In re Summersett
438 S.W.3d 74
Tex. App.2013Background
- Plaintiff Remi Jaiyeola, a physician with privileges at Knapp Medical Center, sued Summersett (Knapp's president/CEO) and Garza for tortious interference, unfair competition, defamation, and conspiracy; Knapp was not a party.
- Jaiyeola served 24 requests for production on Summersett; Summersett initially objected broadly and produced no documents.
- Summersett filed a TCPA (anti‑SLAPP) motion to dismiss and sought leave to file it; he also argued discovery was suspended while that motion was pending.
- After amendment and supplemental responses, Summersett asserted for the first time that many requested documents belonged to Knapp and were not in his individual possession, custody, or control.
- The trial court ordered Summersett to produce documents responsive to several requests (primarily employment, complaints, evaluations, and compensation/sale‑related documents) and denied other requests; Summersett sought mandamus relief to vacate the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Summersett must produce employer documents not in his personal possession under Rule 192.3/192.7(b) | Jaiyeola: discovery is proper; Summersett, as Knapp CEO, can control/obtain the documents and must produce them | Summersett: documents belong to Knapp, are not in his individual possession/custody/control, so he cannot be compelled to produce them | Court: Overruled Summersett — possession/custody/control includes constructive possession or a superior right to obtain documents; as Knapp's CEO he has such a right, so production may be compelled |
| Whether discovery was stayed by filing of Summersett’s TCPA motion to dismiss (and/or his motion for leave) | Jaiyeola: discovery was not stayed because the court denied leave and the TCPA stay applies only after a motion to dismiss is properly filed and pending, not while leave is pending | Summersett: filing the TCPA motion (and motion for leave) suspended discovery until final disposition or denial by operation of law | Court: Overruled Summersett — TCPA suspends discovery upon filing of a proper motion to dismiss; the statute does not contemplate staying discovery pending a separate motion for leave or extension, and the trial court did not abuse its discretion |
Key Cases Cited
- GTE Communications Systems Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993) (possession/custody/control includes constructive possession and the right to obtain documents from third parties)
- In re Kuntz, 124 S.W.3d 179 (Tex. 2003) (mere access to employer documents does not equal possession where documents are owned by employer or a client and production would breach confidentiality)
- In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) (mandamus available when trial court compels discovery beyond permissible bounds)
- In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004) (mandamus standards: abuse of discretion and lack of adequate appellate remedy)