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Click here for the full text of this decision FACTS:Following a deadly explosion at BP Products North America Inc.’s Texas City oil refinery, hundreds of resulting lawsuits against BP Products were consolidated for discovery in the 212th District Court in Galveston County. The parties conducted extensive discovery. The plaintiffs served notices to take the depositions of two executives of BP Products’ parent company BP plc: John Manzoni, the head of refining and marketing, and John Browne, the chief executive officer. BP Products moved to quash the depositions and moved for protective orders. BP Products contended the plaintiffs had not met their burden under the apex doctrine. The plaintiffs responded, alleging that both Manzoni and Browne had unique or superior knowledge of relevant facts. The trial court initially struck BP Products’ supporting affidavits as insufficient and denied the motions. BP Products sought mandamus review, and the 1st Court of Appeals granted relief requiring consideration of the affidavits. The trial court again denied BP Product’s motions and allowed the depositions to proceed. Instead of attempting further mandamus review, BP Products concluded a discovery agreement with the plaintiffs regarding the executives’ depositions, and the parties filed the agreement with the trial court. The agreement provided that the defendants would produce Manzoni for a four-hour deposition. In return, the plaintiffs promised they would withdraw the notice of deposition of Browne and would not request the deposition of any other executive officer or board member of BP plc, with one exception: paragraph No. 4 of the agreement provided that if, during the Manzoni deposition, the plaintiffs developed new evidence that John Browne had “unique and superior personal knowledge” of relevant facts, the plaintiffs would be permitted to issue a new notice of deposition for Browne. The agreement also provided that BP Products retained its right to file a motion to quash and motion for protection “on this new notice,” as well as its right to seek review of the trial court’s ruling on these motions. In addition, the agreement provided that “if, following appeals referenced in paragraph 4, the deposition of John Browne is not protected, the deposition of John Browne will be limited to one hour by telephone.” After the agreement was concluded, Browne made numerous public statements regarding the Texas City explosion, including giving interviews to Fortune and the Financial Times, providing information packets to investors and hosting several “town hall” meetings for employees, at least one of which, plaintiffs contended, appeared on the Internet. Plaintiffs took Manzoni’s deposition and then issued a new notice to take Browne’s deposition. Despite the provision of the agreement that any deposition take place by telephone, the notice provided that the deposition would take place in Galveston. BP Products filed a motion for protection, complaining that the deposition could not be set in Galveston, that plaintiffs could still not show that Browne had unique or superior knowledge of relevant facts, and that Manzoni’s deposition had not produced “new evidence” that Browne had “unique and superior personal knowledge” of relevant facts as required under the parties’ discovery agreement. Plaintiffs responded, asserting they could satisfy both the apex standard and the standard provided in the agreement. On Oct. 9, 2006, the day of the hearing on BP Products’ motion for protection, plaintiffs filed a supplemental response arguing that, at the time the parties entered the agreement, “it was not anticipated” new information demonstrating Browne’s knowledge would become available from Browne’s public statements. Plaintiffs initially stood by the Rule 11 agreement. At the hearing itself, plaintiffs argued: “[W]e are abiding by the contract. The contract we’re relying is under paragraph four of the Rule 11 agreement . . . . In fact, we could probably come to this court with a straight face and say we think all bets are off because they misrepresented things. They waited until we entered that agreement and then they put Lord Browne all over the Internet after the fact and then try to King’s X us, and we’re not even arguing that. So, we will still stick with one hour and we’ll still stick with the teleconference. . . .” The trial court ended the first day of the hearing with the statement that it was not convinced “based on how Mr. Browne likes to interject himself, that he doesn’t want to be deposed.” The trial court continued the hearings until Oct. 11, 2006, to give BP Products an opportunity to examine plaintiffs’ new exhibits. BP Products argued in its written response before the trial court that Browne’s public statements did not demonstrate Browne had unique or superior knowledge, and, in any event, did not justify setting aside the parties’ discovery agreement. At the hearing on Oct. 11, 2006, plaintiffs argued: “[T]here was fraud inducement in the execution of Rule 11. And we are asking the court to dissolve the Rule 11 agreement and to allow us to proceed with the deposition of Lord Browne. Not just for the one-hour telephonic conference, but for the four to six hours individually we were originally intending to take the deposition.” BP Products responded that plaintiffs had not alleged fraud, had not made allegations attacking the Rule 11 agreement, there was no evidence of fraud, and BP Products was entitled to time “to develop it, discover it, and they have to provide some evidence which they have not.” The trial court denied BP Products’ motions, and ordered Browne’s deposition to proceed at a place of the parties’ choosing, “without limitations and the Rule 11.” In its order of Oct. 11, 2006, the trial court found that “new circumstantial evidence developed during Mr. John Manzoni’s deposition shows that Mr. Browne has unique or superior knowledge of relevant facts.” BP Products filed a petition for writ of mandamus with the 1st Court. After the 1st Court denied that petition, BP Products filed a petition with the Texas Supreme Court. The court granted a stay of the trial court’s order pending its review of the issues. During the pendency of this mandamus proceeding, Browne resigned from BP plc and retired. The plaintiffs then filed a motion to dismiss BP Products’ petition as moot, contending that apex protections do not apply to retired officials. HOLDING:The court conditionally granted the writ of mandamus to compel the trial court to vacate its order and directed the trial court to enforce the parties’ agreement. Texas Rule of Civil Procedure 191.1, the court stated, provides that “except where specifically prohibited” the parties may modify discovery rules by agreement. An agreement is enforceable when it complies with the terms of Rule 11, or as it affects an oral deposition, if made a part of the record of the deposition. The terms of the parties’ discovery agreement apply, the court stated. The trial court found that “new circumstantial evidence developed during Mr. John Manzoni’s deposition shows that Mr. Browne has unique or superior knowledge of relevant facts.” If some evidence supports the trial court’s conclusion, the court stated,the trial court could order a deposition consistent with the terms of the parties’ agreement. The court held that the trial court erred in finding that Browne’s public statements justified setting aside the discovery agreement on grounds of misrepresentation, estoppel and changed circumstances. Thus, the court held that the trial court abused its discretion in setting aside a valid discovery agreement without good cause. In this case, one party had already acted in reliance on the agreed procedure, partially performing its obligations. The parties agreed to define the scope of permissible discovery under Rule 192.3(a), limiting the expense and burden of litigating a disputed issue. Delaying review until appeal, under these circumstances, would defeat not only the purpose of the discovery agreement, but also the strong public policy encouraging parties to resolve their discovery disputes without court intervention. OPINION:Gaultney, J., delivered the opinion of the court.

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