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holding that trial court abused its discretion in denying motion to quash subpoena and for protective order of witness who lived more than 150 miles from courthouse
Summary of this case from In re Team Indus. Servs.Opinion
NO. 14-19-00861-CV
05-28-2020
IN RE FEDEX GROUND PACKAGE SYSTEM, INC., Relator
Relator FedEx Ground Package System, Inc. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Dedra Davis, presiding judge of the 270th District Court of Harris County, to vacate her October 28, 2019 orders denying FedEx's motions to quash subpoenas and for protective orders. We conditionally grant the petition BACKGROUND
Zach Brown sued FedEx for personal injuries sustained in a collision between Brown's motorcycle and a FedEx vehicle. On January 25, 2019, Brown filed a motion to compel attendance of witnesses within FedEx's control. In the motion, Brown stated that his intent was to foreclose "any last-minute, meritless objections to their forthcoming subpoenas." In response, among other arguments, FedEx pointed out that Brown had not issued any trial subpoenas and contended that the motion was premature and Brown was asking the trial court to pre-emptively order FedEx to perform an action which it had not yet refused to do.
During discovery, Brown served a notice of his intent to take FedEx's deposition with a list of 10 topics on which he requested examination. FedEx identified Michael Sear, FedEx's manager of safety programs and response, who lives and works in Pennsylvania, as the witness for the deposition. Sear was deposed in Pittsburgh, Pennsylvania, on August 22, 2019.
The trial court heard Brown's January 25, 2019 motion to compel at an unrecorded pretrial conference on October 21, 2019. Brown asked the trial court to compel FedEx to require either Michael Sear or another unnamed corporate representative to appear at trial and testify in Brown's case-in-chief. According to FedEx, the trial court stated that FedEx was not required to bring Sear but granted the motion to compel the attendance of an unnamed corporate representative at trial. The trial court also stated that Brown should provide FedEx with a list of topics about which Brown intended to question the unnamed corporate representative.
The next day, on October 22, 2019, Brown issued and served two subpoenas on FedEx's general counsel: one to Sear as corporate representative for FedEx and the other to an unnamed corporate representative for FedEx. Each subpoena commanded the witness to appear before the trial court on October 28, 2019, to testify as corporate representative for FedEx on a list of 25 topics, and to attend trial daily until discharged.
On October 24, 2019, FedEx filed two motions to quash each subpoena and for protective orders. FedEx also filed an amended motion to quash the subpoena directed to Sear. On October 28, 2019, the trial court heard FedEx's motions to quash and for protective orders and denied the motions.
Also, on October 28, 2019, after the trial court denied FedEx's motions, FedEx filed a petition for writ of mandamus, asking this court to compel the trial court to set aside its October 28, 2019 order denying FedEx's motions to quash the subpoenas directed to Sear and the unnamed corporate representative. FedEx also requested a stay of all trial court proceedings. The following day, we denied the petition for mandamus, without prejudice to refiling, because FedEx had not provided either a written order or the reporter's record containing the trial court's ruling. See In re Fed Ex Ground Package Sys., Inc. , No. 14-19-00853-CV, 2019 WL 5581576, at *1 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, orig. proceeding) (mem. op.). We also denied the motion to stay. Id.
The following day, FedEx refiled its petition and cured the deficiency by providing copies of two orders signed by the trial court (1) denying FedEx's motion to quash the subpoena directed to FedEx's unnamed corporate representative and for a protective order; and (2) denying FedEx's motion to quash the subpoena directed to Sear and for protective order. That same day, this court issued an order staying all proceedings in the trial court. On October 30, 2019, Brown filed a motion for dissolution of our temporary stay as moot and to dismiss the petition for mandamus as moot. Brown advised that he had notified the trial court that he was withdrawing the subpoenas and requesting the trial court to vacate its orders denying FedEx's motions to quash.
FedEx responded that its request for relief is not moot because (1) Brown's counsel provided no assurance that he would not re-issue the subpoenas at a later time; and (2) Brown's counsel sent FedEx's counsel an email that morning stating that counsel continued to insist on Sear's attendance at trial and would seek appropriate sanctions if FedEx did not comply. FedEx further asserted the withdrawal of the subpoenas would not affect the underlying dispute because the trial court had denied FedEx's request for protective orders. On October 4, 2019, we denied Brown's motion for dissolution of the stay order.
