In re Reassure Am. Life Ins. Co.

• Decision Date: 13 November 2013
• Docket Number: No. 13–13–00431–CV.,13–13–00431–CV.
• Citation: 421 S.W.3d 165
• Parties: In re REASSURE AMERICA LIFE INSURANCE COMPANY.
• Court: Texas Court of Appeals

421 S.W.3d 165

In re REASSURE AMERICA LIFE INSURANCE COMPANY.

No. 13–13–00431–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Nov. 13, 2013.

Elizabeth G. Bloch, Husch Blackwell LLP, Austin, Chad A. Johnson, Richard A. Illmer, Husch Blackwell LLP, Dallas, for Relator.

Keith C. Livesay, McAllen, Roberto (Bobby)Rene Garcia, Law Office of Bobby Garcia, Edinburg, for Real Party in Interest.

Before Justices Rodriguez, Benavides, and Longoria Opinion by Justice

Rodriguez.¹

OPINION

NELDA V. RODRIGUEZ, Justice.

By petition for writ of mandamus, Reassure America Life Insurance Company(“Reassure”) seeks to compel the trial court² to vacate its order granting presuit depositions under Texas Rule of Civil Procedure 202. SeeTex.R. Civ. P. 202.We conditionally grant relief.

I.Background

Real party in interest, Rene A. Garcia, filed a petition in his county of residence seeking to take presuit depositions.The petition, entitled “Petition Requesting Oral Depositions and Subpoena Duces Tecum (for documents) to Investigate Potential Claim or Suit,” is filed against Reassure and states in relevant part:

[Garcia] ... asks the court for permission to take depositions by oral examination to obtain testimony to investigate a potential claim as allowed by Texas Rule of Civil Procedure 202.

1.[Garcia] ... is an individual who resides in Hidalgo County, Texas.

2.The person(s) that are sought to be deposed are the person(s) with knowledge regarding the following:

a. The entire file regarding the policy number MP0153991, and the policy number MP0153991;

b. All aspects of the agreement between [Garcia] and [Reassure] including but not limited to any negotiations leading up to its execution, the obligations of [Reassure], and the insurance policy;

c. All aspects of [Reassure's] policy, procedures, and manual;

d. Knowledge about the agreement also referred to as delivery agent services agreement;

e. Knowledge about the sale of policy number MP0153391; and

f. Knowledge about the corporate structure of [Reassure].

Garcia further alleged that he sought to obtain the depositions “for use in an anticipated suit in which [he] may be a party,” the “subject matter of the anticipated suit is with regard to the policy number MP0153991 belonging to [Garcia],” and [his]“interest in the anticipated suit is that he holds potential legal causes of action.”Garcia alleged that the “substance of the information and testimony [he] expects to elicit from the persons involves business records, and any and all information regarding the names of employees who were working at the time of the incident, and any information pertaining to the incident made the basis of this cause.”Garcia stated that the requested depositions “may prevent a failure or delay of justice in an anticipated suit.”Garcia further requested the court to order the persons with knowledge to produce documents as follows:

1).The entire file regarding the policy number MP0153991, and the policy number MP0153991;

2).The company procedure underwriting manual of [Reassure];

3).The life insurance policy belonging to [Garcia], referenced policy number MP0153991; and

4).Detailed explanation of the cash value and face value that applies to [Garcia's] policy.

Reassure filed an objection to the petition in which it asserted, inter alia, that the petition fails to comply with Texas Rule of Civil Procedure 202 because it fails to provide any factual background or the reasons for the requested depositions and documents; the significant burden and expense of the requested depositions outweigh any likely benefits; there is no injustice or possible delay that would require the requested depositions; the request for depositions is not reasonably tailored to include only relevant matters; and its current underwriting policy is a confidential and proprietary trade secret.

After a non-evidentiary hearing, the trial court granted the petition.The trial court's order provides in pertinent part as follows:

[T]his Court ... finds: 1) that allowing the requested discovery may prevent a failure or delay of justice in the anticipated suit, and/or; 2) that the likely benefit of allowing [Garcia] to take the requested depositions to investigate a potential claim outweighs the burden or expense of the procedure.

IT IS THEREFORE ORDERED that [Garcia] may take the depositions by oral examinations of the person(s) with knowledge and that they produce documents 30 days prior to the taking of the first scheduled deposition.

