In In re Peters, the Texas Supreme Court addressed an assertion of the Fifth Amendment privilege against self-incrimination in the context of civil discovery—an uncommon but critically important Constitutional limit on discovery. The case arose from a tort lawsuit against a defendant who was allegedly driving while intoxicated. Among other holdings, the Court said:

• Ongoing Criminal Proceedings: Active criminal proceedings are not required to claim the privilege. Here, the State was prosecuting Peters on the same facts underlying the civil case, which justified his assertion of the privilege.
• Waiver of Privilege: For a waiver to be valid, it must be “made voluntarily, knowingly and intelligently.” The court found that Peters’ statements to a police officer at the time of the accident did not meet this high standard for waiver, given his confused and disoriented state at the time.
• Potential for Further Incrimination: The court concluded that compelling Peters to disclose the names of the bars he visited could further incriminate him by leading to evidence that he drank more than he claimed. The court emphasized that the amount of evidence already collected against Peters is irrelevant; the witness need only show that an answer to the specific question at hand is likely to be hazardous to him.

No. 23-0611 (Tex. Oct. 4, 2024).

The supreme court has consistently rejected discovery requests as overbroad that seek requests about “other similar accidents,” etc. when the requested information is not obviously connected to the facts of the case at hand. In In re Liberty County Mut. Ins. Co., the supreme court clarified that discovery about a plaintiff’s other accidents and injuries is discoverable when it is relevant to proof of causation and damages. While the specific holding of this case is tied to personal-injury litigation, its logic applies to other types of discovery disputes as well. No. 22-0321 (Tex. Nov. 17, 2023).

Empowerment Homes LLC v. Aleman undid a series of unfortunate events surrounding a default judgment, as follows:

• Incorrect, but well-intentioned, answer. “Arce filed a pro se answer using a standard “Defendant’s Answer” form. He incorrectly identified “Empowerment Homes LLC” as “Plaintiff,” but then listed his information under section “1. Defendant’s Information.” He signed the Answer in his individual capacity. He indicated in his affidavit attached to the motion for new trial he “thought I was answering on behalf of both myself and Defendant Empowerment Homes, LLC. I was not aware that I could not represent Empowerment Homes, LLC as I am not an attorney licensed in the State of Texas.” Under these facts, we conclude Arce tried, albeit deficient, to answer on behalf of Empowerment.”
• Deemed admissions. “The court held a hearing on the motions, and Arce attended. Appellants do not assert, and the record does not imply, Arce asked to withdraw the deemed admissions at the hearing. Instead, despite notice of the mistake prior to entry of final judgment, appellants did nothing and waited until the motion for new trial to request withdrawal of the deemed admissions. Thus, the equitable considerations that might permit a party to move post-judgment for withdrawal of deemed admissions are not present in this case.”
• Misuse of deemed admissions.  “Because appellees failed to establish an element of their summary judgment burden—that Arce acted in bad faith or callous disregard to the rules by not answering the request for admissions—the trial court erred in granting summary judgment based on the deemed admissions.”

No. 05-22-01082-CV (Oct. 9, 2023).

A shareholder’s record request led to Third Eye, Inc. v. UST Global, Inc., which affirmed a judgment requiring compliance with the request. On the question whether the shareholder had an “improper purpose” for the request, the Fifth Court reminded that the “mere fact that stockholders seeking access to a company’s books and records are on unfriendly terms with the company is not a ground for denying mandamus relief,” and concluded:

“Given (1) UST’s undisputed evidence that Third Eye never provided it with the financial information it was contractually obligated to deliver, (2) UST’s stated concern regarding its investment in Third Eye, and (3) Third Eye’s own evidence that it began losing substantial business beginning in 2017, we conclude the evidence was factually sufficient to support the trial court’s conclusion that UST had a proper purpose in requesting to inspect Third Eye’s books and records.”

No. 05-22-00334-CV (May 3, 2023) (mem. op.).

In In re Insight Neurodiagnostics, LLC, the Fifth Court granted mandamus relief as to these discovery requests:

In the underlying litigation, Jones contended that he had been undercompensated by his employer. The Court concluded that these requests by him were overly broad:

• “These requests could cover financial information that does not involved Jones,” and
• “The requests are impermissibly broad because they extend into a time period during which Jones did not work with [defendants].”

The court further observed: “The burden to propound discovery complying with the rules of the discovery should be on the party propounding the discovery, and not on the courts to redraft overly broad discovery so that, as re-drawn by the court, the requests comply with hte discovery rules.” No. 05-23-00014-CV (April 5, 2023) (mem. op.) (citation omitted).

A hard-fought forum dispute between two shoe businesses led to an unusual forum dispute in In re ASCIS Am. Corp.

Dueling lawsuits between ASCIS (the plaintiff in a California case) and Shoebacca (the plaintiff in a Dallas case) led to a decision by a Dallas district court to stay proceedings in deference to the California one.

ASCIS then served a subpoena on a Dallas-based attorney who had previously represented Shoebacca. Unsatisfied with the attorney’s responsiveness, ASCIS filed an ancillary proceeding in Dallas to enforce the subpoena. Shoebacca then intervened in that case, raising claims that ASCIS had already been stayed by a Dallas court in favor of their resolution in California.

The Fifth Court sided with ASCIS and granted mandamus relief to require the dismissal of the intervention. No. 05-22-00994-CV (Jan. 20, 2023) (mem. op.).

The supreme court granted mandamus relief as to an overly broad request for cellphone data in the case of In re Kuraray America, holding:

[W]e conclude that the trial court abused its discretion by ordering production of Kuraray’s employees’ cell-phone data for a six-week or four-month period without a showing that each employee’s use of his cell phone on May 18 or 19 could have been a contributing cause of the ethylene release. …

Plaintiffs argue that cell-phone data from days, weeks, and months before the release is relevant because Kuraray negligently failed to supervise its employees and failed to implement adequate policies and procedures to protect against cell-phone misuse. But Kuraray’s policies regarding cell-phone use and its alleged failure to supervise its employees are relevant only if there is some evidence that cell-phone use could have been a contributing cause of the release itself.

No. 20-0268 (Dec. 9, 2022).

The Fifth Court found that the trial court exceeded the bounds of permissible discovery under the TCPA in In re Quality Cleaning Plus:

Although the trial court acknowledged at the August 29 hearing that it could order limited discovery under the TCPA, there is no indication in the record that the trial court considered the limitations of Section 27.006(b) when it entered its post-August 24 discovery orders. Instead, the trial court reasoned that Section 27.006(b) did not apply because the discovery was outstanding and due before Quality Cleaning filed its TCPA motion and, thus, the discovery was not suspended. But the statute does not provide such an exception.

No. 05-22-01053-CV (Oct. 31, 2022) (mem. op.) (emphasis added).

The dispute in In re Brown involved a trial subpoena to a corporate-representative witness. The court of appeals granted mandamus relief, analogizing Tex. R. Civ. P. 199 to Fed. R. Civ. P. 30(b)(6). The corporation, however, had also cited the general subpoena rule – Tex. R. Civ. P. 176 – and the supreme court remanded for consideration of those arguments:

Brown raised the argument that corporate-representative trial subpoenas are available under Rule 176 in both the trial court and the court of appeals. Brown observes that Rule 176.6(b) states that a corporation may “designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization” in response to a valid subpoena “commanding testimony.” Tex. R. Civ. P. 176.6(b). He further notes that an appropriate corporate-representative subpoena may command a person to “attend and give testimony at a . . . trial.” Tex. R. Civ. P. 176.2(a).”

