Reversed and Remanded and Opinion filed August 30, 2016.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-16-00004-CV

    IN THE MATTER OF THE ISSUANCE OF SUBPOENAS FOR THE
       DEPOSITIONS OF DARRELL D. BENNETT, CODY CLARK,
           CHRISTOPHER LOWE, AND JOEY HOLLOWAY

                    On Appeal from the 295th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-58899

                                  OPINION
      A Wyoming trial court issued letters rogatory asking a Texas court to issue
subpoenas for the depositions of four Texas residents. The parties seeking to
depose these witnesses filed a petition asking the trial court below to issue
subpoenas. Though the trial court did so, the court later quashed one subpoena
and, at the request of the other three witnesses, imposed various restrictions on the
other three depositions. The parties seeking to depose the witnesses appeal the
trial court’s final judgment.

      On appeal, we consider whether the Texas court abused its discretion in
quashing the deposition of one Texan and in limiting the depositions of three other
Texans. We conclude that the trial court with jurisdiction over the underlying
lawsuit in Wyoming has the authority to determine whether the requested
depositions are irrelevant, so requests for relief based on the scope of discovery are
properly addressed to that court. Presuming for the sake of argument that the
Texas court had the authority to quash or limit the depositions because they were
cumulative or duplicative under Texas Rule of Civil Procedure 192.4, or
constituted an undue burden under Texas Rule of Civil Procedure 192.6, we
conclude the movants did not make the requisite showing.            We reverse and
remand.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellants Moncrief Partners, L.P., RWM 1988 Trust, Tom O. Moncrief
1967 Trust, CBMoncrief Oil & Gas, LLC, and Moncrief Oil & Gas Master, LLC
(hereinafter collectively the “Moncrief Parties”) were non-operating parties under
an operating agreement for the Lost Cabin Gas Plant in Lost Cabin, Wyoming.
That plant experienced a flash fire that injured appellees Darrell D. Bennett, Cody
Clark, Christopher Lowe, and Joey Holloway, who were working at the plant for
AltairStrickland. After the fire, Bennett, Clark, Lowe, and Holloway brought
personal-injury lawsuits against ConocoPhillips Company, the operator under the
operating agreement for the plant. ConocoPhillips settled these lawsuits. The total
settlement amount for the four lawsuits exceeded $38 million. After settling the
lawsuits, ConocoPhillips sought reimbursement from the Moncrief Parties for the
Moncrief Parties’ proportional share of the settlement costs.

      The Moncrief Parties filed suit against ConocoPhillips in Wyoming, where
the plant is located, alleging that ConocoPhillips breached the parties’ operating
agreement by settling the cases without the Moncrief Parties’ approval and by

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failing to timely inform the Moncrief Parties of the lawsuits. The Wyoming trial
court granted summary judgment in favor of the Moncrief Parties on the issues of
duty and breach, but found genuine issues of material fact on the questions of the
materiality of the breach and damages.

      At the Moncrief Parties’ request, the Wyoming trial court issued letters
rogatory requesting that a Texas court issue subpoenas compelling the depositions
of Bennett, Clark, Lowe, and Holloway (the “Compensated Claimants”), all of
whom reside in Texas. The Moncrief Parties filed a petition in the trial court
below seeking subpoenas for these depositions. The Moncrief Parties supplied the
Wyoming trial court’s extensive summary-judgment order. After the trial court
issued subpoenas compelling the depositions, the Compensated Claimants moved
for protection, asserting in their motions that the trial court should quash the
subpoenas because the requested depositions are (1) irrelevant, (2) cumulative, and
(3) unduly burdensome, unnecessarily expensive, harassing, annoying, or an
invasion of personal, constitutional, or property rights. Holloway asserted that
requiring him to appear for a deposition violated his settlement agreement.

