Court of Appeals of Texas, Eighth District, El Paso
Original Proceeding In Mandamus
Chew, C.J., McClure, and Carr, JJ.
WELLINGTON CHEW, CHIEF JUSTICE
Celadon Trucking Services, Inc. (Celadon) seeks mandamus
relief from an order entered by the Honorable Patrick M.
Garcia, Judge of the 384th District Court of El Paso County,
denying a motion to quash the notice of deposition of its
Chief Executive Officer Stephen Russell. We find that the
real parties in interest did not establish that Mr. Russell
has any unique or superior knowledge of facts in the
underlying case; therefore, we will conditionally grant the
mandamus proceeding arises out of an employment dispute filed
by former Celadon Trucking employees, Mario Martinez and
Manuel Luna. Mr. Martinez and Mr. Luna, both ElPaso
residents, were employed by Celadon as truck drivers. The two
men suffered serious injuries when a tire on the Celadon
tractor trailer they were driving failed and caused a
collision. Both men were initially treated for their injuries
in El Paso. Celadon later moved both men to a company-owned
location in Indiana where they received further treatment,
and where their employment was ultimately terminated.
to the petitions, Celadon contacted Mr. Martinez and Mr.
Luna's medical providers in El Paso without authorization
and obtained medical releases for the men to travel. Once
they arrived in Indiana, the men allege they were forced to
live in substandard company housing, where their complaints
regarding the living conditions were ignored. Mr. Martinez
and Mr. Luna also claim their Indiana physicians ignored
their medical complaints, and ultimately the company
discontinued their medical benefits. Both claim Celadon
coerced them into signing legal documents, which they could
not read, and did not understand. Celadon then paid each man
what the company referred to as a "settlement"
under Indiana law, and terminated their employment.
Martinez and Mr. Luna brought suit against Celadon under a
variety of theories of liability including: fraud;
negligence; intentional infliction of emotional distress;
false imprisonment; invasion of privacy; conspiracy; and
wrongful termination. During discovery, they served a notice of
intention to take the deposition of Mr. Stephen Russell,
Celadon's chief executive officer. Celadon responded by
filing a motion to quash the notice, arguing that Mr. Russell
was entitled to protection under the guidelines of Crown
Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex.
1995). In an affidavit filed in support of the motion, Mr.
Russell stated that he has no personal knowledge of facts
relevant to the lawsuit.
response to Mr. Russell's affidavit, Mr. Martinez and Mr.
Luna submitted deposition testimony from the chairman of the
Indiana Worker's Compensation Commission, G. Terrence
Coriden. According to Mr. Coriden's testimony,
Celadon's top executive attended a meeting with members
of the commission sometime in the late 1990's to discuss
Celadon's application to become self-insured within the
Indiana worker's compensation system. The Celadon
executive, was accompanied by several company attorneys at
the meeting. In support of the company's application for
self-insurance, the Celadon official explained the
organization's practice of treating employee injuries in
company dormitories. During the meeting, Mr. Coriden
explained that only Indiana's top employers were approved
for self-insurance by the commission, and he expressed
concerns regarding Celadon's dormitory system and its
ability to provide adequate treatment for employees who were
not residents of Indiana. Celadon's application for
self-insurance was later approved, in part based on
assurances made by the Celadon executive who attended the
meeting. Mr. Martinez and Mr. Luna maintain Mr. Coriden's
testimony rebutted Mr. Russell's statement that he has no
unique or superior knowledge of facts related to their
claims. They argue, Mr. Coriden's testimony established
that Mr. Russell has knowledge of statements made to the
Commission which are relevant to their claims against
Celadon. The trial court agreed, and denied Celadon's
motion to quash. Celadon argues the trial court's order
violates the apex depositions guidelines, and is subject to
mandamus relief pursuant to Crown Central.
