Opinion issued August 20, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00964-CV
                             NO. 01-15-00126-CV
                          ———————————
 IN RE TMX FINANCE OF TEXAS, INC., TITLEMAX OF TEXAS, INC.,
               AND TMX FINANCE LLC, Relators



           Original Proceeding on Petition for Writ of Mandamus


                                 OPINION

      In these two original proceedings, relators, TMX Finance of Texas, Inc.,

TitleMax of Texas, Inc., and TMX Finance LLC (collectively, “TMX”), seek a

writ of mandamus compelling the trial court to vacate its orders denying their

motions to quash and for protection regarding the depositions of Tracy Young and
Otto Bielss. 1 Relators contend that the trial court erred by failing to apply the apex

deposition doctrine to bar the depositions of Young, the Chief Executive Officer of

TMX Finance LLC, and Bielss, the Chief Operating Officer of TMX Finance LLC.

      We conditionally grant the petition for writ of mandamus in appellate cause

number 01-14-00964-CV, regarding the deposition of Young.               We deny the

petition for writ of mandamus in appellate cause number 01-15-00126-CV,

regarding the deposition of Bielss.

                                      Background

      The real parties in interest, Wellshire Financial Services, LLC d/b/a

Loanstar Title Loans, d/b/a Moneymax Title Loans, and d/b/a Loanmax,

Meadowwood Financial Services, LLC, d/b/a Loanstar Loans, and d/b/a

Moneymax Title Loans, and Integrity Texas Funding, LP (collectively,

“LoanStar”), filed suit against TMX, their competitor in the title-loan market, and

asserted causes of action for misappropriation of trade secrets and tortious

interference with existing contracts and prospective business relations. LoanStar




1
      The underlying case is Wellshire Financial Services, LLC d/b/a Loanstar Title
      Loans, d/b/a Moneymax Title Loans, and d/b/a Loanmax; Meadowwood Financial
      Services, LLC, d/b/a Loanstar Loans, and d/b/a Moneymax Title Loans; and
      Integrity Texas Funding, LP v. TMX Finance Holdings, Inc., TMX Finance, LLC,
      TMX Finance of Texas, Inc., and TitleMax of Texas, Inc., cause number 2013-
      33584, pending in the 152nd District Court of Harris County, Texas, the Hon.
      Robert Schaffer presiding.


                                          2
alleged that TMX employees improperly accessed driving records maintained by

the Texas Department of Motor Vehicles (“DMV”) to solicit LoanStar customers.

      After taking depositions of several lower-level TMX employees, LoanStar

noticed the depositions of the corporate representatives of TitleMax of Texas, Inc.,

TMX Finance LLC, and TMX Finance of Texas, Inc. TMX objected to the scope

of the proposed topics to be discussed in the depositions, and the trial court held a

hearing on these objections and sustained several of TMX’s objections.

      Following the trial court’s ruling, TMX allegedly failed to produce

documents responsive to discovery requests, and LoanStar withdrew its notice for

the deposition of the corporate representatives of the TMX entities.            Instead,

LoanStar noticed the deposition of Tracy Young, the CEO of each of the three

TMX entities.2 TMX filed a motion to quash and for protection from the “apex

deposition” of Young, arguing that Young, as the CEO, does not have “unique or

superior personal knowledge” of the facts relevant to the suit such that LoanStar

can proceed with his deposition. TMX attached an affidavit from Young, in which

he averred as follows:

      2.     I am the CEO of TMX Finance LLC, TitleMax of Texas, Inc.
             and TMX Finance of Texas, Inc. The latter two entities have
             approximately 950 employees and 366 stores in Texas.

2
      TMX Finance of Texas, Inc. and TitleMax of Texas, Inc. are wholly-owned by
      TMX Finance LLC, which, in turn, is wholly-owned by TMX Finance Holdings,
      Inc. TMX Finance Holdings, Inc. is a defendant in the underlying litigation, but it
      is not a party to these mandamus proceedings.

                                           3
      3.    I do not have any first-hand personal knowledge of relevant
            facts concerning the subject matter of the above-captioned
            lawsuit, including facts and allegations relating to (a) marketing
            to or soliciting customers of competitors, including [LoanStar];
            (b) use of databases in an attempt to locate customers of
            competitors, including [LoanStar]; (c) soliciting [LoanStar’s]
            customers in parking lots; (d) acquiring VIN or license plate
            numbers in parking lots; and (e) lists of [LoanStar’s] customers.
            While I have knowledge of some facts relating to some of these
            issues by reason of my position as CEO, all of those facts were
            relayed to me in the course of privileged communications by
            counsel representing [TMX].
      4.    I do not possess any unique or superior personal knowledge
            regarding the issues set forth in the preceding paragraph beyond
            that of other of [TMX’s] personnel.

TMX also attached excerpts from depositions of lower-level TMX employees who

all testified that they had either never met Young or had only ever had casual

conversation with him and had never discussed TMX’s marketing strategies.

