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Click here for the full text of this decision FACTS:In an original proceeding, Texas Genco seeks a writ of mandamus directing the respondent, judge of the 77th District Court of Freestone County, to vacate an order permitting Valence Operating Co. to depose Texas Genco’s chief executive officer. Texas Genco operates a power plant and the surface estate of a neighboring 392-acre tract of land, which is designated as a solid-waste facility for the disposal of waste byproducts generated by the plant. Valence owns significant mineral interests in the disposal site property. Valence obtained a permit from the Railroad Commission to drill a gas well on the property, entered the land and prepared a site for the well. Texas Genco filed suit seeking a temporary restraining order and seeking to enjoin Valence from drilling the well because drilling at the contemplated location “would permanently and irreversibly damage [Texas Genco's] long-planned, TCEQ-approved use of the land as a Disposal Site.” When Valence sought to depose Texas Genco CEO Jack Fusco, Texas Genco responded with a motion to quash Fusco’s deposition notice and, in response to Valence’s motion to compel, a motion for protection. Texas Genco stated that Fusco should not be ordered to submit to a deposition because Valence did not show that he possesses unique or superior personal knowledge of discoverable information. Respondent granted Valence’s motion to compel and denied Texas Genco’s motion for protection. HOLDING:Petition conditionally granted. Texas Genco contends that the court abused its discretion by permitting Valence to depose Fusco because Valence did not show that: 1. Fusco has “any unique or superior personal knowledge of discoverable information”; or 2. less intrusive means of discovery have proven insufficient. According to the apex deposition doctrine, when a party seeks to depose a high level corporate official, a corporation may seek to shield the official from the deposition by filing a motion for protection supported by the official’s affidavit denying knowledge of any relevant facts. The court states that the issue in the underlying suit is whether Valence’s proposed well will preclude or impair “an existing use by the surface owner.” Fusco denied having any specialized or unique knowledge of the day-to-day operations of the power plant or of the disposal site where Valence desires to drill. The court holds that Fusco sufficiently denied knowledge of any relevant facts regarding any existing usage of the disposal site to shift the burden to Valence to show otherwise. Valence responded by arguing that Fusco’s central role in conceiving and implementing the multibillion dollar transaction, which included the purchase of the power plant, establishes that Fusco has specialized knowledge regarding the value of the plant, its significance to Texas Genco and the plans for its future operations. The court holds that, although Fusco may well possess such knowledge, his knowledge of the financial aspects of Texas Genco’s operations has little bearing on the current uses of the disposal site where Valence intends to drill its well. Accordingly, the court finds that Valence failed to arguably show that Fusco “has any unique or superior personal knowledge of discoverable information.” Valence also contends that it has been unable to obtain the discovery it needs by less intrusive means. Texas Genco notes that Valence has not served a deposition notice under Texas Rule of Civil Procedure 199.2(b)(1), requiring Texas Genco to designate one or more witnesses to testify on its behalf. On the mandamus record, the court holds that Valence failed to show that it has “made a reasonable effort” to obtain the information sought through less intrusive means of discovery. Thus, the respondent abused his discretion by denying Texas Genco’s motion for protection. Therefore, the court conditionally grants the requested writ of mandamus. OPINION:Reyna, J.; Grey, C.J., and Reyna, J. Vance, J., dissents.

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