by writ of mandamus is only appropriate to correct a clear
abuse of discretion. See Walker v. Packer, 827
S.W.2d 833, 839-40 (Tex. 1992)(orig. proceeding); In re
El Paso Healthcare Sys., 969 S.W.2d 68, 72 (Tex.App.--El
Paso 1998, orig. proceeding). In addition, there must be no
other adequate remedy at law. Walker, 827 S.W.2d at
abuse of discretion, warranting correction by mandamus,
occurs when a court issues a decision which is without a
legal basis, or support in guiding principles of law. See
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex. 1985)(orig. proceeding). With respect to the resolution
of fact issues or matters committed to the trial court's
discretion, a reviewing court may not substitute its judgment
for that of the trial court. Walker, 827 S.W.2d at
839-40. The realtor must therefore establish that the trial
court could reasonably have reached only one decision.
Id. Even if the reviewing court would have decided
the issue differently, it cannot disturb the trial
court's decision unless it is shown to be arbitrary and
unreasonable. Id. On the other hand, a trial court
has no "discretion" in determining what the law is
or in applying the law to the facts. Braden v.
Marquez, 950 S.W.2d 191, 193 (Tex.App.--El Paso 1997,
orig. proceeding). Thus, a clear failure to analyze or apply
the law correctly will constitute an abuse of discretion, and
may result in appellate reversal by extraordinary writ.
In re: El Paso Heathcare Sys., 969 S.W.2d at 72. A
writ of mandamus is the proper vehicle to attack an order
granting discovery. Id.
a party is entitled to discovery that is relevant to the
subject matter of the claim, and which appears reasonably
calculated to lead to the discovery of admissible evidence.
See Tex.R.Civ.P. 192.3(a); Crown Central
Petroleum Corp., 904 S.W.2d at 127. Parties are
generally permitted to take the deposition of, "any
person." Id. The person noticed for deposition,
however, has the right to protection from, "undue
burden, unnecessary expense, harassment or annoyance, or
investigation of personal, constitutional, or property
rights." See In re: El Paso Healthcare
Corp., 969 S.W.2d at 72-3.
the discovering party seeks to depose a high level corporate
official, the official (or the corporation on the
official's behalf), may file a motion for protective
order to prohibit the deposition under the Crown
Central guidelines. See In re: Alcatel USA,
Inc., 11 S.W.3d 173, 175 (Tex. 2000)(orig. proceeding).
A party initiates the protections of the apex deposition
doctrine by moving for a protective order to prevent the apex
official's deposition. Id. The motion should be
supported by the official's affidavit denying any
knowledge of relevant facts. Id. The burden then
shifts to the discovery proponent to arguably show that the
official has any, "unique or superior personal knowledge
of discoverable information." Id. at 175-76. If
the discovering party is unable to make such a showing, the
trial court should grant the motion. Id. at 176.
Thereafter, the deposition should not go forward absent a
demonstration by the discovering party that: (1) there is a
reasonable indication that the official's deposition is
calculated to lead to the discovery of admissible evidence;
and (2) that less intrusive means of discovery are
unsatisfactory, insufficient, or inadequate. Id.
sole issue presented for review, Celadon argues the trial
court clearly abused its discretion by denying the motion for
protective order filed to prevent Mr. Russell's
deposition. According to the affidavit attached to
Celadon's motion, as C.E.O. of Celadon Trucking, Mr.
Russell was not involved with the day-to-day management of
individual truckers. Mr. Russell further stated that he had
no personal knowledge of facts related to the lawsuit as he
did not directly supervise or control the activities of Mr.
Luna or Mr. Martinez. He was not aware of the worker's
compensation claims filed by Mr. Luna and Mr. Martinez until
the lawsuits were filed, and did not participate in any
decision making regarding how those claims would be handled
by the company. He concludes by stating that he has no unique
or personal knowledge of discoverable information related to
real parties in interest do not dispute that this deposition
was sufficient to support Celadon's motion. The primary
dispute is whether excerpts from Mr. Coriden's deposition
arguably shows that Mr. Russell has any unique or superior
personal knowledge of discoverable information. An individual
has unique or superior knowledge when he or she is the only
person with personal knowledge of the information sought or
that arguably possesses ...