in Re Jeremy Pickrell and ERBE USA, Inc.

IN THE
TENTH COURT OF APPEALS

No. 10-17-00091-CV

IN RE JEREMY PICKRELL AND ERBE USA, INC.

Original Proceeding

MEMORANDUM OPINION

In this mandamus petition, relators, Jeremy Pickrell and Erbe USA, Inc., contend

that the trial court abused its discretion by ordering the deposition of Pickrell and the

production of various documents under Texas Rule of Civil Procedure 202. See TEX. R.

CIV. P. 202. Because we conclude that real party in interest CONMED Corporation has

failed to provide sufficient evidence to establish the Rule 202 factors, and because Rule

202 does not authorize the pre-suit discovery of documents, we conditionally grant

relators’ mandamus petition.
 I. BACKGROUND

This mandamus proceeding arises out of CONMED’s verified, pre-suit petition to

take a Rule 202 deposition of its former employee, Pickrell, and to obtain various

documents. Specifically, in its verified petition, CONMED asserted the following:

CONMED requests the Rule 202 deposition of its former employee, Jeremy
Pickrell (“Pickrell”), for the purpose of investigating whether Pickrell has
honored his non-disclosure, non-compete, client non-solicitation, and
employee non-solicitation agreements and/or whether Pickrell has
complied with his common law and statutory duties regarding CONMED’s
confidential information and trade secrets since his December 15, 2016
resignation.

....

Ultimately, CONMED seeks to determine whether there is a factual basis
for CONMED to assert claims against Pickrell for breach of any of his
restrictive covenant agreements and/or breach of his common law and
statutory duties concerning CONMED’s confidential information and trade
secrets. CONMED further seeks to determine if injunctive relief is
warranted, if any equitable extension of one or more of Pickrell’s restrictive
covenants is appropriate, and/or whether Pickrell has proximately caused
CONMED contractual or economic damages since resigning.

CONMED also noted that Pickrell previously worked for CONMED as a sales

representative and that he signed non-disclosure, non-compete, client non-solicitation,

and employee non-solicitation provisions as part of his employment agreement with the

company.1

1 In its verified petition, CONMED explained that it:

designs, manufactures and sells a variety of orthopedics and general surgery products,
including electrosurgery generators with corresponding disposable instruments,
arthroscopic medical devices, multi-specialty endoscopic medical video systems and

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 However,

[s]ince his resignation, CONMED learned that Pickrell may be violating his
contractual, common law, and statutory duties owed to CONMED. Shortly
after the end of his employment with the Company, upon information and
belief, Pickrell started working for Erbe USA, Incorporated (“Erbe”) in a
sales capacity. Erbe is a direct competitor of CONMED and it markets
directly to the same customer base as CONMED. Pickrell may, in fact, be
working in the same or substantially similar capacity as his role with
CONMED, in the same territory, in violation of his contractual promises.

Other than its verified petition and the argument of counsel at the hearing on the Rule

202 requests, CONMED did not proffer any additional evidence supporting its

contentions.

In any event, based on the aforementioned belief that Pickrell may be violating his

employment agreements with CONMED by working for Erbe, CONMED requested a

Rule 202 deposition of Pickrell to explore:

a. the facts and circumstances surrounding Pickrell’s employment and/or
association with Erbe, such as his job title, job duties (including whether
they are the same or substantially similar to those duties he had with
CONMED), and the geographic territory/territories and/or area for which
he provides services;

b. what role, if any, Pickrell played in soliciting, encouraging, or convincing
CONMED’s clients to cease doing business with CONMED and/or
patronize a competitor;

powered surgical instruments, among other items. Particularly relevant here are products
for therapeutic endoscopy, including argon gas-assisted electrosurgery for cauterization
of tissue in the GI tract.

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 c. Pickrell’s retention, use, disclosure, or destruction of CONMED
confidential information and/or trade secrets following the end of his
CONMED employment.

Additionally, CONMED sought the production of various documents it believed are

related to Pickrell’s purported breach of his employment agreements with CONMED.

In response to CONMED’s verified petition, relators filed objections and a bench

brief requesting the denial of CONMED’s Rule 202 requests. After a hearing, the trial

court granted CONMED’s Rule 202 requests for documents and Pickrell’s deposition and

ordered the following: “Attorneys may agree on date time location provided they make

said agreement in 5 days and deposition occurs in 45 days. Deposition limited to two

hours.” The trial court signed its order on March 13, 2017. A little more than a week

later, relators filed this mandamus petition, as well as an emergency motion to stay the

trial court’s March 13, 2017 order. CONMED filed its response on April 4, 2017.