      The trial court quashed the subpoena for Holloway’s deposition and imposed
one-hour time limits, among other restrictions, on the depositions of Clark, Lowe,
and Bennett. After the Moncrief Parties filed a motion for reconsideration, the trial
court allowed additional time, but ultimately restricted the three depositions by
prohibiting videotape recording, (2) limiting each deposition to three hours, and (3)
limiting the scope of each deposition to: (i) “the facts surrounding the incident at
the Lost Cabin Gas Plant on August 22, 2012,” (ii) “the individual’s injuries
sustained at the time of that incident,” and (iii) “the medical condition, physical or
mental, at the time of each respondent’s settlement of his claims against
ConocoPhillips Company arising from that incident.” The trial court did not grant

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reconsideration of its decision to quash Holloway’s deposition.

                               ISSUE AND ANALYSIS

      On appeal from the trial court’s final judgment, the Moncrief Parties assert
in one issue that the trial court abused its discretion in granting Holloway’s motion
for protection and quashing Holloway’s subpoena and in granting in part the other
Compensated Claimants’ motions for protection by restricting their depositions.

      A. Applicable legal standards

      A trial judge may exercise discretion in the granting of a protective order
and in controlling the nature and form of discovery, but that discretion is not
without bounds. In re Collins, 286 S.W.3d 911, 918 (Tex. 2009). A party seeking
a protective order must show particular, specific, and demonstrable injury by facts
sufficient to justify a protective order. Id. A trial court abuses its discretion by
limiting discovery in the absence of some evidence supporting the request for a
protective order. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999).

      Texas Rule of Civil Procedure 201.2, entitled “Depositions in Texas for Use
in Proceedings in Foreign Jurisdictions,” provides:

      If a court of record of any other state or foreign jurisdiction issues a
      mandate, writ, or commission that requires a witness’s oral or written
      testimony in this State, the witness may be compelled to appear and
      testify in the same manner and by the same process used for taking
      testimony in a proceeding pending in this State.
Tex. R. Civ. P. 201.2. Texas rules of civil procedure apply to a request originating
from another state for a Texas deposition. See Tex. R. Civ. P. 201.2; In re Prince,
14-06-00895-CV, 2006 WL 3589484, at *2 (Tex. App.—Houston [14th Dist.] Dec.
12, 2006, orig. proceeding) (mem. op.). Few opinions have interpreted Rule 201.2,
but nearly a century ago the Supreme Court of Texas addressed the roles of foreign
and Texas courts in making determinations concerning discovery in Texas for use
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in foreign jurisdictions.

      In Ex parte Taylor, the high court concluded that the court with jurisdiction
over the underlying case is generally charged with determining the relevancy and
materiality of evidence sought by a party seeking a deposition in Texas under
letters rogatory, while the Texas court has the obligation to protect the witness’s
legal rights, including, for example, the witness’s right to avoid compelled
production of privileged evidence. See Ex parte Taylor, 220 S.W. 74, 75 (Tex.
1920). This overarching principle promotes comity toward other states’ courts
while vesting Texas trial courts with authority to protect Texas residents subjected
to depositions for lawsuits pending in other states. See id.

      B. Authority to control scope of discovery

      In their motions for protection, the Compensated Claimants all urged the
trial court to quash their depositions, claiming the discovery is irrelevant to the
Wyoming litigation. The Moncrief Parties assert that the trial court abused its
discretion to the extent it granted the motions to quash based on relevancy grounds
because such a determination interferes with the authority of the Wyoming court to
determine the relevance of discovery sought in the Wyoming lawsuit.

      Texas Rule of Civil Procedure 192.3, entitled “Scope of Discovery,”
provides that “[i]n general, a party may obtain discovery regarding any matter that
is not privileged and is relevant to the subject matter of the pending action, whether
it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party.” Tex. R. Civ. P. 192.3(a). Although a trial court
normally has broad discretion to determine the relevancy of evidence sought, in
this case, the Wyoming court is the appropriate court to determine the relevancy
and materiality of the evidence sought and to grant the Compensated Claimants
any relief that may be warranted with respect to depositions that they assert exceed
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the scope of permissible discovery. See Ex parte Taylor, 220 S.W. at 75.

      The trial court did not have the authority to quash or limit the depositions of
the Compensated Claimants based on a belief that the discovery is irrelevant. To
get relief on that basis, the Compensated Claimants must seek relief from the
Wyoming trial court. To the extent the Texas trial court granted the Compensated
Claimants’ motions for protection, in whole or in part, based on a relevancy
determination, the trial court abused its discretion. See Tex. R. Civ. P. 192.4; Ex
parte Taylor, 220 S.W. at 75.