      In response, LoanStar argued and presented evidence that Young was the

only member, manager, and employee of one of the defendant-entities, TMX

Finance LLC. LoanStar argued that because Young was the only employee of

TMX Finance LLC, the apex deposition doctrine was inapplicable because Young

was “the only individual who can have personal knowledge of the conduct and

actions of TMX Finance” and, thus, preventing Young’s deposition would

“completely bar LoanStar from obtaining any deposition testimony from a named

party in this action.” LoanStar also argued that Young was “directly involved in




                                         4
the [TMX] entities’ operations and marketing approaches” and therefore had

unique or superior personal knowledge of discoverable information.

      As evidence that Young possessed unique or superior personal knowledge of

discoverable information, LoanStar attached the affidavit of Daniel Baker, a

former TMX district manager for the Houston area. Baker averred:

      4.    From January 2012 to September 2013, I reported directly to
            Franco Zizzo, the Regional Manager for Houston, who reported
            directly to Linda McDonald, the Vice President of Operations
            in Texas. During this time period, Ms. McDonald reported
            directly to Otto [Bielss], the Senior Vice President of
            Operations, who reported directly to Tracy Young, the
            President of TitleMax.
      5.    When I was a district manager in Houston, TitleMax’s
            corporate headquarters emphasized marketing of auto title loans
            and heavily pressured employees to meet unachievable
            performance goals. For example, Mr. [Bielss] would hold
            monthly telephone conference calls with the district managers
            and regional managers in Texas during which he would berate
            regional managers and district managers, even if they met
            performance metrics, in order to remind us that we were all
            expendable and numbers were king.
      6.    I was one of the most senior district managers in Houston, and
            regularly discussed performance and operations with other
            district managers.    I would also regularly monitor the
            performance of my district and other districts in Houston.
      7.    At some point during my employment, I noticed that one
            district in Houston had a significant increase in loan volume. I
            reached out to the district manager for that district, Nelson
            Parada, regarding the increase in loan volume and ask[ed] him
            what caused the increased loan volume. Mr. Parada informed
            me that he was receiving lists of customers of competitors,
            including LoanStar customers, from a TitleMax employee
            named Ishmael Hernandez and that he was using the lists to


                                        5
            solicit customers of LoanStar. I reported the use of these
            customer lists to Mr. Zizzo, who told me that the district in
            question needed the numbers and to stop asking questions.
      8.    When I was a district manager in Houston, I heard that
            TitleMax employees would go to parking lots of competitors,
            including LoanStar, to record license plate numbers.

      LoanStar also attached the affidavit of Harold Landers, a former TMX

regional manager for the Dallas/Fort Worth area.         Landers averred that the

“corporate group at TitleMax also set extremely high performance goals for the

stores, districts, and regions in Texas, and the general managers and district

managers operated under pressure to aggressively ‘grow’ new business in their

stores.” Landers averred that he participated in monthly conference calls with

district and regional managers, Bielss, “other members of the corporate operations

teams, and corporate recruiters and trainers.” During these calls, the participants

reviewed reports regarding store performance, the district managers defended the

performance of stores in their districts by explaining marketing efforts, and Bielss

would ask most of the questions on the calls. Landers averred that he raised

concerns with Bielss and McDonald concerning the performance goals, informing

them of his belief that “the combination of pressure and fear would cause

employees to leave the company or engage in improper practices in order to meet

the performance goals.” Aside from stating that Bielss directly reported to Young,




                                         6
Landers did not aver that Young ever participated in the monthly conference calls

or that he ever raised his concerns over performance goals with Young.

      As further evidence that Young has unique and superior personal

knowledge, LoanStar attached a letter it sent to Vin Thomas, identified as

“Assistant General Counsel” for “TMX Finance LLC,” in which it demanded that

TMX cease and desist conducting searches of DMV records to identify LoanStar

customers.    On TitleMax letterhead, Thomas replied that TMX “denies the

allegations in your letter,” that it “does not consider the above allegations to be a

proper business practice,” and that it “has reminded all Texas managers of its

position on this practice.” LoanStar argued:

      As Mr. Young is the only employee of TMX Finance, he is also the
      only person who could have communicated to Mr. Thomas TMX
      Finance’s denial of LoanStar’s allegations, the only person who could
      have instructed Mr. Thomas as to TMX Finance’s position with
      respect to appropriate business practices, and the only person who
      could have directed the ‘reminding’ of the TitleMax Texas employees.

LoanStar argued that Young “was involved in communications regarding

TitleMax’s response to LoanStar’s demand that TitleMax cease and desist from

illegally identifying and marketing to LoanStar customers” and, therefore, that

there is “accordingly no question that Mr. Young possesses ‘superior or unique

personal knowledge of discoverable information.’”

      The trial court held a hearing on TMX’s motion for protection on November

21, 2014. At the hearing, LoanStar described Young as the sole employee of TMX

                                         7
Finance LLC and argued that it was entitled “to take evidence from the single

employee of a Defendant in this case.” LoanStar again relied on the letter from

Thomas, arguing that only Young, as the sole employee of TMX Finance LLC,

could have denied the allegations in LoanStar’s cease and desist letter and

reminded TMX’s Texas managers that conducting searches of LoanStar customers

was not a proper business practice. TMX responded that the reason Young is the

only employee of TMX Finance LLC is because that entity “sits atop all the other

entities.”

