Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 12, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00895-CV
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IN RE JAMES PRINCE, JR., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
This case involves a Texas court=s power to order an out-of-state deposition of a non-party witness in a California divorce proceeding. We hold that the trial court did not have the power to order a non-party witness to appear other than as specified by the Texas Rules of Civil Procedure and that the trial court=s order requiring production of documents was overly broad. Accordingly, we conditionally grant the writ of mandamus.
I. Background
Real Party Michael Harris demanded the deposition of Relator James Prince, a/k/a ALil= J@ for Rap-a-Lot Records, alleging that Prince has two sorts of information relevant to determining the assets of Harris=s marital estate for the purposes of the division of property: (1) information about Prince=s business dealings with ASuge@ Knight, a person from whom the Harris estate obtained a $107 million dollar judgment, but who has filed for bankruptcy in California; and (2) information about Prince=s relationship with Harris himself, because Harris claims to be entitled to some interest in Rap-a-Lot Records.
Because Prince resides in Houston, the California court in which the divorce proceeding is pending did not have the power to issue a subpoena to compel Prince to appear for a deposition. On September 16, 2005, the California court accordingly issued a commission requesting a Harris County court to issue a subpoena for the production of documents and for Prince=s appearance for an oral deposition. The commission was filed in Harris County on September 19, 2005, and a subpoena issued the following day. Prince was not served, however, until nearly seven months later, on April 8, 2006, when he was located in Las Vegas at a boxing match.
Prince=s deposition was scheduled for April 20, 2006. On April 19, 2006, Prince moved to quash and for protection. Presumably because he failed to file a motion to quash within three days of service, Prince appeared for the deposition notwithstanding his objection to it. Prince did not produce any of the documents that had been subpoenaed. In addition, although his counsel permitted him to answer many questions about Rap-a-Lot records in general and about Prince=s relationship with Harris, counsel instructed Prince not to answer questions concerning any business relationship with Knight.
Harris moved to compel production and to compel the continued deposition of Prince. The trial court heard both motions on August 25, 2006. On September 19, 2006, the court granted the motion to compel, ordering Prince to re-appear for deposition and to produce responsive documents. Prince moved for modification of this order, claiming that it required him to produce more documents than were encompassed by the subpoena. Harris also moved for Areconsideration,@ basically reiterating the arguments made in his motion to compel. On reconsideration, after further hearing, the trial court again ruled for Harris, entering an order that Prince appear for a continued deposition on October 12, 2006 in California, and that Prince Aproduce documents relating to the assets of Michael Harris or Lydia Harris, including but not limited to the assets of Rap-a-Lot Records.@
Prince petitioned this court for a writ of mandamus and an emergency stay on October 11. This court granted the stay and called for a response. Prince has since filed an amended petition for mandamus and Harris has filed an amended response. Additionally, Harris has filed a AMotion to Compel Service and Costs,@ claiming that Prince has not properly served him as required by the Texas Rules of Appellate Procedure.
II. Analysis
The two complaints that Prince raises about the court=s orderCthe improper place for deposition and the breadth of the production orderCmay each be challenged by mandamus.
An order for discovery that is contrary to the Texas Rules is typically reviewable by mandamus. See Wal‑Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex. 1988) (granting mandamus to overrule location of deposition of Sam Walton). Following Street, courts routinely permit mandamus review of cases alleging an improper location for a deposition. See, e.g., Grass v. Golden, 153 S.W.3d 659, 663 (Tex. App.CTyler 2004, orig. proceeding) (issuing mandamus where record contained no evidence that place of deposition was convenient for witness); In re Rogers, 43 S.W.3d 20 (Tex. App.CAmarillo 2001, orig. proceeding) (issuing mandamus regarding the proper place for witness depositions).
In addition, a party may seek relief from overly broad discovery via a petition for mandamus. See In re American Optical, 988 S.W.2d 711, 713 (Tex. 1998) (AAn order compelling discovery that is well outside the proper bounds is reviewable by mandamus.@). The scope of discovery is largely within the discretion of the trial court. Dillard Dep=t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). However, the trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
There is no adequate appellate remedy in this case. Because Prince is not a party to the lawsuit, he has no right to appeal, and therefore no adequate appellate remedy. See City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex. App.CHouston [14th Dist.] 1995, orig. proceeding) (because the city was not a party to the lawsuit, it Ahas no adequate remedy by appeal, [and] mandamus may lie@).
A. An Improper Place for Deposition
The trial court=s order that the deposition of Prince, a non-party, occur in California is contrary to the express language of the Texas Rules. See Tex. R. Civ. P. 176.3(a) (distinguishing between parties and non-parties with respect to compelling a witness to appear for a deposition). As relevant here, the Texas Rules of Civil Procedure provide:
1. The request for a deposition, even though originating from a case pending in California, is governed by the Texas rules. See Tex. R. Civ. P. 201.2 (AIf a court of record of any other state . . . issues a . . . commission that requires a witness=s oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State.@).
