ACCEPTED
04-15-00060-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/20/2015 1:45:02 PM
KEITH HOTTLE
CLERK
CAUSE NO. 04-15-00060-CV
IN THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
FILED IN
DISTRICT SAN ANTONIO, TEXAS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
2/20/2015 1:45:02 PM
KEITH E. HOTTLE
In re Carol Kendall and Belinda Sanchez, Relators Clerk
Original Proceeding from the 224th Judicial District Court of Bexar County, Texas
The Honorable Laura Salinas, of the 166th Judicial District Court of Bexar
County, Texas, Presiding
REAL PARTY IN INTEREST CYNTHIA MASON’S RESPONSE TO
RELATORS’ PETITION FOR WRIT OF MANDAMUS
Jeff Davis
State Bar No. 05508350
Alan Braun
State Bar No. 24054488
DAVIS LAW FIRM
10500 Heritage Blvd Ste 102
San Antonio, Texas 78216
Phone: (210) 444-4444
Fax: (210) 785-0806
ATTORNEYS FOR REAL PARTY IN INTEREST CYNTHIA MASON
TABLE OF CONTENTS
INDEX OF CASES______________________________________________________ ii
STATEMENT OF FACTS ________________________________________________ 1
ARGUMENT __________________________________________________________ 4
ISSUE 1: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
ORDERING RELATORS‘ DEPOSITIONS BECAUSE SUFFICIENT EVIDENCE
WAS BEFORE THE COURT TO ESTABLISH THAT THE BENEFIT OF TAKING
THE DEPOSITIONS OUTWEIGHED THE BURDEN _________________________ 7
ISSUE 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
ORDERING RELATOR TO PRODUCE DOCUMENTS BECAUSE RULE 202
ALLOWS FOR THE COURT TO ORDER THE PRODUCTION OF DOCUMENTS _ 9
CONCLUSION ________________________________________________________ 11
PRAYER _____________________________________________________________ 12
STATEMENT OF COMPLIANCE ________________________________________ 12
CERTIFICATE OF SERVICE ____________________________________________ 13
APPENDIX ________________________________________________________ TABS
i
INDEX OF AUTHORITIES
CASES
Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) ______________________________ 4
Beausoleil v. Reaud, Morgan, & Quinn L.L.P. 2011 Tex. App. LEXIS 993 (Tex.App.—
Beaumont 2011) _______________________________________________________ 11
Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) ______________________________ 4
City of Dallas v. Dallas Black Fire Fighters Ass’n 353 S.W.3d 547, 557 (Tex. App.
—Dallas 2011, no pet.) ___________________________________________________ 7
Davidson v. Southern Farm Bureau Cas. Ins. Co. 2006 U.S. Dist. LEXIS 40654
(SDTX 2006) __________________________________________________________ 9
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) ______ 4
In re Anand 2013 Tex. App. LEXIS 4157 (Tex. App.-Houston [1st] 2013, Orig.
Proceeding) ______________________________________________________ 5, 10, 11
In re Akzo Nobel Chemical, Inc., 24 S.W.3d 919 (Tex. App.-Beaumont 2000,
Orig. proceeding) ____________________________________________________ 9, 10
In Re Jorden, 249 S.W.3d, 416 (Tex. 2008) (Orig. Proceeding) __________________ 6,8
In Re Kiberu 237 S.W.3d 445, 448 (Tex. App. Ft. Worth 2007, Orig. Proceeding) 8, 9, 10
Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex. 1992) ________________________ 4
ii
STATEMENT OF FACTS
TO THE HONORABLE COURT OF APPEALS:
Cynthia Mason is a former employee of Career Point College. She was
rehired by Career Point as the Director of Daycare in April of 2013. See Exhibit 1
EEOC Charge of Discrimination.
On April 9, 2014, Ms. Mason received treatment from her doctor related to a
medical condition, and Ms. Mason was told by her doctor that she would need to
take 1-2 weeks off work for medical treatment. Exhibit 1.
