In Re: Petition of Kate Moseley v.

 
DISMISS and Opinion Filed December 29, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-01097-CV
............................
PATTON BOGGS LLP, Appellant
V.
KATE MOSELEY, Appellee
IN RE PATTON BOGGS LLP, Relator
.............................................................
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-00233
.............................................................
OPINION
Before Justices Bridges, Lang, and Fillmore
Opinion By Justice Fillmore
 
Patton Boggs LLP filed (1) a petition for writ of mandamus
contesting the trial court's order granting Kate Moseley's petition for
rule of civil procedure 202 (rule 202) depositions and (2) an
interlocutory appeal of the trial court's denial of Patton Boggs LLP's
motion to compel arbitration. By order of August 31, 2011, this Court
consolidated the original proceeding (number 05-11-01163- CV, styled In
re Patton Boggs LLP), with this appeal, treating the original proceeding
as a closed case. The interlocutory appeal and original proceeding were
argued together and we dispose of them together. See In re Valero Energy
Corp., 968 S.W.2d 916, 916-17 (Tex. 1998, orig. proceeding) (per
curiam). We conditionally grant Patton Boggs LLP's petition for writ of
mandamus. We dismiss Patton Boggs's interlocutory appeal for lack of
jurisdiction.
Background
Kate Moseley (Moseley) is a former partner with the law firm of
 
Patton Boggs LLP (Patton Boggs). Moseley withdrew from the partnership
effective May 1, 2010. In December 2010, Moseley filed a Charge of
Discrimination against Patton Boggs with the Equal Employment
Opportunity Commission (EEOC). In the Charge, Moseley complains she was
discriminated against because of her gender in violation of Title VII of
the Civil Rights Act of 1964, as amended (Title VII), See Footnote 1
and paid less than her male counterparts in violation of the Equal Pay
Act of 1963, as amended. See Footnote 2 Moseley also asserts in the
Charge that from 2007 to 2010, she “was denied equity partner and a
share of the firm's profits.”
Thereafter, Moseley filed a petition in the trial court to take
the depositions of two Patton Boggs lawyers and a corporate
representative of Patton Boggs pursuant to rule 202. See Footnote 3
In her petition, Moseley stated she expected to elicit testimony in
those depositions on the following subjects: the circumstances relating
to Patton Boggs's failure to make her an equity partner; the
circumstances regarding attorneys who made or did not make equity
partner at Patton Boggs in the years 2007 through 2010; whether Patton
Boggs has hired a replacement for Moseley or had job openings for which
Moseley was qualified; the circumstances surrounding Patton Boggs's
failure to provide Moseley with attribution on the work performed by
Moseley for certain clients; and the circumstances surrounding Patton
Boggs's failure to distribute compensation or “return contributions” to
 
Moseley. In her petition, Moseley requested an order from the trial
court authorizing the taking of the depositions under rule 202 to enable
Moseley's investigation of a claim. See Tex. R. Civ. P. 202.1(b).
Moseley states in her petition that she: seeks to investigate a
potential breach of contract claim, sex discrimination and/or tort claim
[she] may have against [Patton Boggs] and to resolve certain questions
and unknowns that will better enable [her] to assess the appropriateness
of entering into settlement discussions, whether [her] claims should be
pursued and the appropriateness of filing a lawsuit and who, if anyone,
should be sued.
In her petition, Moseley states that she anticipates she will be in a
better position to determine whether or not claims should be prosecuted
or a lawsuit filed against Patton Boggs after taking depositions
pursuant to rule 202 and the depositions will be of value in: resolving
pending questions and unknowns associated with actions [Patton Boggs]
took against her, [Patton Boggs's] actions or inactions in light of its
knowledge of prior complaints of [Patton Boggs's] gender bias and
discrimination, [Patton Boggs's] failure to make [Moseley] an equity
partner, [Patton Boggs's] failure to distribute bonuses and partnership
distributions, failure to return [Moseley's] capital within 6 months of
her departure, failure to return [Moseley's] defined benefit plan
contribution, failure to return or account for [Moseley's] 401(k)
withholding, failure to award points toward discretionary comp [sic] for
 
