                                                                                          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
