Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00230-CV
IN RE SEMGROUP CORP., Rose Rock Midstream, L.P., and Rose Rock Midstream Field
Services, LLC
Original Mandamus Proceeding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: June 1, 2016
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relators, SemGroup Corp., Rose Rock Midstream, L.P. and Rose Rock Midstream Field
Services, LLC, seek mandamus relief from an order compelling two apex depositions. Because
the real parties in interest did not meet the requirements necessary to justify the apex depositions,
the trial court abused its discretion by ordering the apex depositions. Therefore, we conditionally
grant mandamus relief. See TEX. R. APP. P. 52.8.
BACKGROUND
This original proceeding arises out of a wrongful death lawsuit resulting from a multiple
vehicle accident involving a tractor-trailer. The real parties in interest, the widow and surviving
1
This proceeding arises out of Cause No. 15-01-13356-ZCV, styled Maribel Rodriguez, et al. v. Rose Rock Midstream
Field Services, LLC, et al, pending in the 293rd Judicial District Court, Zavala County, Texas, the Honorable Bill C.
White presiding.
04-16-00230-CV
children of an individual who died as a result of injuries suffered in the accident, brought suit
against: (1) the driver of the tractor-trailer; (2) his employer, Rose Rock Midstream Field Services,
LLC; and (3) several affiliated companies, including Rose Rock Midstream, L.P.;
SemManagment, LLC; and SemGroup Corporation. Relators allege that the driver of the tractor-
trailer was on his cellphone at the time of the accident. Relators argue that a more stringent mobile
device policy, coupled with the use of a driver camera system could have prevented the accident.
Relators also contend that driver safety was compromised by: (1) Rose Rock Midstream Field
Services, LLC’s rapid growth through the acquisition of two other companies, and (2) the
acquisition of a “take or pay” contract which increased the pressure on Rose Rock Midstream Field
Services, LLC to haul daily a minimum amount of product or incur a penalty.
In the course of discovery, the real parties in interest noticed the deposition of four
corporate officers. The corporations filed motions for protection, supported by the affidavits of
the officers in which the officers denied any knowledge of relevant facts. The trial court granted
the motions as to two of the officers, but denied the motion as to two others: Norm Szydlowski
and Pete Schwiering. Szydlowski is the former chief executive officer of SemGroup Corporation,
the parent corporation of all the corporate defendants. Schwiering is a vice president of SemGroup
and chief operating officer of several affiliated companies, including the driver’s employer, Rose
Rock Midstream Field Services, LLC.
STANDARD OF REVIEW
“Mandamus relief is available only to correct a ‘clear abuse of discretion’ when there is no
other adequate remedy at law.” In re Alcatel USA, Inc., 11 S.W.3d 173, 175 (Tex. 2000).
Mandamus is proper when a trial court erroneously allows an apex deposition. See id. (mandamus
relief appropriate when trial court abused its discretion by denying motion to quash apex
depositions).
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The Texas Supreme Court first adopted guidelines for determining if an apex deposition
should be allowed in Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995). An
apex deposition is the deposition of a “corporate officer at the apex of the corporate hierarchy.”
Id. at 126. When a party seeks an apex deposition and the corporate official or corporation files a
motion for protective order accompanied by the official’s affidavit denying any knowledge of
relevant facts, the party seeking the deposition bears the burden of satisfying a two-step test.
Alcatel, 11 S.W.3d at 176. First, the party seeking the deposition must show the official has
‘“unique or superior personal knowledge of discoverable information.’” Id. (quoting Crown
Central, 904 S.W.2d at 128). A showing of “unique or superior knowledge” requires “some
showing beyond mere relevance, such as evidence that a high-level executive is the only person
with personal knowledge of the information sought or that the executive arguably possesses
relevant knowledge greater in quality or quantity than other available sources.” Id. at 179.
If the party seeking the deposition fails to establish the first prong of the test, the trial court
should grant the motion for protection and “first require the party seeking the deposition to attempt
to obtain the discovery through less intrusive methods.” Crown Central, 904 S.W.2d at 128. The
second prong of the Crown Central test involves less intrusive methods of discovery, which “could
include the depositions of lower level employees, the deposition of the corporation itself, and
interrogatories and requests for production of documents directed to the corporation.” Id. The
party seeking the apex deposition must show the information it seeks cannot “be obtained by less-
intrusive methods.” In re Daisy Mfg. Co., 17 S.W.3d 654, 659 (Tex. 2000). After making a good
faith effort to use less intrusive methods, the party seeking the deposition must then show “(1) that
there is a reasonable indication that the official’s deposition is calculated to lead to the discovery
of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory,
insufficient or inadequate.” Crown Central, 904 S.W.2d at 128.