2010, and failure to distribute management bonuses.
Patton Boggs objected to Moseley's petition to take depositions
under rule 202, arguing that the petition seeks to “thwart the exclusive
jurisdiction” of the EEOC as to claims already brought by Moseley
against Patton Boggs under Title VII, the petition seeks a form of
discovery-production of documents-not permitted by rule 202, the
petition seeks “comprehensive and one-sided” pre-trial discovery rather
than limited pre-suit discovery, Moseley's asserted need “to investigate
a potential claim or suit” is pretext for strategic considerations which
are the true reasons for seeking pre-suit depositions, Moseley cannot
show a credible benefit of immediate pre-suit depositions which
outweighs their burden or expense, and the petition seeks discovery of a
type generally prohibited in ongoing litigation as a “fishing
expedition.”
Patton Boggs also filed a motion in the trial court to compel
arbitration and stay the rule 202 depositions. In its motion to compel
arbitration, Patton Boggs asserted that the written partnership
agreement between Moseley and Patton Boggs required arbitration of any
disputes arising out of or relating to Moseley's partnership with Patton
Boggs. In the motion, Patton Boggs cited the following provision of the
partnership agreement: 12.08 Dispute Resolution. Any controversy or
claim arising out of or relating to any provision of this Agreement or
the breach, termination, enforcement, interpretation or validity thereof
or for which the Partnership or a Partner may have a right to maintain
 
an action under D.C. Code § 33-104.05 (a “Claim”) shall be resolved in
the following manner:
(a) In the event of a Claim asserted by one or more Partners or
Former Partners, the Partner(s) or Former Partner(s) asserting the Claim
shall deliver to the Managing Partner a written notice which shall set
forth generally the nature and grounds of the Claim and shall specify a
notice period of at least thirty (30) days for the parties to attempt to
resolve the matter consensually (a “Claim Notice”).
 
* * *
(c) In the event that the Claim has not been resolved within the
notice period specified in the Claim Notice, the dispute shall be
resolved by arbitration in the District of Columbia in accordance with
the rules in effect of the Judicial Arbitration and Mediation Services,
Inc. (or, if such entity does not exist, such other neutral arbitration
entity as the Partnership may identify). . . . By mutual consent in
writing, the Partnership and the other party or parties may agree to
resolve the dispute by arbitration or litigation in a jurisdiction other
than the District of Columbia.
Moseley opposed Patton Boggs's motion to compel arbitration.
On August 15, 2011, the trial court signed an order denying
Patton Boggs's motion to compel arbitration and granted Moseley's
petition to take depositions pursuant to rule 202. See Footnote 4
That order authorized Moseley to take the depositions of two Patton
Boggs lawyers and a corporate representative of Patton Boggs and granted
in part Moseley's request for document discovery. Patton Boggs filed a
 
petition for writ of mandamus contesting the trial court's order
granting Moseley's petition for rule 202 depositions and document
discovery and filed an interlocutory appeal of the trial court's denial
of Patton Boggs's motion to compel arbitration.
Petition for Writ of Mandamus
Relator Patton Boggs filed this original proceeding challenging
the trial court's August 15, 2011 order authorizing Moseley to take the
depositions of two Patton Boggs lawyers and a corporate representative
of Patton Boggs pursuant to rule 202 and in granting in part Moseley's
request for production of documents in conjunction with those
depositions. See Tex. R. Civ. P. 202 & 202.1. In its petition for writ
of mandamus, Patton Boggs argues “the trial court did not and could not
make the required findings” under rule 202.4(a)(2).
We review the trial court's order granting the verified petition
to take depositions before suit under an abuse of discretion standard.
In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex. App.-Austin 2006, orig.
proceeding [mand. denied]). In order to obtain mandamus relief, relator
must show both that the trial court has 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); Walker v. Packer, 827
S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Patton Boggs has met
this burden.
Under rule 202.1(b), a person may petition the court for an
order authorizing the taking of a deposition on oral examination or
 
