in Re: Emergency Consultants, Inc., James Johnson, Tom Zguris, and Mike Boyle

Opinion

Petition for Writ of Mandamus Denied and Opinion filed January 10, 2007

Petition for Writ of Mandamus Denied and Opinion filed January 10, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00002-CV

IN RE EMERGENCY CONSULTANTS, INC.,

JAMES JOHNSON, TOM ZGURIS, AND MIKE BOYLE, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

O P I N I O N

This case addresses a potential litigant=s ability to take a deposition pursuant to Texas Rule of Civil Procedure 202 prior to filing suit in order to investigate potential claims.  On July 27, 2006 and October 31, 2006, the trial court entered orders permitting four pre-suit depositions.  Relators Emergency Consultants, Inc., James Johnson, Tom Zguris, and Mike Boyle have filed a petition for writ of mandamus and request for emergency relief in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004);  Tex. R. App. P. 52.  Relators seek a writ of mandamus requiring the trial court to set aside its orders, with the effect that real party in interest Dr. Crystal Cassidy would be precluded from taking the proposed pre-suit depositions. 

Relators claim that Dr. Cassidy should be precluded from taking the proposed depositions because she has not asserted a Apotential claim@ as required by Rule 202.  They allege that Dr. Cassidy=s only Apotential claim@ is a claim for a violation of the Texas Medical Practice Act, Tex. Occ. Code Ann. ' 165.156 (Vernon 2004), which does not provide a person with a private cause of action.  See, e.g, Cole v. Huntsville Mem=l Hosp., 920 S.W.2d 364, 373 (Tex. App.CHouston [1st Dist.] 1996, writ denied).^[1]  Relators maintain that, by its express language, Rule 202 requires a Apotential claim or suit@ before a deposition should be permitted, and that Dr. Cassidy has not identified a viable claim in her petition for pre-suit depositions.

Investigating a potential claim or suit is one of the express purposes of Rule 202, see Tex. R. Civ. P. 202.1(b), and a potential litigant should be permitted to explore whether claims exist without having to file a lawsuit to do so.  Any other holding would eviscerate the investigatory purpose of Rule 202 and essentially require one to file suit before determining whether a claim exists.  This is not efficient, and it potentially places counsel in a quandry, considering counsel=s ethical duty of candor to the court and the requirements of Texas Rule of Civil Procedure 13.^[2] 

We accordingly reject relators= attempt to define Dr. Cassidy=s claim as solely a claim under the Texas Medical Practice Act.  The facts reveal that Dr. Cassidy has had a long professional relationship with relators, and that Dr. Cassidy is a party to more than one contract flowing from that relationship.  As Dr. Cassidy points out, she may have a potential claim that the illegal corporate practice of medicine renders her contracts illegal.  See, e.g., Penny v. Orthalliance, Inc., 255 F. Supp. 2d 579 (N.D. Tex. 2003) (suit to challenge validity of agreements based on the unauthorized practice of dentistry).

Rule 202 does not require a potential litigant to expressly state a viable claim before being permitted to take a pre-suit deposition.  See, e.g., City of Houston v. U.S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding) (AThere is no requirement in Rule 202 that the person sought to be deposed be a potentially liable defendant in the claim under investigation.@).  By its terms, Rule 202 instead requires a trial court to order a deposition if it makes one of two findings, either that Aallowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit@ or that Athe likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.@  Tex. R. Civ. P. 202.4(a)(1) & (2).  After an evidentiary hearing, the trial court made both findings in this case.

Relators have not established that the trial court abused its discretion in making these findings.  A writ for mandamus may lie to challenge a trial court=s order for pre-suit depositions, see In re Hewlett Packard, No. 03-06-00028-CV, ___S.W.3d___, 2006 WL 1295502, at *2 (Tex. App.CAustin May 12, 2006, orig. proceeding [mand. denied]).^[3]  However, in this case, relators have not established that they are entitled to mandamus relief.

Accordingly, we deny relators= petition for writ of mandamus and relators= motion for temporary relief.

PER CURIAM

Petition Denied and Opinion filed January 10, 2007.

Panel consists of Justices Hudson, Frost, and Guzman.

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            ^[1]We express no opinion on the scope of the Texas Medical Practice Act, Tex. Occ. Code Ann. ' 165.156, or the merits of any potential claim.

            ^[2]Rule 13 provides in part that A[t]he signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.@

            ^[3]We reject relators= claim that this case is controlled by the Hewlett Packard decision.  That case involved a competitor=s attempt to access information that included Hewlett Packard=s trade secrets, interests that are not at stake in this case.