       When asked by the trial court what evidence LoanStar had that Young

“orchestrated what was going on,” LoanStar’s counsel responded, “[W]e have

evidence that Tracy Young is the guy responsible for everything that happens in

this company. That—this is a small industry, [Y]our Honor. This [cease and

desist] letter was sent to TMX Finance because that’s Tracy Young. Tracy is

someone who has his hands in the business.” LoanStar’s counsel also pointed to

TMX Finance LLC’s 2012 10-K, filed with the Securities and Exchange

Commission and included as an exhibit to LoanStar’s response to TMX’s motion

for protection, which allegedly reflected that everyone at TMX Finance LLC

“serves at [Young’s] pleasure, at his discretion” and that “he is the person who is

in charge of all of the . . . Texas entities.”




                                             8
      The trial court ultimately denied TMX’s motion to quash and for protection

and ordered TMX to produce Young for deposition. TMX filed a petition for writ

of mandamus in this Court, in appellate cause number 01-14-00964-CV, seeking to

compel the trial court to vacate its order denying the motion for protection and

compelling Young’s deposition. This Court stayed Young’s deposition pending

resolution of the mandamus proceeding.

      Shortly after this Court stayed Young’s deposition, in December 2014,

LoanStar noticed the deposition of Otto Bielss. In August 2014, TMX had offered

Bielss, who, at the time, had served as Senior Vice President of Operations, as the

corporate representative for deposition. LoanStar did not depose Bielss at that

time. In response to LoanStar’s December 2014 notice of deposition, TMX filed a

motion for protection, arguing that the apex deposition doctrine barred the

deposition of Bielss, who now served as TMX Finance LLC’s Chief Operating

Officer, a position he had held since October 2014. TMX argued that Bielss

lacked unique or superior personal knowledge of relevant facts, and it offered

Coleman Gaines, Senior Vice President of Operations West, as its corporate

representative for deposition.

      In support of its motion, TMX attached Bielss’s affidavit, in which he

averred:

      My title is Chief Operating Officer, TMX Finance LLC, and in that
      capacity I provide services to TMX Finance LLC. I have been Chief

                                         9
      Operating Officer since October 2014. Prior to this, I provided
      services to TMX Finance LLC in different executive positions during
      the relevant time period at issue in this litigation.
      During the relevant time period, I was towards the very top of layers
      of management but not over any individual TitleMax store. As such, I
      do not have firsthand personal knowledge of the day-to-day
      operations or marketing activities of any TitleMax store in Texas.
      Likewise, I do not have firsthand personal knowledge of the relevant
      facts concerning the subject matter of the above-captioned lawsuit,
      including facts and allegations relating to the following:
            a.     marketing or soliciting customers of competitors,
                   including but not limited to [LoanStar];
            b.     using databases, including PublicData or
                   DataTrax, in an attempt to locate customers of
                   competitors including [LoanStar];
            c.     marketing or soliciting [LoneStar’s] customers in
                   parking lots;
            d.     acquiring VIN or license plate numbers in parking
                   lots; or
            e.     acquiring lists of [LoneStar’s] customers.
      While I have limited knowledge regarding this information, it was
      only obtained by virtue of my executive positions or through
      conversations with legal counsel. I do not possess any unique or
      superior personal knowledge regarding the information in this
      paragraph.

TMX argued that, because of his corporate position, Bielss “was not involved in

the daily operations of any particular [TMX] office,” and it attached excerpts from

the depositions of lower-level employees that reflected they had little contact with

Bielss.




                                        10
      In response, LoanStar argued that the apex deposition doctrine did not

protect Bielss because he had unique or superior personal knowledge of

discoverable facts, including responsibility for overseeing TMX’s Texas operations

and knowledge that LoanStar had made complaints concerning TMX’s alleged

improper marketing practices. LoanStar presented deposition excerpts from other

TMX employees indicating that Bielss was “aware of the day-to-day operations of

TitleMax in Texas,” including evidence that he conducted conference calls with

local managers concerning the performance of their stores, that he met face-to-face

with local managers concerning performance, and that he had conversations with

local managers concerning marketing tactics. LoanStar presented evidence from

McDonald, a TMX vice president, that Bielss had contacted her concerning

allegations made by LoanStar that TMX employees were going into the parking

lots of its competitors. LoanStar argued that because Bielss “monitored stores and

employees across the state, he can provide greater insight into TitleMax’s

operations than any of the lower-level employees who have been deposed to date.”

      At the hearing on TMX’s motion for protection, the trial court stated that it

appeared Bielss “was, if not intimately, he was actively involved in what these

companies of Texas [were] doing” and that LoanStar sought Bielss’s testimony “as

a fact witness, not as a corporate [representative].” The trial court denied TMX’s

motion for protection and entered an order compelling the deposition of Bielss.



                                        11
TMX sought mandamus relief from this order in appellate cause number 01-15-

00126-CV.     We stayed the deposition of Bielss pending resolution of this

mandamus proceeding.

