Texas Appellate Court Decision – January 16, 2025
While this blog will focus primarily on Texas Business Court decisions, from time to time we will summarize opinions of note from Texas’s Appellate Courts. The following decision was issued by the Fifteenth Court of Appeals on January 16, 2025, and may be of interest to you.
Nos. 15-24-00087-CV and 15-24-00090 In re Google, LLC (Midland County and Victoria County, Texas)
[Field, Author, with Brister, Chief Justice, and Jones (sitting by designation)]
Petitions for Writs of Mandamus/Compelling the Deposition of the State of Texas in Enforcement Actions.
In these writ petitions, Google alleged the trial courts in Midland and Victoria Counties abused their discretion by failing to compel the deposition of the State of Texas in enforcement actions against Google; in the Midlands case, Google also sought to compel the deposition of the Office of Attorney General in the alternative.
The State had sued Google in Midland County for allegedly violating the Texas Deceptive Trade Practices Act, Bus. & Com. Code Sec. 17.41-63 and the Texas Capture or Use of Biometric Identifier Act, id. Sec. 503.001, by capturing Texas consumers’ biometric identifiers without their consent. In the Victoria County action the State sued Google under the Deceptive Trade Practices Act on a theory that Google was unlawfully collecting consumers’ locations and browsing information. After written discovery, Google noticed deposition of a representative of the State of Texas, setting a total of 50 topics in the two actions; the State moved to quash the depositions and got a stay; Google’s request to depose the Office of the Attorney General in the Midland case was also stayed. After hearings in each case, the trial courts denied Google’s motion to compel the State’s deposition. Google then filed these petitions for mandamus relief.
Held: (1) Rule 199, by its very terms, is broad enough to allow for a deposition of the State of Texas, since 199.1 provides a party is entitled to take the deposition of any person or entity, and Texas concedes it is an entity; further, under the Code Construction Act, the word person is also broad enough to include the State of Texas; (2) Google’s deposition notice does not necessarily mean that the Office of the Attorney General will have to sit for the deposition, but any problem this may entail can be dealt with by the trial court when setting parameters for the depositions; (3) the State, as the party resisting Google’s motion to compel, has the burden to plead and prove to the trial court the basis for its objections to the deposition, including any evidence necessary to support its position; (4) the State failed to meet its burden in resisting at least some of Google’s requested deposition topics as it failed to provide evidence to support its claims of work-product privilege and burdensomeness and duplication; (5) in light of this lack of proof and, in some instances, failure to object, each trial court abused its discretion in denying Google’s motion to compel the State’s deposition; (6) Google lacks an adequate appellate remedy because its inability to take the deposition of the only party suing it, on subjects Texas admits are relevant, goes to the heart of Google’s ability to mount a defense; (7) this court’s holding that the trial courts’ blanket refusal to compel any deposition was an abuse of discretion does not mean that the trial courts have no power to limit topics or set guideposts for these depositions; and (8) with respect to the deposition of the Office of Attorney General in the Midland case, it is a third party to the suit, and Goggle failed to follow the proper procedure for taking a third party’s deposition by noticing the Office through a subpoena – see Tex. R. Civ. P. 205; no such subpoena is before the court, and the request for mandamus relief on this point is denied.