2. A subpoena is necessary to compel Prince=s attendance at the deposition, because he is not a party to the proceeding. Texas procedure provides that non-party witnesses may be compelled to attend depositions only by subpoena. See Tex. R. Civ. P. 205.1 (AA party may compel discovery from a nonpartyCthat is, a person who is not a party or subject to a party=s controlConly . . . by serving a subpoena compelling: (a) an oral deposition;@).
3. By contrast, parties or persons controlled by parties can be compelled to attend a deposition via notice alone. Tex. R. Civ. P. 199.3 (AIf the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party=s attorney has the same effect as a subpoena served on the witness.@).
4. If a subpoena is necessary to compel attendance, it is limited geographically to 150 miles from a person=s residence or the place of service. See Tex. R. Civ. P. 176.3 (AA person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.@)
5. Only parties or persons controlled by parties can be required to appear at locations outside of the 150 mile radius. See Tex. R. Civ. P. 176.3 (Aa person whose appearance or production at a deposition may be compelled by notice alone . . . may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2),@ e.g., at any Areasonable@ location).[1]
6. If a non-party deponent fails to appear for or answer questions during a deposition, a party may apply for an order compelling discovery in the court of the district where the deposition is proceeding. Tex. R. Civ. P. 215.1(a) & (b) (AAn application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.@).
These rules provide the framework for a trial court=s interaction with non-party witnesses. Although Harris properly moved to compel Prince=s compliance with the subpoena and document request in the Texas court, Harris asked forCand the Texas court grantedCmore relief than the rules permit. Presumably due to the inconvenience occasioned by Prince=s eleventh-hour motion to quash and his refusal to answer questions and produce documents, Harris requested relief that would minimize his own costs on his second attempt at Prince=s deposition. He asked the trial court to either order that the deposition occur in California, where the original case is pending and Harris=s lawyer practices, or order that Prince be required to pay Harris=s costs of travel to Houston for a second deposition. The trial court, amenable to this request, accordingly ordered that the deposition go forward in Los Angeles and that Prince produce documents that the court determined were relevant.
Harris maintains that the trial court has the power to enter such an order because of the trial court=s discretion to manage discovery, but Harris has no authority for this proposition. Instead, all of the cases that Harris cites upholding a district court=s discretion over discovery matters have involved persons who clearly were controlled by parties to litigation.[2] This distinction is significant.
As the above discussion makes clear, the Texas rules treat non-party witnesses differently from witnesses subject to a party=s control. See Tex. R. Civ. P. 176.3(a). Rules 176.3 and 199.3 provide that only parties or witnesses who are Aretained by, employed by, or otherwise subject to the control of a party@ may be compelled to attend a deposition at any of the reasonable locations provided in Rule 199.2(b)(2), specifically including Aany . . . convenient place directed by the court.@ See Tex. R. Civ. P. 176.3(a). Other persons, by contrast, Amay not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.@ See Tex. R. Civ. P. 176.3(a); see also Tex. R. Civ. P. 205.1. Similarly, the Texas rules provide different means for compelling discovery from parties and non-parties, see Tex. R. Civ. P. 215.1(a), and different sanctions for a party=s and a non-party=s failures to comply with discovery. See also Tex. R. Civ. P. 215.2 (distinguishing between parties and non-parties in authorizing sanctions for non-compliance with discovery orders). Only the sanctions that may be imposed against a Adisobedient party@ reflect the trial court=s inherent authority to manage discovery. See id. (emphasis added).
Non-party witnesses thus stand in a different position before the court than do parties to the litigation, over whom it is clear that the court has both personal and subject matter jurisdiction. See Haas v. George, 71 S.W.3d 904, 915 (Tex. App.CTexarkana 2002, no pet.) (AGenerally, a trial judge has control over only those parties properly before the court.@). For this reason, a court=s power to impose sanctions on non-parties is limited to its contempt power. See Tex. R. Civ. P. 215.2(a) & (c) (authorizing only sanction of contempt against non-parties); see also Jefa Co., Inc. v. Mustang Tractor and Equipment Co., 868 S.W.2d 905, 908 (Tex. App.CHouston [14th Dist.] 1994, writ denied) (Aappropriate sanction for a nonparty=s noncompliance with discovery is placing the nonparty in contempt of court@); Exoxemis, Inc. v. Seale, No. 04-95-00673-CV, 1996 WL 471271, at *6 (Tex. App.CSan Antonio Aug. 21, 1996, no writ) (trial court could not impose sanction on non-party because Athe trial court was powerless to treat him as a party in the absence of proper jurisdiction over his person in accordance with the mandatory rules relating to service of process@).
Prince is a non-party witness. The trial court was called upon solely for the purpose of issuing and enforcing a subpoena against Prince because he resided in Houston, Texas. Under these circumstances, the trial court did not have the power to order Prince to appear for a deposition in California, contrary to the Texas Rules. Although this case does not involve the question of the trial court=s power to enter sanctions per se,[3] the limitation on the court=s power to impose sanctions on a non-party is nevertheless instructive. In light of Prince=s status as a non-party, we hold that the trial court abused its discretion.