No. 20-0992 (Tex. Sep. 9, 2022).

In re Weekley Homes was not satisfied as to an electronic-discovery order, and mandamus relief was granted, when the record showed:

• No discovery default by nonmovant. “Meadowbrook responded to Blalock’s discovery requests and produced responsive documents in its possession. Where Meadowbrook found no responsive documents to a request, Meadowbrook confirmed that it diligently searched for responsive documents and found none. Indeed, the record shows that Meadowbrook withheld only five responsive documents, which were baptismal certificates of minors. Moreover, in its response and objections to the RFI, Meadowbrook presented a suggested protocol and parameters for searching the computer and stated that it would allow a search of the computer if an agreement could be reached with Blalock as to search terms and search protocols.”
• No likely benefit. “[Blalock] relied solely on her suspicions that a forensic expert would be able to recover additional relevant materials that may have been deleted from the computer prior to the incident in question. Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device.”

In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.)

The Fifth Court granted a mandamus petition about a corporate-representative deposition, when “proportionality” was not shown, given the corporation’s other information disclosures: “Safeco supported its proportionality objection with evidence. Safeco provided the trial court with a business record affidavit and two hearing exhibits, one containing a chain of e-mails between counsel and the other containing its supplemental responses to Taiwo’s request for disclosure. Further, the declaration of Barbara Spearman, Senior Complex Resolution Specialist IV for Safeco, stated that Safeco had produced and disclosed ‘1,208 pages of responsive documents and things in this matter, including its entire, unprivileged claim file, which included Plaintiff’s Policy, correspondence between the parties, the police report stemming from the accident and witness statements regarding the Accident.’” In re Safeco, No. 05-21-00873-CV (May 10, 2022) (mem. op.).

The Dallas Morning News reported that the Fifth Court stayed the Rule 202 depositions of two UT-Southwestern executives in connection with its program for transgender use; the mandamus proceeding continues to be briefed in the meantime.

The defendant in a medical-malpractice cases sought the production of electronic information about the dates when certain photographs of the plaintiff had been taken. The Fifth Court granted mandamus relief to the plaintiff:

“Methodist did not meet the burden of going forward with evidence … Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device. While the mandamus record suggests Methodist may have been concerned about multiple creation dates, Methodist failed to make an evidentiary showing that the electronic files Cooley produced lacked metadata. Accordingly, Methodist failed to make the good-cause showing necessary to justify the trial court’s order.”

In re Cooley, No. 05-21-00445 (Feb. 2, 2022) (mem. op.) (citations omitted; applying, inter alia, In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009)).

In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:

“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”

In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.

Including deposition excerpts in a trial record can become complicated, and in American Pride Xpress Logistics v. Joe Jordan Trucks, it led to a preservation problem: “During appellee’s case in chief, it presented the testimony of Lee Cox, the attorney who prepared the deed ….  Cox testified through a videotaped deposition. Before the testimony was played for the jury, appellants’ attorney told the court, ‘We have asked that the court reporter not transcribe this portion since we’ve got a transcript of it.’ However, the transcript of Cox’s testimony was not made part of the record. Without Cox’s testimony, the reporter’s record is incomplete, and we must presume his testimony supported the trial court’s judgment.” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.).

Continuing a series of Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case, the Fifth Court examined how the injunction addressed electronic information:

Weekley involved rule 196.4 discovery rather than a temporary injunction and was not a trade secrets case. Appellants cite no authority mandating Weekley’s application here and we have found none. Further, the law governing mandatory injunctive relief is consistent with Weekley’s requirement that ‘trial courts should be
mindful of protecting sensitive information and utilize the least intrusive means necessary to facilitate discovery of electronic information.’  As described above, rule 683 requires an injunction order to be specific and detailed and to ‘set forth the reasons for its issuance.’ And a preliminary mandatory injunction is proper only if a mandatory order is ‘necessary’ to prevent irreparable injury or extreme hardship. Though the DTO in this case is deficient for the reasons described in our analysis above, we cannot conclude Texas law entirely precludes mandatory injunctions requiring production of digital storage devices when the applicable standards—including rule 683’s specificity and irreparable injury requirements—are met.

No. 05-20-00937-CV (May 4, 2021) (citations omitted).

The Fifth Court denied mandamus relief in a dispute about third-party document confidentiality, observing that the party resisting discovery (1) “relied, in part, on a non-disclosure agreement that by its very terms expired years before the documents were subpoenaed and produced.” and (2) “relied on the affidavit of the President of one of [the movant’s] portfolio companies, which contains conclusory allegations concerning the confidential nature of [its] business and strategies, and of potential harm. Those assertions, in and of themselves, are not dispositive of the objection to confidentiality.” In re Edelman, No. 05-21-00085-CV (March 5, 2021).

A dissent concluded that one of the documents was protected by Texas’s shield statute, observing: “[The interest implicated by Exhibit M is not merely proprietary but also appears to concern a recurring relationship between a media relations firm and a news reporter, the disclosure of which would directly implicate the journalist’s news gathering rights.”

A construction company sued for nonpayment; on the eve of trial, the defendants objected to the admission of damages evidence because an earlier request for disclosure, served with the answer, had not been answered. The Fifth Court affirmed the trial court’s decision to exclude, noting a lack of evidence either as to good cause or a lack or prejudice (it is not clear from the opinion what other discovery may have been done: “Construction offered no evidence to demonstrate the absence of unfair surprise or prejudice. Indeed, there is nothing to suggest that Defendants had enough evidence to reasonably assess settlement, avoid trial by ambush, or prepare rebuttal to expert testimony.” (citation omitted). F 1 Construction v. Banz, No. 05-19-00717-CV (Jan. 20, 2021) (mem. op.)

A late discovery supplementation may be allowed if the party shows good cause and a lack of unfair surprise. The Fifth Court reversed a trial court ruling about an expert supplementation when, inter alia: “The record shows (1) Mr. Longeway’s report was based almost entirely on his inspection of the job site’s deactivated electrical lines and (2) the lines’ deactivation could be performed only by the electric delivery company and was not completed until November 30, 2018. Appellants received Mr. Longeway’s report on January 11, 2019, and filed their motion for reconsideration and new trial, with that report attached, several days later. Weekley’s response to the attempted late designation focused only on [another expert’s] report and did not specifically address good cause or unfair surprise or prejudice as to Mr. Longeway.” Paniagua v. Weekley Homes, No. 05-19-00439-CV (Jan. 13, 2021).

The question in State of Texas v. Mesquite Creek Devel., Inc.. was whether the trial court erred in dismissing a condemnation case based on the state’s failure to timely disclose an appraisal. The Fifth Court observed: “The supreme court utilizes four principles to determine whether the legislature clearly intended a statute to set jurisdictional requirements: “(1) the plain meaning of the statute, (2) whether the statute contains specific consequences for noncompliance, (3) the purpose of the statute, and (4) the consequences that would result from each construction.”  Applying those factors, the Court found that this issue was not jurisdictional. No. 05-19-00028-CV (Dec. 31, 2020).

