Hurricanes can’t keep this shark at bay! Shark week, er, eDiscovery Case Week, continues today! In the case In re Acclarent, Inc., No. 02-24-00228-CV (Tex. App. June 7, 2024), the Court of Appeals of Texas granted a petition for mandamus relief from a trial court’s order compelling a company to submit to a presuit deposition and produce documents related to a product-liability claim.

Case Background

Erin Ralph sought a presuit deposition under Texas Rule of Civil Procedure 202 to investigate a potential product-liability claim related to injuries she sustained during sinus surgery. The surgery involved Acclarent’s Navigation Balloon Dilation System (NBDS), which uses artificial intelligence for navigation. Ralph’s petition aimed to determine if her injuries were due to medical negligence, the neuromonitoring doctor’s negligence, or a defect in the NBDS device itself. Ralph already obtained some discovery from Dr. Marc Dean, who performed the surgery, and a neuromonitoring company.

Ralph’s petition requested broad discovery, including documents related to the NBDS. She argued that this discovery was necessary to decide whether to file a product-liability lawsuit, emphasizing the potential burden and expense of such lawsuits. Acclarent opposed the petition, arguing that Ralph had sufficient evidence to file her lawsuit and that her discovery requests were overbroad.

The trial court held a hearing at which counsel from both sides presented argument. Ralph argued that she did not want to file a product-liability case if she did not have to because they are expensive and time consuming. She also argued that presuit discovery was appropriate because the limitations period on her potential claim against Acclarent would end on June 21, 2024, and she feared that her claim against Acclarent might be preempted by federal law.

The trial court granted Ralph’s petition, compelling Acclarent to submit to a deposition and produce documents. Acclarent filed a mandamus petition, contending that the trial court abused its discretion in granting the Rule 202 petition.

Appellate Court’s Ruling

The Appeals Court agreed with Acclarent, ruling that Ralph failed to provide sufficient evidence to justify the presuit deposition and that the trial court’s decision was an abuse of discretion. The Court’s ruling was based on the following reasons:

• Ralph’s petition did not adequately explain why presuit discovery from Acclarent was necessary.
• The petition contained only conclusory statements that tracked the language of Rule 202 without providing specific facts.
• Ralph failed to prove that the benefit of the presuit discovery outweighed the burden or expense to Acclarent.
• Ralph did not offer competent evidence to support her need for presuit discovery. Even if her counsel’s statements at the hearing were considered as evidence, they were insufficient to justify the discovery.
• Ralph’s counsel admitted that some evidence regarding the NBDS defects was already available, undermining the necessity of additional presuit discovery.
• The trial court’s decision to grant the presuit deposition was deemed arbitrary and unreasonable, lacking reference to guiding principles.
• The Appeals Court emphasized that presuit discovery under Rule 202 should be strictly limited and carefully supervised to prevent abuse.
• Given that no right of appeal exists from an order allowing a Rule 202 deposition, mandamus was deemed the proper method to challenge the trial court’s order.
• The Appeals Court ruled that Acclarent lacked an adequate remedy by appeal, as the trial court’s order could not be effectively challenged through the usual appellate process.

The Court stated in conditionally granting the writ of mandamus: “In sum, Ralph failed to allege any facts or offer any evidence to explain why she is entitled to depose Acclarent’s corporate representative under Rule 202…Accordingly, we hold that the trial court abused its discretion by granting Ralph’s Rule 202 petition. We sustain Acclarent’s two issues.”

So, what do you think? Are you surprised the trial court granted Ralph’s petition in the first place? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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Second Disclaimer: Given the limited availability of internet in the wake of Hurricane Beryl, this post was ChatGPT aided. Don’t judge! 😉