On April 10, 2014, Ms. Mason then informed Relators Carol Kendall, Career
Point College‘s Finance Director, and Belinda Sanchez, who was in Career Point
College‘s HR department, about her medical condition. Exhibit 1.
The next day, April 11, 2014, Ms. Mason was terminated from her
employment with Career Point. Exhibit 1.
Ms. Mason filed her Original Petition for Order Authorizing Depositions
under Rule 202 on December 15, 2014. Exhibit A to Relators’ Petition - Record at
pp. 4-5. The Petition states that Ms. Mason seeks to take the depositions of
Relators Ms. Kendall and Ms. Sanchez under Texas Rule of Civil Procedure 202 in
order to investigate whether or not she had a potential claim against her former
employer Career Point College. Id.
1
On January 9, 2015, a hearing was held on Ms. Mason‘s Petition before the
Honorable Laura Salinas in the 166th Judicial District Court, Bexar County, Texas.
See Exhibit B to Relators’ Petition – Hearing Transcript at 4-5.
Also on January 9, 2015, Relators filed their Answer to Ms. Mason‘s
Petition. Exhibit A to Relators’ Petition - Record at 11. In this Answer, Relators
assert a general denial and state that ―Petitioner is not entitled to the documents she
seeks by way of her petition. Id.
At the hearing Judge Salinas heard argument from counsel and reviewed Ms.
Mason‘s Equal Employment Opportunity Commission (EEOC) Charge of
Discrimination which was entered into evidence as an exhibit at the hearing. See
Exhibit B to Relators’ Petition – Hearing Transcript at p. 9; Exhibit 1.
Relators argued against the 202 petition on several grounds. Relators
asserted that ―as a general practice, although not mandated, the employer will get a
chance to depose the plaintiff first to find out what they know.‖ See Exhibit B to
Relators’ Petition – Hearing Transcript at p. 8
Relators further argued that the personnel file which was requested in the
Rule 202 petition should not have to be produced because Ms. Mason had not
sought to use rule 202 to take the deposition of a corporate representative of Career
Point College. See Exhibit B to Relators’ Petition – Hearing Transcript at p. 10.
Counsel went on to state that ―What I‘m saying is, it‘s our position that if you are
2
going to want corporate documents, you need to have notice to the corporation
themselves.‖
The Court then told Counsel for Ms. Mason to file an Amended Petition
asking for the deposition of the corporate representative of Career Point in order to
support the request for documents. See Exhibit B to Relators’ Petition – Hearing
Transcript at pp. 17-18.
Later on January 9, 2015, counsel for the parties conferred and agreed that
rather than amending the pleadings to include a third deposition of a corporate
representative, the parties agreed that if the depositions were ordered that Relator
Carol Kendall would produce the personnel file and informed Judge Salinas of
same. Exhibit 2 January 9, 2015, correspondence to the Honorable Judge Salinas.
On January 12, 2015, Judge Salinas issued an order granting Ms. Mason‘s
Petition under Rule 202. Exhibit 3 January 12, 2015 Order and Judge’s Notes.
The order set the time and date for the depositions on January 12. Id. However,
the parties did not receive the order until after that time listed in the order.
The parties conferred and reached an agreement that the depositions of
Relators would take place in early February. Exhibit 4 January 14, 2015
Correspondence.
3
On January 26, 2015, the parties submitted an agreed order setting the
depositions of Relators to take place at the office of Relators‘ counsel on February
10, 2015. Exhibit 5 Agreed Order.
On February 5, 2015, Relators filed their Petition for Writ of Mandamus.
ARGUMENT
Standard of Review
Mandamus issues only when the mandamus record establishes (1) a clear
abuse of discretion or the violation of a duty imposed by law and (2) the absence of
a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.
1994) (Orig. Proceeding). Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex.
1992) (Orig. Proceeding).
Mandamus is an extraordinary remedy that will issue only to correct a clear
abuse of discretion or, in the absence of another statutory remedy, when the trial
court fails to observe a mandatory statutory provision conferring a right or
forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985)
(Orig. Proceeding). A trial court abuses its discretion when it acts without
reference to any guiding rules or principles or when it acts in an arbitrary or
unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985).
