In re Prince, No. 14-06-00895-CV (Tex. App. 12/12/2006)

• Decision Date: 12 December 2006
• Docket Number: No. 14-06-00895-CV.,14-06-00895-CV.
• Parties: IN RE JAMES PRINCE, JR., Relator.
• Court: Texas Court of Appeals

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IN RE JAMES PRINCE, JR., Relator.

No. 14-06-00895-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed December 12, 2006.

Original Proceeding Writ of Mandamus.

Petition for Writ of Mandamus Conditionally Granted.

Panel consists of Justices FOWLER, EDELMAN, and FROST.

MEMORANDUM OPINION

PER CURIAM.

This case involves a Texas court's power to order an out-of-state deposition of a non-party witness in a California divorce proceeding. We hold that the trial court did not have the power to order a non-party witness to appear other than as specified by the Texas Rules of Civil Procedure and that the trial court's order requiring production of documents was overly broad. Accordingly, we conditionally grant the writ of mandamus.

I. BACKGROUND

Real Party Michael Harris demanded the deposition of Relator James Prince, a/k/a "Lil' J" for Rap-a-Lot Records, alleging that Prince has two sorts of information relevant to determining the assets of Harris's marital estate for the purposes of the division of property: (1) information about Prince's business dealings with "Suge" Knight, a person from whom the Harris estate obtained a $107 million dollar judgment, but who has filed for bankruptcy in California; and (2) information about Prince's relationship with Harris himself, because Harris claims to be entitled to some interest in Rap-a-Lot Records.

Because Prince resides in Houston, the California court in which the divorce proceeding is pending did not have the power to issue a subpoena to compel Prince to appear for a deposition. On September 16, 2005, the California court accordingly issued a commission requesting a Harris County court to issue a subpoena for the production of documents and for Prince's appearance for an oral deposition. The commission was filed in Harris County on September 19, 2005, and a subpoena issued the following day. Prince was not served, however, until nearly seven months later, on April 8, 2006, when he was located in Las Vegas at a boxing match.

Prince's deposition was scheduled for April 20, 2006. On April 19, 2006, Prince moved to quash and for protection. Presumably because he failed to file a motion to quash within three days of service, Prince appeared for the deposition notwithstanding his objection to it. Prince did not produce any of the documents that had been subpoenaed. In addition, although his counsel permitted him to answer many questions about Rap-a-Lot records in general and about Prince's relationship with Harris, counsel instructed Prince not to answer questions concerning any business relationship with Knight.

Harris moved to compel production and to compel the continued deposition of Prince. The trial court heard both motions on August 25, 2006. On September 19, 2006, the court granted the motion to compel, ordering Prince to re-appear for deposition and to produce responsive documents. Prince moved for modification of this order, claiming that it required him to produce more documents than were encompassed by the subpoena. Harris also moved for "reconsideration," basically reiterating the arguments made in his motion to compel. On reconsideration, after further hearing, the trial court again ruled for Harris, entering an order that Prince appear for a continued deposition on October 12, 2006 in California, and that Prince "produce documents relating to the assets of Michael Harris or Lydia Harris, including but not limited to the assets of Rap-a-Lot Records."

Prince petitioned this court for a writ of mandamus and an emergency stay on October 11. This court granted the stay and called for a response. Prince has since filed an amended petition for mandamus and Harris has filed an amended response. Additionally, Harris has filed a "Motion to Compel Service and Costs," claiming that Prince has not properly served him as required by the Texas Rules of Appellate Procedure.

II. Analysis

The two complaints that Prince raises about the court's orderCthe improper place for deposition and the breadth of the production orderCmay each be challenged by mandamus.