                           Apex Deposition Doctrine

      TMX contends that the trial court erred in denying its motions for protection

regarding the depositions of Young and Bielss because the apex deposition

doctrine bars LoanStar’s attempt to conduct these two depositions.

A.    Standard of Review

      Mandamus relief is available only to correct a clear abuse of discretion when

there is no other adequate remedy by appeal. In re Alcatel USA, Inc., 11 S.W.3d

173, 175 (Tex. 2000) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833,

839–44 (Tex. 1992)); see In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000)

(per curiam) (orig. proceeding). A trial court commits a clear abuse of discretion

when its ruling is “so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.” In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). A trial court has no discretion in determining what the law is or in

applying the law to the particular facts. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135 (Tex. 2004). A party may properly seek mandamus relief to

determine whether the trial court correctly ordered an apex deposition. See In re

Alcatel USA, 11 S.W.3d at 175; In re Miscavige, 436 S.W.3d 430, 435 (Tex.



                                        12
App.—Austin 2014, orig. proceeding) (“Mandamus relief is appropriate when a

trial court allows an apex deposition to go forward in violation of the standard

governing such discovery.”).

B.    Application of Apex Deposition Doctrine

      A party to a lawsuit is entitled to discovery “that is relevant to the subject

matter of the claim, and which appears reasonably calculated to lead to the

discovery of admissible evidence.” Crown Cent. Petroleum Corp. v. Garcia, 904

S.W.2d 125, 127 (Tex. 1995) (quoting Monsanto Co. v. May, 889 S.W.2d 274, 276

(Tex. 1994)). Texas Rule of Civil Procedure 199.1 allows a party to take the oral

deposition of “any person.” TEX. R. CIV. P. 199.1(a); Crown Cent., 904 S.W.2d at

127. However, the person noticed for deposition has the right to protection “from

undue burden, unnecessary expense, harassment or annoyance, or invasion of

personal, constitutional, or property rights.” Crown Cent., 904 S.W.2d at 127; see

also TEX. R. CIV. P. 192.6(b) (allowing trial court to grant protective order in favor

of person from whom discovery is sought).

      “An apex deposition is the deposition of a corporate officer at the apex of

the corporate hierarchy.”     AMR Corp. v. Enlow, 926 S.W.2d 640, 642 (Tex.

App.—Fort Worth 1996, orig. proceeding). When a party seeks to depose a high-

level corporate official, such as a corporate president or chief executive officer, and

that official or the corporation files a motion for protection to prohibit the



                                          13
deposition accompanied by an affidavit from the official denying any knowledge

of relevant facts, the trial court must first determine whether the party seeking the

deposition “has arguably shown that the official has any unique or superior

personal knowledge of discoverable information.” Crown Cent., 904 S.W.2d at

128. An individual has “unique or superior personal knowledge” if the individual

is “the only person with personal knowledge of the information sought” or the

individual “arguably possesses relevant knowledge greater in quality or quantity

than other available sources.” In re Alcatel USA, 11 S.W.3d at 179.

      If the party seeking the deposition cannot show that the corporate official

has any unique or superior personal knowledge of discoverable information, the

trial court should grant the motion for protection and require the party seeking the

deposition to “attempt to obtain the discovery through less intrusive methods.”

Crown Cent., 904 S.W.2d at 128; see In re Alcatel USA, 11 S.W.3d at 176. “Less

intrusive methods” depend on the circumstances of the case, but can include

depositions of lower-level employees, the deposition of the corporation itself, and

interrogatories and requests for production of documents directed to the

corporation. Crown Cent., 904 S.W.2d at 128.

      After making a good faith effort to obtain the sought-after discovery through

less intrusive methods, the party seeking the apex deposition may attempt to show

that (1) there is a reasonable indication that the corporate official’s deposition is



                                         14
calculated to lead to the discovery of admissible evidence, and (2) the less intrusive

methods of discovery are unsatisfactory, insufficient, or inadequate. Id. If the

party seeking the deposition makes this showing, then the trial court should modify

or vacate the protective order. Id.; In re Daisy Mfg. Co., 17 S.W.3d at 658

(“Merely completing some less-intrusive discovery does not trigger an automatic

right to depose the apex official.”). If the party seeking the deposition does not

make this showing, the trial court should leave the protective order in place.

Crown Cent., 904 S.W.2d at 128.

      1.      Deposition of Tracy Young

      In arguing that mandamus relief with respect to Young’s deposition ought to

be denied, LoanStar first contends that the apex deposition doctrine does not apply

in this instance because evidence before the trial court established that Young is

the “sole employee, member, and manager” of TMX Finance LLC, a defendant in

this case, and, thus, preventing the deposition of Young “would force LoanStar to

go to trial without direct, oral testimony from the only employee of a named

Defendant.”