      C. Burden of proof under Rule 192.4(a)

      The Compensated Claimants asserted in their motion for protection that the
requested depositions are cumulative or duplicative of other evidence the Moncrief
Parties already have in hand. The Moncrief Parties argued that the depositions
would not be cumulative or duplicative because Bennett, Clark, and Lowe had
never been deposed and, although Holloway had been deposed, the Moncrief
Parties still needed to examine him to determine whether his answers to questions
about his medical condition had changed. The Moncrief Parties asserted this
discovery was necessary for them to argue they suffered damages as a result of
ConcoPhillps settling the lawsuit prematurely. Holloway argued both that his
medical condition had not changed and that any change in his answers is irrelevant
to the Wyoming lawsuit.

      Texas Rule of Civil Procedure 192.4, entitled “Limitations on Scope of
Discovery,” provides:

      The discovery methods permitted by these rules should be limited by
      the court if it determines, on motion or on its own initiative and on
      reasonable notice, that:
      (a) the discovery sought is unreasonably cumulative or duplicative, or
      is obtainable from some other source that is more convenient, less
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      burdensome, or less expensive; or
      (b) the burden or expense of the proposed discovery outweighs its
      likely benefit, taking into account the needs of the case, the amount in
      controversy, the parties’ resources, the importance of the issues at
      stake in the litigation, and the importance of the proposed discovery in
      resolving the issues.
Tex. R. Civ. P. 192.4. While Rule 192.3 outlines the scope of discovery a trial
court may authorize, Rule 192.4 limits that scope if the discovery is unreasonably
cumulative, duplicative, obtainable from another source that is more convenient,
less burdensome, less expensive, or if the burden or expense of the discovery
outweighs the benefit and importance of the discovery to the litigation. See Tex.
R. Civ. P. 192.4.

      In its response to the motion for protection, the Moncrief Parties stated they
needed to depose Bennett, Lowe, and Clark regarding their (1) employment
history, (2) turnaround work before the accident, (3) work with respect to the
particular valve that was removed and refurbished, (4) the events leading up to the
accident, (5) what happened at the time of the accident, (6) their recovery, and (7)
their current condition. The record contains some evidence related to these topics,
but Bennet, Lowe, and Clark did not prove the requested depositions would be
duplicative. Though Holloway’s deposition touched upon some of these areas, the
record contains no information about some of the topics. For example, there is
nothing in the record about the safety protocols Bennett, Lowe, and Clark were to
be following or whether these Compensated Claimants received any training in
addition to the training Holloway described. Bennett, Lowe, and Clark did not
meet their Rule 192.4 burden to prove the depositions would be impermissibly
cumulative or duplicative. See Tex. R. Civ. P. 192.4(a); In re Liberty Mut. Ins.
Co., 14-09-00086-CV, 2009 WL 441897, at *5 (Tex. App.—Houston [14th Dist.]
Feb. 24, 2009, orig. proceeding) (holding evidence from multiple parties regarding

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communications was not impermissibly cumulative) (mem. op.).

      Holloway asserted that his deposition would be cumulative of his pre-
settlement deposition. The Moncrief Parties identified seven topics allegedly not
addressed in Holloway’s first deposition: 1) Holloway’s past medical history or
conditions, 2) Holloway’s work history, 3) Holloway’s income history, 4)
Holloway’s job training in general and by his employer AltairStrickland, 5)
Holloway’s work history with AltairStrickland, 6) Holloway’s knowledge of
AltairStrickland’s safety program, and 7) AltairStrickland’s history and reputation
as a safe company. Holloway showed that the areas the Moncrief Parties wanted to
question overlapped with testimony he provided in the pre-settlement deposition.
In response to the Moncrief Parties’ argument that they needed the second
deposition to determine whether Holloway’s answers to medical-history questions
had changed, Holloway insisted that any change would be irrelevant to the
Wyoming lawsuit.1

