in Re Carol Kendall and Belinda Sanchez, Relators'

ACCEPTED 04-15-00060-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/20/2015 1:45:02 PM KEITH HOTTLE CLERK

CAUSE NO. 04-15-00060-CV

IN THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS FILED IN DISTRICT SAN ANTONIO, TEXAS 4th COURT OF APPEALS SAN ANTONIO, TEXAS 2/20/2015 1:45:02 PM KEITH E. HOTTLE In re Carol Kendall and Belinda Sanchez, Relators Clerk

Original Proceeding from the 224th Judicial District Court of Bexar County, Texas

The Honorable Laura Salinas, of the 166th Judicial District Court of Bexar County, Texas, Presiding

REAL PARTY IN INTEREST CYNTHIA MASON’S RESPONSE TO RELATORS’ PETITION FOR WRIT OF MANDAMUS

Jeff Davis State Bar No. 05508350 Alan Braun State Bar No. 24054488 DAVIS LAW FIRM 10500 Heritage Blvd Ste 102 San Antonio, Texas 78216 Phone: (210) 444-4444 Fax: (210) 785-0806 ATTORNEYS FOR REAL PARTY IN INTEREST CYNTHIA MASON

TABLE OF CONTENTS

INDEX OF CASES______________________________________________________ ii STATEMENT OF FACTS ________________________________________________ 1 ARGUMENT __________________________________________________________ 4

ISSUE 1: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ORDERING RELATORS‘ DEPOSITIONS BECAUSE SUFFICIENT EVIDENCE WAS BEFORE THE COURT TO ESTABLISH THAT THE BENEFIT OF TAKING THE DEPOSITIONS OUTWEIGHED THE BURDEN _________________________ 7

ISSUE 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ORDERING RELATOR TO PRODUCE DOCUMENTS BECAUSE RULE 202 ALLOWS FOR THE COURT TO ORDER THE PRODUCTION OF DOCUMENTS _ 9

CONCLUSION ________________________________________________________ 11 PRAYER _____________________________________________________________ 12 STATEMENT OF COMPLIANCE ________________________________________ 12 CERTIFICATE OF SERVICE ____________________________________________ 13 APPENDIX ________________________________________________________ TABS

i

INDEX OF AUTHORITIES

CASES Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) ______________________________ 4

Beausoleil v. Reaud, Morgan, & Quinn L.L.P. 2011 Tex. App. LEXIS 993 (Tex.App.— Beaumont 2011) _______________________________________________________ 11

Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) ______________________________ 4

City of Dallas v. Dallas Black Fire Fighters Ass’n 353 S.W.3d 547, 557 (Tex. App. —Dallas 2011, no pet.) ___________________________________________________ 7

Davidson v. Southern Farm Bureau Cas. Ins. Co. 2006 U.S. Dist. LEXIS 40654 (SDTX 2006) __________________________________________________________ 9

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) ______ 4

In re Anand 2013 Tex. App. LEXIS 4157 (Tex. App.-Houston [1st] 2013, Orig. Proceeding) ______________________________________________________ 5, 10, 11

In re Akzo Nobel Chemical, Inc., 24 S.W.3d 919 (Tex. App.-Beaumont 2000, Orig. proceeding) ____________________________________________________ 9, 10

In Re Jorden, 249 S.W.3d, 416 (Tex. 2008) (Orig. Proceeding) __________________ 6,8 In Re Kiberu 237 S.W.3d 445, 448 (Tex. App. Ft. Worth 2007, Orig. Proceeding) 8, 9, 10 Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex. 1992) ________________________ 4

ii

STATEMENT OF FACTS

TO THE HONORABLE COURT OF APPEALS:

Cynthia Mason is a former employee of Career Point College. She was rehired by Career Point as the Director of Daycare in April of 2013. See Exhibit 1 EEOC Charge of Discrimination.

On April 9, 2014, Ms. Mason received treatment from her doctor related to a medical condition, and Ms. Mason was told by her doctor that she would need to take 1-2 weeks off work for medical treatment. Exhibit 1.

On April 10, 2014, Ms. Mason then informed Relators Carol Kendall, Career Point College‘s Finance Director, and Belinda Sanchez, who was in Career Point College‘s HR department, about her medical condition. Exhibit 1.

The next day, April 11, 2014, Ms. Mason was terminated from her employment with Career Point. Exhibit 1.

