Opinion
No. 01-04-00049-CV
Opinion issued May 26, 2004.
On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 2003-08396.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
By petition for writ of mandamus, relator, Swift Energy Company, challenges the trial court's orders denying Swift's motion for protection and granting The Beach Energy Partnership, L.P. and The Beach Energy Group, L.L.C.'s, real parties in interest's, motion to compel the deposition of Terry Swift. We conditionally grant the writ.
Factual and Procedural Background
Beach sued Swift Energy for breach of contract in connection with oil and gas exploration. Beach indicated that it intended to depose Terry Swift, the president and chief executive officer of Swift Energy. Swift Energy refused to produce Swift for deposition, and Beach filed a motion to compel deposition. In response, Swift Energy filed its opposition to the motion to compel and a counter-motion for protective order seeking to preclude Swift's deposition, contending that Swift was entitled to protection from this "apex" deposition. The trial court granted Beach's motion to compel the deposition and denied Swift Energy's motion for protective order.
Apex Deposition
In its sole point of error, Swift Energy alleges that the trial court abused its discretion by refusing to grant Swift Energy's motion for protection and in granting Beach's motion to compel.
In ordering or preventing an apex deposition, a trial court must follow Crown Central's framework. In re Daisy Mfg. Co., Inc., 17 S.W.3d 654, 657 (2000). Under Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995), if a discovering party cannot arguably show that a high-level official has unique or superior knowledge of discoverable information, the trial court must grant a motion for protection, "and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods." Id. at 128. The discovering party may thereafter depose the apex official if, after making a "good faith effort to obtain the discovery through less intrusive methods," the party shows that (1) there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence and (2) the less-intrusive methods are unsatisfactory, insufficient or inadequate. In re Daisy Mfg. Co., Inc., 17 S.W.3d at 657.
In his affidavit, Swift testified that he had "no unique or superior personal knowledge about the events" in the case. Furthermore, there has been no showing that less-intrusive methods of discovery have been unsatisfactory, insufficient, or inadequate to obtain the requisite information. In fact, as Swift testified in his affidavit, there is at least one individual who would have superior knowledge to his of the facts relevant to this lawsuit. As the affidavit states, Swift Energy's involvement in the oil well in question was
directly managed through the Land and Exploration Departments of the Company, and decisions pertaining to the Company's activities in connection with that property were delegated to senior management level executives and specifically to or under the direction or supervision of Joseph A. D'Amico, Executive Vice-President and Chief Operating Officer for the Company.
There is nothing in the record indicating that Beach has conducted any discovery regarding Mr. D'Amico's knowledge of the facts of this lawsuit or the results of this discovery. Because Beach failed to demonstrate that Swift had "unique or superior personal knowledge" and because there is no evidence showing that less-intrusive methods of discovery are unsatisfactory, insufficient or inadequate, the trial court abused its discretion by denying the protective order and granting the motion to compel.
Conclusion
We conditionally grant Swift Energy's petition for writ of mandamus. We are confident that the trial court will vacate its order in accordance with this opinion. We instruct our clerk to issue the writ only if the trial court fails to comply with this opinion.