IT IS ORDERED that the persons with knowledge regarding the following subjects be deposed:

a. The entire file regarding the policy number MP0153991, and the policy number MP0153991;

b. All aspects of the agreement between [Garcia] and [Reassure] and the predecessor entities that consummated or owned the policy in question, including but not limited to any negotiations leading up to its execution, and the obligations of [Reassure] and the predecessor entities that consummated or owned the policy in question;

c. All aspects of [Reassure's](and the predecessor entities that consummated the contract) policies, procedures, and manual that existed at the time of the consummation of the policies at issue and today;

d. Knowledge about the agreement also referred to as delivery agent services agreement;

e. Knowledge about the sale of policy number MP0153391 to [Garcia];

f. Knowledge about the sale of policy number MP0153391 by the predecessor entity that consummated the contract to [Reassure].Note, this is knowledge about the sale on the secondary markets of the policy in question;

g. Knowledge about the corporate structure of [Reassure] and the predecessor entities that consumed [sic] or owned the policy in question;

h. Knowledge about the mergers and acquisitions of the predecessor entities in question and by [Reassure]; and

i. Knowledge about the liability [Reassure] incurred from its predecessor entities that owned policy number MP0153991.

....

IT IS ORDERED that the following documents be produced 30 days from the signing of this order:

a. The entire file regarding the policy number MP0153991, and the policy number MP0153991;

b. All collateral agreements (contracts) to the agreement between [Garcia] and [Reassure] and the predecessor entities that consummated or owned the policy in question, including but not limited to any negotiations leading up to its execution, evaluations by risk management and the obligations of [Reassure] and the predecessor entities that consummated or owned the policy in question;

c. All [Reassure's](and the predecessor entities that consummated the contract) policies, procedures, and manuals that existed at the time of the consummation of the policies at issue and today with respect to sales, underwriting and insured rights to access to their policies and policy information;

d. The delivery agent services agreement;

e. The sales policy and procedural manual of policy number MP0153391 to [Garcia];

f. The documents reflecting the sale of policy number MP0153391 by the predecessor entity that consummated the contract to [Reassure].Note, these are documents about the sale on the secondary markets of the policy in question;

g. Documents with regard to the corporate structure and the changes of [Reassure] and the predecessor entities that consumed or owned the policy in question;

h. Documents reflecting the mergers and acquisitions of the predecessor entities in question and by [Reassure]....

i. Documents reflecting the liability [Reassure] incurred from its predecessor entities that owned policy number MP0153991.If there is an Asset/Purchase agreement or similar document it must be produced[; and]

j. The underwriting manuals of [Reassure] and the predecessor entities that consummated the contract/policy in question.

This original proceeding ensued.By one issue, Reassure contends that the trial court abused its discretion in granting the petition for presuit depositions.The Court requested and received a response to the petition for writ of mandamus from Garcia, and received a reply from Reassure.

II.Standard for Mandamus Review

Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal.In re Frank Motor Co.,361 S.W.3d 628, 630–31(Tex.2012)(orig. proceeding);In re Prudential Ins. Co. of Am.,148 S.W.3d 124, 135–36(Tex.2004)(orig. proceeding).“A trial court has no discretion in applying the law to the facts or determining what the law is.”In re Prudential Ins. Co. of Am.,148 S.W.3d at 135.We assess the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments.In re State,355 S.W.3d 611, 614–15(Tex.2011)(orig. proceeding);In re Team Rocket, L.P.,256 S.W.3d 257, 262(Tex.2008)(orig. proceeding).In performing this balancing, we look at a number of factors including whether mandamus review “will spare litigants and the public ‘the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ”In re State,355 S.W.3d at 615(quotingIn re Prudential Ins. Co. of Am.,148 S.W.3d at 136).

An improper order under Rule 202 may be set aside by mandamus.In re Wolfe,341 S.W.3d 932, 933(Tex.2011)(orig. proceeding);In re Jorden,249 S.W.3d 416, 420(Tex.2008)(orig. proceeding);In re Emergency Consultants, Inc.,292 S.W.3d 78, 80(Tex.App.-Houston[14th Dist.]2007, orig. proceeding);In re Hewlett Packard,212 S.W.3d 356, 360(Tex.App.-Austin 2006, orig. proceeding)).³In this regard, we note that depositions, once taken, cannot be “untaken,”seeIn re Jorden,249 S.W.3d at 419, and mandamus has historically issued for discovery that is “well outside the proper bounds.”In re Am. Optical Corp.,988 S.W.2d 711, 713(Tex.1998)(orig. proceeding);see alsoIn re Chernov,399 S.W.3d 234, 235(Tex.App.-San Antonio 2012, orig. proceeding)(holding that a party to a Rule 202 proceeding has no adequate remedy by appeal...