Continuing to drive home the point from the recent Glassdoor litigation, the Fifth Court again reminded that: “Because the limitations period had run on the Estate’s anticipated claims before it filed its Rule 202 petition, the petition was moot, and the trial court should have dismissed the petition for want of jurisdiction.” In re Estate of Tobolowsky, No. 05-19-00073-CV (Oct. 20, 2020) (mem. op.).

The Texas Supreme Court recently entered an order amending (effective Jan. 1, 2021) several rules of civil procedure about discovery, including:

• Amendment of Tex. R. Civ. P. 47, 169, and 190 so that expedited discovery procedures will apply to any case with $250,000 or less in controversy (amended from $100,000). This also changes the Rule 47 pleading requirement.
• Rule 194 is amended to follow Fed. R. Civ. P. 26 and require initial disclosure of, among other matters,“all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.”

Thanks to my LPHS colleague John Adams for his careful review of this order.

In re Smith held that the statutory stay of certain discovery in health-liability claims did not apply to policies that nursing homes are required to make publicly available. As to the availability of mandamus relief, the Court observed: “It is well settled that mandamus relief is appropriate when the trial court
abuses its discretion by ordering discovery precluded by section 74.351(s). However, it is not clear whether the same is true when the trial court prohibits discovery that the statute permits.” (emphasis in original, citation omitted). The Court concluded that it was appropriate because of the potential effect on the statutorily-required expert report. (While the Court cites, inter alia, a general proposition from the Texas Supreme Court about mandamus relief, it remains to be seen how much weight this case will have in other settings without a similar expert report requirement.) No. 05-20-00497-CV (Aug. 12, 2020) (mem. op.).

(An expanded version of this post appears this week in the Texas Lawbook.)

Cyberpunk stories often describe the physical world as meatspace, as distinct from the online world of cyberspace. Litigation forces courts to consider the connection between the two “spaces” when a party contests the exercise of personal jurisdiction based on online activity. While precise definition of a website’s functionality can involve technical terms, the jurisdiction analysis involves familiar concepts, as illustrated by Shopstyle, Inc. & Popsugar, Inc. v. Rewardstyle, Inc.:

Purposeful availment. “[W]hen using the Shop feature, the user cannot purchase products on the PopSugar website but instead follows links to the websites of affiliated third-party retailers. In other words, the ‘user cannot consummate a commercial transaction online without accessing and logging-into a third-party website.'”

Operative facts. “Whether PopSugar’s website is available in Texas or whether links to Texas-based retailers are available on PopSugar’s website is unrelated to the operative facts as alleged by rewardStyle. The record contains no allegations or evidence of which we are aware that the alleged operative conduct occurred in Texas or that it has anything to do with Texas, apart from the fact that rewardStyle and one of its influencers are located here.”

Third-party activity. “[E]even if another party creating ShopStyle links and adding them to allegedly misappropriated images was considered an affirmative act by ShopStyle (and we are not so concluding), permitting hyperlinks to the websites of third-party Texas-based retailers where products can be purchased “would not demonstrate, by itself, that  [ShopStyle] controls the third-party sufficiently for sales from the third-party’s website to constitute ‘contacts’ by [ShopStyle].”

No. 05-19-00736-CV (July 21, 2020) (mem. op.). Of procedural interest, this case arose from a presuit discovery request under Tex. R. Civ. P. 202.

In re Perl granted mandamus relief as to jurisdictional discovery requests.

As to scope, it reasoned (as to one set of the requests): “Interrogatory No. 2’s request for “details of how business is conducted between” Relators and Cake Craft, Interrogatory No. 8’s request for Relators’ “work, role and/or services” to Cake Craft, Request for Production No. 5’s requests for documents “regarding your engagement and business relationship” with Cake Craft, and Request for Production No. 15’s request for documents “that detail the inspecting and auditing services that you performed on the Cake Craft defendants” do not focus on any jurisdictional fact. None of these requests are confined to any of the three purposeful availment factors: Relators’ own activities, aimed at Texas, or the specific benefit, advantage, or profit Relators would earn from a Texas relationship.” (emphasis added)

As to adequate remedy, in response to the argument that “the only injury claimed is the ordinary expense of litigation,” the Court observed: “[A]llowing discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford.” No. 05-20-00170-CV (June 2, 2020). LPHS represented the real parties in interest in this case.

In a securities fraud case, a trial court issued a protective order against certain questioning of a nonparty deponent. After thoroughly reviewing Texas discovery law about relevance, a Fifth Court panel majority reversed:

“[W]e conclude the two challenged lines of questioning were not necessarily outside the scope of relevant information. Information concerning other lawsuits is not per se outside the scope of discovery, and relators did not establish below that the circumstances of the non-party’s role in the Servergy and investment adviser situations are so dissimilar to the allegations here as to be irrelevant. Anything reasonably calculated to lead to the discovery of material evidence is generally within the scope of proper discovery.”

In re Cook, No. 05-19-01283-CV (May 20, 2020) (mem. op.) (citations omitted). A dissent saw the matter differently:

“Here, relators have not clearly established that other discovery is unavailable to support their claims and defenses. In fact, the record is clear that the questions prohibited by the protective order were only ‘a few minutes of additional questions’ in a six-hour deposition, and relators were able to explore extensively the nonparty’s relationships with the parties and his familiarity with and participation in the events underlying the case.”

Discovery problems led to a contempt finding and an order imposing jail time in In re Duncan, No. 05-19-01572-CV (May 14, 2020) (mem. op.) The Fifth Court granted habeas relief, noting this basic due-process requirement in this area:

“Contempt may be. . .divided into civil or coercive contempt, which involves confinement pending obedience to the trial court’s order, and criminal or punitive contempt, which results in a punishment for past transgressions. In cases where the trial court seeks to impose criminal or punitive constructive contempt, due process requires a contemnor to either be present or affirmatively waive his or her presence for the contempt hearing.. When the contemnor fails to appear for the contempt hearing, the trial court must issue a capias or writ of attachment to secure the contemnor’s presence.”

(emphasis added, citations omitted, applying, inter alia, In re Reece, 341 S.W.3d 360 (Tex. 2011), and Ex parte Alloju, 907 S.W.2d 486 (Tex. 1995)).

In a detailed review of whether certain pretrial activity waived a special appearance, the Fifth Court reminded: “Examples of actions a party can take without waiving a special appearance are (1) filing a motion for continuance relating to discovery on a motion to quash service; (2) serving nonjurisdictional discovery requests; (3) filing a motion to compel nonjurisdictional discovery but not scheduling a hearing or obtaining a ruling on the motion; (4) litigating a jurisdictional discovery dispute; (5) litigating other disputes that are factually related to the special appearance; or (6) litigating opposition to merits-based discovery sought by another party.”  

Applying these principles, the Court concluded that no waiver occurred by (1) “filing an obtaining a ruling on a Motion to Vacate Judgment and Protective Order,” (2) participating in discovery, including responding to a request for disclosures, and (3) filing a sanctions motion based on Tex. R. Civ. P. 13, which in part touched on the allegations relevant to the jurisdiction dispute. Brady v. Kane, No. 05-18-01105-CV (April 28, 2020) (mem. op.).