In this mandamus proceeding, FedEx argues that the trial court abused its discretion by denying FedEx's motions because (1) a witness, who is not individually a party to the suit, cannot be compelled by subpoena to attend trial more than 150 miles from where the witness resides; and (2) there is no rule or statute or other authority by which the trial court can compel a party to produce a corporate representative to testify on 25 topics.
STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, the relator must show that the trial court clearly abused its discretion, and that the relator lacks an adequate remedy by appeal. In re Dawson , 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P. , 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam) ; In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam).
The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P. , 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We also consider whether mandamus will "allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments." Id. Finally, we consider whether mandamus will spare the litigants and the public "the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings." Id.
ANALYSIS
I. This Proceeding is Not Moot
As discussed above, after this court issued the stay order, Brown filed a motion to dissolve the stay, advising that he had withdrawn the two subpoenas and would not reissue them. Brown argued that, in light of his having withdrawn the subpoenas, FedEx's petition must be dismissed as moot and the stay lifted. We denied Brown's motion to dissolve our stay.
In his response to FedEx's mandamus petition, Brown reiterates his argument that FedEx's petition is moot because he withdrew the subpoenas and he has no intention of reissuing the subpoenas when the trial is reset, thereby rendering FedEx's request for relief moot. See In re Tyson Foods, Inc. , No. 12-17-00156-CV, 2017 WL 3225051, at *2 (Tex. App.—Tyler July 31, 2017, orig. proceeding) (mem. op.) (holding trial subpoena expired after court of appeals stayed all proceedings in trial court and relator's request for relief from order granting a motion to quash was moot); see also In re Kellogg Brown & Root, Inc. , 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) ("A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal.").
FedEx responds that its request for relief is not moot because Brown's counsel (1) has given no assurance that the subpoenas will not be reissued; and (2) sent FedEx's counsel an email the same morning that Brown filed the motion to dissolve the stay, stating that counsel continued to insist on Sear's attendance at trial and would seek appropriate sanctions if FedEx did not comply. The email reads as follows:
We are hereby withdrawing our trial subpoenas issued to Michael Sear as corporate rep for FedEx Ground Package System Inc. and the separate subpoena issued to FedEx Ground Package System Inc. This withdrawal shall have no impact on the Court's prior Order granting our motion to compel witnesses within your clients [sic] control issued on Monday October 21st, 2019.
We expect full compliance therewith and will seek appropriate sanctions to the extent you and your clients continue to ignore the Court's Order in that regard. To date you have failed to confirm Mr. Sear's attendance/unavailability for trial as ordered by the Court and you have failed to identify the individual you intend to make available as our first witness should Mr. Sear have some impediment which prevents him from being in Court.
An appellate court is prohibited from deciding moot controversies. Nat'l Collegiate Athletic Ass'n v. Jones , 1 S.W.3d 83, 86 (Tex. 1999). This prohibition is rooted in the separation of powers doctrine in the United States and Texas Constitutions that prohibits courts from rendering advisory opinions. Id. A case becomes moot if at any stage there ceases to be an actual controversy between the parties. Id. Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties. VE Corp. v. Ernst & Young , 860 S.W.2d 83, 84 (Tex. 1993).
FedEx argues that this proceeding is not moot because the underlying dispute is still live and is "fully capable of repetition." See In re Allied Chem. Corp. , 227 S.W.3d 652, 655 (Tex. 2007). In Allied Chemical , the trial court postponed responses to basic discovery in mass-tort cases until shortly before trial. Id. at 654. The Supreme Court of Texas had held previously that a trial court could not postpone responses. Id. (citing Able Supply Co. v. Moye , 898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding) ). Despite the high court's admonitions that a trial court should proceed with extreme caution in setting consolidated trials in "immature mass-torts" where no claim has been tried or appealed, the trial court consolidated five cases for an initial trial. Id. After the supreme court granted a stay in the case and requested full briefing, the plaintiffs asked the trial court to (1) sever out the property claims, (2) drop one plaintiff from the suit, and eventually (3) withdraw the trial court's consolidation order and proceed to trial on just one plaintiff's claims. Id. The trial court granted the plaintiffs' requests and ordered that the claims of only one of the plaintiffs would proceed to trial. Id. at 654–55.