      Holloway’s argument turns on whether the questions the Moncrief Parties
seek to ask Holloway are relevant to the Wyoming lawsuit. But, the Texas court
may not, as part of its responsibility to balance the parties’ interests, substitute its
own determination of what is relevant to the Wyoming litigation. See Ex parte
Taylor, 220 S.W. at 75.        The Wyoming court has held that ConocoPhillips
breached the operating agreement by failing to provide the Moncrief Parties with
notice of Holloway’s lawsuit and thereby deprived the Moncrief Parties of the
opportunity to protect their interests in that lawsuit. But, the Wyoming court also
determined that there is a fact question on whether ConocoPhillips’s breach of the

1
   Holloway did not prove his medical condition had not changed, but even if his medical
condition were the same as at the time he gave his original deposition, the Wyoming court
potentially could determine that any change or lack of change is relevant to the Wyoming
litigation.

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operating agreement was material in light of, inter alia, whether the settlements of
those lawsuits were objectively reasonable and whether ConocoPhillips’s actions
in settling those lawsuits comported with the standards of good faith and fair
dealing.

      Holloway urges that the Texas trial court’s ruling is based more on the
harassing effect of a duplicative deposition than on relevancy and that the
Moncrief Parties were aware of Holloway’s lawsuit before his deposition, yet they
chose not to attend.    But, the trial court was not free to disregard the Wyoming
trial court’s determination of issues relevant in the Wyoming lawsuit in conducting
the Rule 192.4 analysis. According to the Wyoming court’s order, the Wyoming
trial will turn, at least in part, on ConocoPhillips’s conduct in reaching a settlement
with Holloway. Holloway does not and could not contend that such questions
would duplicate the questions in the underlying personal-injury action.

      Accordingly, Holloway did not meet his burden to prove that the deposition
for the Wyoming case would be unreasonably cumulative or duplicative of the
deposition conducted in the Texas case. See id.; In re Liberty Mut. Ins. Co., 2009
WL 441897, at *5.       To the extent the trial court granted the Compensated
Claimants’ motions for protection, in whole or in part, based on a determination
that the Compensated Claimants’ depositions would be cumulative or duplicative,
the trial court abused its discretion. See Tex. R. Civ. P. 192.4(a); Ex parte Taylor,
220 S.W. at 75; In re Liberty Mut. Ins. Co., 2009 WL 441897, at *5.

      D. Burden of proof under Rule 192.6(b)

      The Compensated Claimants all asserted in their motions for protection that
the requested depositions would impose an undue burden and cause unnecessary
expense as well as harassment, annoyance, or invasion of personal, constitutional,
or property rights. See Tex. R. Civ. P. 192.6(b). We presume for the sake of
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argument that the trial court has the power to quash a deposition under Rule
192.6(b) in the letters-rogatory context.       Entitled “Protective Orders,” Rule
192.6(b) permits a trial court to “make any order in the interest of justice,”
including limiting the depositions in the manner the trial court limited them, “[t]o
protect the movant from undue burden, unnecessary expense, harassment,
annoyance, or invasion of personal, constitutional, or property rights.” Tex. R. Civ.
P. 192.6(b). Yet, a party resisting discovery cannot prevail simply by making
conclusory allegations that the requested discovery is unduly burdensome or
unnecessarily harassing. See Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987).
The party must produce some evidence supporting the request for a protective
order. See id. Although “[m]any deponents consider any deposition harassing and
burdensome and perhaps annoying, . . . unless the purpose of the deposition can be
shown to be only for an improper purpose, or unless it is an undue burden, the trial
court cannot limit the deposition on these bases.” In re Amaya, 34 S.W.3d 354,
358 (Tex. App.—Waco 2001, orig. proceeding).

      1. Holloway’s motion for protection

      In Holloway’s motion for protection, Holloway stated that the deposition
request “is unreasonable and poses undue burden and/or expense on [Holloway
and] is harassing, annoying, and an invasion of [Holloway’s] personal life.”
Holloway asserted that his deposition also was cumulative of a previous
deposition.