II. MANDAMUS STANDARD OF REVIEW

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse

of discretion when there is “no adequate remedy by appeal.” In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding) (citations omitted). Here, the

parties concede that relators have no adequate remedy by appeal; as such, only the abuse-

of-discretion prong is at issue. See In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig.

proceeding) (per curiam) (“An improper order under Rule 202 may be set aside by

mandamus.” (citing In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding))). “A

In re Pickrell Page 4
trial court has no ‘discretion’ in determining what the law is or applying the law to the

facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “Thus, a clear failure by the trial

court to analyze or apply the law correctly will constitute an abuse of discretion.” Id.

(citations omitted). In addition, a trial court clearly abuses its discretion if it reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of

law. Id. at 839. Regarding the resolution of factual issues or matters committed to the

trial court’s discretion, relator must establish that the trial court could reasonably have

reached only one decision. Id. at 839-40. We cannot disturb the trial court's decision

unless it is shown to be arbitrary and unreasonable, even if we would have decided the

issue differently. Id. at 840.

III. RULE 202 PETITIONS

Texas Rule of Civil Procedure 202 permits a person to petition the court for

authorization to take a deposition before suit is filed in two circumstances: (1) to

perpetuate or obtain the person’s own testimony or that of any other person for use in an

anticipated suit; or (2) to investigate a potential claim or suit. TEX. R. CIV. P. 202.1(a)-(b).

It is undisputed that this case involves the investigation of a potential claim or suit. See

id. at R. 202.1(b).

Rule 202 does not require a petitioner to plead a specific cause of action; instead,

it requires only that the petitioner state the subject matter of the anticipated action, if any,

and the petitioner’s interest therein. See In re Emergency Consultants, Inc., 292 S.W.3d 78,

In re Pickrell Page 5
79 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding) (noting that requiring a Rule

202 petitioner to plead a viable claim “would eviscerate the investigatory purpose of Rule

202 and essentially require one to file suit before determining whether a claim exists” and

would place “counsel in a quandary, considering counsel’s ethical duty of candor to the

court and the requirements of [rule 13]”); see also City of Houston v. U.S. Filter Wastewater

Group, Inc., 190 S.W.3d 242, 245 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Rule

202 does not require a petitioner to plead a specific cause of action.”). Thus, the nature

of Rule 202 as an investigatory tool necessitates some breadth of pleading and dictates

that we liberally construe the petition.

The trial court “must” order the deposition to be taken “if, but only if,” it finds

that: (1) allowing the petitioner to take the requested deposition may prevent a failure or

delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to

take the requested deposition to investigate a potential claim outweighs the burden or

expense of the procedure. TEX. R. CIV. P. 202.4(a). The Texas Supreme Court has

expressly held that these findings may not be implied from support in the record. In re

Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding).

“Rule 202 depositions are not now and never have been intended for routine use.

There are practical as well as due process problems with demanding discovery from

someone before telling them what the issues are.” In re Jorden, 249 S.W.3d at 423.

Accordingly, courts must strictly limit and carefully supervise pre-suit discovery to

In re Pickrell Page 6
prevent abuse of the rule. In re Wolfe, 341 S.W.3d at 933; In re Reassure Am. Life Ins. Co.,

421 S.W.3d 165, 171 (Tex. App.—Corpus Christi 2013, orig. proceeding). Rule 202 was

not intended as a means of obtaining otherwise unobtainable discovery. See In re Wolfe,

341 S.W.3d at 933 (noting that petitioner “cannot obtain by Rule 202 what it would be

denied in the anticipated action”). Rule 202 expressly limits the scope of discovery in

depositions to “the same as if the anticipated suit or potential claim had been filed.” Id.

(citing TEX. R. CIV. P. 202.5). Rule 202, like all the rules of civil procedure, was fashioned

by the Texas Supreme Court as a means of “obtain[ing] a just, fair, equitable and impartial

adjudication of the rights of litigants under established principles of substantive law.”

City of Dallas v. Dallas Black Fire Fighters Ass’n, 353 S.W.3d 547, 554 (Tex. App.—Dallas

2011, no pet.) (citing TEX. R. CIV. P. 1); see Combs v. Tex. Civil Rights Project, 410 S.W.3d 529,

534-35 (Tex. App.—Austin 2013, pet. denied).

