    Grant Writ and Opinion Filed July 26, 2013
 




 
                                            S   In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
 
                                         No. 05-13-00477-CV
 
           IN RE MICHELLE DETMER CAMPO AND ROSANNA CANTU, Relators
 
 
                          On Appeal from the 191st Judicial District Court
                                       Dallas County, Texas
                               Trial Court Cause No. DC-12-08938
 
                                   MEMORANDUM OPINION
                              Before Justices FitzGerald, Lang, and Myers
                                     Opinion by Justice FitzGerald
 

           Relators filed this petition for writ of mandamus claiming the trial court erred in ordering

    them to submit to depositions under TEX. R. CIV. P. 202. We conclude the trial court abused its

    discretion in ordering the depositions and that relators have no adequate remedy by appeal. See

    Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).             We therefore

    conditionally grant the writ of mandamus.

           Relators are former employees of real party in interest Davaco, Inc., who allegedly left

    that employment to work for a competing company known as MLE. Davaco, believing that

    relators may have breached certain covenants contained in their employment agreements, filed a

    petition under Rule 202 of the Texas Rules of Civil Procedure on August 10, 2012, seeking the
  depositions of relators and three other similarly situated individuals.1 The trial court granted the

    petition over relators’ objections, and relators then filed this petition for writ of mandamus.

               Rule 202 provides, “A person may petition the court for an order authorizing the taking
 
    of a deposition on oral examination or written questions either: (a) to perpetuate or obtain the

    person's own testimony or that of any other person for use in an anticipated suit; or (b) to

    investigate a potential claim or suit.” TEX. R. CIV. P. 202.1. The petition must be verified. TEX.

    R. CIV. P. 202.2. The trial court “must order a 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). However, “Rule 202 depositions are not now and never

    have been intended for routine use.”                         In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig.

    proceeding). Therefore, “[c]ourts must strictly limit and carefully supervise pre-suit discovery to

    prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011).

               In this case, the trial court allowed the depositions to go forward on a finding that the

    likely benefit of the deposition outweighed the burden or expense of the procedure. However, no

    evidence was presented to the trial court at the hearing on the motion and Davaco did not

    formally offer or admit its verified pleading at the hearing. It was an abuse of discretion for the

    trial court to find that the likely benefit outweighed the burden of the deposition when Davaco

    failed to provide any evidence on which the court could have made such finding. See In re

    Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374 (Tex. App.—Tyler Aug.

    17, 2009, orig. proceeding).
 
 
 
 
       1
           The other three individuals also filed a petition for writ of mandamus, In re Patrick Doak, et al., No. 05-13-00538-CV.


                                                                          –2
            We further find that relators have no adequate remedy by appeal. Davaco argues that

    relators could have appealed the trial court’s order, citing Thomas v. Fitzgerald, 166 S.w.3d 746,

    747 (Tex. App.—Waco 2005, no pet.). In Thomas, a person seeking a deposition to perpetuate
 
    testimony under TEX. R. CIV. P. 202.1(a) tried to appeal the trial court’s denial of that petition.

    Id. at 747. The court of appeals held that the order would be appealable “if the petition seeks

    discovery from a third party against whom a suit is not contemplated,” but it was not appealable

    “if discovery is sought from a person against whom there is a suit pending or against whom a suit

    is specifically contemplated.” Id. (internal quotation omitted). In its petition below, Davaco

    stated that it needed to depose relators to investigate claims and determine whether litigation

    should be initiated. Davaco did not claim below, and does not argue in its response to relators’

    petition, that it is not contemplating filing suit against relators or that it is investigating a claim or

    suit against some other parties. In any case, this Court has previously concluded that mandamus

    is a proper remedy when a deposition is erroneously ordered under Rule 202.1. See, e.g., Patton

    Boggs LLP v. Moseley, 394 S.W.3d 565, 570 (Tex. App.—Dallas 2011, no pet.).

            Accordingly, we conditionally grant relators= petition for writ of mandamus. A writ will

    issue only in the event the trial court fails to vacate the associate judge’s November 13, 2012

    order granting Davaco, Inc.’s Rule 202 petition and to render an order denying that petition.
 
 
 
 
 
 
 
 
                                                           /Kerry P. FitzGerald/
                                                           KERRY P. FITZGERALD
    130477F.P05                                            JUSTICE




                                                      –3