Ms. Mason filed her Original Petition for Order Authorizing Depositions under Rule 202 on December 15, 2014. Exhibit A to Relators’ Petition - Record at pp. 4-5. The Petition states that Ms. Mason seeks to take the depositions of Relators Ms. Kendall and Ms. Sanchez under Texas Rule of Civil Procedure 202 in order to investigate whether or not she had a potential claim against her former employer Career Point College. Id.

On January 9, 2015, a hearing was held on Ms. Mason‘s Petition before the Honorable Laura Salinas in the 166th Judicial District Court, Bexar County, Texas. See Exhibit B to Relators’ Petition – Hearing Transcript at 4-5.

Also on January 9, 2015, Relators filed their Answer to Ms. Mason‘s Petition. Exhibit A to Relators’ Petition - Record at 11. In this Answer, Relators assert a general denial and state that ―Petitioner is not entitled to the documents she seeks by way of her petition. Id.

At the hearing Judge Salinas heard argument from counsel and reviewed Ms. Mason‘s Equal Employment Opportunity Commission (EEOC) Charge of Discrimination which was entered into evidence as an exhibit at the hearing. See Exhibit B to Relators’ Petition – Hearing Transcript at p. 9; Exhibit 1.

Relators argued against the 202 petition on several grounds. Relators asserted that ―as a general practice, although not mandated, the employer will get a chance to depose the plaintiff first to find out what they know.‖ See Exhibit B to Relators’ Petition – Hearing Transcript at p. 8

Relators further argued that the personnel file which was requested in the Rule 202 petition should not have to be produced because Ms. Mason had not sought to use rule 202 to take the deposition of a corporate representative of Career Point College. See Exhibit B to Relators’ Petition – Hearing Transcript at p. 10. Counsel went on to state that ―What I‘m saying is, it‘s our position that if you are *3 going to want corporate documents, you need to have notice to the corporation themselves.‖

The Court then told Counsel for Ms. Mason to file an Amended Petition asking for the deposition of the corporate representative of Career Point in order to support the request for documents. See Exhibit B to Relators’ Petition – Hearing Transcript at pp. 17-18.

Later on January 9, 2015, counsel for the parties conferred and agreed that rather than amending the pleadings to include a third deposition of a corporate representative, the parties agreed that if the depositions were ordered that Relator Carol Kendall would produce the personnel file and informed Judge Salinas of same. Exhibit 2 January 9, 2015, correspondence to the Honorable Judge Salinas.

On January 12, 2015, Judge Salinas issued an order granting Ms. Mason‘s Petition under Rule 202. Exhibit 3 January 12, 2015 Order and Judge’s Notes. The order set the time and date for the depositions on January 12. Id. However, the parties did not receive the order until after that time listed in the order.

The parties conferred and reached an agreement that the depositions of Relators would take place in early February. Exhibit 4 January 14, 2015 Correspondence.

On January 26, 2015, the parties submitted an agreed order setting the depositions of Relators to take place at the office of Relators‘ counsel on February 10, 2015. Exhibit 5 Agreed Order.

On February 5, 2015, Relators filed their Petition for Writ of Mandamus.

ARGUMENT

Standard of Review

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (Orig. Proceeding). Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex. 1992) (Orig. Proceeding).

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (Orig. Proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Rule 202 of the Texas Rules of Civil Procedure

Rule 202 of the Texas Rules of Civil Procedure permits pre-suit depositions either for (1) use in an anticipated suit or (2) to investigate a potential claim or suit.

TEX. R. CIV. P. 202.1.

The rule requires that the petitioner file a verified petition, state the subject matter of the action, state who they want to depose and request authorization from the Court to take the deposition. TEX. R. CIV. P. 202.2.

The Petitioner must then effect personal service on each witness and inform them of the scheduled hearing on the Motion. TEX. R. CIV. P. 202.3.

In order to take the deposition the trial court must issue an order holding either that (1) allowing the petitioner to take the requested depositions may prevent a failure or delay justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweigh the burden or expense of the procedure. TEX. R. CIV. P. 202.4.

Finally, the rule states that ―except as otherwise provided in this rule, depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit. The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed.‖ TEX. R. CIV. P. 202.5.

The production of documents is permitted by rule 202. In re Anand 2013 Tex. App. LEXIS 4157 (Tex. App.-Houston [1st] 2013 Orig Proceeding). Rule 205 *6 which governs discovery of nonparties allows for a party to compel discovery by serving a subpoena requesting documents and tangible things. Id. and TEX. R. CIV. P. 205. Therefore, because Tex. R. Civ. P. 202.5 states that a deposition under 202 is treated as a deposition of a non-party, documents may be requested as allowed by Rule 205.

