Opposition to pre-suit deposition

Cause No.__________ § IN THE DISTRICT COURT OF §

IN RE:__________ § _________ COUNTY, TEXAS

§

(REQUESTING THE §

DEPOSITION OF __________) § ____ JUDICIAL DISTRICT

__________ and __________ Company’s Response

to Petitioner’s Verified Petition

Requesting Deposition Before Suit

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Deponent, __________, and Interested Party, __________ and file this Response to Petitioner’s Verified Petition Requesting Deposition Before Suit, and in support thereof would show the Court as follows:

I.

BACKGROUND

1. __________ was formerly employed by __________ as its Executive Vice President and Chief Marketing Officer. On the morning of [Date], he was discharged by __________.

2. Later that day, also on [Date], __________, the proposed Deponent, __________, assumed his duties as Chief Executive Officer of __________. See Affidavit of __________, attached hereto as Exhibit A. __________ was not the decision-maker with respect to the termination of Mr. __________’s employment, and __________ was not involved in the meeting where Mr. __________ was told of the termination of his employment.

3. On or about [Date], __________ received a letter from opposing counsel. This letter is attached hereto as Exhibit B. In the letter, opposing counsel stated that __________ “had authorized [opposing counsel to pursue the administrative process for the client’s age discrimination claim and file suit on the client’s other causes of action.” The letter concluded, “Based on our investigation to date, we believe that Mr. __________ has a strong case of age discrimination against __________ Company.” __________ has not been served with any charge of discrimination with respect to __________ employment.

4. On [Date], __________ filed his Verified Petition Requesting Deposition Before Suit (the “Petition”) pursuant to which he sought the pre-suit deposition of __________. Even though Petitioner’s counsel, in his demand letter said, “Mr. __________ has a strong case of age discrimination against __________ Company,” the Verified Petition stated that __________ seeks to investigate potential claims and/or causes of action that he may have against Deponent and/or __________ Company. This letter also stated that Petitioner seeks to preserve testimony and anticipates a suit being filed in __________ County, Texas (Petition, ¶ I). Notably, however, the Petition did not offer any facts, such as an illness or other reason why such preservation was necessary. With regard to the scope of the proposed deposition of __________, __________ stated only:

   “…The substance of the testimony Petitioner expects to elicit from Deponent involves any actions and/or omissions with respect to potentially defamatory and/or actionable statements and/or publications made by Deponent concerning Petitioner, in ______ County and perhaps elsewhere. Petitioner wishes to examine the identities of persons and/or entities to whom Deponent may have made such statements and/or publications. Petitioner further expects to illicit testimony from Deponent concerning the circumstances of Petitioner’s termination and whether said termination was discriminatory or otherwise wrongful. Further, Petitioner expects to examine Deponent with regard to whether Petitioner’s termination was in any way related to Petitioner’s age. Deponent possesses unique and superior knowledge relevant to Petitioner’s potential claims and the statements and/or publications he has made.”

   (Petition, ¶ III)(emphasis added).

5. Again, contradicting the demand letter, where Petitioner had opined the strength of his case, __________ stated that the purported benefit of the deposition was:

   The benefit of allowing the deposition outweighs the burden or expense of the procedure because Petitioner does not yet know whether he should invest the time and resources to develop his claims and file a lawsuit against Deponent or others.

   * * *

   Although Petitioner is outraged by the actions and inactions taken by Deponent, he does not wish to undertake the expense and burden of pursuing a claim unless he is persuaded that there is a good chance of prevailing on such claims, and hopefully preventing what happened to him from happening again.

   (Petition, ¶ VI)(emphasis added).

   II.

   ARGUMENT

   A person may petition the Court for an order authorizing the taking of a deposition on oral examination or written questions only for two legitimate purposes:

1. To perpetuate or obtain the person’s own testimony or that of another person for use in an anticipated suit; or

2. To investigate a potential claim or suit.

   Tex.R.Civ.P. 202.1.

   Among other things, the petition in which the deposition is sought must state, under oath, the substance of the testimony that the Petitioner expects to elicit from the person to be deposed. Tex.R.Civ.P. 202.2. in order to obtain such a deposition, the party seeking to take the deposition must comply with these procedural requirements and, in addition, obtain a finding from the Court 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)(I), (2). In addition, the Court may restrict or prohibit the use of a pre-suit deposition to...