The Fifth Court conditionally granted mandamus relief as to an order quashing a postjudgment deposition, observing: “[T]rial courts have discretion to control the nature and form of discovery, but that discretion is not unlimited. ‘A trial court abuses its discretion by limiting discovery in the absence of some evidence supporting the request for a protective order.’ In this case, counsel for [movant] presented arguments at the hearing on the motion to quash but did not present evidence in support of the motion. [Movant’s] motion was unverified;the transcript from the April 3, 2019 hearing on the motion to dissolve was not made a part of the record at the hearing on the motion to quash; nor did her counsel request the trial court to judicially notice the evidence from the prior hearing. Because no evidence was presented in support of [Movant’s] motion, we conclude the trial court abused its discretion in granting the motion to quash and motion for protective order.” In re Mustang Asset Recovery Ltd., No. 05-19-01036-CV (Dec. 6, 2019) (mem. op.) (emphasis added, citations omitted).

The trial court held Steven Topletz in contempt for not producing documents about a family trust, punishing him with a fine and 14 days in jail. The Fifth Court denied his habeas application, noting that Topletz, as a trust beneficiary, had a right under the trust instrument to request the relevant material (thus distinguishing In re: Kuntz, 124 S.W.3d 179 (Tex. 2003), which involved the petitioner’s physical access to documents he did not have a legal right to.) In re Topletz, No. 05-19-00327-CV (Sept 11, 2019) (mem. op.).

The much-watched Dallas case of Glassdoor Inc. v. Andra Group posed important questions about protection of anonymous speech online – here, posts on the popular job search website glassdoor.com – as well as the applicability of the TCPA to pre-suit discovery petitions under Tex. R. Civ. P. 202. The Texas Supreme Court, however, found that it “may not reach these issues . . . because the Rule 202 proceeding has been rendered moot by the fact that the petitioner’s potential claims against the anonymous speakers  are now time-barred as a matter of law.” No. 17-0463 (Tex. Jan. 25, 2019). Accordingly, the Fifth Court’s opinion stands as the law on the matter in Dallas (as persuasive authority rather than precedent, as the Texas Supreme Court vacated both the trial and appellate rulings), under which a Rule 202 petition can proceed when the record supports a finding “that the likely benefit of allowing [petitioner] to take a deposition about two anonymous reviews on [respondent’s] website outweighed the burden or expense of the procedure.”

The intersection between the presuit deposition procedure of Tex. R. Civ. P. 202 and a city’s sovereign immunity resulted in a victory for Rule 202 in City of Dallas v. Dallas Companion Animal Project: “DCAP pleaded sufficient facts to support a claim that employees of the City acted in their individual capacities in initiating, and disclosing information about, a criminal investigation into DCAP’s activities . . . . Accordingly, the fact the City may be immune from DCAP’s claims or any City employee who acted in the course and scope of his employment may be entitled to a dismissal of DCAP’s claims does not deprive the trial court of jurisdiction over DCAP’s rule 202 petition.”  No. 05-18-00453-CV (Oct. 26, 2018). (Procedurally, the opinion reminds in footnote 8 that the best practice is to actually offer the verified Rule 202 petition and any supporting materials into evidence.)

This request for admission – “Admit or deny that Defendant’s negligence was the sole proximate cause of the incident forming the basis of this lawsuit” – did not involve an issue of fact, or the application of law to fact. It was thus improper and did not raise a fact issue to overcome a summary judgment motion. Arana v. Figueroa, No. 05-17-00368-CV (July 30, 2018) (mem. op.)

In a win for our LPCH client, the Fifth Court denied mandamus relief from two discovery orders, relying primarily on the doctrine of laches. Reminding that “[a]lthough mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles,” the Court reviewed several opinions from Dallas (and other intermediate Texas courts), and held that laches barred mandamus relief when “relators waited more than five months to seek mandamus relief” from the relevant discovery order, and offer[ed] no explanation for the delay.”  In re: Southwest Laboratories, No. 05-18-00832-CV (July 24, 2018) (mem. op.)

This is an example of an admission of fact, not a legal conclusion: “That the Commercial Truck suffered engine failure in Dallas, Texas and Plaintiff retained Defendants’ [sic] to rebuild the engine and perform additional repairs.” Garcha v. Chatha, No. 05-17-00084-CV (Apr. 12, 2018) (mem. op.)

The Fifth Court reversed and rendered default judgment for the plaintiff in a case about an allegedly stolen 2007 Bentley. As for liability, the opinion recites a useful set of deemed admissions for such a case, that could readily be adapted to other conversion-type claims. As for damages, while the plaintiff’s affidavit was found to be conclusory: “[E]videnc of the price paid may be offered as proof of the property’s fair market value. The undisputed evidence established that Swarovski paid Enger $75,500 for the Bentley on September 21, 2013, only three months before Enger took the car. [And i]n deemed admissions, Enger admitted he accepted Swarovski’s $75,500 check as full payment for the Bentley and deposited the check into his account. Thus, the undisputed evidence established that Swarovski’s damages resulting from the theft totaled $79,249.70, which includes the cost of the [car’s] rims and insurance payments.” Swarovski v. Enger, No. 05-17-00398-CV (March 16, 2018) (mem. op.)

As a counterpoint to its recent discovery-limiting opinion in In re: Hanover Lloyds, the Fifth Court recently addressed three dimensions of discovery requests in a suit against the NCAA about head injuries, concluding:

• Requests about other types of head injuries were overly broad, especially given the NCAA’s commitment to search for documents about “concussive and sub-concussive blows to the head” without limiting its search to those precise terms;
• The 50-year scope of discovery was reasonable in light of the types of injuries alleged and the issues about the NCAA’s awareness of them;
• Information about other sports was also discoverbale, as the issue was the NCAA’s awareness about the type of head injury in question – “. . . the injury, not the sport, is the proper inquiry.”

In re: NCAA, No. 05-17-00951-CV (March 1, 2018).

Continuing to provide practical guidance about discovery requests (see In re: Sting Soccer Group, 2017), and applying the recent Texas Supreme Court cases about discovery of information about other claims, in the context of a dispute over one claim (see In re: Nat’l Lloyds I, 449 S.W.3d 486 (Tex. 2014), and In re: Nat’l Lloyds II, 507 S.W.3d 219 (Tex. 2016)), the Fifth Court addressed these discovery requests in an insurance claim dispute:

(1) the last twenty-five Haag Engineering reports on a storm damage claim in Texas for one of its insureds that Hanover Lloyds Insurance Company had received before August 31, 2015 (the date of its decision letter in this case) plus the decision letters in those claims. . . .

(2) the last twenty-five Haag Engineering reports on a storm damage claim in Texas for one of its insureds that Hanover Lloyds Insurance Company had received after August 31, 2015 (the date of its decision letter in this case) plus the decision letters in those claims.