Rule 202 of the Texas Rules of Civil Procedure
4
Rule 202 of the Texas Rules of Civil Procedure permits pre-suit depositions
either for (1) use in an anticipated suit or (2) to investigate a potential claim or suit.
TEX. R. CIV. P. 202.1.
The rule requires that the petitioner file a verified petition, state the subject
matter of the action, state who they want to depose and request authorization from
the Court to take the deposition. TEX. R. CIV. P. 202.2.
The Petitioner must then effect personal service on each witness and inform
them of the scheduled hearing on the Motion. TEX. R. CIV. P. 202.3.
In order to take the deposition the trial court must issue an order holding
either that (1) allowing the petitioner to take the requested depositions may prevent
a failure or delay justice in an anticipated suit; or (2) the likely benefit of allowing
the petitioner to take the requested deposition to investigate a potential claim
outweigh the burden or expense of the procedure. TEX. R. CIV. P. 202.4.
Finally, the rule states that ―except as otherwise provided in this rule,
depositions authorized by this rule are governed by the rules applicable to
depositions of nonparties in a pending suit. The scope of discovery in depositions
authorized by this rule is the same as if the anticipated suit or potential claim had
been filed.‖ TEX. R. CIV. P. 202.5.
The production of documents is permitted by rule 202. In re Anand 2013
Tex. App. LEXIS 4157 (Tex. App.-Houston [1st] 2013 Orig Proceeding). Rule 205
5
which governs discovery of nonparties allows for a party to compel discovery by
serving a subpoena requesting documents and tangible things. Id. and TEX. R. CIV.
P. 205. Therefore, because Tex. R. Civ. P. 202.5 states that a deposition under 202
is treated as a deposition of a non-party, documents may be requested as allowed
by Rule 205.
Relators make several references to the Texas Supreme Court‘s holding in
In Re Jorden, 249 S.W.3d, 416 (Tex. 2008) (original proceeding). In that case the
Texas Supreme Court wrote that:
―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 form someone before telling them what the
issues are. Accordingly, presuit depositions are available under Rule
202 only if a trial court makes one of two findings:
‗allowing the petitioner to take the requested deposition may
prevent a failure or delay of justice in an anticipated suit; or
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.‘‖ In Re Jorden at 423.
The Texas Supreme Court‘s In Re Jorden holding is that the concerns
about routine use, due process, and demanding discovery from a deponent before
informing them about the issues are alleviated when the trial court makes one of
the two required holdings under TEX. R. CIV. P. 202.4. This holding does not
impose a higher standard on a party seeking to take a Rule 202 deposition rather it
6
holds that the requirements of Rule 202 are what assure those interests are
protected.
The only time when there are heightened requirements to obtain a deposition
under rule 202 when trade secrets are sought. City of Dallas v. Dallas Black Fire
Fighters Ass’n 353 S.W.3d 547, 557 (Tex. App.—Dallas 2011, no pet.);
ISSUE 1: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
ORDERING RELATORS’ DEPOSITIONS BECAUSE SUFFICIENT
EVIDENCE WAS BEFORE THE COURT TO ESTABLISH THAT THE
BENEFIT OF TAKING THE DEPOSITIONS OUTWEIGHED THE
BURDEN
In addition to being presented with the arguments of counsel, Judge Salinas
was presented with Ms. Mason‘s EEOC charge of discrimination, which Ms.
Mason signed under oath. Exhibit 2 and to Relators’ Petition – Hearing
Transcript at p. 9.
Additionally, Judge Salinas discussed the contents of the Charge with
Counsel:
―THE COURT: So the EEOC informed her—well, told her she could
proceed with the lawsuit?
MR. SMITH: Right. Actually, their finding was – year. They did say
that. They gave her notice of right to sue. As I recall their finding –
and tell me if I‘m wrong, I don‘t want to misstate – that they could not
find sufficient evidence to support her claims, but gave her a Right To
Sue Letter, allowing her to proceed with a lawsuit.
