OPINION Original Mandamus Proceeding[1] Opinion by: Liza A. Rodriguez, Justice Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice Delivered and Filed: February 23, 2022 PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED At issue in this mandamus proceeding is whether the trial court abused its discretion in denying Relator United Healthcare Insurance Company’s motion to quash the deposition of its employee. Because we conclude (1) the trial court’s denial was an abuse of discretion and (2) United Healthcare has no adequate remedy by appeal, we conditionally grant United Healthcare’s petition for writ of mandamus. Background The underlying lawsuit involves a negligence action brought by Tesilia Garza against Darryn Deucore and his employer Martin Marietta Materials Southwest LLC (collectively “the defendants”) for personal injuries Garza sustained during a car accident. Nonparty United Healthcare is Garza’s health insurance provider. With regard to medical services Garza received as a result of the injuries she sustained in the accident, it is undisputed that Garza submitted only one claim to United Healthcare for healthcare services rendered. All other medical services received by Garza were not submitted as claims to United Healthcare. Instead, Garza has relied on letters of protection sent from her attorney to her medical providers. On July 2, 2021, the defendants served United Healthcare’s registered agent with a Notice Duces Tecum of Intention to Take Oral and Videotaped Deposition of the Corporate Representative of United Healthcare. The notice of deposition sought testimony regarding (1) “[t]he maximum allowed contractual reimbursement rate [certain named medical providers] would receive from United Healthcare for the specific services (as identified by CPT/procedure codes) provided by [the medical providers] to [Garza]” as set forth in attached exhibits; (2) the identification of documents used to determine the amount United Healthcare would have paid the medical providers; (3) “ [t]he legal name of the entity doing business as United Healthcare Insurance Company”; and (4) Garza’s “group health coverage through United Healthcare.” The subpoena requested the production of contracts between United Healthcare and nine medical providers who treated Garza. In response, United Healthcare filed a Motion to Quash and for Protective Order. It argued the deposition notice was improper for the following reasons: (1) the subpoena failed to comply with Texas Rules of Civil Procedure 176[2] and 199.2[3]; (2) the scope of the deposition notice was unduly burdensome and “impossibly vague”; (3) the information sought by the deposition notice (contract reimbursement rates contained in provider contracts between United Healthcare and its network providers) was highly confidential, proprietary, and trade secret data; and (4) the defendants’ reliance on the supreme court’s recent decision in In re K & L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021) (orig. proceeding), was misplaced. In support of its motion to quash, United Healthcare attached the affidavit of its employee, Amanda Edmondson, who affirmed that negotiated contractual reimbursement rates for provider contracts with in-network medical providers were “highly confidential, proprietary, and trade secret data.” At a hearing on July 28, 2021, the trial court granted United Healthcare’s motion to quash. On August 18, 2021, the defendants served United Healthcare’s employee Edmonson with a notice of intention to take her oral deposition in Dallas, Texas. On August 24, 2021, United Healthcare filed a motion to quash Edmondson’s deposition, arguing that Edmondson was not a person with knowledge of relevant facts of the underlying case and that the only information she provided in her affidavit related to United Healthcare’s confidential and trade secret information. According to United Healthcare, Edmondson’s testimony was thus not relevant to any claim or defense of any party in the underlying case and was outside the scope of discovery. Thereafter, on September 13, 2021, the defendants amended their original answer to assert an affirmative defense that Garza failed to mitigate her damages by not submitting her medical bills to her health insurance provider (United Healthcare). On November 9, 2021, the trial court denied United Healthcare’s motion to quash Edmondson’s deposition. On November 29, 2021, United Healthcare filed this petition for writ of mandamus. Discussion “A writ of mandamus will issue only if the trial court clearly abused its discretion and no adequate appellate remedy exists.” In re Millwork, 631 S.W.3d 706, 711 (Tex. 2021) (orig. proceeding). “A trial court abuses its discretion when it misinterprets or misapplies the law.” Id. “A trial court also abuses its discretion when a decision is contrary to the only permissible view of the evidence.” Id. Further, a trial court order that allows discovery not permitted under procedural rules is subject to mandamus relief because “parties lack an adequate appellate remedy from orders compelling discovery beyond what the rules allow.” Id. at 714. “Once a deposition has been taken, it cannot be untaken.” Id. at 715 (citation omitted). Additionally, when discovery is ordered from a nonparty, relief by mandamus is appropriate because nonparties “are unable to appeal the discovery order.” In re Metro ROI, Inc., 203 S.W.3d 400, 403 (Tex. App.—El Paso 2006, orig. proceeding); see also In re Bain, 144 S.W.3d 236, 239 (Tex. App.