Motion for Order Compelling Deposition in Texas

Background

“Rule 200 of the Texas Rules of Civil Procedure requires a party to give reasonable notice of a deposition. Tex. R. Civ. P. 200(2)(a).” (Hycarbex v. Anglo-Suisse (1996) 927 S.W.2d 103, 111.) “Whether notice is reasonable depends on the circumstances of each case.” (Id., citing Hogan v. Beckel (1989) 783 S.W.2d 307, 308.) “[An order to compel discovery and] [d]iscovery sanctions are available against those who abuse the rule.” (Id., citing Bohmfalk v. Linwood (1987) 742 S.W.2d 518, 520.) “The choice of permissible sanctions is within the discretion of the trial court.” (Id.; see Hogan, 783 S.W.2d at 309 citing Downer v. Aquamarine Operators, Inc. (1985) 701 S.W.2d 238, 241-42.)

How to Structure the Motion

Tex. R. Civ. P. 215.1 governs Order[s] Compelling Discovery and Sanctions, and states in relevant part:

A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order compelling discovery as follows:

1. Appropriate court. On matters relating to a deposition, an application for an order to a party may be made to the court in which the action is pending, or to any district court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all other discovery matters, an application for an order will be made to the court in which the action is pending.
2. Motion.
1. If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1) or 200.1(b); or
2. if a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:
1. to appear before the officer who is to take his deposition, after being served with a proper notice; or
2. to answer a question propounded or submitted upon oral examination or upon written questions; ....

(Id.)

Tex. R. Civ. P. 215.1 (d) covers the disposition of motion to compel and the awarding of expenses and states in relevant part:

If the motion is granted, the court shall, after opportunity for hearing, require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order compelling compliance or in opposing a motion which is denied.

(Tex. R. Civ. P. 215.1 (d); see also American Flood Research, Inc. v. Jones (2006) 192 S.W.3d 581, 583, allowing for court orders compelling depositions.)

Sanctions for Non-Compliance with Deposition Notices

The Texas rules provide different means for compelling discovery from parties and non-parties. (See TEX. R. CIV. P. 215.1(a).) There are different sanctions for a party's and a non-party's failures to comply with discovery. (See TEX. R. CIV. P. 215.2 [distinguishing between parties and non-parties in authorizing sanctions for non-compliance with discovery orders.]) Only the sanctions that may be imposed against a “disobedient party” reflect the trial court's inherent authority to manage discovery. (See id.)

Sanctions for Parties to Action

Multiple violations of the discovery rules and court orders for discovery may be a factor authorizing imposition of sanctions such as striking pleadings and the entry of a default judgment, even when the offending party offers justification and excuses. (Altus Comm. v. Meltzer Martin (1992) 829 S.W.2d 878, 884 citing Medical Protective Co. v. Glanz (1986) 721 S.W.2d 382, 388.) The Texas Supreme Court has upheld the trial court's actions of striking pleadings and rendering default judgment for failure to produce deponents and documents. (Altus Comm., id., citing Vasquez v. Chemical Exch. Indus., Inc. (1986) 721 S.W.2d 284, 285.) The sanction of default judgment is available to the trial court for a single instance of failure to attend a deposition rescheduled by agreement after a party's nonappearance at a deposition originally set by notice. (See Plano Sav. Loan Ass'n v. Slavin (1986) 721 S.W.2d 282, 283-84.)

Non-Party Witnesses and Deponents

Non-party witnesses stand in a different position before the court than do parties to the litigation, over whom it is clear that the court has both personal and subject matter jurisdiction. (See Haas v. George (2002) 71 S.W.3d 904, 915 [“Generally, a trial judge has control over only those parties properly before the court.”]) For this reason, a court's power to impose sanctions on non-parties is limited to its contempt power. (See TEX. R. CIV. P. 215.2(a) (c) [authorizing only sanction of contempt against non-parties); see also Jefa Co., Inc. v. Mustang Tractor and Equipment Co. (1994) 868 S.W.2d 905, 908 [“appropriate sanction for a nonparty's noncompliance with discovery is placing the nonparty in contempt of court.”); Exoxemis, Inc. v. Seale (1996) No. 04-95-00673-CV, 1996 WL 471271, at *6 [trial court could not impose sanction on non-party because “the trial court was powerless to treat him as a party in the absence of proper jurisdiction over his person in accordance with the mandatory rules relating to service of process.”])

The Court’s Decision

“[The court may authorize] a motion for sanctions or order compelling discovery if, among other things, a deponent fails to appear or answer questions.” (Oliver v. Smith Intl (2011) No. 14-11-00276-CV, at *4 citing Tex. R. Civ. P. 215.1 and 215.2 authorizing sanctions for failure to comply with proper discovery requests or discovery order.)

Mandamus for Temporary Stay of Motion Compelling Deposition

“When a trial court errs in compelling an oral deposition in violation of a statutory stay provision, mandamus is appropriate; a party does not have an adequate remedy by appeal.” (In re Miller (2004) 133 S.W.3d 816, 819; see generally In re Kuntz (2003) 124 S.W.3d 179, 181 stating that no adequate remedy by appeal when appellate court would not be able to cure the trial court's discovery error; In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003) citing overbroad discovery). “On appeal the court could not cure the trial court's error in compelling an oral deposition barred by law; the oral deposition already would have been taken.” (Miller, id.)

In one case, the “[r]elator ha[d]... filed a motion for temporary stay of the order compelling his deposition pending a decision on the petition for writ of mandamus.” (In re West (2017) NO. 14-17-00886-CV, at *2; see Tex. R. App. P. 52.8(b), 52.10.) “It appears from the facts stated in the petition and motion that relator's request for relief requires further consideration and that relator will be prejudiced unless immediate temporary relief is granted. [The court] therefore GRANT[s] relator's motion and issue the following order." The court ordered "the trial court's order compelling the deposition of Ernie R. West STAYED until a final decision by this court on relator's petition for writ of mandamus, or until further order of this court.” (Id.)

Apex Deposition, Motion to Compel Deposition, Mandamus

"An apex deposition is the deposition of a corporate officer at the apex of the corporate hierarchy." (In re Sam Houston Elec. Coop., Inc (2019). NO. 09-19-00285-CV, at *8 citing AMR Corp. v. Enlow (1996) 926 S.W.2d 640, 642.) “The apex deposition rule applies when a party seeks to depose a corporate president or other high-level corporate official.” (Crown Cent. Petroleum Corp. v. Garcia (1985) 904 S.W.2d 125, 128.) "To initiate the apex protections, the party seeking to avoid deposition must move for protection and attach an affidavit from the relevant corporate official denying any knowledge of relevant facts." (In re Miscavige 2014 436 S.W.3d 430, 436.)

“In ordering or preventing an apex deposition, a trial court must follow Crown Central's framework.” (In re Daisy Manufacturing Company (2000) 17 S.W.3d 654, 657.) “Under Crown Central, if a discovering party cannot arguably show that a high-level official has unique or superior knowledge of discoverable information, the trial court must grant a motion for protection, ‘and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods.’” (Id.) “The discovering party may thereafter depose the apex official if, after making a ‘good faith effort to obtain the discovery through less intrusive methods,’ the party shows that:

1. there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence, and
2. the less-intrusive methods are unsatisfactory, insufficient or inadequate.