IV. ANALYSIS

In their mandamus petition, relators contend that CONMED was required to

present evidence to satisfy its burden of proof under Rule 202, but failed to do so.

Specifically, relators argue that CONMED cannot rely solely on its verified petition and

the argument of counsel to establish that the likely benefit of allowing the requested

deposition to investigate a potential claim outweighs the burden or expense of the

procedure. We agree.

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 Here, CONMED sought the deposition of Pickrell under Rule 202.1(b) to

investigate a potential claim or suit. Accordingly, the trial court was required to find,

and did find, that “the likely benefit of allowing the petitioner [CONMED] to take the

requested deposition to investigate a potential claim outweighs the burden or expense of

the procedure.” However, as noted above, CONMED did not proffer any evidence to

support the contentions made in its verified petition.

Numerous Texas courts have held that a petitioner seeking a pre-suit deposition

must present evidence to meet its burden to establish the facts necessary to obtain the

deposition. See In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi 2014, orig.

proceeding) (“The law is clear that a petitioner seeking a presuit deposition must present

evidence to meet its burden to establish the facts necessary to obtain the deposition.”

(citing In re Hochheim Prairie Farm Mut. Ins. Ass’n, 115 S.W.3d 793, 796 (Tex. App.—

Beaumont 2003, orig. proceeding); In re Dallas County Hosp. Dist., No. 10-14-00249-CV,

2014 Tex. App. LEXIS 3542, at **5-6 (Tex. App.—Dallas Apr. 1, 2014, orig. proceeding)

(mem. op.); Love v. Moreland, 280 S.W.3d 334, 336 n.3 (Tex. App.—Amarillo 2008, no pet.);

see also In re Rockafellow, No. 07-11-00066-CV, 2011 Tex. App. LEXIS 5495, at *13 (Tex.

App.—Amarillo July 19, 2011, orig. proceeding) (mem. op.). Moreover, in examining this

evidentiary requirement, we are mindful that verified pleadings are generally not

considered competent evidence to prove the facts asserted in the pleading. See In re East,

476 S.W.3d at 68 (citing Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.

In re Pickrell Page 8
1995) (“Generally, pleadings are not competent evidence, even if sworn or verified.”)).

Furthermore, the argument of counsel is not evidence. See Love, 280 S.W.3d at 336 n.3;

Potter v. GMP, L.L.C., 141 S.W.3d 698, 704 (Tex. App.—San Antonio 2004, pet. dism’d); see

also Halverson v. Podlewski, No. 10-05-00303-CV, 2006 Tex. App. LEXIS 8814, at **4-5 (Tex.

App.—Waco Oct. 11, 2006, pet. denied) (mem. op.).

Additionally, several Texas courts have applied these basic principles to the Rule

202 burden of proof. See, e.g., In re Dallas County Hosp. Dist., 2014 Tex. App. LEXIS 3542,

at *6 (“It is an abuse of discretion for a trial court to order a Rule 202 deposition when the

party seeking the deposition fails to provide any evidence to meet the burden of

establishing the facts necessary to support ordering a Rule 202 deposition.”); In re Noriega,

No. 05-14-000307-CV, 2014 Tex. App. LEXIS 3462, at **5-6 (Tex. App.—Dallas Mar. 28,

2014, orig. proceeding) (mem. op.) (“The record before the trial court at the hearing

consisted only of the pleadings of the parties and the argument of counsel. . . . Thus, even

if real party had been able to overcome relator’s objection to the verification on the

petition that it was not based on personal knowledge of real party’s counsel, the verified

petition would not have been admissible evidence in support of the Rule 202 petition.”);

In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 Tex. App. LEXIS 6396, at **13-19

(Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.) (holding that the verified

Rule 202 petition does not itself constitute evidence for purposes of supporting the

required Rule 202 findings); In re Rockafellow, 2011 Tex. App. LEXIS 5495, at *13

In re Pickrell Page 9
(concluding that the trial court abused its discretion in ordering pre-suit depositions

because neither the verified petition, nor the arguments of counsel constitute evidence in

support of the petition).

We, too, hold that a petitioner under Rule 202 cannot rely solely on its verified

petition and/or the argument of counsel to establish the evidentiary requirements under

Rule 202. Therefore, because CONMED failed to provide any competent evidence to

support its verified Rule 202 petition, we conclude that the trial court abused its discretion

in ordering Pickrell to submit to a Rule 202 deposition. See In re East, 476 S.W.3d at 68;

see also In re Dallas County Hosp. Dist., 2014 Tex. App. LEXIS 3542, at *6; In re Noriega, 2014

Tex. App. LEXIS 3462, at **5-6; In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009

Tex. App. LEXIS 6396, at **13-19; In re Rockafellow, 2011 Tex. App. LEXIS 5495, at *13.

