Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 30,
2012.




                                            In The

                         Fourteenth Court of Appeals

                                     NO. 14-12-00934-CV



 IN RE SJ MEDICAL CENTER, L.L.C. d/b/a ST. JOSEPH MEDICAL CENTER,
                              Relator

                               ORIGINAL PROCEEDING
                                 WRIT OF MANDAMUS
                                   Probate Court No. 2
                                   Harris County, Texas
                            Trial Court Cause No. 390,957-401
                          MEMORANDUM OPINION
       On October 10, 2012, relator SJ Medical Center, L.L.C. d/b/a St. Joseph Medical
Center filed a petition for writ of mandamus in this court. See Tex. Gov’t Code §22.221;
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Mike Wood, presiding judge of the Probate Court No. 2 of Harris County, to
vacate his September 27, 2012, order compelling the deposition of John F. Kapacinskas,
relator’s former attorney.1 Relator also filed an emergency motion to stay the deposition.
See Tex. R. App. P. 52.10. After requesting and receiving a response to the motion, the
court denied the stay.

       1
          Relator asserts that Kapacinskas “has ceased to be actively engaged in the defense and
administration of this case since he moved to Minneapolis, Minnesota on May 28, 2011.”
        Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
(Tex. 2004). A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to
analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,
382 (Tex. 2005). When reviewing the trial court’s decision for an abuse of discretion, we
may not substitute our judgment for that of the trial court with respect to the resolution of
factual issues or matters committed to the trial court’s discretion. See Walker v. Packer,
827 S.W.2d 833, 839-40 (Tex. 1992).

        The determination of discoverability is a matter within the trial court’s discretion.
See id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989)).
Therefore, to be entitled to relief, relator must establish that the trial court could
reasonably have reached only one decision. See Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 917 (Tex. 1995). The real parties in interest moved to compel Kapacinskas’s
deposition to obtain testimony about conversations between Kapacinskas and the attorney
for another defendant in which they allege witness tampering.2 See Tex. Penal Code §
36.05(a). The real parties cited the record from a hearing where it was alleged that during
these conversations, Kapacinskas attempted to coerce the other defendant to testify
falsely by threatening to reveal confidential information.



        2
          Because the deposition does not seek to discover information about communications between an
attorney and his client, the attorney-client privilege is not implicated. See Tex. R. Evid. 503(b) (stating
that the attorney-client privilege applies only to communications intended to be confidential between the
attorney and the client and made for the purpose of facilitating the rendition of legal services for the
client). The real parties advised the court that they do not intend to inquire about “defense strategy” or
privileged communications. Moreover, the court ordered the deposition taken in the courtroom “in case
there were issues” so that any objections to privileged matters could be addressed. To the extent that
relator seeks limitations on the scope of the deposition, we deny the requested relief because relator has
not shown that the request was presented to the trial court. Mandamus is not available to compel an action
that has not first been demanded and refused. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991)
(orig. proceeding).
                                                    2
       An order compeling discovery of information that is not relevant to the dispute is
an abuse of discretion for which mandamus is the proper remedy. See In re Allstate Cty.
Mut. Ins. Co., 227 S.W.3d 667, 668-69 (Tex. 2007). The rules governing discovery do
not require as a prerequisite to discovery that the information sought be admissible
evidence; it is enough that the information appears reasonably calculated to lead to the
discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a); see also Tex. R. Evid. 401
(defining “relevant evidence” as evidence “having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”). Relator has failed to establish that the
information sought is not reasonably calculated to lead to the discovery of admissible
evidence.

       The burden to establish an abuse of discretion is on the party resisting discovery,
and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). We
conclude that relator has not met its burden.

       Accordingly, we deny relator’s petition for writ of mandamus.


                                      PER CURIAM


Panel consists of Chief Justice Hedges and Justices Brown and Busby.




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