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Sep 07 2016

Texas Courts Have Limited Power to Restrict Discovery in Support of Out of State Cases

September 7, 2016 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

If a court of another state authorizes the deposition of a Texas resident, a Texas court cannot quash that deposition on the grounds that any testimony would be irrelevant in the underlying case, at least according to a Texas intermediate appellate court, the 14th Court of Appeals (“COA”).  According to the COA, only the court in the underlying case can make the determination that the expected testimony will be irrelevant or otherwise not discoverable.  In the Matter of the Issuance of Subpoenas to Darrell D. Bennett, et al.

Texas Court Quashed a Deposition Ordered by a Wyoming Court

The court in an underlying Wyoming case granted a request to take the depositions of Bennett and three other Texas residents.  Following standard procedure, the party from Wyoming filed in a Texas district (trial level) court the Wyoming documents, allowing the depositions.  Bennett and the others objected to the depositions before the Texas district court, and that court quashed one deposition and severely limited the time for the other three.

The party from Wyoming appealed, and the COA reversed the trial court’s decision to quash one deposition and limit the time for the other three.  The COA sent the matter back to the trial court for further proceedings.

Only the Underlying Court Could Hear the Relevance Objection

As to the Texas resident for whom the trial court quashed the deposition, on the grounds that this testimony would be irrelevant, the COA said that the trial court had no authority to do so.  Only the court in Wyoming hearing the underlying case could preclude the deposition entirely, based on a relevancy analysis.

As Parties Resisting Discovery, Texas Residents Had the Burden

As to the other three Texans, the COA said that the Texas residents needed to submit evidence to show that the time restrictions were necessary.  Texas law places on those resisting discovery the burden to supply supporting evidence that the discovery should be limited because it will be cumulative, duplicative, annoying, harassing, or an undue burden.  The COA stated that the record contained unsupported allegations, but no evidence, to support their claim that the limitations on their depositions were necessary.

Consider Opposing the Discovery in the Underlying Court

Texas residents who want to resist depositions or other discovery in support of out of state litigation should consider raising objections in the underlying court.  While this will entail the cost of hiring counsel to appear in the other state, the judge in that state will be able to consider arguments that the Texas courts may be unable to consider.  Moreover, Texas places certain burdens on the parties resisting discovery; other states may have more favorable procedures for resisting.

Had the Wyoming court made the same determinations that the Texas trial level court made in this case, the COA would have had no basis to disturb those determinations.

For a copy of the Court’s opinion click here.

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