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Civil Litigation No. 02-02-400-CV, 2/7/2003. FACTS: On Nov. 26, 2002, relator Burlington Northern and Santa Fe Railway Co. filed a petition for writ of mandamus from the trial court’s order denying its motion for protective order and motion to quash the deposition of its president and CEO, Matthew K. Rose. HOLDING: Conditionally granted. Under Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995), a party seeking to prevent the deposition of an apex-level witness must move for protection and must file the corporate official’s affidavit denying any knowledge of relevant facts. The trial court must then evaluate the motion and decide if the party seeking the deposition has “arguably shown that the official has any unique or superior personal knowledge of discoverable information.” “If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should” not allow the deposition to go forward without a showing, after a good faith effort to obtain the discovery through less intrusive means, “1. that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and 2. that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.” BNSF properly initiated the apex guideline proceedings set forth in Crown Central by moving for protection and filing Rose’s affidavit denying any knowledge of relevant facts. Thus, the burden shifted to real parties to show that Rose had unique or superior personal knowledge of discoverable information. In response to BNSF’s motion for protective order and motion to quash, real parties stated that the deposition of Tim Huya, a BNSF employee, showed Rose was directly involved in the decision relating to the timing of crossing upgrades. In support of their contention, real parties attached excerpts of Huya’s deposition testimony to its response. The deposition showed that an April 2000 meeting or work session between BNSF and the Texas Department of Transportation took place for purposes of discussing a process for reducing the time frame for installing crossings in Texas, which would result in a reduction from a 26 month to a 13-month installation process after April 2000. The only reference to Rose in this meeting was Huya’s statement that “our president of our corporation at the time advised us that we should look at even more refining, refining the timeline to even shorter,” effective as of Jan. 1, 2001. Huya then testified that they “came out of that working session with a second option of a seven-month install.” Huya also testified as to his understanding of why Rose wanted to reduce the install time, referring to the BNSF vision statement. Huya testified that the vision statement was also in a printed document. This testimony shows only that Rose wanted BNSF to look at shorter time frames for installing crossings. There is no evidence that Rose was either present at the meeting or that he had any specialized knowledge about the details discussed at that meeting. Huya’s understanding that the company’s vision statement provided the basis for Rose’s suggestion of looking at a shorter time frame does not show that Rose had any specialized or superior knowledge with regard to crossings. The evidence relied upon by real parties is too general to show Rose’s knowledge is unique or superior with respect to either crossings in general or the crossing in this case. Testimony that a corporate executive possesses knowledge of company policies does not, by itself, satisfy the first Crown Central test because it does not show that the executive has unique or superior knowledge of discoverable information. Real parties also did not show in their response to the petition for writ of mandamus that Rose has unique or superior personal knowledge of discoverable information. Instead, real parties tried to shift the burden, stating the petition should be denied because BNSF failed to deny that Rose had unique or superior knowledge of the “upgrade process for installing active warning devices.” This burden, however, falls on real parties, and they have failed to meet it. The evidence presented by real parties to the trial court and to this court does not show anything beyond mere relevance. To be unique or superior, “there must be some showing beyond mere relevance, such as evidence that a high-level executive is the only person with personal knowledge of the information sought or that the executive arguably possesses relevant knowledge greater in quality or quantity than other available sources.” Real parties presented no evidence here or in the trial court that comes close to showing Rose meets either criteria. Having failed to show that Rose had unique or superior knowledge, real parties were required to make a good-faith effort to obtain the discovery through less intrusive means. Real parties did not demonstrate or allege that they made a good faith effort to obtain the discovery through less intrusive means. Thus, based on BNSF’s motion for protective order, Rose’s affidavit, and real parties’ failure to follow the Crown Central guidelines for obtaining Rose’s deposition, the court holds the trial court abused its discretion in denying BNSF’s motion for protection order and motion to quash Rose’s deposition. OPINION: Day, J.; Day, Livingston and Dauphinot, JJ.

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