      The record contains evidence that Holloway experienced post-traumatic
stress disorder, stress, and anxiety as a result of the flash fire. But, the record does
not contain any affidavit from Holloway or other evidence that explains how
Holloway’s condition would cause him to suffer during a deposition. Without this
crucial evidence, Holloway did not meet his burden to produce some evidence to

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support his request for a protective order. See Garcia, 734 S.W.2d at 345; In re
Toyota Motor Corp., 191 S.W.3d 498, 503 (Tex. App.—Waco 2006, orig.
proceeding [mand. denied]); Campos v. Webb Cnty., Tex., 288 F.R.D. 134, 135–38
(S.D. Tex. 2012). The Supreme Court of Texas has made it clear that supporting
evidence is essential. Because Holloway did not provide any evidence showing
that being deposed would cause him to suffer undue burden, unnecessary expense,
harassment, annoyance, or invasion of personal, constitutional or property rights,
the trial court abused its discretion to the extent the trial court granted Holloway’s
motion for protection based on Rule 192.6(b). See Garcia, 734 S.W.2d at 345; In
re Toyota Motor Corp., 191 S.W.3d at 503.

      2. Bennett’s, Clark’s, and Lowe’s motion for protection

      In their motion, Bennett, Clark, and Lowe did not provide any specific
argument explaining why the requested depositions amounted to unreasonable
requests that are annoying, harassing, or an undue burden. The record shows that
Bennett, Clark, and Lowe were involved in the Lost Cabin Gas Plant incident, and
this evidence supports the argument their attorney made in the trial court that
Bennett, Clark, and Lowe would be forced to relive the incident if they were
deposed. Still, the record does not contain any evidence showing how being forced
to relive the incident would harm Bennett, Clark, and Lowe. Nor does the record
contain any evidence addressing why the depositions would cause them harm.
Accordingly, Bennett, Clark, and Lowe did not meet their burden to prove the
depositions are unduly burdensome or would result in unnecessary expense,
harassment, annoyance, or invasion of personal, constitutional or property rights.
See In Re Alford Chevrolet-Geo, 997 S.W.2d 173, 184 (Tex. 1999). Because
Bennett, Clark, and Lowe did not meet their burden of establishing the depositions
would cause undue burden, unnecessary expense, harassment, annoyance, or

                                         11
invasion of personal, constitutional or property rights, the trial court abused its
discretion to the extent it restricted their depositions based on Rule 192.6(b). See
id.

      E. Alleged Interference with settlement terms

      In addition to arguments relating to relevance, and the cumulative nature of
his deposition, Holloway asserted in his supplemental brief in support of his
motion for protective order that the deposition would interfere with the terms of the
settlement he entered into with ConocoPhillips. At the hearing in the trial court
below, Holloway argued that part of the settlement was an agreement that
Holloway not be deposed again. Holloway did not provide any evidence of a
settlement term that gave him the right to refuse deposition requests, but even if
ConocoPhillips had agreed not to depose Holloway again, that would hardly
immunize    Holloway     from   future   depositions   from    parties   other   than
ConocoPhillips.    Holloway does not provide any evidence that the alleged
settlement term is binding on the Moncrief Parties. To the extent the trial court
granted Holloway’s motion for protection based on his argument that the
deposition violated a settlement agreement, the trial court abused its discretion.
See Garcia, 734 S.W.2d at 345; In re Toyota Motor Corp., 191 S.W.3d at 503.

                                   CONCLUSION

      The trial court did not have the authority to grant the motions for protection
based on the Compensated Claimants’ arguments that the depositions are irrelevant
because the power to grant relief on that basis is vested in the Wyoming court that
issued the letters rogatory. The Compensated Claimants did not meet their burden
of proving entitlement to protection under either Rule 192.4(a) or Rule 192.6, nor
did Holloway prove he was entitled to protection based on his settlement
agreement. Because the Compensated Claimants did not prove entitlement to
                                         12
protection, the trial court abused its discretion in protecting them and in quashing
the subpoena for Holloway’s deposition. We sustain the Moncrief Parties’ issue.
We therefore reverse the trial court’s final judgment and remand the case to the
trial court for further proceedings consistent with this opinion.




                                        /s/    Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.




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