In re Francis Anthony Check and Michael S. Box--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00801-CV
IN RE Francis Anthony CHECK and Michael S. Box
Original Mandamus Proceeding (1)

PER CURIAM

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: December 12, 2007

 

PETITION FOR WRIT OF MANDAMUS DENIED

In this original mandamus proceeding, Francis Anthony Check, a defendant and counter-plaintiff below, and his lawyer Michael S. Box request a writ of mandamus directing the trial court to quash Box's deposition. We deny the petition for the following reasons.

Check was sued by his former employers, Southwest Olshan Foundation Repair Company, L.L.C. and Olshan Foundation Repair Company of Dallas, L.P., for conversion, business disparagement, and tortious interference with contractual relations. The Olshan entities alleged Check provided Box and others confidential and proprietary information. Check retained Box to represent him, notwithstanding Box's involvement in the events forming the basis of the suit. The Olshan entities sought to depose Box on issues related to their case-in-chief, namely damages and causation, and on issues related to Check's counterclaim, which directly involves Box's law firm. Check then moved to quash Box's deposition, asserting both the work product and attorney-client privileges. The trial court refused to quash the deposition. (2)

Generally, mandamus issues to correct a discovery ruling only when the trial court commits a clear abuse of discretion and the relator lacks an adequate appellate remedy. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). The burden of establishing both prerequisites to mandamus relief is on the party resisting discovery. In re CSX Corp., 124 S.W.3d at 151 (citing Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding)).

The relators did not meet their burden. First, the relators' petition did not establish a clear abuse of discretion by the trial court. A lawyer may be deposed when he is a fact witness in a case. See Smith, Wright & Weed, P.C. v. Stone, 818 S.W.2d 926, 928 (Tex. App.--Houston [14th Dist.] 1991, orig. proceeding); Lummus v. Dean, 750 S.W.2d 312, 313 (Tex. App.--Beaumont 1988, orig. proceeding); Hilliard v. Heard, 666 S.W.2d 584, 585 (Tex. App.--Houston [1st Dist.] 1984, orig. proceeding). Here, Box's involvement in the events underlying the litigation makes him a fact witness. Additionally, Box is not precluded from asserting privileges in response to particular deposition questions. See In re Mendez, 234 S.W.3d 105, 110 (Tex. App.--El Paso 2007, orig. proceeding); Borden, Inc. v. Valdez, 773 S.W.2d 718, 721 (Tex. App.--Corpus Christi 1989, orig. proceeding). Second, the relators' petition did not address, much less establish, the lack of an adequate appellate remedy. Accordingly, the mandamus petition is denied. See Tex. R. App. P. 52.8(a).

PER CURIAM

 

1. This proceeding arises out of Cause No. 2006-CI-15159, styled Southwest Olshan Foundation Repair Company, L.L.C. and Olshan Foundation Repair Co. of Dallas, L.P., pending in the 166th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner presiding. However, the challenged order was signed by the Honorable Peter Sakai, presiding judge of the 225th Judicial District Court, Bexar County, Texas.

2. The trial court denied the motion to quash on October 10, 2007. Relators filed their mandamus petition on November 13, 2007, less than two days before Box's deposition was set to take place. This court denied the mandamus petition by written order on November 14, 2007.