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IN RE PAUL A. TURNER
Original Mandamus Proceeding
O P I N I O N
Paul A. Turner filed a petition for writ of mandamus complaining of the trial court=s order requiring him to
travel from his home in Hong Kong, China, to Dallas for a deposition. We conditionally grant the petition
The underlying dispute involves competing security interests in oil and gas leases. In 2006, Paul A.
Turner, Trustee, loaned Terax Energy, Inc. $2,500,000. Terax=s debt was secured by a deed of trust,
security agreement, assignment of production, and financing statement executed by Erath Energy, Inc.
that conveyed a security interest in several oil and gas leases in Erath County. The parties refer to
these as the Mitchell Lease. Baker Hughes Oilfield Operations, Inc. d/b/a Hughes Christensen Company
also filed a mechanic=s lien against this same lease.
Baker Hughes filed suit against Terax and Erath Energy and obtained a default judgment that foreclosed
its lien. J.D. Fields & Company, Inc. filed a separate suit against Baker Hughes and twenty to thirty other
creditors to stop foreclosure actions on the Mitchell Lease. When Turner subsequently initiated
foreclosure proceedings on the Terax note, J.D. Fields added him as a defendant and asked the court to
enjoin his foreclosure.
Baker Hughes noticed Turner=s deposition for Stephenville. Turner filed a motion to quash and for
protective order, and the trial court held a hearing. Turner offered evidence that he is not a United
States citizen, that he has made occasional business trips to the United States but does not regularly
travel to the United States and has never been to Texas, that his last trip to the United States was in
2006, and that this trip was to New York City. Turner asked the court to quash Baker Hughes=s notice
and order that the deposition be taken by phone or by video. Baker Hughes responded that, because
Turner was a party, it had the right under Tex. R. Civ. P. 199.2(b)(2)(C) to take his deposition in
Stephenville. The trial court ordered that Turner=s deposition be taken in Dallas, but otherwise denied
Standard of Review
Mandamus is an extraordinary remedy available Aonly in situations involving manifest and urgent
necessity and not for grievances that may be addressed by other remedies.@ Walker v. Packer, 827 S.
W.2d 833, 840 (Tex. 1992) (orig. proceeding). To obtain mandamus relief, the relator must demonstrate
a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party
establishes that no adequate remedy at law exists by showing that the party is in real danger of
permanently losing its substantial rights. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.
1994). Thus, mandamus will not issue absent Acompelling circumstances.@ Tilton v. Marshall, 925 S.W.
2d 672, 681 (Tex. 1996).
Baker Hughes argues that, because Turner=s deposition was scheduled for a location provided for by
Tex. R. Civ. P. 199.2(b)(2), the trial court did not abuse its discretion. See First State Bank, Bishop v.
Chappell & Handy, P.C., 729 S.W.2d 917, 922 (Tex. App.CCorpus Christi 1987, writ ref=d n.r.e.) (trial
courts have great latitude in selecting the location for a deposition). Rule 199.2(b)(2) provides that a
deposition may take place at the following locations:
(A) the county of the witness=s residence;
(B) the county where the witness is employed or regularly transacts business in person;
(C) the county of suit, if the witness is a party or a person designated by a party under Rule 199.2(b)
(D) the county where the witness was served with the subpoena, or within 150 miles of the place of
service, if the witness is not a resident of Texas or is a transient person; or
(E) subject to the foregoing, at any other convenient place directed by the court in which the cause is
Baker Hughes reasons that, because the court was expressly authorized to require Turner to attend a
deposition in Erath County and because it was more convenient for Turner to travel to Dallas than
Stephenville, no abuse of discretion can be shown. Baker Hughes also argues that the trial court=s
order is appropriate because it would cost significantly more to require the thirty defendants to travel to
Hong Kong than to require Turner to travel to Dallas and because it would be difficult for the defendants=
attorneys to obtain Turner=s testimony via a telephone deposition.
Baker Hughes equates ordering Turner to come to Dallas with ordering him to come to Stephenville.
Turner does not attempt to distinguish between the two locations. When a deposition takes place
outside one of the counties specifically identified by Rule 199.2(b)(2), it must be at a convenient place.
This imposes an additional requirement and may, therefore, alter the analysis. But because it is clearly
easier for an international traveler to travel to Dallas than Stephenville, if the trial court was authorized to
order Turner to come to Stephenville for a deposition, it did not abuse its discretion by moving the
deposition to Dallas. We will, therefore, treat this deposition as if it were taking place in the county of the
Baker Hughes invites us to hold that a deposition in any of the locations provided for by Rule 199.2(b)(2)
is by definition reasonable and, thus, cannot amount to an abuse of discretion. We agree that the trial
court=s broad discretion in discovery matters will in most instances afford it the authority to order a party
to appear in the county of the suit for an oral deposition. However, when international travel is involved,
additional considerations are implicated. In Dresser Industries, Inc. v. Solito, 668 S.W.2d 893, 895 (Tex.