It granted mandamus relief against an order to respond to them, reasoning: “[A]ccording to Indoor Sports, it is seeking the information to develop and prove the relationship between Hanover and HAAG, Hanover’s reliance on HAAG’s training, investigation and reports, and the unreasonableness of the investigation and decision made by Hanover in light of the HAAG report and lack of contradictory evidence. Although there is a remote possibility the requested discovery could lead to the discovery of relevant evidence, we fail to see how Hanover’s use of HAAG engineering reports on claims of unrelated third parties is probative of Hanover’s conduct with respect to its handling of this claim.” In re: Hanover Lloyds, No. 05-17-00608-CV (March 2, 2018) (mem. op.)

Acra v. Bonaudo illustrates the “falling dominoes” problem that can arise from  discovery issues. Appellants sought to supersede a judgment with relatively small bonds. The district court found problems with their discovery responses, which interfered with their ability to establish a low net worth at the hearing about bond size. The Fifth Court affirmed: “On the record before us, we deny the request to vacate the trial court’s orders. Without evidence of all of Acra’s and Secner HR’s assets and liabilities, the trial court could not determine their individual net worth. And, without a determination of their individual net worth, the amount of bond, set in accordance with civil practice and remedies code section 52.006 and appellate rule 24.2(a)(1), was not an abuse of discretion.”  No. 05-17-00451-CV (Dec. 8, 2017) (mem. op.)

In a rare grant of mandamus relief about written discovery, based on the “heart of a party’s case” concept of irreparable injury, the Fifth Court strongly endorsed the use of “contention” interrogatories and related requests for production. Requests as to which it granted relief included ones seeking:

• “Specific factual and legal basis for establishing a fiduciary duty owed by Coralli
  to Vola. (Interrogatory No. 17)”;
• “Documents Vola contends establish, demonstrate, or prove the amount of
  uniforms Sting Soccer committed to purchasing from Vola as alleged in
  paragraph 17 of the first amended petition. (Request No. 27)”; and
• “Documents Vola contends establish, demonstrate, or prove the amount of damages alleged owed to Vola by Sting Soccer. (Request No. 35).”

The opinion makes other useful statements about appropriate discovery objections and requests for admission. In re Sting Soccer Group, No. 05-17-00317-CV (Nov. 30, 2017) (mem. op.)

Applying In re: Jorden, 249 S.W.3d 416 (Tex. 2008), which held that a Rule 202 pre-suit deposition was inappropriate in a health care case before service of the appropriate expert report, the Fifth Court held in In re Sandate  that third-party discovery was improper for similar reasons, and granted a mandamus petitition to quash it. No. 05-17-00871-CV (Oct. 19, 2017).

While Sandate does not directly address the requirement of a lack of adequate remedy by direct appeal, Jorden makes clear that this line of authority is not intended as a general invitation to seek mandamus relief about discovery matters:

Correcting whichever view is wrong after final judgment seems very unlikely, as it is hard to imagine how allowing discovery a little too early could ever be harmful error — either by causing rendition of an improper judgment or preventing the presentation of an appeal. If (as relators claim) Texas law prohibits presuit depositions until an expert report is served, those depositions cannot be “untaken” and thus an appellate court will not be able to cure the error and enforce the statutory scheme after trial. As a result, relators unquestionably may lose substantive and procedural rights if review is postponed, rights the Legislature believed (as discussed below) are critical to ensuring access to affordable medical care in the state.

Sandate does, however, contain a muscular summary of when mandamus relief may issue to address a trial court’s legal error:

In civil cases, “[a] trial or appellate court has no discretion in determining what the law is or inapplying the law to the facts, even if the law is somewhat unsettled.” [Jorden, 249 S.W.3d] at 424 (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (case of first impression regarding enforceability of contractual jury waiver); see also Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding) (changing 100 years of case law and granting mandamus for abuse of discretion when trial judge followed then-existing law), disapproved on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding).

My partner Britta Stanton recently published a good article – “Who’s Your Client? The Business or the Executive?”‘ about the importance of quality Upjohn warnings – worth a read if your practice involves the depositions of company executives.

The Discovery Channel may have has Shark Week, but the Fifth Court is having Mandamus Week. The most recent installment is In re: Commercial Metals, which involved a challenge to a protective order about a business’s trade secrets. The Court began by reminding, as to the basic requriements for a writ of mandamus, that “[a] trial court abuses its discretion if it orders discovery exceeding the scope permitted by the rules,” and that “[n]o adequate appellate remedy exists when the trial court compels production beyond the permissible bounds of discovery.” That said, the Court found no abuse of discretion in the particularized procedures used to limit use of the information by plaintiff’s “de facto in house counsel,” and denied the petition. The opinion provides useful guidance on a very practical and recurring issue in business disputes about the use of confidential information. No. 05-16-01214-CV (Aug. 29, 2017) (mem. op.)

Six tenants intervened in a code enforcement action, seeking to pursue class claims against the property owners. Defendants sought to take their depositions about issues regarding certification, the intervenors moved to quash, and the trial judge allowed the depositions to proceed, but for no more than thirty minutes each. The Fifth Court granted mandamus, finding that “the record includes no evidence or even argument regarding how a deposition of any length wqould cause intervenors to suffer harm or subject them to undue burden,” and also that the intervenors “lack an adequate remedy by appeal because the order severely compromises relators’ ability to present its case on the issue of class certification.” In re: Topletz, No. 05-17-00315-CV (Aug. 24, 2017).

In a forceful statement against merits discovery before the resolution of a special appearance, the Fifth Court granted a writ of mandamus to require that “relator’s deposition be limited to matters directly relevant to the issue of jurisdiction if the deposition is taken before the trial court rules on relator’s special appearance,” because “Rule 120a requires discovery be limited to matters relevant to jurisdiciton prior to a ruling on a special appearance.” In re: Stanton, No. 05-17-00834-CV (Aug. 24, 2017) (mem. op.) (citing, inter alia, In re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).

Last Friday, the Texas Supreme Court denied mandamus relief in a high-profile dispute about the proper format in which to produce electronic records, but provided extensive guidance about the framework and factors that should decide such disputes, and remanded for reconsideration in light of that guidance. In a nutshell: “Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered. The taproot of this discovery dispute is whether production in native format is reasonable given the circumstances of this case. Reasonableness and its bedfellow, proportionality, require a case-by-case balancing of jurisprudential considerations,which is informed by factors the discovery rules identify as limiting the scope of discovery and geared toward the ultimate objective of “obtain[ing] a just,fair, equitable and impartial adjudication” for the litigants “with as great expedition and dispatch at the least expense . . . as may be practicable.” In re State Farm Lloyds, No. 15-903 (Tex. May 26, 2017).

In a quick break from Texas state practice – for a recent CLE presentation, I prepared the attached one-page chart to summarize the Fifth Circuit’s recent holdings about discovery.

In Glassdoor Inc. v. Andra Group LP, the Fifth Court affirmed an order granting a Rule 202 petition about online reviews of a business as an employer, offering several pointers for the handling of such petitions:

• The trial judge limited the scope of the examination to two posts, and specific items within them;
• The movant established its potential business disparagement damages with three affidavits about the effect of the posts on its recruiting;
• The statements at issue went beyond “hyperbole or mere personal opinion” to make specific “accusations of illegal conduct that are capable of being proved true or false”; and
• The First Amendment rights of the anonymous reviewers to speak anonymously “must be balanced against the right of others to hold accountable those who engage in speech not protected by the First Amendment.”

