in Re: EMR (USA Holdings) Inc., Gold Metal Recyclers, LTD., and David Ferguson ( 2019 )

Denied and Opinion Filed March 14, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00286-CV
IN RE EMR (USA HOLDINGS) INC., GOLD METAL RECYCLERS, LTD.,
AND DAVID FERGUSON, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-00835
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Osborne
In this original proceeding, relators EMR (USA Holdings), Inc., Gold Metal Recyclers,
Ltd., and David Ferguson complain that the trial court granted real party in interest Champion
Waste & Recycling Services, LLC’s request for Rule 202 discovery, including allowing the
depositions of relators’ corporate representatives and the deposition of Ferguson, and compelling
production of five categories of documents. Relators are anticipated defendants in Champion’s
contemplated litigation. Mandamus is, therefore, the proper vehicle by which to seek the relief
requested. In re Jorden, 249 S.W.3d at 419; In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex.
App.—Austin 2006, orig. proceeding). To be entitled to mandamus relief, a relator must show
both that the trial court has clearly abused its discretion and that relator has no adequate appellate
remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
If a trial court grants Rule 202 relief, it must expressly find that (1) allowing the petitioner
to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a
potential claim outweighs the burden or expense of the procedure. TEX. R. CIV. P. 202.4(a)(1)–(2);
In re Dallas Cty. Hosp. Dist., No. 05–14–00249–CV, 2014 WL 1407415, at *2 (Tex. App.—Dallas
Apr. 1, 2014, orig. proceeding) (mem. op.). The petitioner bears the burden of producing evidence
to support the necessary finding. In re Glob. Experience Specialists, Inc., No. 05-18-01382-CV,
2018 WL 6167838, at *1 (Tex. App.—Dallas Nov. 26, 2018, orig. proceeding) (mem. op).
Based on the record before us, we conclude relators have not shown they are entitled to the
relief requested because the mandamus record does not show a clear abuse of discretion.
Accordingly, we deny relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the
court must deny the petition if the court determines relator is not entitled to the relief sought).
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
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