in Re Asplundh Tree Expert Co. ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00782-CV
In re Asplundh Tree Expert Co.
ORIGINAL PROCEEDING FROM BASTROP COUNTY
MEMORANDUM OPINION
Relator Asplundh Tree Expert Co. has filed a petition for writ of mandamus related
to a lawsuit arising out of the 2011 fires in Bastrop County in which the real parties in interest
contend, among other things, that Asplundh bears at least some responsibility for the fires and
breached its contract with real party in interest Bluebonnet Electric Cooperative. Asplundh argues
that the trial court erred in denying its motion to quash and allowing the real parties in interest to
take apex depositions of George Graham, Asplundh’s president, and Dennis Stapola, Asplundh’s
vice-president and director of risk management, both of whom are based out of Asplundh’s home
office in Pennsylvania. Because the real parties in interest did not satisfy their burden of showing
the necessity for the apex depositions, the trial court abused its discretion in denying Asplundh’s
motion to quash. We conditionally grant mandamus relief. See Tex. R. App. P. 52.8.
A party seeking to conduct an apex deposition must show that the official has unique
or superior knowledge of discoverable information.1 In re Alcatel USA, Inc., 11 S.W.3d 173, 175-76
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It is apparent from the record that the parties and the trial court agreed that the rules
governing apex depositions apply to Graham and Stapola, given their places in Asplundh’s corporate
hierarchy. We will assume likewise for purposes of this mandamus proceeding.
(Tex. 2000). If there is no showing of unique or superior personal knowledge, the party must
show that it made a good faith effort to obtain the discovery through less intrusive means, that the
deposition will likely lead to admissible evidence, and that less intrusive means of discovery are
unsatisfactory, insufficient, or inadequate. Id.
The real parties in interest have not shown that Graham or Stapola have unique or
superior knowledge of discoverable, relevant information because it appears from the record that
their involvement in the underlying facts arose solely after the fires occurred. In an email from
Stapola to Thomas Ellis, the chief engineer of real party in interest Bluebonnet Electric Cooperative,
Stapola states that Asplundh would have an arborist inspect the tree limb that is suspected to have
started the fire and then says “we” would like to come to Ellis’s office to discuss “the recent fires
and Asplundh’s work with Blue Bonnet pre and post the fires.” The real parties in interest argue that
this email shows that Stapola has relevant, pre-fire knowledge. However, they have not shown that
Stapola was actually present at the meeting or whether “we” simply refers to Asplundh and
Bluebonnet employees in general. Further, there is no indication that the information produced at
the meeting would somehow be solely within Stapola’s personal knowledge, nor have the real
parties in interest shown that they attempted to discover the information through less intrusive
means, such as seeking reports from or the deposition of the arborist or other Asplundh employees,
or that less intrusive discovery would be unsatisfactory, insufficient, or inadequate. See id. The real
parties in interest have failed to demonstrate on the whole that the depositions of Graham or Stapola
would potentially yield discoverable information or that they have sought such information through
less intrusive means that have proved inadequate. See id.
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We therefore hold that the trial court erred in denying Asplundh’s motion to quash
the apex depositions and conditionally grant relief. Writ will issue only in the unlikely event that
the trial court does not act in accordance with this opinion.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Concurring Opinion by Justice Field
Filed: February 5, 2014
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