in Re Wells Fargo Bank, N.A.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00469-CV

In re Wells Fargo Bank, N.A.

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Wells Fargo Bank, N.A., requests that this Court issue a writ of mandamus

ordering the trial court to vacate or modify its July 19, 2010 Order requiring Wells Fargo to produce

John Grissom for deposition in Travis County by August 18, 2010. We conditionally grant the

writ for that part of the order requiring Grissom to appear in Travis County. We deny it in all

other respects.

Wells Fargo was sued for wrongful foreclosure by Walter David Carmichael,

the real party in interest. Carmichael initially set Grissom’s deposition for July 17, 2009, in

Corpus Christi, Texas—Carmichael’s residence and the original venue for this suit. Wells Fargo

filed a motion to quash the deposition, contending that Grissom was unavailable and was not a

designated representative of Wells Fargo. Wells Fargo asserted that the deposition should take

place in Des Moines, Iowa, where Grissom works, at a mutually convenient time. The motion to

quash was not set for hearing before the date set passed. Nearly a year later, by motion filed July 7,

2010, Carmichael sought to compel the deposition along with other discovery. After a hearing, the
trial court ordered Wells Fargo to produce Grissom for deposition in Travis County, Texas, the

current venue of the suit.

Mandamus is an extraordinary remedy, available only when a trial court abuses

its discretion and when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d

315, 317 (Tex. 2005) (orig. proceeding). A trial court abuses its discretion if it reaches a decision

so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly

fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)

(orig. proceeding). Mandamus will issue when a trial court orders a deposition to occur in a location

contrary to the rules of procedure. See Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155

(Tex. 1988) (orig. proceeding).

Wells Fargo contends that this order is an abuse of the trial court’s discretion because

(1) there was no pending deposition notice complying with Tex. R. Civ. P. 199.2, which would

support an order to compel, and (2) there was no basis on which to order the deposition to occur

in Travis County, Texas. We find no abuse of discretion warranting mandamus on the first ground.

Although the date for the deposition had passed, the issues underlying the motion to quash had not

been resolved. Grissom’s status as in-house counsel, not designated as a corporate representative,

whose testimony by and large may be protected by privilege does not shield him from being deposed

on non-privileged matters within his knowledge. However, we find that the trial court abused its

discretion by ordering the deposition to take place in Travis County, Texas.

By rule, depositions may be set in the county of the witness’s residence; the county

where the witness is employed or regularly transacts business in person; the county of suit, if the

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witness is a party or a person designated by a party under rule 199.2(b)(1); the county where

the witness was served with the subpoena, or within 150 miles of the place of service, if the witness

is not a resident of Texas or is a transient person; or, subject 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). Convenience

is determined from the witness’s viewpoint. See Wal-Mart, 754 S.W.2d at 155. The only evidence

in the record is that Grissom works in Des Moines, Iowa, and lives in the adjacent county. It is

not alleged that he received service within 150 miles of Travis County, Texas, or was a transient,

or that Travis County, Texas was convenient for him. Grissom is not a party and he has not been

designated as a corporate representative by Wells Fargo under rule 199.2(b)(1), which provides in

relevant part as follows:

If an organization is named as the witness, the notice must describe with
reasonable particularity the matters on which examination is requested. In response,
the organization named in the notice must—a reasonable time before the
deposition—designate one or more individuals to testify on its behalf and set forth,
for each individual designated, the matters on which the individual will testify. Each
individual designated must testify as to matters that are known or reasonably
available to the organization.

Tex. R. Civ. P. 199.2(b)(1). Wells Fargo designated other individuals as potential corporate

representatives, but not Grissom. Absent the designation by Wells Fargo, required proximity of

service location, or Grissom’s convenience, Grissom’s deposition could be required only in the

county where he resides, is employed, or regularly transacts business. There is no showing that

Travis County, Texas fits any of those categories.

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 Carmichael contends that the court was within its discretion to order Grissom

to appear in Travis County for deposition because he actively participated in the underlying lawsuit

in furtherance of Wells Fargo’s defenses and because judicial economy warrants his deposition

going forward in Travis County. Carmichael argues that Grissom’s involvement in the suit is much

more extensive than the removed executive like Sam Walton in Wal-Mart, 754 S.W.2d at 155. He

notes Grissom’s assertions in his affidavit that he had personal knowledge of facts underlying

the subject matter of the lawsuit or related defenses. Carmichael emphasizes that Wells Fargo

actively sought to move the case from Nueces County to Travis County. Carmichael also argues that

a Travis County deposition will be easier and cheaper for Grissom to travel than for both parties’

Texas-based counsel to travel to Des Moines.

While these observations may be accurate, and a good common-sense argument

can be made for producing Grissom in Travis County, these considerations do not override the

rule’s requirements. Rule 199.2(b)(2)(C) permits requiring a deposition in the county of suit only

if the witness is a party or a person designated by a party under Rule 199.2(b)(1). It is undisputed

that Grissom has not been so designated. The rule does not contemplate de facto or implied

designation by conduct. Neither does the rule require that efficiency or cost-consciousness override

its express provisions. We conclude that the trial court abused its discretion by ordering Grissom

to appear for a deposition in Travis County, Texas.

We conditionally grant the writ of mandamus and direct the trial court to vacate the

provision of its order requiring Wells Fargo to produce Grissom for deposition in Travis County,

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Texas. The writ will issue only if the trial court fails to comply. We otherwise deny the petition for

writ of mandamus.

G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Filed: August 16, 2010

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