—Tyler 2004, orig. proceeding) (mandamus relief available because nonparty has no right to appeal discovery order). “Our procedural rules govern the scope of permissible discovery.” K & L Auto Crushers, 627 S.W.3d at 247. “Generally, the rules broadly permit discovery of ‘any matter that is not privileged and is relevant to the subject matter of the pending action.’” Id. at 247-48 (quoting TEX. R. CIV. P. 192.3(a)). “This includes information that ‘will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’” Id. at 248 (quoting TEX. R. CIV. P. 192.3(a)). “Evidence is relevant if it has ‘any tendency’ to make ‘more or less probable’ a fact that is ‘of consequence in determining the action.’” Id. (quoting TEX. R. EVID. 401). “[F]or purposes of pre-trial discovery, evidence is relevant even if it’s not admissible at trial, so long as it’s ‘reasonably calculated to lead to the discovery of admissible evidence.’” Id. (quoting TEX. R. CIV. P. 192.3(a)). In its petition for writ of mandamus, United Healthcare argues that Edmondson’s testimony is not relevant to any claim or defense in the underlying case. In response to this argument, the defendants rely on the supreme court’s decision in K & L Auto Crushers. In K & L Auto Crushers, 627 S.W.3d at 244, the defendants in a personal-injury lawsuit sought discovery of information regarding the negotiated rates and costs charged by the plaintiff’s medical providers. The plaintiff, who had been injured in a motor-vehicle accident, sustained medical charges in excess of $1 million for surgeries and related treatment. Id. at 245. The plaintiff “did not pay for the medical care or provide information on private insurance or public benefits.” Id. “Instead, his attorneys sent the medical providers ‘letters of protection,’ promising they would ‘attempt to protect [the providers'] interest in [the plaintiff's] account’ when they settled [the plaintiff's] claims, but ‘only for any reasonable and necessary medical charges.’” Id. The defendant served subpoenas on the plaintiff’s healthcare providers, seeking production of documents related to the negotiated rates the providers charged healthcare companies and federal insurance programs. Id. at 246. The medical providers moved to quash the subpoenas. Id. In considering whether the trial court erred in quashing the subpoenas, the supreme court noted that it had previously held in the context of a hospital medical lien claim that “the negotiated rates a medical provider charged to patients’ private insurers and public-entity payors were relevant and discoverable on the issue of the reasonableness of the ‘full’ rates the provider charged to an uninsured patient for the same services.” K & L Auto Crushers, 627 S.W.3d at 244 (citing In re North Cypress Medical Center Operating Co., 559 S.W.3d 128, 129 (Tex. 2018)). The court then concluded that the “reasonableness of the claimant’s medical expenses is as germane in a personal-injury case as it is in a suit to challenge the validity of a medical lien.” Id. at 251. According to the court, its relevance holdings in North Cypress thus apply equally here: while certainly “not dispositive,” the negotiated rates the providers charged to private insurers and public payors for the medical services and devices provided to [the plaintiff], and the costs the providers incurred to provide those services and devices, are “at least relevant” to whether the chargemaster rates the providers billed to [the plaintiff] for the same services and devices are reasonable. K & L Auto Crushers, 627 S.W.3d at 251. In applying the supreme court’s reasoning in K &L Auto Crushers to the undisputed facts in this case, we emphasize the defendants in the underlying case have not sought information from Garza’s medical providers about the negotiated rates these providers charge to private insurers and public payors. Instead, the defendants ultimately seek information from Garza’s health insurance provider (United Healthcare) about claims that were never submitted and thus simply do not exist. In K & L Auto Crushers, the information sought was relevant because the services were provided to the plaintiff by the healthcare providers. See id. In contrast, with the exception of one claim that was submitted by Garza to United Healthcare,[4] no other claims were submitted. We decline to extend the holding in K & L Auto Crushers to healthcare insurance companies that have not been presented claims for payment. Thus, we conclude that the information ultimately sought from United Healthcare is not relevant to any claim or defense in the underlying case and it would simply not matter what information regarding trade secrets and confidentiality Edmondson could provide in her deposition. Conclusion Because the trial court has ordered discovery not permitted by procedural rules, we conclude it abused its discretion and its order is subject to mandamus relief. See In re Millwork, 631 S.W.3d at 714 (“A trial that orders discovery not permitted by the Texas Rules of Civil Procedure abuses its discretion and its order is subject to mandamus relief because the parties lack an adequate appellate remedy from orders compelling discovery beyond what the rules allow.”); see also In re Metro ROI, Inc., 203 S.W.3d at 403 (explaining that when discovery is ordered from a nonparty, relief by mandamus is appropriate because nonparties cannot appeal the discovery order). We therefore conditionally grant the petition for writ of mandamus and direct the trial court, no later than fifteen days from the date of this opinion, to vacate its order of November 9, 2021 denying United Healthcare’s motion to quash Edmondson’s deposition and sign an order granting same. Liza A. Rodriguez, Justice