The supreme court rejected the argument that the trial court order rendered the mandamus proceeding moot. Id. at 655. Among the reasons the court held that the proceeding was not moot was that the plaintiffs refused to give any assurance that they would not seek future consolidated trials inconsistent with prior supreme court precedent. Id.
Brown states in his response to the mandamus petition that he would not reissue the withdrawn subpoenas. However, Brown's counsel advised that the "withdrawal shall have no impact on the Court's prior Order granting our motion to compel witnesses within your clients [sic] control issued on Monday October 21st, 2019." Brown's counsel further stated that "[w]e expect full compliance and will seek appropriate sanctions to the extent you and your clients continue to ignore the Court's Order in that regard." Finally, Brown's counsel stated that FedEx had not "confirm[ed] Mr. Sear's attendance/unavailability for trial as ordered by the Court and you have failed to identify the individual you intend to make available as our first witness should Mr. Sear have some impediment which prevents him from being in Court."
Brown's counsel's email is directly contrary to the claim that the withdrawn trial subpoenas will not be reissued at a later trial setting. Under the circumstances in this case, the question of whether Sear or an unnamed corporate representative can be subpoenaed to testify remains an issue to be resolved. Therefore, the issuance of the subpoenas is a situation that is capable of repetition. To hold that that the withdrawal of the subpoenas in the face of Brown's assertions that he seeks to call Sear as his first witness or another corporate representative would allow Brown to manipulate this court's jurisdiction. See id. ("The situation that gives rise to this proceeding is thus fully capable of repetition, and if review can be evaded by the modification of orders pending mandamus proceedings, the defendants would be put to the repeated expense of seeking review only to have it denied by last-minute changes in the trial court's orders. An appellate court's jurisdiction cannot be manipulated in this way.")
FedEx also moved for protective orders that "Sear is not required to attend trial" and that no unnamed corporate representative "is required to attend trial." The trial court denied both motions. In its motions for protective orders FedEx requested separate relief from the motions to quash the subpoenas. Therefore, we hold that the requested relief in FedEx's petition for writ of mandamus is not moot and this court has jurisdiction to decide the petition.
II. The Trial Court Abused Its Discretion
A. Michael Sear
In its first issue, FedEx argues that the subpoena to Sear is improper because Brown cannot compel a non-party individual to attend trial when that individual is not within 150 miles of the courthouse in Harris County. We agree. From having taken Sear's deposition in Pennsylvania, Brown is aware that Sear lives and works there, a location far beyond 150 miles of the Harris County Civil Justice Center in Houston, Texas. A trial court has the authority to require a witness, including a party or an officer of a party, to attend trial if the witness resides within 150 miles of the courthouse of the county in which the suit is pending or if the witness may be found within such distance at the time of trial. See Tex. R. Civ. P. 176.3(a) ; Dr. Pepper v. Davis , 745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig. proceeding) (citing Tex. R. Civ P. 176, 181 ). That Sear is a FedEx employee does not change the requirement that Sear must live within 150 miles of the Harris County courthouse to be subject to the trial court's subpoena power. See Dr. Pepper , 745 S.W.2d at 471 (holding trial court did not have power to authorize issuance of subpoena or otherwise compel any person, including officer of party, to appear as witness at trial if that person resides more than 100 miles from courthouse of county in which suit is pending and outside county of suit.).
Sear does not reside within the geographical limits of the trial court's subpoena authority. In response to FedEx's motion to quash the subpoena directed to Sear and for a protective order, Brown argued that the 150-mile subpoena range does not apply to a company's employee. However, in this proceeding, it appears that Brown has abandoned any argument that Sear is subject to the trial court's subpoena authority. Brown offers no other argument to defend the trial court's order compelling Sear to appear at trial. Nor does Brown identify any authority that would support the trial court's order compelling Sear to attend trial. We conclude that the trial court abused its discretion by denying the motion to quash the subpoena directed to Sear and for a protective order that Sear is not required to attend trial.