written questions “to investigate a potential claim or suit.” Tex. R.
Civ. P. 202.1(b). Rule 202.1 provides: A person may petition the court
for an order authorizing the taking of a deposition on oral examination
or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any
other person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.
Tex. R. Civ. P. 202.1. Rule 202.4(a), which prescribes the content of an
order authorizing pre-suit depositions, provides: (a) Required Findings.
The court must order a deposition to be taken if, but only if, it finds
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) (emphasis added).
Patton Boggs contends the trial court “could not make the
required findings” under rule 202.4(a)(2) that the likely benefit of
allowing the requested presuit discovery to investigate a potential
claim outweighs the burden or expense of the procedure. Patton Boggs
argues the discovery sought by Moseley pursuant to rule 202 does not
comport with limitations on discovery under the arbitration provision of
the partnership agreement between Moseley and Patton Boggs. In response,
Moseley contends that she has not asserted a controversy or a claim
arising out of or relating to any provision of the partnership
 
agreement, and therefore has not triggered an obligation to arbitrate,
but instead seeks discovery to investigate a “potential” claim.
In support of its contention that Moseley has asserted a claim
or claims invoking the arbitration provision of the partnership
agreement, Patton Boggs cites the Charge Moseley filed with the EEOC. In
that Charge, Moseley stated she “believes” Patton Boggs discriminated
against her based on her gender and she “feels” Patton Boggs paid her
less than her male counterparts. Moseley asserts in the Charge that
Patton Boggs improperly denied her the position of equity partner and a
share of the Patton Boggs's profits. Patton Boggs also cites to evidence
of settlement negotiations between Moseley and Patton Boggs and
statements by Moseley's counsel in written communication accompanying
settlement negotiations that a settlement offer by Patton Boggs was
“woefully inadequate,” that he was confident in the strength of
“Moseley's case,” and that numerous former partners would testify
against Patton Boggs. In further support of its contention, Patton Boggs
also relies on Moseley's petition to take depositions under rule 202. In
her petition, Moseley references the “acts and omissions” about which
she seeks to inquire. While Moseley states in her petition that she
seeks to investigate potential breach of contract, sex discrimination or
tort claims she may have against Patton Boggs, she also states that she
seeks discovery under rule 202 to assess “whether [her] claims should be
pursued.” Further, Patton Boggs references statements by the trial court
 
during the hearing on Patton Boggs's motion to compel arbitration
suggesting the trial court believed Moseley's Charge was “a statement of
a claim”: I'm just trying to determine - trying to put it all in
perspective, including the fact that we have a charge of discrimination,
which I agree is a statement of a claim. . . . Well, I think there's
little question, from what I have in the Charge of Discrimination and
from the Verified Petition that I understand that the issues, if
asserted by her, may arise out of her Partnership Agreement.
Patton Boggs's argument that Moseley has asserted a claim or
claims invoking the arbitration provision of the partnership agreement
relates to the question of whether, based on the record of this case,
the trial court could properly make the required finding under rule
202.4(a)(2) that the likely benefit of allowing the requested presuit
discovery to investigate a potential claim outweighs the burden or
expense of the procedure. However, the question of whether the trial
court could properly make the required finding under rule 202.4(a)(2) is
not before this Court because no finding under rule 202.4(a)(2) was made
by the trial court.
Patton Boggs also contends the trial court erred by not making
the required finding under rule 202.4(a)(2) that the likely benefit of
allowing the requested discovery to investigate a potential claim
outweighs the burden or expense of the procedure. Although Moseley did
not respond to this argument by Patton Boggs, Moseley referenced the
required finding by the trial court under rule 202.4(a)(2) in her
 
petition to take depositions under rule 202; Moseley requested the trial
court to issue an order “setting forth the likely benefit of allowing
[Moseley] to take the requested depositions to investigate [her]
potential claims outweighs the burden or expense of the procedure. . .
.”
We agree with this contention by Patton Boggs. If a petitioner
requests a deposition to investigate a potential claim under rule
202.1(b), the trial court must find that 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. See
Tex. R. Civ. P. 202.4(a)(2); see In re Jorden, 249 S.W.3d 416, 423 (Tex.
2008) (“Rule 202 depositions are not now and never have been intended
for routine use. There are practical as well as due process problems
with demanding discovery from someone before telling them what the
issues are. Accordingly, presuit depositions are available under Rule
202 only if a trial court makes one of the two findings [under rule
202.4(a)] . . . .”); see also In re Does 1 and 2, 337 S.W.3d 862, 865
(Tex. 2011) (trial court must expressly make the required findings under
rule 202.4; rule 202.4 does not permit the findings to be implied from
support in the record); In re Denton, No. 10-08-00255-CV, 2009 WL
471524, at *2 (Tex. App.-Waco Feb. 25, 2009, orig. proceeding) (mem.
op.) (if petitioner requests a deposition to investigate a potential
claim under rule 202.1(b), trial court must find the likely benefit of
 
