In a per curiam opinion delivered on October 22, the Texas Supreme Court conditionally granted a writ of mandamus directing a Dallas district court to vacate its order compelling a corporate defendant to produce a high-level corporate representative for oral deposition. In re American Airlines, Inc. (No. 20-0789) arose from a suit filed by an airline passenger alleging that a gate agent improperly accessed his personal information and used it to harass him via text, email, and phone messages. Right before the discovery deadline, the plaintiff served American with deposition notices for the Executive Vice President for People and Communications (EVP) of American Airlines Group, Inc., American’s parent company. The plaintiff conceded that the EVP, a member of the six-member executive leadership team, is an apex deponent.
American moved to quash on the basis that the EVP had no unique or superior knowledge of any relevant matter and responded to the plaintiff’s motion to compel with the EVP’s affidavit stating that she had no personal knowledge of the relevant facts at all. American offered another corporate representative for deposition, which plaintiff refused. He continued to allege that the EVP’s online biography, which listed her responsibilities for employee communications and social media (among other things) substantiated his motion to compel. The trial court denied American’s motion to quash and request for a protective order and granted the plaintiff’s motion to compel. The court, however, ordered the plaintiff to serve a new notice of deposition stating with reasonable particularity the matters on which the EVP’s testimony was sought. The trial court’s order somehow went astray, so neither party received it for four months. Even so, the plaintiff never served the new notice. Eight months after that, after an unsuccessful court-ordered mediation and a December 2020 trial setting, American sought a writ of mandamus from the Dallas Court of Appeals. The court of appeals denied the petition, holding that American’s year-long “unexplained” delay in petitioning for mandamus warranted denial. American sought mandamus relief from SCOTX.
American’s petition argues the four-month delay in receiving the trial court’s order and the plaintiff’s lack of diligence in serving a new deposition notice as ordered by the trial court justified its own delay. The Court accepted this explanation, noting that a new trial setting in December 2021 necessitated American’s request for relief to avoid delaying the trial once again. The court of appeals thus erred in holding that American’s delay was “unexplainable” and “unreasonable” (citing In re Int’l Profit Assocs., Inc., 274 S.W.3d 672 (2009)). The Court likewise rejected the plaintiff’s argument that American had an adequate remedy by way of a permissive interlocutory appeal under §51.014(d), CPRC, which authorizes a trial court to grant interlocutory appeal on a controlling issue of law on which a substantial ground for disagreement exists or when an immediate appeal may materially advance the ultimate termination of the litigation. Even if the Court had not “repeatedly found an adequate appellate remedy lacking when a trial court erroneously compels an apex deposition,” the test for a permissive appeal would not be met in this case.
The Court’s opinion is particularly valuable for its analysis of the law governing apex depositions. The analysis commenced with the test pronounced in Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995). In Crown Central, the Court held that the trial court must first determine whether the party seeking to depose a corporate president or high-level corporate official “has arguably shown that the official has any unique or superior personal knowledge of discoverable information.” Crown Central at 128. If the party cannot make that showing, the trial court must grant a protective order and require the party to make a good faith attempt to obtain the discovery through less intrusive methods. If after making that good faith effort the deposing party still wants to depose the apex official, the party must establish “(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.” Id.
Here the Court found that the plaintiff failed to satisfy the Crown Central test and that the trial court clearly abused its discretion in not requiring the plaintiff to do so. In her affidavit, the EVP stated that she had no knowledge of relevant facts, thereby precluding the trial court from determining that she had “unique or superior personal knowledge.” A description of job duties in an online biography may show general knowledge of company policies, but it is not independently sufficient to meet the test. The plaintiff also failed to attempt less intrusive methods of discovery, refusing American’s offer to depose a corporate representative (doing so would have at least shown a good faith attempt) and neglecting to make any reasonable effort to obtain discovery. There is some indication in the opinion that the plaintiff pushed his deposition notice right up against the discovery deadline to prevent American from timely filing the EVP’s affidavit. As the Court states rather pointedly, “[B]rinksmanship discovery tactics cannot deprive an opposing party of the right to seek protection.” The Court likewise admonished the trial court for denying relief because American did not attach the EVP’s affidavit to its initial motion for a protection order, having attached it instead to its prior opposition to the motion to compel and its subsequent motion to quash. The Court, taking a substance over form line, ruled that as long as the affidavit was before the Court prior to the hearings on American’s motions, American properly invoked the apex doctrine.
The odd facts of this case, particularly the plaintiff’s conduct in declining to depose the corporate representative American offered and doing little else to move the case along, might make it a less than ideal candidate for the lengthy analysis the Court has bestowed upon it. But it certainly sends a loud and clear signal to lazy plaintiff’s lawyers who pull information about corporate officers off the Internet as the basis for an apex deposition request. Additionally, it takes aim at the lackadaisical way in which the court of appeals handled the case, as well as the utter failure of the trial court to even attempt to apply the law. The unfortunate fact that the case comes from a Dallas trial court and the Dallas Court of Appeals reinforces the perception that all is not well in the courts of Dallas County.