B. Unnamed Corporate Representative
In its second issue, FedEx contends that there is no authority under which the trial court could compel FedEx to produce an unnamed corporate representative to testify at trial about a list of 25 topics. Texas Rule of Civil Procedure 199.2 provides the procedure for noticing oral depositions. Tex. R. Civ. P. 199.2. If a corporation is named as the witness, "the notice must describe with reasonable particularity the matters on which examination is requested." Id. 199.2(b)(1). The corporation must "designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify." Id.
In response to FedEx's motions to quash and for protective orders, Brown argued, in part, that he could properly subpoena witnesses subject to FedEx's control by serving the subpoenas on FedEx's counsel. See Tex. R. Civ. P. 199.3, 205.1 . Rules 199.3 and 205.1, however, relate to compelling a witness to attend a deposition, not trial. See Tex. R. Civ. P. 199.3, 205.1.
Rule 199.2(b)(1) is patterned after Federal Rule of Civil Procedure 30(b)(6). See Hosp. Corp. of Am. v. Farrar , 733 S.W.2d 393, 394–95 (Tex. App.—Fort Worth 1987, orig. proceeding) (recognizing Federal Rule 30(b)(6) as the rule after which Texas Rule 199.2(b)(1) was modeled). We may look to federal authority for guidance when the state law mirrors the federal law. In interpreting Federal Rule 30(b)(6), federal courts hold that Rule 30(b)(6) does not allow a party to subpoena a corporate representative to compel testimony at trial. Following the federal courts' interpretation of Rule 30(b)(6), we conclude that Rule 199.2(b)(1) similarly does not provide for trial subpoenas with designated topics.
Federal Rule of Civil Procedure 30(b)(6) provides:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
Fed. R. Civ. P. 30(b)(6).
The court in Farrar addressed former Texas Rule 201(4), which preceded Texas Rule 199.2(b)(1) and provided:
When the deponent named in the subpoena or notice is a public or private corporation, a partnership, association or governmental entity, the subpoena or notice shall direct the organization named to designate the person or persons to testify in its behalf, and, if it so desires, the matters on which each person designated will testify, and shall further direct that the person or persons designated by the organization appear before the officer at the time and place stated in the subpoena or notice for the purpose of giving their testimony.
Tex. R. Civ. P. 201(4) (repealed). Former Texas Rule 201(4) and current Texas Rule 199.2(b)(1) are substantively similar.
Cf. Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 505 (Tex. 2012) (looking to federal law for guidance in situations where Texas Commission on Human Rights Act and Title VII of the Civil Rights Act of 1964 contain similar statutory language); Tex. Comptroller of Pub. Accounts v. Att'y Gen. of Tex. , 354 S.W.3d 336, 342 (Tex. 2010) ("Because the Texas Public Information Act is modeled on the Freedom of Information Act, federal precedent is persuasive, particularly where the statutory provisions mirror one another."); In re Weekley Homes, L.P. , 295 S.W.3d 309, 316–17 (Tex. 2009) (orig. proceeding) (recognizing that state discovery rules are not identical to federal rules, but "are not inconsistent," and "therefore we look to the federal rules for guidance").
See Hill v. Homeward Residential, Inc. , 799 F.3d 544, 553 (6th Cir. 2015) (holding that district court did not abuse its discretion by denying plaintiff's request to take new deposition on new topics at trial because Federal Rule 30(b)(6) contemplates depositions during discovery, not at trial, and to allow trial deposition would allow an end-run around failed subpoenas); Dopson-Troutt v. Novartis Pharm. Corp. , 295 F.R.D. 536, 539–40 (M.D. Fla. 2013) (holding that plaintiffs could not properly compel trial testimony through Federal Rule 30(b)(6) -type designation); MC Asset Recovery, LLC v. Castex Energy, Inc. , No. 4:07-CV-076-Y, 2013 WL 12171724, at *1 (N.D. Tex. Jan. 7, 2013) (addressing argument that trial subpoenas with 64 topics were being used as discovery tool and recognizing that Federal Rule 45 does not expressly authorize party to subpoena corporate representative to testify vicariously at trial in way that Texas Rule 30(b)(6) does for deposition) (quotations and citations omitted); Hill v. Nat'l R.R. Passenger Corp. , CIV. A. No. 88-5277, 1989 WL 87621, at *1 (E.D. La. July 28, 1989) (holding that there is no provision allowing use of Federal Rule 30(b)(6) -type designation of areas of inquiry at trial).