THE COURT: And the two people that they are seeking to depose are
the two that were particularly involved with regards to her claim,
correct?
7
MR. SMITH: Ms. – I don‘t remember that specifically. They‘ve
identified, I think they – at least in the charge, that Ms. Kendall was
the chief finance officer, and I think Ms. Sanchez is in HR and is
identified as in HR.
THE COURT: Okay. I just see that the names in the EEOC charge
form, the two – those two names are also listed in the petition. That‘s
why I was asking.‖ Exhibit B at pp. 11-12.
The Charge indicates that in a three day period of time that Ms. Mason
became ill, informed Relators of her illness, and was terminated for reasons which
had not been previously been discussed with her. Exhibit 2. Furthermore the
Charge of Discrimination is signed under penalty of perjury. Id.
The Court had a sworn statement from Ms. Mason stating that she believed
that the Relators were involved in her termination from her former employer.
This provided the Court with sufficient information to make a determination
that the two Relators have information that would allow Ms. Mason to investigate
a potential claim. This gives the court the basis to determine whether the benefit of
the deposition outweighs the burden.
Relators go on to argue that requiring their depositions would force them to
answer Ms. Mason‘s discovery without being able to submit their own discovery
and without the protections afforded a party in a lawsuit. Relators’ Petition at p. 9.
These concerns were addressed by the Texas Supreme Court‘s holding in In re
8
Jorden. These concerns are why a hearing before the trial court and a finding as
required by TEX. R. CIV. P. 204 must be made. That was done in this case.
Relators go on to cite to numerous cases which they allege support the idea
that the depositions should not move forward under Rule 202 because the Plaintiff
must give a deposition first. This argument fails for two main reasons. First,
carried to its logical end, this argument would render rule 202 meaningless. As the
court wrote in In re Kiberu:
―With potential causes of action, the essential facts are not yet known,
so presuit depositions are used to gather those essential facts so that
the petitioner may investigate whether she does indeed have a claim—
or whether she does not.‖ In Re Kiberu 237 S.W.3d 445, 448 (Tex.
App. Ft. Worth 2007 Orig Proceeding)
Rule 202 would not accomplish its goal of allowing potential claimants to
investigate their claims under Relators‘ logic because they would be unable to
determine whether or not they had a claim. In Re Kiberu at 448.
Second, Courts have repeatedly held that a rule 202 proceeding is not a
lawsuit. See Davidson v. Southern Farm Bureau Cas. Ins. Co. 2006 U.S. Dist.
LEXIS 40654 (SDTX 2006). Any common practice in a filed lawsuit therefore
does not affect a rule 202 deposition.
Based on the above, this Court should reject Relators arguments that the
Trial Court abused its discretion in ordering the depositions of Relators under Rule
202.
9
ISSUE 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
ORDERING RELATOR TO PRODUCE DOCUMENTS BECAUSE RULE
202 ALLOWS FOR THE COURT TO ORDER THE PRODUCTION OF
DOCUMENTS
Relators place heavy reliance on the holding in In re Akzo Nobel Chemical,
Inc., 24 S.W.3d 919 (Tex. App.-Beaumont 2000, orig. proceeding) for their
argument that the Trial Court abused its discretion in ordering the production of
documents at a Rule 202 deposition.
This is an incorrect reading of the holding in Akzo Nobel. In that case, the
trial court ordered the relator to produce witnesses to be deposed and to make an
accident scene available for inspection, photographing, and videotaping. Akzo
Nobel at 920. The holding of the Beaumont Court of appeals was that it was not
proper for the Court to order the inspection of the accident scene because that
was not a deposition and was therefore not discovery allowable by the rules. Id.
The In Re Akzo Nobel court correctly held that Rule 202 does not allow a
trial court to order a pre-suit inspection of an accident scene, but nothing in the
Akzo Nobel decision states that a court cannot order the production of documents
at a deposition under Rule 202.
