A divided Fifteenth Court of Appeals has partially granted Google’s petition for a writ of mandamus to order trial courts in Midland and Victoria to compel the deposition of the State of Texas in enforcement actions against Google.
In In re Google, LLC (No. 15-24-00087-CV; January 16, 2025), the State sued Google in Midland and Victoria alleging violations of the DPTA and the Texas Capture or Use of Biometric Identifier Act (§ 503.001, Business & Commerce Code). Google noticed the deposition of the State for an oral deposition, seeking to depose the State on 18 topics in the Midland case and 32 in the Victoria case. The State moved to quash and obtained an automatic stay under Texas Rule of Civil Procedure 199.4. In the Midland case, Google also noticed the deposition of OAG on the same 18 topics. Once again, the State moved to quash and obtained the automatic stay. Google responded by filing a motion to compel, which the State opposed on the ground that Rule 199 does not permit a deposition of a representative of the State. Alternatively, the State asserted privilege and duplication of written discovery. The trial courts denied Google’s motion and, consequently, did not address the scope of Google’s requests. Google sought mandamus relief.
In an opinion by Justice Field, joined by former Austin Court of Appeals Chief Justice Woody Jones, sitting by assignment, the court concluded that Rule 199 allows a party to depose a representative of the State. First, Rule 199.1 allows a party to take the deposition of “any person or entity,” which includes the State. In response to the State’s attempt to evade deposition under Rule 199.2 because it is not a “governmental agency,” the court noted that the rule “also includes the right to notice the deposition of any ‘other organization,’ which, when read in harmony with the broad language of Rule 199.1, is consistent with the rule that a party is entitled to the deposition of ‘any person or entity.’”
Chief Justice Brister’s dissent concurred with the State’s argument that “Google’s deposition notice necessarily means that counsel for the State, the Office of the Attorney General, will have to testify on behalf of the State.” The majority, however, pointed out that the State is free to designate “who will testify in response to an organizational deposition notice; in fact, a party may designate different individuals to testify on each individual topic if it so chooses.” In other words, it’s up to the State whether it wants its own counsel to testify, not Google or anyone else. Having determined that the State could be deposed under Rule 199, the majority turned to an analysis of whether the State, as the party resisting discovery, carried its burden “to plead and prove to the trial court the basis for its objections to the deposition, including any evidence necessary to support its position” (citation omitted). It concluded that the State did not carry this burden on at least some of the requested topics because it didn’t present any evidence at all, nor did it “make an objection that could have stood on its own, without evidence, such as relevance or overbreadth.” In this context, the trial courts abused their discretion by simply denying Google’s motions to compel. And Google has no adequate remedy on appeal “because its inability to take the deposition of the only party suing it on subjects that the plaintiff admits are relevant goes to the very heart of Google’s ability to mount a defense to the allegations against it, and because a reviewing court will be unable to evaluate the effect of the trial court’s denial of discovery from the state” (citations omitted).
But, although Google gained its primary objective in the court’s ruling that State can be deposed, its victory on that point does not necessarily mean that the State will eventually be deposed. That will depend on what the trial courts do next in terms of narrowing Google’s deposition requests or ruling on the State’s motions to quash on specific deposition topics. The court also nixed Google’s request to depose the OAG on the basis that the attorney general is not a party but a separate agency that represents the State in the lawsuit. To get at the OAG, the proper procedure would involve a third-party subpoena, which Google did not attempt.
Chief Justice Brister’s dissent suggests that as an alternative to forcing the State to sit for a deposition, it should first seek answers to mandated disclosures (which Google contends “have been inadequate”). If the State doesn’t come clean, it would constitute an abuse of the discovery process that the trial court could remedy by “compelling full disclosure … or barring introduction of evidence that should have been disclosed.” Since Google has exhausted these possibilities, Justice Brister would not extend mandamus relief at this time.
It seems likely that the OAG will take the issue of whether the State is covered by Rule 199 to SCOTX. From our perspective, it seems fundamentally unfair that a business should have the whole weight to the State’s enforcement power brought down upon it without at least having the same tools to defend itself as every other civil defendant has. This case has a “King’s X” feel about it that should be worrisome to the business community. As a plaintiff in a civil enforcement action, the State is in the same position as any other plaintiff, and we see no rationale for exempting it from the same rules everybody else has to play by.
