondent to vacate his order denying GreCon's motion to compel and to sign an order compelling Figgs to supplement his disclosure responses and produce the settlement agreements. The relief requested in the original petition is moot, and in this opinion, we address only the relief GreCon requested in the supplement to its mandamus petition.

3.   Rule 194.3 provides certain exceptions, which are not applicable here. Tex. R. Civ. P. 194.3.

4.   The comments to the disclosure rule are intended to inform its construction and application. See Order of November 9, 1998; see generally Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (noting that the comment to Tex. R. Civ. P. 166a(i) was specifically intended to inform the construction and application of the rule).

5.   Figgs has represented that he submitted for in camera inspection copies of two settlement agreements. We presume for the purposes of our analysis that the two documents submitted under seal in this case for in camera review reflect the contents of the two settlement agreements, even though the Mid-South Engineering document is not signed by any party and the other document is signed only by Ralph and Angela Figgs.

6.   See Tex. R. Civ. P. 194.2(h), 194.3, 194.4; see also In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999) (orig. proceeding) (“[M]odern discovery and pretrial procedures serve the useful purpose of ‘[making] a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ ” (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958))); Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (orig. proceeding), disapproved on other grounds by Walker, 827 S.W.2d at 842 (stating that the purpose of discovery is “to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed”).

FN1. Tex. R. Civ. P. 194.2(h)..  FN1. Tex. R. Civ. P. 194.2(h).

FN2. Tex. R. Civ. P. 192.3(g)..  FN2. Tex. R. Civ. P. 192.3(g).

FN3. See ante at 8–10..  FN3. See ante at 8–10.

FN4. See id..  FN4. See id.

FN5. See Bigham v. Dempster, 901 S.W.2d 424, 426 n. 3 (Tex.1995) (orig. proceeding); In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d 486, 493 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied] )..  FN5. See Bigham v. Dempster, 901 S.W.2d 424, 426 n. 3 (Tex.1995) (orig. proceeding); In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d 486, 493 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied] ).

FN6. See ante at 8–9..  FN6. See ante at 8–9.

FN7. See Black's Law Dictionary 209 (8th ed. 2004) (defining “burden of proof” as “[a] party's duty to prove a disputed assertion or charge”); Huckaby v. Huckaby, 436 S.W.2d 601, 604–05 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref'd n.r.e.) (concluding that the term “burden of proof” as used in a section of the Probate Code meant the “burden of persuasion” and that the party had to prove the proposition in question by a preponderance of evidence)..  FN7. See Black's Law Dictionary 209 (8th ed. 2004) (defining “burden of proof” as “[a] party's duty to prove a disputed assertion or charge”); Huckaby v. Huckaby, 436 S.W.2d 601, 604–05 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref'd n.r.e.) (concluding that the term “burden of proof” as used in a section of the Probate Code meant the “burden of persuasion” and that the party had to prove the proposition in question by a preponderance of evidence).

FN8. See Black's Law Dictionary 209; Huckaby, 436 S.W.2d at 604–05..  FN8. See Black's Law Dictionary 209; Huckaby, 436 S.W.2d at 604–05.

FN9. See Bielamowicz v. Cedar Hill Indep. Sch. Dist., 136 S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied) (concluding that party waived discovery objections by asserting them in an untimely manner, without addressing whether party satisfied his burden of proof as to the objections)..  FN9. See Bielamowicz v. Cedar Hill Indep. Sch. Dist., 136 S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied) (concluding that party waived discovery objections by asserting them in an untimely manner, without addressing whether party satisfied his burden of proof as to the objections).

FN10. See ante at 4..  FN10. See ante at 4.

FN11. See Bigham, 901 S.W.2d at 426 n. 3; In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d at 493..  FN11. See Bigham, 901 S.W.2d at 426 n. 3; In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d at 493.

FN12. See ante at 8–10; Bigham, 901 S.W.2d at 426 n. 3; In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d at 493..  FN12. See ante at 8–10; Bigham, 901 S.W.2d at 426 n. 3; In re Credit Suisse First Boston Mortg. Capital. L.L.C., 257 S.W.3d at 493.

FN13. All references in this opinion to GreCon's mandamus petition refer to both GreCon's original mandamus petition and its supplement to the original mandamus petition..  FN13. All references in this opinion to GreCon's mandamus petition refer to both GreCon's original mandamus petition and its supplement to the original mandamus petition.

FN14. See Tex. R. App. P. 52.3(h) (stating that the mandamus petition “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record”)..  FN14. See Tex. R. App. P. 52.3(h) (stating that the mandamus petition “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record”).

FN15. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) (holding that petitioners waived an argument by not briefing the argument in the Supreme Court of Texas); In re TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 169–71 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied] ) (holding that relators waived an argument by not briefing the argument in their mandamus petition); In re Akin Gump Strauss Hauer & Feld, LLP, 252 S.W.3d 480, 495 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (holding that relator waived an argument by not briefing the argument in its mandamus petition); In re Citizens Supporting Metro Solutions, Inc., No. 07–00190–CV, 2007 WL 4277850, at *4 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, orig. proceeding) (mem. op.) (same as In re Akin Gump Strauss Hauer & Feld, LLP)..  FN15. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) (holding that petitioners waived an argument by not briefing the argument in the Supreme Court of Texas); In re TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 169–71 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied] ) (holding that relators waived an argument by not briefing the argument in their mandamus petition); In re Akin Gump Strauss Hauer & Feld, LLP, 252 S.W.3d 480, 495 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (holding that relator waived an argument by not briefing the argument in its mandamus petition); In re Citizens Supporting Metro Solutions, Inc., No. 07–00190–CV, 2007 WL 4277850, at *4 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, orig. proceeding) (mem. op.) (same as In re Akin Gump Strauss Hauer & Feld, LLP).

