Masinga v. Whittington

792 S.W.2d 940, 33 Tex. Sup. Ct. J. 605, 1990 Tex. LEXIS 89, 1990 WL 82865

Opinions

OPINION

SPEARS, Justice.

This mandamus proceeding involves a pretrial discovery order permitting a deposition to be taken only by stenographic recording and not by videotape recording. We conclude that the trial judge abused his discretion in so ordering and conditionally grant the writ of mandamus.

In an attempt to prevent the videotaping of his deposition, Nadim Nasir, Jr., M.D., a defendant in the underlying suit, sought a protective order based solely on the following unverified objection:

Dr. Nasir objects strenuously to the videotaping of his oral deposition for the reason that the presence of the video camera and technician and the bright lights and atmosphere associated with it will be unnecessarily distracting and stressful to him, and will detract from his ability to give clear and precise answers to the Plaintiffs’ attorneys’ questions.

A visiting judge, Hon. Thomas H. Crofts, granted the protective order after hearing only the arguments of counsel and without Nasir presenting any evidence that the videotaping would cause him unnecessary distraction or stress. Plaintiffs in the underlying suit, the Masingas, filed a motion for reconsideration which was denied by the presiding judge of the 160th District Court, Hon. Mark Whittington.

Under Texas Rule of Civil Procedure 166b(5), a trial judge may exercise some discretion in the granting of protective orders. However, this discretion is not without bounds. A party seeking to avoid the videotaping of a deposition must show particular, specific and demonstrable injury by facts sufficient to justify a protective order. See Garcia v, Peeples, 734 S.W.2d 343, 345 (Tex.1987) (requiring “a particular, articulated and demonstrable injury, as opposed to conclusory allegations”); see also Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex.App. — Fort Worth 1987, orig. proceeding); Mole v. Millard, 762 S.W.2d 251, 254 (Tex.App. — Houston [1st Dist.] 1988, orig. proceeding). So long as the discovery sought is within the scope of Rule 166b, a trial court may not grant a protective order limiting discovery unless the party seeking such protection has met this burden. Con-clusory statements within a motion do not suffice. We therefore hold that the trial judge abused his discretion in refusing to allow the Masingas to videotape Nadir’s deposition.

We conditionally grant the writ of mandamus. The writ will issue only if the trial judge refuses to act in accordance with this opinion.

DOGGETT, J., concurs with an opinion.