in Re Vikas Anand, Raymond Drennon, and Radha Thiagarajan

• Court: Court of Appeals of Texas
• Decided: April 2, 2013
• Docket: 01-12-01106-CV
• Status: Published

Opinion

Opinion issued April 2, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01106-CV ——————————— IN RE VIKAS ANAND, RAYMOND DRENNON, AND RADHA THIAGARAJAN, Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

In this original proceeding, Relators, Vikas Anand, Raymond Drennon, and

Radha Thiagarajan, seek mandamus review of the trial court’s order granting Real

Party in Interest Michael P. Fleming & Associates’s petition for pre-suit depositions under Texas Rule of Civil Procedure 202. 1 Relators assert that the trial

court abused its discretion by: (1) granting Fleming’s petition for pre-suit

depositions without a sufficient showing under Rule 202; and (2) overruling

Relators’ objections to document requests. We deny the petition for writ of

mandamus.

Background

Relators, Vikas Anand, Raymond Drennon, and Radha Thiagarajan, seek

mandamus review of the trial court’s order granting pre-suit depositions under

Texas Rule of Civil Procedure 202. On behalf of former employees of Gratis

Cellular, Inc. (GCI), real party in interest Michael P. Fleming & Associates filed a

lawsuit in federal court against GCI and Anand, owner of GCI, under the Fair

Labor Standard Act (FLSA) for failure to properly pay overtime wages and

minimum wage. After that lawsuit was filed, Fleming alleges that Relators began

contacting its clients with threats for Fleming’s clients to drop the lawsuit.

Fleming filed a Verified Petition Requesting Deposition to Investigate Potential

Claim or Suit Pursuant to Texas Rule of Civil Procedure 202 in Harris County

Court at Law No. 3, seeking to depose Anand, Drennon, operations manager of

GCI, Thiagarajan, legal counsel for GCI in the FLSA lawsuit, and a designated

1 The underlying case is In re Petition of Michael P. Fleming & Associates, P.C., No. 1023395, in the Harris County Court at Law No. 3, the Honorable Linda Storey, presiding. 2 corporate representative of GCI, in order to investigate potential claims against

them based on the alleged tortious interference with Fleming’s clients in the FLSA

lawsuit. Fleming also requested that each deposition witness produce certain

documents.

On December 4, 2012, the trial court held a hearing on Fleming’s Rule 202

petition and, after considering the pleadings, evidence, and arguments of counsel,

found that the likely benefit of allowing Fleming to conduct the requested

depositions to investigate its potential claim outweighed the burden or expense of

the procedure and, therefore, granted Fleming’s petition. Relators filed a motion

for reconsideration and a motion to strike the affidavits attached to Fleming’s

petition. On December 11, 2012, the trial court held a hearing on Relators’ motion

for reconsideration and stated that Relators were not required to produce privileged

communications between Thiagarajan and Anand, Drennon, or other

representatives of GCI. The trial court also stated that Relators were not required

to produce any documents containing trade secrets. However, at the conclusion of

the hearing, the trial court overruled all objections and denied Relators’ motion for

reconsideration. The following day, Relators filed this petition for writ of

3 Discussion

Relators assert that the trial court abused its discretion by: (1) granting

Fleming’s petition for pre-suit depositions without a sufficient showing under Rule

202; and (2) overruling Relators’ objections based on privilege and work product

and ordering Relators to produce documents.

A. Applicable Law

Mandamus relief is an extraordinary remedy and is proper to correct a clear

abuse of discretion when there is no adequate remedy by appeal. In re Frank

Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding) (citing In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding)). A writ of mandamus may be appropriate to challenge a trial court’s

order for pre-suit depositions. See In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011)

(orig. proceeding); In re Emergency Consultants, Inc., 292 S.W.3d 78, 80 (Tex.

App.—Houston [14th Dist.] 2007, orig. proceeding) (citing In re Hewlett Packard,

212 S.W.3d 356, 360 (Tex. App.—Austin 2006, orig. proceeding)).

Rule 202.1 permits a person to petition the court for authorization to take a

deposition before suit is filed either to “perpetuate or obtain the person’s own

testimony or that of any other person for use in an anticipated suit [or] investigate a

potential claim or suit.” TEX. R. CIV. P. 202.1. A Rule 202 petition must: (1) be

verified; (2) be filed in the proper county; (3) be in the name of the petitioner; (4)

4 state that either the petitioner anticipates that suit will be filed or petitioner seeks to

investigate a potential claim; (5) state the subject matter of the anticipated action, if

any, and the petitioner’s interest therein; (6) state the names, addresses, and

telephone numbers (or a description of the persons if names, addresses, and

telephone numbers cannot be ascertained) of the persons petitioner expects to have

interests adverse to petitioner’s if suit is anticipated; (7) state the names, addresses,

and telephone number of the persons to be deposed, the substance of the testimony,

and the reasons why such testimony is desired; and (8) request an order authorizing

the petitioner to take the depositions of the persons named in the petition. TEX. R.