B. The Breadth of the Discovery Order
The trial court also abused its discretion by requiring Prince to produce a broader category of documents than those encompassed by the subpoena. The subpoena required the production of AAny and all documents relating to Marion H. >Suge= Knight and Death Row Records, Inc. aka [sic] Tha Row, Inc.@ The trial court=s second order, by contrast, requires Prince to produce a much broader and less defined set of documents, ordering production of Adocuments relating to the assets of Michael Harris or Lydia Harris, including, but not limited to the assets of Rap-A-Lot Records.@ This order suffers from a lack of clarity, but more importantly, we are aware of no legal basis for the trial court to have ordered the production of a broader category of documents than those identified in the subpoena.
Similar to the procedure necessary for depositions, the Texas Rules of Civil Procedure expressly require a subpoena for the production of documents from a non-party.[4] Rule 205.1 requires service of Aa subpoena compelling: . . . a request for production of documents or tangible things . . . .@ Tex. R. Civ. P. 205.1. Rule 205.3 provides that A[a] party may compel production of documents and tangible things from a non-party by serving . . . a subpoena compelling production or inspection of documents or tangible things.@ Tex. R. Civ. P. 205.3.
Harris has articulated no basis to support the trial court=s order for the production of a broader category of documents than that defined in the subpoena, and we have found none. To the contrary, at least one court has held that the Texas rules do not permit a court to order a non-party to produce documents. Haas, 71 S.W.3d at 916 (court has no power to compel production or preservation of documents from a non-party); see also Sinclair v. Savings and Loan Comm=r of Texas, 696 S.W.2d 142, 149 (Tex. App.CDallas 1985, writ ref=d n.r.e.) (holding that trial court erred in enlarging categories of documents sought by subpoena because such enlargement was not supported by the pleadings).
The necessity of the subpoena, enforceable by a court order and the threat of contempt under Rule 215.2(c), again suggests that the trial court=s power with respect to non-parties is circumscribed. The trial court accordingly should have limited itself to ordering compliance with the subpoena as drafted.
C. Real Party=s Motion for Sanctions
In addition to responding to Prince=s petition, Harris has also moved for sanctions in this court, styling the motion as a AMotion to Compel Service and Costs.@ Harris argues that Prince has attempted to Aharass@ Harris through improper service of the two petitions for mandamus, and requests that this court compel proper service and award costs and attorney=s fees as a sanction.
On the facts of this case, we decline to sanction Prince or award Harris the costs or attorney=s fees he incurred in responding to this petition. Of course, a party must comply with the appellate rules requiring service. See generally Tex. R. App. P. 9.5. However, we trust that all parties will do so in the unlikely event that further proceedings in the appellate court are necessary. We accordingly deny Harris=s motion.
PER CURIAM
Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 12, 2006.
Panel consists of Justices Fowler, Edelman, and Frost.
[1]Rule 199.2(b)(2) dictates reasonable locations for depositions. The locations include (1) the county of the witness=s residence; (2) the county where the witness is employed or regularly transacts business in person; (3) the county of suit, if the witness is a party . . .; (4) the county where the witness was served with the subpoena . . .; and (5) Asubject to the foregoing, at any other convenient place directed by the court in which the cause is pending.@ Tex. R. Civ. P. 199.2(b)(2).
[2]The cases cited by real parties all involve depositions of the parties themselves or of officers of the parties. See, e.g., Wal-Mart Stores, Inc. v. Street, 761 S.W.2d 587, 590 (Tex. App.CFt. Worth 1988, orig. proceeding) (no abuse of discretion to order deposition of chairman of board and past president of defendant, who was determined to be controlled by defendant, taken in county of suit, rather than in deponent=s county of residence, where deponent had failed to appear for earlier deposition set in county of residence); First State Bank v. Chappell & Handy, P.C., 729 S.W.2d 917, 922 (Tex. App.CCorpus Christi 1987, writ ref=d n.r.e.) (no abuse of discretion to order deposition of defendant=s counsel and chairman of the board in place other than county of residence as sanction for failure to attend previous depositions); Kidd Pipeline & Specialties, Inc. v. Campagna, 712 S.W.2d 238, 242 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.) (no abuse of discretion to order former president of plaintiff, who still had office at plaintiff=s office, to appear in courtroom for deposition).
[3]Although this case technically raises a question concerning a court=s power to require a non-party to appear outside of the geographical reach of a subpoena, it bears noting that the court=s order may fairly be characterized as the imposition of a sanction. Harris=s motion to compel included a request for sanctions and requested that the deposition be ordered in Los Angeles or that the court order Prince to pay Harris=s costs to travel back to Houston. The payment of costs is a traditional sanction that Rule 215.3 authorizes a trial court to impose on Athe disobedient party.@ See Tex. R. Civ. P. 215.2(b)(2).
[4]Explaining the rules, the court stated in Haas, that A[a] party may obtain discovery from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7, 202, or 204, or by serving a subpoena [under] Tex. R. Civ. P. 205.1. Rule 196.7 relates to a request or motion for entry upon property. Rule 202 governs the taking of depositions in anticipation of a suit or to investigate claims. Rule 204 governs mental or physical examinations. None of these situations are applicable in this case [where a party requested documents].@ 71 S.W.3d at 915 (citations omitted).