allowing petitioner to take the requested deposition to investigate a
potential claim outweighs the burden or expense of the procedure). See
Footnote 5 The trial court's August 15, 2011 order granting
Moseley's request to take depositions under rule 202 contains no finding
that the likely benefit of allowing Moseley to take the requested
depositions to investigate a potential claim outweighs the burden or
expense of the procedure. See Footnote 6 See Tex. R. Civ. P.
202.4(a)(2). The trial court had no discretion to order depositions
under rule 202 without the required finding under rule 202.4(a)(2). In
re Denton, 2009 WL 471524, at *3 (trial court abused its discretion in
ordering deposition under rule 202.1 when it did not make the required
finding of rule 202.4(a) in its order). Additionally, relator Patton
Boggs has no adequate remedy by appeal for the trial court's granting
the rule 202 depositions. See In re Wolfe, 341 S.W.3d 932, 933 (Tex.
2011) (per curiam) (improper order under rule 202 may be set aside by
mandamus) (citing In re Jorden, 249 S.W.3d at 420); In re Hewlett
Packard, 212 S.W.3d at 360 (relators had no adequate remedy on appeal
because their only opportunity to appeal the trial court's order would
occur after the depositions had occurred; furthermore, order pursuant to
rule 202 allowing pre-suit discovery incident to a contemplated lawsuit
against the party from whom the discovery is sought is not a final,
appealable order; therefore, mandamus is proper); In re Emergency
Consultants, Inc., 292 S.W.3d 78, 80 (Tex. App.-Houston [14th Dist.]
 
2007, orig. proceeding) (a writ of mandamus may lie to challenge a trial
court's order for pre-suit depositions).
Accordingly, we conditionally grant the petition for writ of
mandamus. We order the trial court to vacate the portions of its August
15, 2011 order that grant Moseley's rule 202 request to take depositions
and that grant in part Moseley's request for production of documents. A
writ will issue only in the event the trial court fails to vacate the
portions of its August 15, 2011 order that grant Moseley's rule 202
request to take depositions and that grant in part Moseley's request for
production of documents in conjunction with those depositions.
Order Denying Motion to Compel Arbitration
Appellant Patton Boggs filed this interlocutory appeal
challenging the trial court's denial of its motion to compel
arbitration. See Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West Supp.
2011) (appeal or writ of error to the court of appeals from the judgment
or interlocutory order of a district court in a matter subject to
Federal Arbitration Act); Tex. Civ. Prac. & Rem. Code Ann. §
171.098(a)(1) (West 2011) (party may appeal an order denying an
application to compel arbitration under section 171.021); see Tex. Civ.
Prac. & Rem. Code Ann. § 171.021(a) (West 2011) (court shall order
parties to arbitration on application of a party showing an agreement to
arbitrate and the opposing party's refusal to arbitrate). See Footnote
7 In its sole issue on appeal, Patton Boggs contends the trial court
erred by denying Patton Boggs's motion to compel arbitration and to stay
 
the rule 202 proceedings.
Moseley responds that the trial court lacked jurisdiction over
Patton Boggs's motion to compel arbitration filed in the rule 202
proceeding. We agree. Because the only proceeding before the trial court
was a rule 202 petition, the trial court had no jurisdiction to grant a
motion to compel arbitration absent an agreement between the parties
that the motion should be granted. See In re Southwest Sec., Inc., No.
05-99-01836-CV, 2000 WL 770117, at *2 (Tex. App.-Dallas, June 14, 2000,
orig. proceeding.) (not designated for publication). See Footnote 8
The trial court lacked jurisdiction to compel arbitration in the
rule 202 proceeding. Accordingly, we dismiss this interlocutory appeal
for lack of jurisdiction. Tex. R. App. P. 42.3(a).
Conclusion
We conditionally grant the petition for writ of mandamus and
order the trial court to vacate the portions of its August 15, 2011
order that grant Moseley's rule 202 request to take depositions and that
grant in part Moseley's request for production of documents. A writ will
issue only in the event the trial court fails to vacate the portions of
its August 15, 2011 order that grant Moseley's rule 202 request to take
depositions and that grant in part Moseley's request for production of
documents in conjunction with those depositions.
We dismiss this interlocutory appeal for lack of jurisdiction.
 