A “mirror image” anti-SLAPP motion was properly rejected for the same reasons that the Rule 202 petition was granted. No. 05-16-00189-CV (March 24, 2017) (mem. op.)

In In re Michelin North America, Inc., the Dallas Court of Appeals conditionally granted a writ of mandamus to protect Michelin from being forced to produce certain discovery.  The district court ordered Michelin to produce specifications for tires similar to the allegedly defective tire at issue in that case in addition to financial information for the decade prior to the litigation.

The court of appeals held that Michelin satisfied its burden under Texas Rule of Evidence 507 to resist the discovery of trade secrets through the affidavit of an engineer who worked in Michelin’s legal department but that Michelin failed to satisfy its burden of proving its financial data was a trade secret because it failed to offer an affidavit until after the hearing on the motion to compel (helpful hint: it should be filed 7 days before the hearing under TRCP 193.4(a) if it is in affidavit form).  The court also held that the plaintiffs failed to meet their burden under Rule 507 to show “with specificity” exactly how the lack of information would impair the presentation of the case on the merits “to the point that an unjust result is a real, rather than a merely possible, threat.”  On the issue of financial information, though Michelin failed to timely prove its trade secrets privilege, Michelin was saved by a secondary argument that the district court’s order was too broad because the discovery included financial information from several years earlier and only current financial information is relevant for calculation of punitive damages.

In re Michelin

DFW Advisors sued its former bookkeeper, Ervin, alleging misappropriation.  She responded to a request for disclosure by saying that she did acted with consent.  At trial, she sought to introduce evidence of consent, in the form of testimony of an affair with DFW’s principal.  The trial court allowed the testimony, over DFW’s objection, and the Fifth Court affirmed “[T]his response sufficiently disclosed Ervin’s basic defense, which was that she had consent to take the money.  [Tex. R. Civ. P.] 194.2 only requires disclosure of a party’s basic assertions and did not require Ervin to disclose the details of how consent was given.”  DFW Advisors Ltd. v. Ervin, No. 05-14-00883-CV (Feb. 11, 2016) (mem. op.)

A personal injury case led to an award of $4500 in attorney fees against the defendants’ attorneys after they lost a motion to compel. Among other things, the defendants sought to designate certain documents as “ATTORNEYS EYES ONLY” and objected to 14 of 21 document requests on the basis of trade secret privilege — in a car wreck case. The county court at law overruled the vast majority of the defendants’ objections, and awarded the $4500 to the plaintiff. On appeal, the defendants’ attorneys argued that the award was a sanction that could not be justified by any offensive conduct. The Dallas Court of Appeals disagreed, pointing to the trial court’s order stating that the award of fees and costs was granted for securing orders overruling the defendants’ objections to the plaintiff’s discovery requests. That made it an award of expenses on a motion to compel, which is required (but rarely observed) by TRCP 215.1(d). Reviewing the course of the proceedings in the trial court, the Court of Appeals could not conclude that the trial court had abused its discretion in determining that the defendants’ resistance to the discovery had not been “substantially justified.”

MacDonald Devin, PC v. Rice, No. 05-14-00938-CV

After the real estate bubble burst in 2008, borrowers attempted all sorts of ways to get out of their obligations. Most notably, debtors repeatedly challenged the ways that their mortgages had been transferred and recorded (or not) by the banks that had held, swapped, sold, and securitized them. Long story short, it hardly ever worked, as courts across the country mostly (but not always) eschewed technical arguments in favor of the big picture of who owed what to whom. But a new opinion from the Dallas Court of Appeals shows that when the bank doesn’t follow the rules in litigation, the debtors may still escape liability on a loan.

In this instance, a pair of individual guarantors for a $748,000 loan were sued by Wells Fargo after the borrower defaulted. While the case was pending, Wells Fargo allegedly assigned the loan documents to another entity, Apex. Wells Fargo’s attorneys later filed a motion for withdrawal and substitution, which the trial court granted. The motion failed to mention the assignment of the loan documents to Apex. The guarantors then filed for no-evidence summary judgment, pointing out that Wells Fargo had conducted no discovery and that the discovery period was closed. The motion argued that there was no evidence to show who owned the guaranty. When Apex appeared and tried to cure that deficiency, the guarantors objected and moved to strike Apex’s summary judgment evidence. The trial court sustained the objections and granted summary judgment. The Court of Appeals affirmed, holding that it was not an abuse of discretion to exclude Apex’s evidence because it had waited 11 months after acquiring the loan to amend Wells Fargo’s discovery responses by disclosing its ownership. That was not “reasonably prompt,” and it acted as an unfair surprise to the guarantors to have that come out only in response to their summary judgment motion.

LSREF2 Apex (TX) II, LLC v. Blomquist, No. 05-14-00851-CV

Is a party seeking to set aside an arbitration award entitled to take discovery from her opponent’s attorneys and the arbitrator in order to establish a claim of evident partiality? The answer from the Dallas Court of Appeals is a partially qualified yes. Dolores Rodas sued her employer, La Madeleine, for personal injuries sustained during her employment. The case was compelled into arbitration, and the arbitrator issued a take-nothing award in favor of La Madeleine. Rodas moved to set aside the result on the basis of the arbitrator’s evident partiality, claiming that he had failed to disclose two subsequent times he had been appointed as arbitrator in cases involving La Madeleine’s law firm. The trial court confirmed the arbitration award, but the Court of Appeals reversed and remanded. Assuming, without deciding, that Texas law requires a party to make some evidentiary showing of grounds to challenge the arbitration result before discovery is permitted, the Court of Appeals held that Rodas had met that threshold and was therefore entitled to take depositions in support of her claim of evident partiality.

Rodas v. La Madeleine of Tex., Inc., No. 05-14-00054-CV

A short opinion appears to stand for the proposition that mandamus will not issue to prevent the deposition of a lawyer for one of the parties in the litigation because the appellate court can only speculate what questions might be asked of the attorney. The opinion relies on a pair of cases from the Houston [1st] and Corpus Christi Courts of Appeals that held the future possibility of questions being asked on privileged topics does not justify the prior restraint of barring the deposition altogether. It should be noted that the witness here was apparently involved in the facts underlying the plaintiff’s claims, and that the district judge’s order did provide at least a broad definition of the proper scope of inquiry (although neither caveat is included in the Court of Appeals’ opinion).

In re Hydroscience, Inc., No. 05-15-00366-CV

In one of the last opinions of 2014, the Dallas Court of Appeals denied mandamus relief to VERP Investment LLC, which was seeking to overturn a trial court order requiring it to turn over a computer hard drive to a third-party forensic examiner. The Court denied mandamus because VERP had not included transcripts of the trial court’s hearings or a statement that no evidence was taken at them. That left the Court of Appeals unable to determine whether the trial court had abused its discretion in granting the motion to compel. But VERP persisted, filing a second petition that cured the original’s omissions, and that mandamus petition has now been conditionally granted.