An order for discovery that is contrary to the Texas Rules is typically reviewable by mandamus. See Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex. 1988) (granting mandamus to overrule location of deposition of Sam Walton). Following Street, courts routinely permit mandamus review of cases alleging an improper location for a deposition.See, e.g., Grass v. Golden, 153 S.W.3d 659, 663 (Tex. App.-Tyler 2004, orig. proceeding) (issuing mandamus where record contained no evidence that place of deposition was convenient for witness); In re Rogers, 43 S.W.3d 20 (Tex. App.-Amarillo 2001, orig. proceeding) (issuing mandamus regarding the proper place for witness depositions).

In addition, a party may seek relief from overly broad discovery via a petition for mandamus. See In re American Optical, 988 S.W.2d 711, 713 (Tex. 1998) ("An order compelling discovery that is well outside the proper bounds is reviewable by mandamus."). The scope of discovery is largely within the discretion of the trial court. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). However, the trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).

There is no adequate appellate remedy in this case. Because Prince is not a party to the lawsuit, he has no right to appeal, and therefore no adequate appellate remedy. See City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex. App.-Houston [14th Dist.] 1995, orig. proceeding) (because the city was not a party to the lawsuit, it "has no adequate remedy by appeal, [and] mandamus may lie").

A. An Improper Place for Deposition

The trial court's order that the deposition of Prince, a non-party, occur in California is contrary to the express language of the Texas Rules. See TEX. R. CIV. P. 176.3(a) (distinguishing between parties and non-parties with respect to compelling a witness to appear for a deposition). As relevant here, the Texas Rules of Civil Procedure provide:

1. The request for a deposition, even though originating from a case pending in California, is governed by the Texas rules. See TEX. R. CIV. P. 201.2 ("If a court of record of any other state . . . issues a . . . commission that requires a witness's oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State.").

2. A subpoena is necessary to compel Prince's attendance at the deposition, because he is not a party to the proceeding. Texas procedure provides that non-party witnesses may be compelled to attend depositions only by subpoena. See TEX. R. CIV. P. 205.1 ("A party may compel discovery from a nonpartyCthat is, a person who is not a party or subject to a party's controlConly . . . by serving a subpoena compelling: (a) an oral deposition;").

3. By contrast, parties or persons controlled by parties can be compelled to attend a deposition via notice alone. TEX. R. CIV. P. 199.3 ("If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party's attorney has the same effect as a subpoena served on the witness.").

4. If a subpoena is necessary to compel attendance, it is limited geographically to 150 miles from a person's residence or the place of service. See TEX. R. CIV. P. 176.3 ("A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.")

5. Only parties or persons controlled by parties can be required to appear at locations outside of the 150 mile radius. See TEX. R. CIV. P. 176.3 ("a person whose appearance or production at a deposition may be compelled by notice alone . . . may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2)," e.g., at any "reasonable" location).¹

6. If a non-party deponent fails to appear for or answer questions during a deposition, a party may apply for an order compelling discovery in the court of the district where the deposition is proceeding. TEX. R. CIV. P. 215.1(a) & (b) ("An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.").

These rules provide the framework for a trial court's interaction with non-party witnesses. Although Harris properly moved to compel Prince's compliance with the subpoena and document request in the Texas court, Harris asked forCand the Texas court grantedCmore relief than the rules permit. Presumably due to the inconvenience occasioned by Prince's eleventh-hour motion to quash and his refusal to answer questions and produce documents, Harris requested relief that would minimize his own costs on his second attempt at Prince's deposition. He asked the trial court to either order that the deposition occur in California, where the original case is pending and Harris's lawyer practices, or order that Prince be required to pay Harris's costs of travel to Houston for a second deposition. The trial court, amenable to this request, accordingly ordered that the deposition go forward in Los Angeles and that Prince produce documents that the court determined were relevant.

Harris maintains that the trial court has the power to enter such an order because of the trial court's discretion to manage discovery, but Harris has no authority for this proposition. Instead, all of the cases that Harris cites upholding a district court's discretion over discovery matters have involved persons who clearly were controlled by parties to litigation.² This distinction is significant.

As the above discussion makes...