ROBERT M.
FILLMORE
JUSTICE
111097F.P05
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Footnote 1
See 42 U.S.C.A. §§ 2000e - 2000e-17 (West 2003 & Supp. 2011).
-------------------
Footnote 2
See 29 U.S.C.A. § 206(d) (West 1998).
 
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Footnote 3
Moseley also requested production of documents in connection
with the rule 202 depositions. The trial court ordered production of the
following documents: documents indicating “the reason why [Moseley] was
not promoted to equity partner by [Patton Boggs]”; the standards,
criteria and requirements for attorneys to be made an equity partner at
Patton Boggs; Moseley's entire personnel file; and documents indicating
Moseley's job performance or any problems with Moseley's job performance
with Patton Boggs.
-------------------
Footnote 4
On July 7, 2011, the trial court signed an order granting
Moseley's request for depositions under rule 202 and granting in part
Moseley's request for production of documents. Following the filing of
Patton Boggs's motion to reconsider the trial court's July 7, 2011 order
on Moseley's petition under rule 202 and the trial court's denial of
Patton Boggs's motion to compel arbitration and to stay the rule 202
proceeding, the trial court signed the August 15, 2011 order at issue in
Patton Boggs's petition for writ of mandamus and interlocutory appeal.
-------------------
Footnote 5
See also In re Southwest Sec., Inc., No 05-99-01836-CV, 2000 WL
770117, at *1-2 (Tex. App.-Dallas June 14, 2000, orig. proceeding) (not
designated for publication) (rule 202 sets forth the requirements for
pleadings and findings by the trial court, and the trial court must find
that allowing the petitioner to take the deposition may prevent a
failure or delay of justice in an anticipated suit or 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).
-------------------
Footnote 6
The trial court's prior July 7, 2011 order granting Moseley's
request to take depositions under rule 202 did not contain the finding
that the likely benefit of allowing Moseley to take the requested
depositions to investigate a potential claim outweighs the burden or
expense of the procedure.
-------------------
Footnote 7
The arbitration provision of the partnership agreement between
Moseley and Patton Boggs does not expressly invoke either the Federal
Arbitration Act, 9 U.S.C.A. §§ 1-16 (West 2009), or the Texas General
Arbitration Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098 (West
2011).
-------------------
Footnote 8
“A Rule 202 proceeding to conduct pre-suit discovery from a
party against whom a claim is contemplated is ancillary to the
contemplated claim; it is 'in aid of' and incident to the anticipated
claim.” In re Clapp, 241 S.W.3d 913, 917 (Tex. App.-Dallas 2007, orig.
proceeding); see also IFS Sec. Grp., Inc. v. Am. Equity Ins. Co., 175
S.W.3d 560, 563 (Tex. App.-Dallas 2005, no pet.) (order pursuant to rule
202 allowing pre-suit discovery incident and ancillary to a contemplated
lawsuit against the party from whom the discovery is sought is not a
final, appealable order); see also In re Salonquest, LLC, No.
07-11-00022-CV, 2011 WL 721844, at *1(Tex. App.-Amarillo Mar. 2, 2011,
no pet.) (mem. op.) (appellate court has jurisdiction over an
 
interlocutory appeal only when expressly provided by statute; no statute
authorizes an interlocutory appeal from an order under rule 202
authorizing a deposition to perpetuate the testimony of a person against
whom a suit is pending or contemplated); In re Jorden, 249 S.W.3d at 419
(pre-suit deposition orders are appealable only if sought from someone
against whom suit is not anticipated; when sought from an anticipated
defendant, such orders have been considered ancillary to the subsequent
suit, and thus neither final nor appealable) (emphasis in original).
-------------------