      Although the parties disagree on whether Young is the sole employee,

member, and manager of TMX Finance LLC or whether TMX Finance LLC has




                                         15
other officers in addition to Young, 3 the evidence is undisputed that the defendants

are related corporate entities, that Young is the CEO of each of the three

defendants, and that TMX Finance LLC owns all of the shares of defendants TMX

Finance of Texas, Inc. and TitleMax of Texas, Inc. The defendants thus operate as

a corporate hierarchy with TMX Finance LLC as the parent company of TMX

Finance of Texas, Inc. and TitleMax of Texas, Inc.

      In an analogous case, the Austin Court of Appeals addressed whether the

apex deposition doctrine applies to the head of a corporate entity when both the

entity and the executive himself were named defendants in the litigation. See In re

Miscavige, 436 S.W.3d at 436–38. The Austin court noted that “[t]he apex-

deposition rule becomes a potential issue only when an executive’s corporate

position bears some relationship to the underlying information the deposing party

seeks.” Id. at 437. The court then concluded that “this same principle is applicable

to depositions of named parties who hold apex positions.” Id. If a high-level

executive of an entity is named as a defendant “based on some dispute that is

unrelated to his status as an executive, then the plaintiff has a right to obtain the

executive’s deposition just as he or she would any other party.” Id. If, however,

an executive is named as a defendant “based on his capacity as an executive, then

3
      TMX Finance LLC’s 2012 10-K, filed with the Securities and Exchange
      Commission and offered into evidence in the underlying proceeding by LoanStar,
      reflects that TMX Finance LLC has six officers and managers in addition to
      Young, including Bielss.

                                         16
the apex doctrine is implicated and the Crown Central standard should be applied

to a request for his deposition.” Id. at 438; cf. In re Titus Cnty., 412 S.W.3d 28, 35

(Tex. App.—Texarkana 2013, orig. proceeding) (stating that “the apex doctrine

does not protect named parties from deposition” in condemnation case in which

one of named defendants was trustee of trust that partially owned property at issue

but also owned interest in property at issue in his individual capacity, and county

sought his deposition because, as partial owner, he would have personal knowledge

concerning property’s value); Simon v. Bridewell, 950 S.W.2d 439, 442 (Tex.

App.—Waco 1997, orig. proceeding) (“A corporate officer is not exempt from

deposition by the ‘apex’ doctrine merely because he is a corporate official. Rather,

the doctrine may be invoked only when the deponent has been noticed for the

deposition because of his corporate position.”).

      We conclude that this factual situation is similar to that presented in In re

Miscavige. LoanStar seeks Young’s deposition based on his capacity as CEO of

TMX Finance LLC, the parent company of TMX Finance of Texas, Inc. and

TitleMax of Texas, Inc. Regardless of whether Young is the sole employee,

member, and manager of TMX Finance LLC, the defendant entities all operate as

part of a corporate “family,” with Young at the head of each entity. LoanStar

seeks to depose Young “based on his capacity as an executive.”             See In re

Miscavige, 436 S.W.3d at 438. We hold that, as such, the apex deposition doctrine



                                         17
applies, and to compel Young’s deposition, LoanStar was required to demonstrate

that it could satisfy the Crown Central test for allowing apex depositions. See id.

We therefore turn to whether the trial court abused its discretion when it ruled that

LoanStar could take Young’s apex deposition.

      LoanStar argues that, if the apex deposition doctrine applies, Young cannot

take advantage of its protections because his affidavit attached to TMX’s motion

for protection is insufficient to establish that he does not have unique or superior

knowledge of discoverable information. We disagree.

      TMX filed an affidavit from Young with its motion for protection. In this

affidavit, Young averred:

      2.     I am the CEO of TMX Finance LLC, TitleMax of Texas, Inc.
             and TMX Finance of Texas, Inc. The latter two entities have
             approximately 950 employees and 366 stores in Texas.
      3.     I do not have any first-hand personal knowledge of relevant
             facts concerning the subject matter of the above-captioned
             lawsuit, including facts and allegations relating to:
             (a) marketing to or soliciting customers of competitors,
             including [LoanStar]; (b) use of databases in an attempt to
             locate customers of competitors, including [LoanStar];
             (c) soliciting [LoanStar’s] customers in parking lots;
             (d) acquiring VIN or license plate numbers in parking lots; and
             (e) lists of [LoanStar’s] customers. While I have knowledge of
             some facts relating to some of these issues by reason of my
             position as CEO, all of those facts were relayed to me in the
             course of privileged communications by counsel representing
             [TMX].
      4.     I do not possess any unique or superior personal knowledge
             regarding the issues set forth in the preceding paragraph beyond
             that of other of Defendants’ personnel.

                                         18
LoanStar argues that Young “does not, and cannot, claim that he does not have

unique or superior knowledge with respect to TMX Finance” and that, “as its only

employee, Mr. Young by definition has ‘unique’ knowledge of TMX Finance’s

participation in, reaction to, and investigation into the illegal conduct forming the

basis of this case.”

