in Re: John Doe

• Court: Court of Appeals of Texas
• Decided: February 10, 2011
• Docket: 13-10-00590-CV
• Status: Published

Opinion

NUMBER 13-10-000590-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JOHN DOE

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela

Per Curiam Memorandum Opinion[1]

Relator, John Doe, filed a petition for writ of mandamus in the above cause on November 8, 2010, seeking to compel the trial court to withdraw a protective order preventing the deposition of the Most Reverend Edmond Carmody, D.D., the former Bishop of Corpus Christi.  The Court requested and received a response to the petition for writ of mandamus from the real parties in interest, the former Bishop Carmody, Wm. Michael Mulvey, STL, D.D., Bishop of the Diocese of Corpus Christi, and his Successors in Interest, a Corporation Sole; and the incorrectly named Roman Catholic Diocese of Corpus Christi, a Corporation Sole.  We deny the petition for writ of mandamus.

I.

Mandamus is an “extraordinary” remedy.  In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).  In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)  (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding).  A party has no adequate remedy by appeal to challenge a discovery order when the party’s ability to present a viable claim or defense will be impaired by the trial court’s error.  See, e.g., Able Sup. v. Moye, 898 S.W.2d 766, 771-72 (Tex. 1995) (orig. proceeding); In re Hinterlong, 109 S.W.3d 611, 633 (Tex. App.–Fort Worth 2003, orig. proceeding).

II.

A party can seek discovery of unprivileged information that is relevant to the subject matter of the lawsuit, including inadmissible evidence, as long as the request is reasonably calculated to lead to the discovery of admissible evidence.  Tex. R. Civ. P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding).  However, the broad scope of discovery is limited by the legitimate interests of the opposing party in avoiding overly broad requests, harassment, or the disclosure of privileged information.  In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).

The rules of civil procedure permit a party to take the deposition of “any person or entity.”  Tex. R. Civ. P. 200.1(a); see Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995) (construing former rules of civil procedure); In re Celadon Trucking Servs., 281 S.W.3d 93, 97 (Tex. App.–El Paso 2008, orig. proceeding).  Generally speaking, a party to a suit has the right to depose the opposing party.  See Mobile Oil Corp. v. Floyd, 810 S.W.2d 321, 323, 324 (Tex. App.–Beaumont 1991, orig. proceeding).  However, the person noticed for deposition also has the right to protection “from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights.”  Tex. R. Civ. P. 192.6; Crown Cent. Petroleum Corp., 904 S.W.2d at 127; Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex. 1994). 

This right to protection underlies the “apex doctrine,” which applies when a party seeks to take the deposition of a senior corporate official, and requires the party to show either that the official has “unique or superior personal knowledge” of relevant facts or that “after a good faith effort to obtain the discovery through less intrusive means, (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.”  In re Alcatel USA, Inc., 11 S.W.3d 173, 176 (Tex. 2000); see Crown Cent. Petroleum Corp., 904 S.W.2d at 128; see also In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 843 (Tex. 2008) (orig. proceeding).  The apex doctrine does not automatically apply to all depositions of high-ranking corporate officers.  See, e.g., Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 168 (Tex. App.–Houston [14th Dist.] 2000, pet. denied) (holding that the apex doctrine does not apply when the person noticed for deposition has “first-hand knowledge of certain facts”); Simon v. Bridewell, 950 S.W.2d 439, 442 (Tex. App.–Waco 1997, no writ) (holding that the apex doctrine “may be invoked only when the deponent has been noticed for deposition because of his corporate position,” the doctrine is “unavailable if less intrusive means of discovery have already been employed,” and the doctrine “does not protect named parties”). 

III.

In the instant case, relator alleges that he is entitled to depose Carmody because Carmody is a defendant in the underlying lawsuit and relator asserts individual causes action against Carmody for intentional infliction of emotional distress and breach of fiduciary duty based on Carmody’s actions at a meeting with relator in 2008.  Relator also asserts that Carmody has knowledge regarding physical changes in the physical premises where relator’s alleged sexual abuse took place and that Carmody has personal knowledge of the potential existence of secret archives, if any, or the destruction thereof.  Relator further alleges that he is entitled to depose Carmody as former Bishop because he participated in meetings of the National Conference of Catholic Bishops in 2002 and 2005 that were “convened specifically to address the scandal of priests sexually abusing children,” and Carmody has knowledge of the “patterns and practices” of the Catholic Church.

By affidavit, Carmody testified that the alleged incidents made the basis of this suit occurred before he became the Bishop and he has “no personal knowledge of the alleged incidents.”  The trial court issued a protective order preventing this deposition.  The protective order does not state the grounds for which it was issued.  We will uphold the trial court’s order on any ground supported by the mandamus record.  See In re Vogel, 261 S.W.3d 917, 920 (Tex. App.–Houston 14th Dist. 2008, orig. proceeding); Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App.–Dallas 1992, orig. proceeding).  We review the trial court’s decision in entering the protective order under an abuse of discretion standard.  See Roberts v. West, 123 S.W.3d 436, 443 (Tex. App.–San Antonio 2003, pet. denied); Boales, 29 S.W.3d at 168. 

Based on the record currently before the Court, relator has not shown that the trial court abused its discretion in granting the protective order at issue.  The trial court had before it conflicting evidence regarding alleged discovery abuse in connection with the deposition at issue.  See In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (holding that mandamus relief is not available when there are factual disputes).  The trial court may have inferred, based on the pleadings, the evidence, and the procedural posture of the case:  that relator named Carmody as a party to avoid application of the apex doctrine, that the circumstances underlying the deposition were harassing; and, additionally or alternatively, that relator failed to meet the requirements of the apex doctrine.  In this regard, we note that the evidence presented by relator regarding Carmody’s alleged personal knowledge of facts pertaining to the lawsuit does not show anything beyond mere relevance, and relator has not demonstrated or alleged that he made a good faith effort to obtain the discovery he seeks through less intrusive means.

IV.

On this record, at the present time, we cannot say that the trial court abused its discretion in granting the motion for protective order prohibiting the deposition.  See Roberts, 123 S.W.3d at 443.  As discovery in the case progresses, relator may return to the trial court to request that the protective order be vacated or modified if future good faith efforts to obtain the discovery sought prove inadequate. 

The Court, having examined and fully considered the petition for writ of mandamus and appendix, the real parties in interest’s response to the petition and supplemental mandamus record, relator’s reply, and real parties in interests’ sur-response, is of the opinion that relator has not, at the present time, shown himself entitled to the relief sought.  Accordingly, the petition for writ of mandamus is DENIED.  See Tex. R. App. P. 52.8(a).  

                                                                                                            PER CURIAM

Delivered and filed the 10th

day of February, 2011.

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[1] See Tex. R. App. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).