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04-16-00230-CV
ANALYSIS
The real parties in interest sought the apex depositions to investigate four matters: (1) the
development, content, and application of the corporate mobile device policy; (2) the decision not
to install a “driver-cam” camera system in company vehicles hauling petroleum products; (3) the
growth of Rose Rock Midstream Field Services through the acquisition of two trucking companies;
and (4) a “take or pay” contract. As the party seeking the depositions, the real parties in interest
had the burden to show that Szydlowski and Schwiering had “unique or superior personal
knowledge of discoverable information,” as to these matters. Id.
With regard to the corporate mobile device policy, the record reflects that Szydlowski, as
CEO, appointed a team to develop a corporate mobile device policy and offered input during the
development of the policy. During discovery, real parties in interest were provided a copy of the
policy and have taken the depositions of corporate officers who were more directly involved in the
development, promulgation, and application of the policy. In seeking to take Szydlowski’s
deposition on this issue, real parties in interest failed to show that Szydlowski had “unique or
superior knowledge of the discoverable information.” Id. Thus, the real parties in interest failed
to meet their burden under the first prong of the two prong test.
In their response, the real parties in interest point to a discussion by industry safety experts
regarding the value of a total ban on the use of mobile devices by drivers, and assert the record
shows the corporate defendants were aware of these discussions. However, the real parties in
interest have not shown that Szydlowski had any unique or superior personal knowledge of these
discussions. Similarly, the real parties in interest have not shown that Szydlowski had any unique
or superior personal knowledge regarding the acquisition of the trucking companies, the take or
pay contract, or the decision not to install a camera system in company vehicles.
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04-16-00230-CV
As with Szydlowski, the real parties in interest also failed to show that Schwiering, in his
various corporate capacities, had the requisite knowledge to meet the first prong of the Crown
Central test. The real parties in interest engaged in extensive discovery, which included obtaining
a large number of corporate emails. This discovery showed that, like Szydlowski, Schwiering had
input in the development of the mobile device policy. However, evidence in the record does not
indicate that Schwiering’s information would be superior in quantity or quality to the information
available to the real parties in interest through less intrusive discovery. The same is true of the
other areas about which the real parties in interest seek to depose Schwiering.
Real parties in interest claim that they need Schwiering’s deposition to determine why the
corporate defendants did not institute a driver camera system until after the accident. However,
the real parties in interest fail to show that Schwiering had any unique personal knowledge of this
decision. Information on this corporate decision is available from a number or sources, and the
record reflects that some, if not all of this information has already been provided to real parties in
interest in the form of document production and depositions. The same is true regarding the
expansion of Rose Rock Midstream Field Services by the acquisition of two trucking companies
and the take of pay contract. Real parties in interest have not shown that Schwiering’s knowledge
of these matters was superior in quantity or quality to information available using or already
provided in response to less intrusive discovery methods.
Having failed to meet the first prong of the Crown Central test, the real parties in interest
were required to satisfy the second requirement before they could take the apex depositions. This
requires real parties in interest to show that, after a good faith effort to obtain the discovery through
less intrusive methods, there is a reasonable indication that the apex depositions are “calculated to
lead to the discovery of admissible evidence,” and “the less intrusive methods of discovery are
unsatisfactory, insufficient or inadequate.” Crown Central, 904 S.W.2d at 128. Real parties in
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interest have not satisfied this second requirement. Notably, real parties in interest have not taken
the depositions of the corporate representatives for the respective corporations. Further, although
real parties in interest have conducted a number of depositions and obtained substantial written
production, they do not identity any relevant information that they seek from the apex depositions
that they attempted and failed to obtain from these other sources. See In re Alcatel, 11 S.W.3d at
180 (party failed to identify relevant information it sought from apex deponent that it had attempted
and failed to obtain from other deponents). Therefore, the real parties in interest have not met their
burden under the second prong of the Crown Central test.
CONCLUSION
Because the plaintiffs have not satisfied the requirements necessary to justify the taking of
the apex depositions ordered by the trial court, we conditionally grant mandamus. We order the
trial court to vacate its April 5, 2016 order denying Relator’s motion for protective order and
motion to quash and compelling the depositions of Norm Szydlowski and Pete Schwiering. The
writ will only issue if the trial court fails to do so.
Marialyn Barnard, Justice
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