CIV. P. 202.2. If the trial court orders a deposition to be taken under this rule, it

must find that either: (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).

B. Insufficient Showing under Rule 202

In their first issue, Relators argue that Fleming did not make a sufficient

showing under Rule 202 because: (1) there was no evidence (in the form of

testimony, affidavits, or otherwise) admitted at the hearing on the petition; (2) even

if the trial court could rely on the affidavits attached to the petition, these affidavits

5 are not competent proof because they contain hearsay statements; and (3) Fleming

failed to satisfy its burden under Rule 202 that the benefit of allowing Fleming to

take the requested depositions outweighs the burden on Relators. In response,

Fleming contends the opposite—that the exhibits attached to the 202 petition,

including the affidavits, were admitted as evidence without any objections by

Relators. Additionally, Fleming contends that Relators did not raise a hearsay

objection to the affidavits in their response to Fleming’s petition and did so only in

their motion to strike the affidavits, which was filed on December 9, 2012, five

days after the hearing on the petition.

Relators have not provided a reporter’s record of the December 4, 2012

hearing on Fleming’s Rule 202 petition nor have they explained why a reporter’s

record will not be filed. See TEX. R. APP. P. 52.7(a)(2) (requiring relator to file with

petition “a properly authenticated transcript of any relevant testimony from any

underlying proceeding, including any exhibits offered in evidence, or a statement

that no testimony was adduced in connection with the matter complained”); see

also In re Castro Enters., Inc., 349 S.W.3d 9, 9–10 (Tex. App.—El Paso 2009,

orig. proceeding) (concluding that relator failed to show it was entitled to

mandamus relief where relator neither provided court with reporter’s record of

hearing nor explained why reporter’s record would not be filed). As Relators are

requesting mandamus relief, it is their burden to present this court with a sufficient

6 record to establish their right to mandamus relief. See Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Bill Heard Chevrolet, Ltd.,

209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).

Given the lack of a reporter’s record containing the December 4, 2012

hearing on Fleming’s Rule 202 petition, Relators have failed to show they are

entitled to mandamus relief on this issue.

C. Production of Documents

In their second issue, Relators contend that the trial court abused its

discretion by overruling their attorney-client communication privilege and work

product objections and ordering the production of documents in connection with

the Rule 202 depositions. First, Relators argue that Fleming is attempting a form

of discovery—production of documents—not permitted by Rule 202. Second,

Relators maintain that the trial court erred by requiring Relators to produce

documents, which include communications between each other, other employees

of GCI, and Fleming’s clients, because these documents constitute work product or

attorney-client communications.

With respect to Relators’ first contention that the production of documents is

not permitted by Rule 202, there is nothing in the language of Rule 202 that

prohibits the petitioner from requesting that documents be produced along with the

deposition. Furthermore, Rule 202.5 expressly provides that “depositions

7 authorized by this rule are governed by the rules applicable to depositions of

nonparties in a pending suit.” TEX. R. CIV. P. 202.5. The rule further provides that

“[t]he scope of discovery in depositions authorized by this rule is the same as if the

anticipated suit or potential claim had been filed.” Id. Rule 205, which governs

discovery of nonparties, permits a party to compel discovery from a nonparty by

serving a subpoena compelling “a request for production of documents or tangible

things . . . served with a notice of deposition on oral examination or written

questions.” TEX. R. CIV. P. 205.1(c). Therefore, the language of these rules when

read together permits a petition seeking a pre-suit deposition under Rule 202 to

also request the production of documents.

Turning to Relators’ second point, we note that the record does not make

clear whether the trial court in fact overruled Relators’ claims of privilege. The

record of the hearing on Relators’ motion for reconsideration reflects that the trial

court initially concluded that Relators were not required to produce

communications between Thiagarajan and the other Relators or other

representatives of GCI, to the extent that those communications were covered by

attorney-client communication privilege or the work-product privilege. At the

conclusion of the hearing, however, the trial court stated that all objections were

overruled. Further, although the trial court requested that the parties draft an order

reflecting the trial court’s rulings, no such order is included in the record.

8 We conclude that Relators have failed to demonstrate, on this record, that

they are entitled to mandamus relief. However, because we cannot determine how

the trial court ruled on Relators’ privilege claims, this opinion should not be read to

preclude Relators from withholding privileged documents pursuant to Texas Rule

of Civil Procedure 193.3.

Accordingly, the stay previously ordered by this court is lifted, and the

petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Justices Keyes, Sharp, and Huddle.