On the merits, the Court of Appeals first noted that an order requiring direct access to an electronic device is burdensome because it is intrusive. Due to that intrusiveness, the party seeking direct access must establish via evidence that the opponent is in default of its discovery obligations. In this instance, however, the movant failed to come forward with any evidence, and “[m]ere skepticism or bare allegations” are not enough to warrant direct access to electronic devices. Therefore, the trial court abused its discretion, and the Court of Appeals directed it to vacate the order granting the motion to compel.

In re VERP Investment LLC (VERP II), No. 05-15-00023-CV

A short opinion denying mandamus in an electronic discovery dispute serves as a reminder of the importance of a hearing transcript in the appellate courts. In this case, VERP Investment lost a motion to compel, but the mandamus record did not include a transcript from either the hearing on the motion or VERP’s subsequent motion for reconsideration. Likewise, the record did not include a statement that no testimony was taken at the hearings, as permitted by TRAP 52.7(a)(2). Those failures left the Court of Appeals unable to determine whether or not VERP’s opponent had made the required evidentiary showing to obtain the electronic discovery. Therefore, VERP could not demonstrate that the trial court had abused its discretion in granting the motion to compel.

In re VERP Investment, LLC, No. 05-14-01403-CV

Graham Mortgage sued Holmes on a personal guaranty he had signed.  The trial court granted Graham’s motion for summary judgment, and Holmes appealed.  Among other things, he argued that the trial court had erred by refusing to deem his requests for admission admitted because Graham never responded to them. Graham argued that it had no obligation to respond to the requests for admission because they were served by email and the rules (at the time) did not allow service by email.  The Court of Appeals agreed, holding that even though Graham had received the requests for admission, its internal procedures were not structured to receive discovery requests by email, and “attorneys should be able to structure their internal procedures around their opponents’ compliance with the rules of civil procedure in such matters as service of documents.”

Holmes v. Grahma Mortgage Corp.

In this products liability case, the plaintiffs alleged that Goodyear was grossly negligent with respect to its tire manufacturing practices at its North Carolina plant and that the design of the tire was defective because it failed to include a nylon cap ply.  Ostensibly to help prove their case, the plaintiffs sought to tour and videotape parts of Goodyear’s plant in North Carolina.  The trial court obliged, ordering Goodyear to allow plaintiffs’ counsel, expert witness, and a videographer to enter the facility and document the manufacturing process.

Goodyear resisted by filing a writ of mandamus challenging the trial court’s order permitting the tour.  The Court of Appeals sided with Goodyear, reasoning that the main reason the plaintiffs wanted to tour the facility was to create demonstrative evidence (namely, a video to show the jury), not to discover new information.  Because that is not a valid purpose to seek entry onto another party’s property, the Court granted Goodyear’s mandamus petition.

In re the Goodyear Tire & Rubber Company

Boardwalk Motor Cars sued Imagine Automotive Group over allegations that it had bribed Boardwalk employees to obtain used cars at preferential prices for resale, and that it had outright stolen some cars from Boardwalk’s dealerships. During discovery, Boardwalk successfully moved to compel the production of certain financial records, including canceled checks and documents supporting Imagine’s claim that it had paid for the allegedly stolen vehicles. That set off a lengthy series of sanctions motions and hearings. A week before trial, the court struck Imagine’s defenses for failing to produce some of those documents, and on the third day of trial it struck all of Imagine’s pleadings when Boardwalk informed the court of Imagine’s failure to produce still other documents. The jury awarded $269,950 in damages under the Theft Liability Act. The trial court then awarded Boardwalk $389,898 for its attorney fees under the Act, plus an additional $180,000 in sanctions against Imagine for the discovery abuse. The Court of Appeals affirmed.

The Court held that the trial court had not failed to consider the availability of lesser sanctions before imposing its death penalty sanctions. Among other things, the court had previously warned that noncompliance could result in dismissal, and the sanctions order stated that the judge had considered and rejected the less intrusive remedy of reopening discovery and continuing the trial. The trial court also did not err in refusing Imagine’s attempt to put on evidence disputing causation for Boardwalk’s claimed damages, as the striking of the pleadings meant that Imagine’s theft of the cars was an established fact. Imagine could have put on evidence that the cars were worth less than Boardwalk claimed, but could not dispute they had been stolen. The Court held that the sanctions were not excessive in light of Imagine’s multiple misrepresentations and acts of discovery abuse. Finally, the Court of Appeals rejected Imagine’s argument that Boardwalk should have been required to sub-segregate its attorney fees for the Theft Liability Act claim because that claim had shrunk during the course of the litigation from 256 allegedly stolen vehicles to only 11. The Court reasoned that segregation is only required between causes of action, not within a particular cause of action.

Imagine Automotive Group v. Boardwalk Motor Cars, No. 05-11-01119-CV

The Court of Appeals had granted mandamus relief to a witness who had been ordered to submit to a Rule 202 pre-suit deposition. The trial court abused its discretion because the movant failed to offer any evidence at the hearing on the motion, with the result being that it failed to meet the burden of showing that the likely benefit of the deposition outweighed the burden or expense of the discovery. The Court declined to uphold the Rule 202 deposition on the basis of the verified petition alone, holding instead that the findings required by the rule could not be implied from the record.

In re Noriega, No. 05-14-00307-CV

In a contentious trade secret case, a district judge sat through the deposition of Pendragon Transportation’s corporate representative in order to rule on the objections and instructions offered by Pendragon’s attorney. That same day, the trial court sua sponte appointed a special master to attend future depositions and make rulings on the attorneys’ objections. Two months later, Pendragon filed an objection to the special master order, and the trial court overruled that objection a month later. Three months after that ruling, and only 11 days before trial, Pendragon filed its mandamus petition with the Court of Appeals. Given Pendragon’s six-month delay in seeking mandamus to challenge the appointment of the special master, and its failure to disclose that trial was only two weeks away at the time of its filing, the Court concluded that Pendragon had slept on any right it may have had to complain about the special master. However, the Court did grant Pendragon limited relief, holding that the trial court abused its discretion by ordering the company to pay the special master’s expenses in advance. That ruling was contrary to Rule 143, which only permits the court to require security to be posted for costs, not their actual payment prior to entry of a final judgment.

In re Pendragon Transp. LLC, No. 05-13-01749-CV

A Collin County divorce case turned into a temporary injunction proceeding involving claims of assault and terroristic threats by an attorney in the middle of a deposition. The plaintiff, Barry Wells, alleged that his wife’s attorney became angry when Wells told him to calm down and commented that May’s daughter had probably committed suicide due to the attorney’s supposed anger issues. The lawyer allegedly made multiple death threats in the course of throwing Wells out of the building. Five days later, Wells filed a petition seeking injunctive relief to prevent the attorney from coming within 300 feet of him. The trial court granted an ex parte TRO, but the attorney quickly moved to dissolve the order and to impose sanctions for filing a groundless, bad faith pleading. After a hearing, the trial court dissolved the TRO and entered sanctions against Wells by striking his petition and dismissing the case with prejudice.

The Court of Appeals affirmed the dissolution of the TRO, but reversed the sanctions order. The ruling on the TRO was moot, and therefore non-appealable, because the order would have expired after 14 days in any event. As to the sanctions order, the deposition transcript revealed that Wells had been the instigator of the confrontation with the defendant, and that his comment about the attorney’s daughter was outrageous, the transcript also showed that the attorney had indeed threatened to kill Wells if he did not leave or if he ever returned. Thus, even though though Wells’ pleading presented an inaccurate account of what had transpired, the threat of imminent bodily injury meant that the claims of assault and terroristic threat were not groundless. The order striking the petition was therefore reversed, and the case was remanded for further proceedings.