Despite the foregoing, CONMED argues that any reliance on Laidlaw to support

the notion that verified pleadings are not competent evidence is unfounded because

Laidlaw involved summary-judgment proof. See 904 S.W.2d at 660. We are not persuaded

by this purported distinction. First, the Laidlaw Court used the word “[g]enerally” to

precede its statement that sworn or verified pleadings are not competent evidence. Id.

The use of “[g]enerally” suggests that, in virtually all instances, sworn or verified

pleadings are not typically regarded as competent evidence. See MERRIAM WEBSTER’S

COLLEGIATE DICTIONARY 484 (10th ed. 1993) (defining general as “something (as a

concept, principle, or statement) that involves or is applicable to the whole). This

In re Pickrell Page 10
treatment is common amongst Texas appellate courts. See supra. Furthermore, the case

relied upon by Laidlaw for this proposition specifically mentioned that some jurisdictions

and at least one commentator have stated that sworn pleadings could be used as proof if

the pleadings set out in “great detail” the essential facts and were properly supported by

a sworn statement. Id. (citing Hidalgo v. Surety v. Sav. & Loan Ass’n, 462 S.W.2d 540, 545

(Tex. 1971)). However, this is not the majority rule.

And even if we were to consider CONMED’s verified Rule 202 petition as

competent evidence, we cannot say that it contains sufficient evidence to meet the

evidentiary requirements of Rule 202. The entire petition contains speculation based

solely on the fact that Pickrell resigned from CONMED and began working for a

competitor, Erbe. See, e.g., In re Hewlett Packard, 212 S.W.3d 356, 363-64 (Tex. App.—

Austin 2006, orig. proceeding) (concluding that a petitioner failed to meet the Rule 202

requirements for the discovery of trade secrets because the “threat of an unjust result

must be real and not just possible. . . . They are potential claims only. As Dell

acknowledges, there is a possibility that it has no claims against the relators. Thus,

without more, Dell cannot show that impairment of its presentation of a claim on the

merits is anything more than a possibility, much less that any such possible impairment

would threaten an unjust result. There is no lawsuit pending in which a result is going

to happen. Consequently, Dell has not established the necessity of discovering Hewlett-

Packard’s trade secret information as required by Texas law”); Garner Envtl. Servs. v. First

In re Pickrell Page 11
in Rescue, Safety & Training, LLC, No. 01-16-00388-CV, 2016 Tex. App. LEXIS 13631, at

**12-14 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, no pet.) (mem. op.) (concluding

that an employer with suspicions that former employees were breaching employment

agreements could not have discovered the purported breaches sooner through a Rule 202

deposition because the employer had “no proof of its suspicions” and no “basis to

establish that [competitor] had any information in its possession that could justify a

pretrial deposition”). There is no evidence suggesting that Pickrell may have violated his

employment agreements with CONMED. Such speculation cannot possibly be sufficient

to support a Rule 202 deposition that is not intended for routine use and must be strictly

limited and carefully supervised. See In re Wolfe, 341 S.W.3d at 933; In re Jorden, 249

S.W.3d at 423; see also In re Reassure Am. Life Ins. Co., 421 S.W.3d at 171. Accordingly, we

sustain relators’ complaints regarding the Rule 202 deposition.

In their second complaint, relators argue that the trial court abused its discretion

by ordering the production of six categories of documents under Rule 202. “Neither by

its language nor by implication can we construe Rule 202 to authorize a trial court, before

suit is filed, to order any form of discovery but deposition.” In re Akzo Nobel Chem., Inc.,

24 S.W.3d 919, 921 (Tex. App.—Beaumont 2000, orig. proceeding). Based on the

foregoing, we conclude that the trial court abused its discretion in ordering the

production of these documents. As such, we sustain relators’ second complaint.

V. CONCLUSION

In re Pickrell Page 12
 Having sustained relators’ complaints, we conditionally grant relators’ mandamus

petition and order respondent to vacate his order granting Pickrell’s deposition and

document production under Rule 202. We are confident respondent will comply, and the

writ will issue only if respondent fails to do so.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Conditionally granted
Opinion delivered and filed April 19, 2017
[OT06]

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