      A corporate official, or the corporate entity on the official’s behalf, invokes

the protection of the apex deposition doctrine by filing a motion for protection

accompanied by the affidavit of the official “denying any knowledge of relevant

facts.” Crown Cent., 904 S.W.2d at 128. This Court has rejected a “mechanical

application of Crown Central in determining the sufficiency of an affidavit to

invoke the apex doctrine.” See In re BP Prods. N. Am. Inc., No. 01-06-00613-CV,

2006 WL 2192546, at *5 (Tex. App.—Houston [1st Dist.] Aug. 4, 2006, orig.

proceeding) (mem. op.). In determining the sufficiency of a corporate official’s

affidavit, the question is whether the official “sufficiently denied knowledge of any

relevant facts regarding” the subject matter of the litigation. See In re Tex. Genco,

LP, 169 S.W.3d 764, 768 (Tex. App.—Waco 2005, orig. proceeding); In re

Burlington N. & Santa Fe Ry. Co., 99 S.W.3d 323, 326 (Tex. App.—Fort Worth

2003, orig. proceeding) (“BNSF properly initiated the apex guideline proceedings

set forth in Crown Central by moving for protection and filing Rose’s affidavit

denying any knowledge of relevant facts.”); In re El Paso Healthcare Sys., 969

                                         19
S.W.2d 68, 73 (Tex. App.—El Paso 1998, orig. proceeding) (“El Paso Healthcare

established by its motion and affidavit that Rolfe is a corporate president who does

not participate in the day-to-day administration of units within this particular

hospital and who possesses no discoverable personal knowledge. This is sufficient

to satisfy El Paso Healthcare’s burden under Crown Central Petroleum Corp.”).

Once the corporate official moves for protection and files a sufficient affidavit, the

burden shifts to the party seeking the apex deposition to demonstrate that the

official has unique or superior personal knowledge of discoverable information.

See In re Burlington N. & Santa Fe Ry. Co., 99 S.W.3d at 326.

      Here, as we have already held, the fact that Young may be the sole

employee, member, and manager of TMX Finance LLC does not automatically

preclude application of the apex deposition doctrine. In his affidavit, Young

averred that he does not have any “first-hand personal knowledge of relevant facts

concerning the subject matter of” the underlying litigation, and he then identified

five areas relating to allegations made by LoanStar. He averred that he does not

“possess any unique or superior personal knowledge regarding” these issues

relative to other TMX personnel.         Young also averred that while he has

“knowledge of some facts relating to some of these issues by reason of [his]

position as CEO,” he obtained that knowledge through privileged communications

with TMX’s counsel.



                                         20
      As the Texas Supreme Court stated in In re Alcatel USA, the Crown Central

guidelines require more than “some knowledge of discoverable information” to

compel an apex deposition; Crown Central instead requires that the corporate

official arguably have “unique or superior personal knowledge of discoverable

information.” 11 S.W.3d at 179; Crown Cent., 904 S.W.2d at 128; In re Taylor,

401 S.W.3d 69, 74 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding)

(“Crown Central does not require apex officials to assert total ignorance of all

possible facets of a controversy.”); In re BP Prods. N. Am. Inc., 2006 WL

2192546, at *6 (“Having ‘some knowledge of discoverable information’ does not

render an affidavit insufficient.”). Young specifically denied having unique or

superior knowledge of discoverable information relating to LoanStar’s allegations

in the underlying litigation. We conclude that Young’s affidavit was sufficient to

invoke the protections of the apex deposition doctrine, and, thus, the burden then

shifted to LoanStar to demonstrate that, despite his position as CEO, Young

possesses unique or superior knowledge of discoverable information. See In re

Tex. Genco, 169 S.W.3d at 768; In re Burlington N. & Santa Fe Ry. Co., 99

S.W.3d at 326; In re El Paso Healthcare Sys., 969 S.W.2d at 73.

      TMX argues that LoanStar did not establish that Young “has any unique or

superior personal knowledge of discoverable information.” See Crown Cent., 904

S.W.2d at 128. In response, LoanStar contends that it has arguably shown that



                                       21
Young possesses unique or superior personal knowledge because, as the sole

employee of TMX Finance LLC, “only Mr. Young can testify regarding the

involvement of TMX Finance in the illegal conduct forming the basis of

LoanStar’s case.” LoanStar argues that record evidence establishes that TMX

Finance LLC “did interact and communicate with [TMX] Finance of Texas and

TitleMax of Texas expressly regarding the subject matter of this case” and points

to the letter that TMX’s deputy general counsel, Thomas, sent to LoanStar in

response to LoanStar’s cease and desist letter.     Because Young is “the sole

employee of, and the only individual with any authority at, TMX Finance,”

LoanStar argues that there is “no question” that Young has “unique or superior

knowledge” of relevant facts and discoverable information. We agree with TMX.