App.CHouston [14th Dist.] 1984, no writ), the court noted that the potential for abuse is very great in
such cases and held that trial judges Amust be especially sensitive to the (1) actual need for the
requested depositions and (2) alternative means of taking the depositions.@ We agree with the Houston
The only justification Baker Hughes offers for deposing Turner is the following statement: AMr. Turner=s
deposition is tremendously important in order to gather information regarding the transaction involving
Mr. Turner and Terax and to determine the priority of the multiple lien claims in the Lawsuit.@ Clearly,
Baker Hughes is entitled to depose Turner. The question is whether there is an actual need for an oral
deposition sufficient to justify requiring Turner to travel internationally. The trial court was
cognizant of the travel burden and Turner=s limited role in the litigation. It noted that the only issues
involving him were whether he had a lien and, if so, the status of that lien. The trial court specifically
inquired of counsel why the deposition could not be taken telephonically. Baker Hughes=s counsel
responded that he had taken telephone depositions before and that they were Ajust not the same thing.
@ We realize that telephone or video depositions are different from traditional oral depositions and that,
when documents are involved, practical problems are presented. But we note that bankruptcy courts in
the Western District of Texas routinely conduct trials B many of which involve numerous documents and
parties B by video conference. An attorney=s preference for an oral deposition is not synonymous with
an actual need for one. Cf. Int=l Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex. App.CAmarillo 1995,
orig. proceeding) (trial court may weigh counsel=s preference for a face-to-face deposition against the
particular circumstances of the case).
Baker Hughes contends before this court that it would be difficult for numerous attorneys representing
thirty defendants to obtain Turner=s testimony via a telephone. This argument asks us to assume a level
of interest for which there is no support in the record. Baker Hughes was the only party seeking
Turner=s deposition. When the trial court considered Turner=s motion to quash, it also considered
Turner=s motion to dismiss and another defendant=s motion to dismiss. Turner=s counsel, Baker
Hughes=s counsel, and J.D. Fields=s counsel were the only attorneys present. Only Baker Hughes
has responded to Turner=s petition for writ of mandamus. The record indicates that this is Baker
Hughes=s deposition. Even if we disregard the lack of action by any other codefendant, because
Turner=s involvement in this litigation is limited to the validity and priority of his lien, it is difficult for us to
appreciate why each individual codefendant would need to pursue a separate line of inquiry.
However, we do agree that the number of parties participating in the deposition is a relevant inquiry. The
record indicates that the trial court on its own initiative expressed concern about Turner being subjected
to numerous deposition requests and that it concluded that ordering him to come to Dallas would limit his
exposure to one deposition. The trial court=s initiative is commendable, but because it was requiring
Turner to travel from Hong Kong to Dallas, the court was required to consider why alternative means of
taking the deposition were inadequate. There is no reason why the trial court would lose control over the
number of depositions Turner is required to give merely because they are done by phone or video.
The trial court discussed alternative methods of deposing Turner but, after expressing its concern that
Turner would be subjected to numerous separate deposition requests, never resolved the question of
whether an alternative method was sufficient. Because a party cannot be forced to travel internationally
when alternative means of taking the deposition are adequate, the trial court abused its discretion by
ordering Turner to appear in Dallas for a deposition.
Turner not only asks this court for relief from the order requiring him to come to Dallas but also asks us
to direct the trial court to allow him to appear for his deposition telephonically or by video conference.
This we cannot do for the record does not conclusively establish that alternative means of taking his
deposition are adequate. If not, the trial court has the discretion to order that Turner=s deposition take
place in Dallas.
Turner=s petition for writ of mandamus is conditionally granted in part. We are confident that the trial
court will set aside its order directing Turner to appear in Dallas for a deposition and address whether
alternative means of taking Turner=s deposition are adequate. If not, a writ of mandamus will issue.
January 10, 2008 RICK STRANGE
Panel consists of: Wright, C.J., JUSTICE
McCall, J., and Strange, J.
Robert C. Prather, Sr. was also present, but he appeared as a witness and not an attorney.
RULE 5 - TRIAL MATTERS
A. VIDEO DEPOSITIONS AND PRESENTATIONS Video depositions shall be
edited for brevity and to remove extraneous material and
abandoned objections. Research has shown that the optimum length
of time for a video presentation is I2 minutes, 20 minutes
maximum, for jury effectiveness: any length greater than that is
discouraged by the Court.
Video depositions and presentations, in final edited form,
shall be made available to the opposing party or parties
sufficiently in advance of presentation so that any objections
may be brought to the Court's attention and a ruling secured,
without any delay in the progress of the trial. Failure to
furnish the edited version of a video to opposing counsel as
required hereby may result in its exclusion: failure to make
objections thereto prior to Court's convening, as required
hereby, may result in a waiver of objections.
Line and page designations must be furnished along with the
edited version of any video deposition.
B. NON-VIDEO DEPOSITIONS Line and page designations must be
furnished to opposing counsel, to the court reporter, and to
the Court, before a deposition is read. In addition, the
proponent shall furnish the court with a copy of a deposition
to be read for the purpose of ruling on objections. It is
highly desirable to arrange in advance for a separate person to
read the answers to a deposition, rather than have the same
person read both question and answer.