Wells v. May, No. 05-12-01100-CV

A memorandum opinion demonstrates the downside of failing to respond to a discovery request. Alfredo Cornejo sued Anthony Jones for causing a multi-vehicle accident. Jones filed a general denial and alleged that someone else’s negligence proximately caused the collision. Cornejo served Jones with basic contention interrogatories, but Jones never answered them. Cornejo did not move to compel, but instead sought to exclude Jones’ testimony at trial. The trial court allowed Jones to testify, and the jury returned a verdict for the defense, apparently crediting Jones’ testimony — contrary to the police report of the incident — that he had been the victim of a rear impact that spun him into the other lanes of traffic. The Court of Appeals reversed and remanded, holding that the testimony should have been excluded under Rule 193.6(a) because Jones had failed to answer the contention interrogatories and could not show either good cause for that failure or lack of unfair surprise or prejudice to Cornejo. Contrary to the trial court’s ruling, a motion to compel is not a prerequisite to the exclusion of evidence under Rule 193.6(a), which provides for automatic exclusion if the proponent of the evidence did not answer the discovery and cannot establish those two exceptions to the exclusionary rule.

Cornejo v. Jones, No. 05-12-01256-CV

In a products liability and wrongful death lawsuit, Fisher & Paykel Appliances was ordered to produce three reports it had made to the Consumer Product Safety Commission regarding the safety of its gas clothes dryers. F&P objected to the discovery based on Texas Rule of Evidence 502, which states that reports required by law to be made are privileged “if the law requiring it to be made so provides.” The Court of Appeals denied mandamus relief to F&P. The Court rejected application of the Rule 502 privilege because the Consumer Product Safety Act does not provide for any privilege for reports mandated under the statute. The Court rejected F&P’s attempt to have it recognize a more general “self-critical analysis privilege,” holding that such privileges can only be created by statute. The Court also considered the “selective waiver doctrine,” under which the federal Eighth Circuit has held that the privilege for attorney work product is not waived when the material is turned over to a government agency pursuant to subpoena. Noting that most courts around the country have rejected that rule, the Court of Appeals held that “documents transmitted to a regulator as part of an entity’s mandatory reports are not protected from disclosure simply because an attorney chooses which documents or other materials to produce to the regulator or because an attorney prepares or compiles portions of the report to the regulator.”

In re Fisher & Paykel Appliances, Inc., No 05-13-01498-Cl

The Court of Appeals has granted mandamus to prevent three depositions sought by a homebuyer seeking to avoid an arbitration agreement. The trial court granted the builder’s motion to compel arbitration, but had not yet ruled whether the buyer’s claims against two individual employees of the builder were also arbitrable. While their motion was pending, the trial court granted a motion to compel the depositions of the employees and the company to explore whether they had engaged in any fraudulent or criminal conduct. The Court of Appeals held that order was an abuse of discretion. Under In re Kaplan Higher Education Corp., 235 S.W.3d 206 (Tex. 2007), agents who are nonsignatories to their principal’s arbitration agreement may still invoke equity to compel arbitration unless the claimant can demonstrate the agents had unclean hands in the formation of the arbitration provision. In this instance, the buyer alleged only that the individuals had unclean hands in the performance of the contract, not the formation of the arbitration clause. Accordingly, the issue of their unclean hands was an issue for the merits of the case that had to be determined in arbitration, making discovery of those facts inappropriate for a judicial proceeding. The Court therefore directed the trial court to stay the case so that all of the parties could proceed to arbitration. The Court also wrote separately to summarily deny the buyer’s mandamus petition challenging the arbitration order for her claims against the company.

In re Susan Newell Custom Home Builders, Inc., No. 05-13-01474-CV

Raymundo Rico was fired after being accused of sexually assaulting a co-worker at L-3 Communications. He was acquitted on the criminal charges, and subsequently brought suit against L-3 and his accuser for intentional infliction of emotional distress and malicious prosecution. The trial court granted summary judgment for the defendants, and the Court of Appeals affirmed. The Court rejected Rico’s claim that he should receive the benefit of an adverse presumption due to the defendants’ alleged failure to preserve security videos, as he had not moved to compel any discovery on those tapes. On  the malicious prosecution claim, the Court concluded that there was no evidence in the summary judgment record to negate the legal presumption that a person who reports a crime does so in good faith and with probable cause. Likewise, the Court held that there was no evidence of extreme and outrageous conduct for the intentional infliction of emotional distress claim because Rico did not have evidence that the complainant had not honestly believed she had been a victim of assault when she reported it to the police.

Rico v. L-3 Communications Corp., No. 05-12-01099-CV

The Court of Appeals has granted mandamus in another discovery dispute. This time, it regards a trial court’s order for an expert witness to turn over all documents reflecting discussions with the plaintiff and its counsel, as well as all documents relating to the plaintiff’s claims and defenses. But the expert had also performed services for the plaintiff in a capacity that brought him within the scope of the attorney-client privilege, and the Court held that it was an abuse of discretion for the trial court to compel the production of privileged materials and items outside the scope of the rules providing for expert disclosures.

In re Segner, No 05-13-01414-CV

The plaintiff in a personal injury suit sought to compel the deposition of the defendants’ outside counsel, who had also served as the parent company’s secretary. The trial court granted the motion in part, ordering the attorney to testify on certain business-related matters and his investigation of the collision that had injured the plaintiff. The Court of Appeals held that communications and materials provided to the attorney in his capacity as secretary were not privileged, but that information provided to or collected by him as the defendants’ attorney was necessarily privileged and therefore outside the proper scope of discovery. The Court of Appeals conditionally granted mandamus to exclude privileged information from the scope of the business-related topics, and to deny entirely the plaintiff’s attempt to obtain discovery regarding the attorney’s investigation of the accident.

In re Southpak Container Corp., No. 05-13-01457-CV

The Court of Appeals has granted mandamus relief in a discovery dispute over the scope of a corporate representative’s deposition. The underlying lawsuit was for damage to the plaintiffs’ property incurred in the course of moving from Texas to the United Arab Emirates. The plaintiffs sought deposition testimony on two topics that the Court of Appeals held were beyond the proper scope of discovery. First, the Court ruled that the plaintiffs were not entitled to discovery of the defendant’s gross revenues for 2009-13, as the relevant issue for purposes of exemplary damages is the defendant’s current net worth, not its past and present revenues. Second, the Court rejected the plaintiffs’ request for the witness to identify the defendants’ production documents and explain why they had been produced. On that issue, the Court cited In re Exxon Corp., 208 S.W.3d 70, 76 (Tex. App.-Beaumont 2006, orig. proceeding), for the proposition that “discovery regarding the methods of document collection and production invades the work-product privilege.” The opinion does not explain just how far that principle reaches, but attorneys and clients should keep it in mind the next time they are writing or responding to a corporate rep notice.

In re Arpin Am. Moving Sys., LLC, No. 05-13-01446-CV