      LoanStar assumes that because Young is the CEO and sole employee of

TMX Finance LLC, he necessarily possesses “unique or superior knowledge”

concerning the alleged misconduct committed by lower-level managers and

employees of TMX Finance of Texas, Inc. and TitleMax of Texas, Inc. LoanStar,

however, presented no evidence beyond its own allegations in its pleadings that

TMX Finance LLC, the parent company of TMX Finance of Texas and TitleMax

of Texas, exerts any control over the marketing efforts of these two subsidiaries,

and it presented no evidence that Young was personally involved in directing the

marketing strategies of the TMX entities. The affidavits that LoanStar presented in



                                        22
response to TMX’s motion for protection state only that “TitleMax’s corporate

headquarters emphasized marketing of auto title loans and heavily pressured

employees to meet unachievable performance goals” and that the “corporate group

at TitleMax also set extremely high performance goals for the stores, districts, and

regions in Texas, and the general managers and district managers operated under

pressure to aggressively ‘grow’ new business in their stores.” The affidavits reflect

that Bielss held monthly conference calls in which the participants discussed

marketing and store performance, but the affidavits give no indication that Young

was involved in these meetings. TMX, in support of its motion for protection,

presented deposition excerpts from several lower-level TMX employees indicating

that few of them had even met Young, and those few had never discussed

marketing or the alleged misconduct at issue with him.

      With respect to the letter from Thomas to LoanStar, even if the letter was

composed at the direction of Young, as LoanStar contends, the letter reflects, at

most, Young’s knowledge that LoanStar has made allegations of improper conduct

against TMX and a blanket reminder from Young to “all Texas managers” that

TMX does not consider the alleged misconduct “to be a proper business practice.”

      Merely having some knowledge of the subject matter of a dispute is not

enough to compel an apex deposition. See In re Alcatel USA, 11 S.W.3d at 179

(stating that Crown Central is “not satisfied by merely showing that a high-level



                                         23
executive has some knowledge of discoverable information”).          As the Texas

Supreme Court has held, “Allowing apex depositions merely because a high-level

corporate official possesses apex-level knowledge would eviscerate the very

guidelines established in Crown Central.” Id. at 177. The letter from Thomas

might be some evidence that Young has knowledge that LoanStar had made

allegations of misconduct and knowledge of company policies concerning the

propriety of the disputed actions, but it is not evidence that Young has any “unique

or superior” knowledge about the alleged misconduct itself relative to lower-level

employees in the corporate hierarchy.        See id. (“Testimony that a corporate

executive possesses knowledge of company policies does not, by itself, satisfy the

first Crown Central test because it does not show that the executive has unique or

superior knowledge of discoverable information.”); In re Cont’l Airlines, Inc., 305

S.W.3d 849, 853–58 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding)

(holding that CEO of Continental Airlines did not have unique or superior personal

knowledge concerning cause of airline crash despite giving press conference after

crash, sending letter to passengers after crash, receiving briefing concerning crash

from lower-level employees, and conducting interview with two pilots present on

affected flight).

       We conclude that LoanStar, the party seeking the deposition of Young, has

not shown that Young possesses unique or superior knowledge of discoverable



                                        24
information. See Crown Cent., 904 S.W.2d at 128. LoanStar must therefore

attempt to obtain discovery through less intrusive methods before it may depose

Young.4 See id.; see also In re Alcatel USA, 11 S.W.3d at 176 (“The party seeking

the apex deposition is required to pursue less intrusive means of discovering the

information only when that party cannot make the requisite showing concerning

unique or superior knowledge.”). We hold that the trial court erred by compelling

the apex deposition of Young.

      We sustain TMX’s issue with respect to the deposition of Young.

      2.    Deposition of Otto Bielss

      Bielss was TMX’s Senior Vice President of Operations during the time

period in which the alleged misconduct occurred. In October 2014, he became

TMX’s Chief Operating Officer. LoanStar argued that during Bielss’ tenure as

Senior Vice President of Operations, Bielss oversaw TMX’s rapid expansion in the

Texas title-loans market and instituted an “aggressive growth strategy” that

pressured TMX managers and employees to increase the title loans sold. LoanStar

argued that it was in this environment that TMX employees “began engaging in

illegal marketing practices to identify and convert LoanStar’s customer

4
      LoanStar argues that it has “attempted to pursue less intrusive means of
      discovery,” but unless it is allowed to depose Young, it “has no other means by
      which to seek its requested discovery.” As we hold below, however, LoanStar
      may permissibly depose Bielss, TMX Finance LLC’s chief operating officer.
      Thus, LoanStar has available to it a less intrusive means of obtaining the sought-
      after discovery.

                                          25
relationships throughout the state of Texas, and continued to do so over several

years.”

      LoanStar presented evidence that while he was Senior Vice President of

Operations, Bielss held monthly conference calls in which the participants—which

included district managers, regional managers, and “other members of the

corporate operations teams”—reviewed reports concerning individual store

performance, and the district managers defended “the performance of their stores

by explaining their operations and marketing efforts.” Bielss “would ask most of

the questions on the call, and would direct the questions to the district manager

who supervised the general manager in the store that was being referenced.”

