Texas SC says Criss abused discretion ordering Browne's deposition

By Marilyn Tennissen | Jan 28, 2008

Judge Susan Criss

The Texas Supreme Court ruled Friday that Judge Susan Criss abused her discretion when she ordered the former CEO of BP to submit to a lengthy deposition about the 2005 explosion at the Texas City refinery.

In an opinion issued Jan. 25, the Texas high court directed Criss to vacate her order and enforce an earlier discovery agreement between the parties. The agreement allowed for John Browne, head of BP at the time of the blast that killed 15 people, to give a one-hour deposition over the telephone relating to budget cuts and what impact that may have had on refinery operations and safety.

Criss presides over the 212th District Court in Galveston County where all the lawsuits against BP were consolidated. All 15 wrongful death suits and thousands of personal injury cases have been settled with about 750 more still pending in Criss' court.

The parties entered into a discovery agreement after plaintiffs, led by Beaumont attorney Brent Coon, wanted depositions of Browne and John Manzoni, head of refining and marketing.

According to court documents, BP moved to quash the depositions and moved for protective orders, contending the plaintiffs had not met the burden under the "apex doctrine." Under the doctrine, when a party seeks to take the deposition of a senior corporate official, like Browne, the party must either show that the official has "unique or superior personal knowledge" of relevant facts or that less intrusive methods of discovery are inadequate.

The parties eventually agreed that BP 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.

There was one exception: if during the Manzoni deposition new evidence developed 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. If Browne was deposed, then it would be limited to one hour by telephone.

After Manzoni's deposition, plaintiffs did file a new notice to depose Browne – in Galveston.

BP filed a motion for protection, complaining that the deposition could not be set in Galveston and that plaintiffs failed to show that Browne had unique or superior knowledge of relevant facts or that Manzoni's deposition produced any new evidence.

Coon argued that Browne made numerous public statements regarding the Texas City explosion that were "new evidence." The public statements included interviews in Fortune and Financial Times magazines and town hall meetings with employees that appeared on the Internet.

On Oct. 11, 2006, Criss ordered Browne's deposition to proceed at a place of the parties' choosing "without limitations."

Criss explained that after the discovery agreement, Browne "personally injected himself into the case with public comments that present new evidence of his unique or superior knowledge of relevant facts."

In the meantime Browne resigned from BP and retired. Plaintiffs then contended that BP's petition was moot since the apex protections do not apply to retired officials.

However the Texas Supreme Court found there was no basis "for ignoring the parties' agreement."

In the Jan. 25 opinion on the petition for writ of mandamus, the Texas Supreme Court stated that if Criss had concluded that Manzoni's inability to answer certain questions about a 25 percent budget cut at the refinery constituted "new evidence," then the plaintiffs could have been allowed a limited deposition of Browne for one hour by telephone.

"The court instead ordered the deposition to proceed without the limitations," the Texas Supreme Court wrote "The 'new evidence' finding does not justify setting aside the agreement."

The Supreme Court wrote that under the Rules of Civil Procedure, parties are encouraged to reach discovery agreements as an important role in efficient trial management.

"When the parties conclude an agreement, the court should not lightly ignore their bargain," the Texas court wrote.

In conclusion, the Texas Supreme Court stated "The trial court abused its discretion in setting aside a valid discovery agreement without good cause. We conditionally grant the writ of mandamus to compel trial court to vacate its order, and direct the trial court to enforce the parties' agreement. We are confident the trial court will comply, and our writ will issue only if the court does not. "

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