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Combatting Overly Broad Corporate Representative Notices.

On Behalf of | Jan 2, 2024 | Firm News

In recent years, savvy Plaintiff attorneys have employed a variety of tactics to weaponize corporate representative depositions and increase case value. One such tactic from savvy Plaintiff attorneys has been sending overly broad—and sometimes outright abusive—topic lists. Outside of seeking protection from a Court (which is often time consuming and expensive), Defense attorneys had very few options in the face of overly broad and abusive topics. However, a recent appellate opinion out of Beaumont appears to give defense attorneys an effective shield to use against weaponized topic lists.

Historically, after receiving a corporate representative deposition notice with overbroad topics, a cautious defense attorney would draft and file a Motion to Quash and Motion for Protective Order, set it for a hearing, and seek the Court’s protection. This often resulted in delays and increased litigation costs. However, the Court in In re Home Depot U.S.A., Inc. allowed a Defense attorney simply to utilize objections and require the Plaintiff’s attorney to seek Court intervention.[1]

In the underlying case, Plaintiff filed a notice to take the deposition of a corporate representative for Home Depot, and the notice included unreasonably broad topics that were well outside the issue in the case.[2] Instead of seeking Court intervention with a Motion to Quash and Motion for Protective Order, Home Depot simply served objections to the notice two days prior to the scheduled deposition.[3] Notably, neither the Plaintiff nor Home Depot asked the Court for a ruling on the objections; instead, Home Depot simply served objections and showed up for the deposition.[4] During the deposition, when Plaintiff’s counsel asked questions beyond the scope of discovery, Home Depot’s attorney objected to the question and instructed the corporate representative not to answer.[5]

Plaintiff’s counsel argued that, by instructing the witness not to answer and failing to file a Motion to Quash and obtain a Protective Order, Home Depot was abusing discovery and had waived any objection to the scope of the deposition.[6] Of course, Home Depot disagreed, arguing that Rule 199 of the Texas Rules of Civil Procedure allowed objections to abusive questions to be raised during the deposition.[7] The Beaumont Court of Appeals agreed with Home Depot.

In analyzing the Texas Rules of Civil Procedure and the published commentary, the Court opined that abusive questions included questions that delved into matters beyond the matter’s scope.[8] The Court acknowledged that Home Depot had followed the procedure outlined in Rule 199, which explicitly allows objections to be raised during a deposition to safeguard against abusive questions or questions that extend beyond the proper scope of discovery.[9] Moreover, the Court found that Home Depot went above and beyond what they were required to do because they (1) served objections before the deposition and (2) objected during the deposition.[10]

The appellate Court determined that, while Home Depot could have moved for a protective order under Rule 192, it was not required to do so.[11] The Court noted that the rule’s plain language clearly indicated that such action was not mandatory.[12] Moreover, the Court noted that Rule 192 does not state that objections to deposition notices are waived unless the party seeks a protective order or that it is the exclusive method for opposing overly broad discovery requests.[13]

Ultimately, Home Depot’s objections served as a mechanism to ensure that they could later challenge the scope of the deposition that exceeded the bounds of proper discovery. This underscores the importance of understanding the rules and using them strategically to protect a party’s interests and avoid potential issues down the line.

Conclusion and Key Takeaways:

  • Texas law requires a notice for the deposition of a corporate representative to “describe with reasonable particularity the matters on which the examination is requested.”[14] Timely serving objections to overbroad topics places the burden of seeking Court intervention on the noticing party.
  • The party propounding the overly broad discovery request bears the burden of proving their request is actually within the scope of discovery.[15]

If other courts follow the Court’s reasoning from In re Home Depot U.S.A., Inc., then Plaintiffs will be under significant pressure to narrowly tailor deposition topics and resolve topics disputes before corporate representative depositions or risk having to attend a second, narrow deposition.

[1] In re Home Depot U.S.A., Inc., No. 09-23-00076-CV, 2023 WL 4943328 (Tex. App.—Beaumont Aug. 3, 2023, no pet. h.).

[2] Id. at *1.

[3] Id.

[4] Id. at *4–5.

[5] Id. at *2.

[6] Id. at *4–5.

[7] See Tex. R. Civ. P. § 199.

[8] In re Home Depot U.S.A., Inc., at *5.

[9] Id.

[10] Id.

[11] See Tex. R. Civ. P. § 192.6.

[12] In re Home Depot U.S.A., Inc., at *5.

[13] Id.

[14] See Tex. R. Civ. P. § 199.2(b)(1).

[15] See Tex. R. Civ. P. § 192.3.


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