Relators make several references to the Texas Supreme Court‘s holding in In Re Jorden, 249 S.W.3d, 416 (Tex. 2008) (original proceeding). In that case the Texas Supreme Court wrote that:

―Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery form someone before telling them what the issues are. Accordingly, presuit depositions are available under Rule 202 only if a trial court makes one of two findings:

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

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.‘‖ In Re Jorden at 423.

The Texas Supreme Court‘s In Re Jorden holding is that the concerns about routine use, due process, and demanding discovery from a deponent before informing them about the issues are alleviated when the trial court makes one of the two required holdings under TEX. R. CIV. P. 202.4. This holding does not impose a higher standard on a party seeking to take a Rule 202 deposition rather it *7 holds that the requirements of Rule 202 are what assure those interests are protected.

The only time when there are heightened requirements to obtain a deposition under rule 202 when trade secrets are sought. City of Dallas v. Dallas Black Fire Fighters Ass’n 353 S.W.3d 547, 557 (Tex. App.—Dallas 2011, no pet.);

ISSUE 1: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ORDERING RELATORS’ DEPOSITIONS BECAUSE SUFFICIENT EVIDENCE WAS BEFORE THE COURT TO ESTABLISH THAT THE BENEFIT OF TAKING THE DEPOSITIONS OUTWEIGHED THE BURDEN

In addition to being presented with the arguments of counsel, Judge Salinas was presented with Ms. Mason‘s EEOC charge of discrimination, which Ms. Mason signed under oath. Exhibit 2 and to Relators’ Petition – Hearing Transcript at p. 9.

Additionally, Judge Salinas discussed the contents of the Charge with Counsel:

―THE COURT: So the EEOC informed her—well, told her she could proceed with the lawsuit?

MR. SMITH: Right. Actually, their finding was – year. They did say that. They gave her notice of right to sue. As I recall their finding – and tell me if I‘m wrong, I don‘t want to misstate – that they could not find sufficient evidence to support her claims, but gave her a Right To Sue Letter, allowing her to proceed with a lawsuit.

THE COURT: And the two people that they are seeking to depose are the two that were particularly involved with regards to her claim, correct?

MR. SMITH: Ms. – I don‘t remember that specifically. They‘ve identified, I think they – at least in the charge, that Ms. Kendall was the chief finance officer, and I think Ms. Sanchez is in HR and is identified as in HR.

THE COURT: Okay. I just see that the names in the EEOC charge form, the two – those two names are also listed in the petition. That‘s why I was asking.‖ Exhibit B at pp. 11-12.

The Charge indicates that in a three day period of time that Ms. Mason became ill, informed Relators of her illness, and was terminated for reasons which had not been previously been discussed with her. Exhibit 2. Furthermore the Charge of Discrimination is signed under penalty of perjury. Id.

The Court had a sworn statement from Ms. Mason stating that she believed that the Relators were involved in her termination from her former employer.

This provided the Court with sufficient information to make a determination that the two Relators have information that would allow Ms. Mason to investigate a potential claim. This gives the court the basis to determine whether the benefit of the deposition outweighs the burden.

Relators go on to argue that requiring their depositions would force them to answer Ms. Mason‘s discovery without being able to submit their own discovery and without the protections afforded a party in a lawsuit. Relators’ Petition at p. 9. These concerns were addressed by the Texas Supreme Court‘s holding in In re *9 Jorden. These concerns are why a hearing before the trial court and a finding as required by TEX. R. CIV. P. 204 must be made. That was done in this case.

Relators go on to cite to numerous cases which they allege support the idea that the depositions should not move forward under Rule 202 because the Plaintiff must give a deposition first. This argument fails for two main reasons. First, carried to its logical end, this argument would render rule 202 meaningless. As the court wrote in In re Kiberu:

―With potential causes of action, the essential facts are not yet known, so presuit depositions are used to gather those essential facts so that the petitioner may investigate whether she does indeed have a claim— or whether she does not.‖ In Re Kiberu 237 S.W.3d 445, 448 (Tex. App. Ft. Worth 2007 Orig Proceeding)

Rule 202 would not accomplish its goal of allowing potential claimants to investigate their claims under Relators‘ logic because they would be unable to determine whether or not they had a claim. In Re Kiberu at 448.

Second, Courts have repeatedly held that a rule 202 proceeding is not a lawsuit. See Davidson v. Southern Farm Bureau Cas. Ins. Co. 2006 U.S. Dist. LEXIS 40654 (SDTX 2006). Any common practice in a filed lawsuit therefore does not affect a rule 202 deposition.

