in Re: EMR (USA Holdings) Inc., Gold Metal Recyclers, LTD., and David Ferguson

• Court: Court of Appeals of Texas
• Decided: March 14, 2019
• Docket: 05-19-00286-CV
• Status: Published

Opinion

Denied and Opinion Filed March 14, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00286-CV

IN RE EMR (USA HOLDINGS) INC., GOLD METAL RECYCLERS, LTD., AND DAVID FERGUSON, Relators

Original Proceeding from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-00835

MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Osborne In this original proceeding, relators EMR (USA Holdings), Inc., Gold Metal Recyclers,

Ltd., and David Ferguson complain that the trial court granted real party in interest Champion

Waste & Recycling Services, LLC’s request for Rule 202 discovery, including allowing the

depositions of relators’ corporate representatives and the deposition of Ferguson, and compelling

production of five categories of documents. Relators are anticipated defendants in Champion’s

contemplated litigation. Mandamus is, therefore, the proper vehicle by which to seek the relief

requested. In re Jorden, 249 S.W.3d at 419; In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex.

App.—Austin 2006, orig. proceeding). To be entitled to mandamus relief, a relator must show

both that the trial court has clearly abused its discretion and that relator has no adequate appellate

remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). If a trial court grants Rule 202 relief, it must expressly find that (1) allowing the petitioner

to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or

(2) 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. TEX. R. CIV. P. 202.4(a)(1)–(2);

In re Dallas Cty. Hosp. Dist., No. 05–14–00249–CV, 2014 WL 1407415, at *2 (Tex. App.—Dallas

Apr. 1, 2014, orig. proceeding) (mem. op.). The petitioner bears the burden of producing evidence

to support the necessary finding. In re Glob. Experience Specialists, Inc., No. 05-18-01382-CV,

2018 WL 6167838, at *1 (Tex. App.—Dallas Nov. 26, 2018, orig. proceeding) (mem. op).

Based on the record before us, we conclude relators have not shown they are entitled to the

relief requested because the mandamus record does not show a clear abuse of discretion.

Accordingly, we deny relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the

court must deny the petition if the court determines relator is not entitled to the relief sought).

/Leslie Osborne/ LESLIE OSBORNE JUSTICE

190286F.P05

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