Relators have chosen to ignore numerous cases which hold that deponents
may be ordered to produce documents under Rule 202. In re Anand at *6
(―Nothing in the language of Rule 202 prohibits the petitioner from requesting that
documents be produced along with the deposition.‖); In re Kiberu at *448
10
(Holding that individual being deposed under 202 could be required to produce
documents in his control).
As the In re Anand Court wrote:
―There is nothing in the language of Rule 202 that prohibits the
petitioner from requesting that documents be produced along with the
deposition. Furthermore, Rule 202.5 expressly provides that
‗depositions authorized by this rule are governed by the rules
applicable to depositions of nonparties in a pending suit.‘ Tex. R. Civ.
P. 202.5. The rule further provides that ‗[t]he scope of discovery in
depositions authorized by this rule is the same as if the anticipated suit
or potential claim had been filed.‘ Rule 205, which governs discovery
of nonparties, permits a party to compel discovery from a nonparty by
serving a subpoena compelling ‗a request for production of documents
or tangible things…served with a notice of deposition on oral
examination or written questions.‘ TEX. R. CIV. P. 205.1(c).
Therefore, the language of these rules when read together permits a
petition seeking a pre-suit deposition under Rule 202 to also request
the production of documents.‖ In Re Anand at *6.
Depositions authorized by Rule 202 ‗are governed by the rules applicable to
depositions of nonparties in a pending suit. Beausoleil v. Reaud, Morgan, &
Quinn L.L.P. 2011 Tex. App. LEXIS 993 (Tex.App.—Beaumont 2011).
The interaction between Rule 202 and Rule 205 governing depositions of
nonparties allow for documents to be requested.
There is no authority supporting Relators‘ position that they cannot be
ordered to produce documents under Rule 202.
CONCLUSION
11
There was sufficient evidence presented at the hearing on Cynthia Mason‘s
Rule 202 Petition to allow the Trial Court to make a finding that the benefit of
taking the depositions of Relators outweighed the burden under Rule 202.
Relators have failed to present any law supporting their claim that it was
inappropriate for the Trial Court to order the production of documents at these
depositions.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Real Party in Interest, Cynthia
Mason respectfully requests that this court DENY Relators‘ Petition for Writ of
Mandamus and issue an order allowing the Depositions of Relators to continue
under TEX. R. CIV. P. 202 as ordered by the Trial Court.
Respectfully submitted,
DAVIS LAW FIRM
10500 Heritage Blvd, Ste 102
San Antonio, Texas 78216
(210) 444-4444 Telephone
(210) 785-0806 Facsimile
By: _/s/ Alan Braun _
JEFFREY R. DAVIS
State Bar No. 05508350
ALAN BRAUN
State Bar No. 24054488
ATTORNEYS FOR REAL PARTY
IN INTEREST CYNTHIA MASON
Jeffd@jeffdavislawfirm.com
Alanb@jeffdavislawfirm.com
12
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that,
excluding those parts allowed to be excluded, the above and foregoing Response
of Real Party in interest contains 2717 words.
_/s/ Alan Braun _
Jeffrey R. Davis
Alan Braun
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of February, 2015, I electronically filed
the foregoing with the Clerk of Court and a true and correct copy of the foregoing
document has been forwarded as follows:
Electronic Mail
Lawrence D. Smith
State Bar No. 18638800
Soña Ramirez
State Bar No. 24040330
Mark A. McNitzky
State Bar No. 24065730
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
2700 Weston Centre
1200 E. Pecan Street
San Antonio, Texas 78205
210-354-1300
210-277-2702
Larry.smith@ogletreedeakins.com
Sona.ramirez@ogletreedeakins.com
13
Mark.mcnitzky@ogletreedeakins.com
RELATORS
The Honorable Judge Laura Salinas
166th Judicial District Court
Bexar County Courthouse
100 Dolorosa, 2nd Floor
San Antonio, Texas 78205
Via Mail
And via Fascimile at 210-335-0594
RESPONDENT
_/s/ Alan Braun _
Jeffrey R. Davis
Alan Braun
14