FN16. See Del Lago Partners, Inc., 307 S.W.3d at 776 (asserting that the Supreme Court of Texas should not “stretch for a reason to reverse that was not raised [in the Supreme Court of Texas]”)..  FN16. See Del Lago Partners, Inc., 307 S.W.3d at 776 (asserting that the Supreme Court of Texas should not “stretch for a reason to reverse that was not raised [in the Supreme Court of Texas]”).

FN17. The majority cites In re Morse. See 153 S.W.3d 578, 581–82 (Tex. App.—Amarillo 2004, orig. proceeding). This case is not on point for the reasons discussed later in this section..  FN17. The majority cites In re Morse. See 153 S.W.3d 578, 581–82 (Tex. App.—Amarillo 2004, orig. proceeding). This case is not on point for the reasons discussed later in this section.

FN18. Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h)..  FN18. Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h).

FN19. Figgs responded “None at this time.”.  FN19. Figgs responded “None at this time.”

FN20. Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h)..  FN20. Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h).

FN21. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g)..  FN21. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).

FN22. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g)..  FN22. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).

FN23. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g)..  FN23. See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).

FN24. See ante at 8–10. Though the majority cites comment 1 to Rule 194, this comment does not impose any requirement that a party on whom a request for disclosure under Rule 194.2(h) is served must assert any relevancy arguments in a motion for protection filed by the deadline to respond to the disclosure request. See Tex. R. Civ. P. 194 cmt. 1..  FN24. See ante at 8–10. Though the majority cites comment 1 to Rule 194, this comment does not impose any requirement that a party on whom a request for disclosure under Rule 194.2(h) is served must assert any relevancy arguments in a motion for protection filed by the deadline to respond to the disclosure request. See Tex. R. Civ. P. 194 cmt. 1.

FN25. See 153 S.W.3d 578, 581–82 (Tex. App.—Amarillo 2004, orig. proceeding)..  FN25. See 153 S.W.3d 578, 581–82 (Tex. App.—Amarillo 2004, orig. proceeding).

FN26. See id..  FN26. See id.

FN27. See id..  FN27. See id.

FN28. See id..  FN28. See id.

FN29. See Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g)..  FN29. See Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g).

FN30. See In re Morse, 153 S.W.3d at 581–82..  FN30. See In re Morse, 153 S.W.3d at 581–82.

FN31. See id..  FN31. See id.

FN32. See ante at 8–9..  FN32. See ante at 8–9.

FN33. See In re Univar USA, Inc., 311 S.W.3d 175, 179–82 (Tex. App.—Beaumont 2010, orig. proceeding)..  FN33. See In re Univar USA, Inc., 311 S.W.3d 175, 179–82 (Tex. App.—Beaumont 2010, orig. proceeding).

FN34. See id. at 178, 180..  FN34. See id. at 178, 180.

FN35. See ante at 8–10..  FN35. See ante at 8–10.

FN36. See In re Univar USA, Inc., 311 S.W.3d at 179–82..  FN36. See In re Univar USA, Inc., 311 S.W.3d at 179–82.

FN37. See ante at 8–9..  FN37. See ante at 8–9.

FN38. See id..  FN38. See id.

FN39. See Tex. R. Civ. P. 193.4(a); In re Weekley Homes, L.P., 295 S.W.3d 309, 315 (Tex. 2009)..  FN39. See Tex. R. Civ. P. 193.4(a); In re Weekley Homes, L.P., 295 S.W.3d 309, 315 (Tex. 2009).

FN40. See Tex. R. Civ. P. 193.4(a); In re Weekley Homes, L.P., 295 S.W.3d at 315; In re Univar USA, Inc., 311 S.W.3d at 179–82..  FN40. See Tex. R. Civ. P. 193.4(a); In re Weekley Homes, L.P., 295 S.W.3d at 315; In re Univar USA, Inc., 311 S.W.3d at 179–82.

FN41. See ante at 8–10..  FN41. See ante at 8–10.

FN42. See id..  FN42. See id.

FN43. See Tex. R. Civ. P. 192, 194..  FN43. See Tex. R. Civ. P. 192, 194.

FN44. See Palo Duro Pipeline Co. v. Cochran, 785 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding)..  FN44. See Palo Duro Pipeline Co. v. Cochran, 785 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding).

FN45. If, as happened in today's case, a party has reason to believe that a party to the litigation has settled with one or more other parties, the party may seek discovery of these settlement agreements by specific requests for production. The record in today's case does not reflect that GreCon sought discovery of the Settlement Agreements by a request for production..  FN45. If, as happened in today's case, a party has reason to believe that a party to the litigation has settled with one or more other parties, the party may seek discovery of these settlement agreements by specific requests for production. The record in today's case does not reflect that GreCon sought discovery of the Settlement Agreements by a request for production.

FN46. See Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g)..  FN46. See Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g).

FN47. See Tex. R. Civ. P. 192, 194. As the majority notes, the purported settlement agreement with Mid-South Engineering, Inc. submitted under seal does not contain any date or any indication as to when it was executed. The majority does not explain the basis on which this court concludes that this document was in Figgs's possession on April 2, 2017, when he responded to the request for disclosure..  FN47. See Tex. R. Civ. P. 192, 194. As the majority notes, the purported settlement agreement with Mid-South Engineering, Inc. submitted under seal does not contain any date or any indication as to when it was executed. The majority does not explain the basis on which this court concludes that this document was in Figgs's possession on April 2, 2017, when he responded to the request for disclosure.

Kevin Jewell Justice

Copied to clipboard