439 S.W.3d 428
Tex. App.2014Background
- Mercedes Tang was terminated from St. Luke’s on August 7, 2013; the next day she filed a verified Texas Rule of Civil Procedure 202 petition seeking pre-suit depositions and documents to "investigate potential claims."
- Tang alleged she opposed age-discriminatory conduct and was retaliated against; her petition sought discovery to investigate a retaliation claim under the Texas Labor Code and prevent loss of evidence during a hospital merger.
- Respondents (St. Luke’s, Bailey-Newell, Van Bree, Evans) opposed, arguing Tang sought to circumvent the Labor Code’s mandatory administrative-exhaustion requirement and that Rule 202 would permit an improper fishing expedition.
- At the hearing, Tang first raised possible common-law claims (intentional infliction of emotional distress, libel, slander) in reply, but those claims arose from the same facts as the alleged Labor Code retaliation claim.
- The trial court granted the Rule 202 petition; Relators sought mandamus relief and an emergency stay, which this Court granted pending review; the appellate court conditionally granted mandamus and ordered the trial court’s pre-suit discovery order vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 202 may authorize pre-suit discovery when the anticipated claim requires administrative exhaustion | Tang: Rule 202 may be used to investigate potential claims and the likely benefit outweighs burden; she also raised possible common-law claims | Relators: Rule 202 cannot be used to circumvent Texas Labor Code’s jurisdictional exhaustion requirement; mandamus is proper because no adequate appellate remedy exists | Court: Rule 202 cannot be used to bypass mandatory administrative remedies; pre-suit discovery tied to an exhausted Labor Code claim must await exhaustion; mandamus granted to vacate order |
| Whether raising common-law claims in reply permits Rule 202 despite overlap with Labor Code claim | Tang: Common-law claims exist and are not subject to the administrative exhaustion requirement | Relators: Those claims are factually intertwined with the Labor Code claim and cannot be used to evade the statutory scheme | Court: Because the common-law claims arise from the same facts as the Labor Code claim, allowing Rule 202 would undermine the Legislature’s administrative scheme; not permitted |
| Whether mandamus review is appropriate of a trial court’s Rule 202 order | Tang: Lack of final judgment means appellate jurisdiction absent; mandamus not warranted | Relators: No adequate remedy by appeal because appeal would come only after depositions; mandamus is proper | Court: Mandamus is appropriate where there is no adequate appellate remedy; jurisdiction exists for mandamus review |
| Proper scope and limits of Rule 202 pre-suit discovery | Tang: Needs prompt discovery to determine if claims should be pursued and to preserve evidence | Relators: Rule 202 is not for routine use and must be narrowly applied to avoid circumvention of statutory limits | Court: Rule 202 must be strictly limited; pre-suit discovery cannot contradict procedural prerequisites of anticipated litigation |
Key Cases Cited
- In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) (mandamus to correct clear abuse of discretion when no adequate appellate remedy exists)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (Rule 202 may not be used to obtain discovery that circumvents procedural prerequisites of anticipated suit)
- In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (pre-suit discovery should be strictly limited and supervised; Rule 202 cannot subvert discovery rules for anticipated suits)
- In re Hewlett Packard, 212 S.W.3d 356 (Tex. App.—Austin 2006) (mandamus proper to review trial court’s order granting depositions before suit)
- In re Akzo Nobel Chemical Co., 24 S.W.3d 919 (Tex. App.—Beaumont 2000) (mandamus available where no adequate appellate remedy for pre-suit discovery order)
- Lueck v. State, 325 S.W.3d 752 (Tex. App.—Austin 2010) (administrative exhaustion under the Texas Commission on Human Rights Act is jurisdictional)