Based on the above, this Court should reject Relators arguments that the Trial Court abused its discretion in ordering the depositions of Relators under Rule 202.

ISSUE 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ORDERING RELATOR TO PRODUCE DOCUMENTS BECAUSE RULE 202 ALLOWS FOR THE COURT TO ORDER THE PRODUCTION OF DOCUMENTS

Relators place heavy reliance on the holding in In re Akzo Nobel Chemical, Inc., 24 S.W.3d 919 (Tex. App.-Beaumont 2000, orig. proceeding) for their argument that the Trial Court abused its discretion in ordering the production of documents at a Rule 202 deposition.

This is an incorrect reading of the holding in Akzo Nobel. In that case, the trial court ordered the relator to produce witnesses to be deposed and to make an accident scene available for inspection, photographing, and videotaping. Akzo Nobel at 920. The holding of the Beaumont Court of appeals was that it was not proper for the Court to order the inspection of the accident scene because that was not a deposition and was therefore not discovery allowable by the rules. Id.

The In Re Akzo Nobel court correctly held that Rule 202 does not allow a trial court to order a pre-suit inspection of an accident scene, but nothing in the Akzo Nobel decision states that a court cannot order the production of documents at a deposition under Rule 202.

Relators have chosen to ignore numerous cases which hold that deponents may be ordered to produce documents under Rule 202. In re Anand at *6 (―Nothing in the language of Rule 202 prohibits the petitioner from requesting that documents be produced along with the deposition.‖); In re Kiberu at *448 *11 (Holding that individual being deposed under 202 could be required to produce documents in his control).

As the In re Anand Court wrote:

―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 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.‘ 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.‖ In Re Anand at *6.

Depositions authorized by Rule 202 ‗are governed by the rules applicable to depositions of nonparties in a pending suit. Beausoleil v. Reaud, Morgan, & Quinn L.L.P. 2011 Tex. App. LEXIS 993 (Tex.App.—Beaumont 2011).

The interaction between Rule 202 and Rule 205 governing depositions of nonparties allow for documents to be requested.

There is no authority supporting Relators‘ position that they cannot be ordered to produce documents under Rule 202.

CONCLUSION

There was sufficient evidence presented at the hearing on Cynthia Mason‘s Rule 202 Petition to allow the Trial Court to make a finding that the benefit of taking the depositions of Relators outweighed the burden under Rule 202.

Relators have failed to present any law supporting their claim that it was inappropriate for the Trial Court to order the production of documents at these depositions.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Real Party in Interest, Cynthia Mason respectfully requests that this court DENY Relators‘ Petition for Writ of Mandamus and issue an order allowing the Depositions of Relators to continue under TEX. R. CIV. P. 202 as ordered by the Trial Court.

Respectfully submitted,

DAVIS LAW FIRM 10500 Heritage Blvd, Ste 102 San Antonio, Texas 78216 (210) 444-4444 Telephone (210) 785-0806 Facsimile

By: _/s/ Alan Braun _ JEFFREY R. DAVIS State Bar No. 05508350 ALAN BRAUN State Bar No. 24054488 ATTORNEYS FOR REAL PARTY IN INTEREST CYNTHIA MASON Jeffd@jeffdavislawfirm.com Alanb@jeffdavislawfirm.com

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that, excluding those parts allowed to be excluded, the above and foregoing Response of Real Party in interest contains 2717 words.

_/s/ Alan Braun _ Jeffrey R. Davis Alan Braun

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of February, 2015, I electronically filed the foregoing with the Clerk of Court and a true and correct copy of the foregoing document has been forwarded as follows:

Electronic Mail Lawrence D. Smith State Bar No. 18638800 Soña Ramirez State Bar No. 24040330 Mark A. McNitzky State Bar No. 24065730 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2700 Weston Centre 1200 E. Pecan Street San Antonio, Texas 78205 210-354-1300 210-277-2702 Larry.smith@ogletreedeakins.com Sona.ramirez@ogletreedeakins.com

Mark.mcnitzky@ogletreedeakins.com

RELATORS

The Honorable Judge Laura Salinas 166th Judicial District Court Bexar County Courthouse 100 Dolorosa, 2nd Floor San Antonio, Texas 78205 Via Mail And via Fascimile at 210-335-0594

RESPONDENT

_/s/ Alan Braun _ Jeffrey R. Davis Alan Braun