Landers, a former regional manager in Dallas/Fort Worth, had concerns that the

performance goals discussed within these conference calls were “unreasonable and

unattainable,” and he brought this up with Bielss and McDonald, the Vice

President of Operations for Texas.    Landers averred that he told Bielss and

McDonald that “the combination of pressure and fear would cause employees to

leave the company or engage in improper practices in order to meet the

performance goals.”    Baker, a former district manager in Houston, similarly

averred that

      TitleMax’s corporate headquarters emphasized marketing of auto title
      loans and heavily pressured employees to meet unachievable
      performance goals. For example, Mr. [Bielss] would hold monthly
      telephone conference calls with the district managers and regional

                                       26
      managers in Texas during which he would berate regional managers
      and district managers, even if they met performance metrics, in order
      to remind us that we were all expendable and numbers were king.

LoanStar also presented deposition excerpts from several employees who testified

that TMX placed a great amount of pressure on its individual stores and employees

to adopt marketing strategies geared toward increasing sales of title loans.

      LoanStar presented evidence that Bielss was involved in the training

program for new employees, that he occasionally sent marketing-related e-mails to

TMX employees, and that he occasionally visited individual TitleMax stores in

Texas.5 One former employee testified that Bielss visited two different TitleMax

stores at which the employee worked and had conversations about the practices

that the store was utilizing to perform as well as it had been performing. The

employee testified, “The sales were good, so [Bielss] just wanted to know what we

were doing [marketing-wise] to get the sales to where they were.” McDonald

testified that she generally spoke with Bielss once per week and that their

conversations involved “talking about the business, discussing the regional

managers, their performance, their leadership opportunities. Sometimes it would

be about opening markets, that we were opening stores and planning on staffing.”


5
      LoanStar’s counsel asked several questions during the deposition of James
      Batterson, a former regional manager, concerning the alleged misconduct at issue
      as well as whether he had conversations regarding marketing practices and the
      propriety of marketing techniques and practices with Bielss. For each question,
      Batterson declined to answer pursuant to the Fifth Amendment.

                                         27
McDonald also testified that in November 2011, she received a call from Bielss

“saying that allegations were made, that [TMX employees] were—that an

employee was going to a parking lot of a competitor.”

      TMX contends that LoanStar’s evidence does “not show that Mr. Bielss was

involved in marketing strategies at the store level, let alone stores marketing

through allegedly unlawfully obtaining driving records, as alleged by LoanStar.” It

argues that the evidence does not show that Bielss has unique or superior personal

knowledge “regarding the alleged use of driving records to allegedly market to

LoanStar’s customers.” LoanStar argues that it noticed Bielss’ deposition not

because of his corporate position, but because he has personal knowledge of facts

relevant to the claims and defenses in the underlying litigation. TMX has asserted

that, if any improper conduct occurred, it was undertaken by isolated employees

and not pursuant to a corporate policy that encouraged the use of improper

searches to steal the customers of LoanStar and TMX’s other competitors.

LoanStar argues that due to the widespread use of the allegedly improper practices

throughout distinct markets in Texas, Bielss, as the Senior Vice President of

Operations, had, at the very least, knowledge of the use of the improper practices.

It contends that Bielss’ deposition is necessary because Bielss is “in a unique

position to testify about the scope and spread of the illegal conduct in [TMX’s]

stores.” We agree with LoanStar.



                                        28
      The apex deposition doctrine “does not provide automatic protection to all

high-ranking corporate officers whose depositions have been noticed.” In re Titus

Cnty., 412 S.W.3d at 35. The doctrine does not, for instance, protect corporate

officials who have “first-hand knowledge of certain facts.” See Boales v. Brighton

Builders, Inc., 29 S.W.3d 159, 168 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied). Here, LoanStar presented evidence that Bielss was actively involved in

TMX’s marketing efforts and operations in Texas, regularly holding conference

calls concerning marketing and performance goals with regional and district

managers and occasionally visiting individual stores in Texas to inquire about

marketing practices. Bielss was the one who informed McDonald, Vice President

of Operations for Texas, that LoanStar had made allegations of improper conduct

against TMX.

      We conclude that LoanStar has shown that Bielss arguably has “unique or

superior personal knowledge of discoverable information.” See Crown Cent., 904

S.W.2d at 128; see also In re Alcatel USA, 11 S.W.3d at 179 (providing that

individual has unique or superior personal knowledge if individual “arguably

possesses relevant knowledge greater in quality or quantity than other available

sources”). We hold that the trial court did not abuse its discretion in denying

TMX’s motion for protection concerning the deposition of Bielss and that




                                       29
LoanStar is entitled to take Bielss’ deposition. See Crown Cent., 904 S.W.2d at

128; In re Alcatel USA, 11 S.W.3d at 176.

      We overrule TMX’s issue with respect to the deposition of Bielss.

                                    Conclusion

      We conditionally grant TMX’s petition for writ of mandamus in appellate

cause number 01-14-00964-CV. We order the trial court to vacate its November

24, 2014 order denying TMX’s motion for protection and compelling the

deposition of Tracy Young. The writ will only issue if the trial court fails to do so.

We deny TMX’s petition for writ of mandamus in appellate cause number 01-15-

00126-CV with respect to the deposition of Otto Bielss. We lift the stay entered on

December 4, 2014, in appellate cause number 01-14-00964-CV and the stay

entered on February 19, 2015, in appellate cause number 01-15-00126-CV.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.




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