The parties followed the procedure for deposing Michael Sear as FedEx's corporate representative in this case. See Tex. R. Civ. P. 199.2(b)(1). Brown noticed the deposition of FedEx and provided 10 topics on which he sought testimony. FedEx designated Sear as its corporate representative to testify on those matters at deposition because of Sear's knowledge as FedEx's manager of safety programs and response. Brown did not object to the procedure or the extent or nature of Sear's deposition testimony. Both FedEx and Brown have designated excerpts of Sear's deposition to be played to the jury at trial. We conclude that the trial court abused its discretion by denying FedEx's motion to quash the deposition of the unnamed corporate representative and for protective order.
Texas Rule 199.2(b)(1) provides the following in relevant part with respect to taking the deposition of an organization:
If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must--a reasonable time before the deposition--designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized by these rules.
Tex. R. Civ. P. 199.2(b)(1).
FedEx also asserts that the trial court abused its discretion by denying FedEx's motions to quash and for protective orders because Brown failed to take reasonable steps to avoid imposing an undue burden or expense on FedEx. Because we have held that the trial court abused its discretion for the reasons addressed above, it is not necessary to address this additional argument.
III. FedEx Has No Adequate Remedy By Appeal
Having concluded that the trial court abused its discretion, we must determine whether FedEx has shown that it lacks an adequate remedy by appeal. In determining whether a party has an adequate remedy by appeal, the appellate court considers whether mandamus relief would preserve important substantive and procedural rights from impairment or loss. Prudential Ins. Co. of Am. , 148 S.W.3d at 136. Unless mandamus relief is granted, FedEx will have lost its right not to designate a corporate representative, who does not live within subpoena range. FedEx also will be forced to designate another corporate representative to testify on 25 specific topics at trial, when the Texas Rules of Civil Procedure do not provide for such trial testimony. These errors cannot be cured on appeal. Cf. Walker v. Packer , 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding) (explaining that party will not have adequate remedy by appeal when appellate court would not be able to cure trial court's discovery error). Therefore, FedEx has demonstrated that it does not have an adequate remedy by appeal.
CONCLUSION
We hold that this mandamus is not moot, the trial court abused its discretion by denying FedEx's motions to quash the subpoenas of Sear and the unnamed corporate representative and for protective orders, and FedEx does not have an adequate remedy by appeal. Therefore, we conditionally grant FedEx's petition for writ of mandamus and direct the trial court to set aside its October 28, 2019 orders denying FedEx's motions to quash and for protective orders. The writ will issue only if the trial court fails to act in accordance with this opinion. We lift our stay entered on October 29, 2019.
( Hassan, J., dissenting).
DISSENTING OPINION
Meagan Hassan, Justice, dissenting.
Properly construed, the question presented is whether the trial court abused its discretion when it ordered FedEx Ground to choose between producing Sear at trial or someone else of its choice at trial. Specifically, FedEx Ground contends that trial courts in Texas cannot "compel the attendance of a corporate witness at trial." FedEx Ground is mistaken. See Sun v. King Servs., Inc. , No. G-06-351, 2006 WL 2248473, at *2 (S.D. Tex. Aug. 3, 2006) ("[A] corporate representative can be compelled to testify at trial.") (citing no authorities); see also Ralph v. Exxon Mobil Corp. , No. G-05-655, 2006 WL 2266258, at *2 (S.D. Tex. Aug. 8, 2006) (citing Lajaunie v. L & M Bo-Truc Rental, Inc. , 261 F. Supp. 2d 751, 754 (S.D. Tex. 2003) ); Cont'l Airlines, Inc. v. Am. Airlines, Inc. , 805 F. Supp. 1392 (Tex. 1992). Cf. Grant v. Austin Bridge Constr. Co. , 725 S.W.2d 366, 370 (Tex. App.—Houston [14th Dist.] 1987, no writ) (relying on federal decisions where the Texas Rules of Civil Procedure are patterned on the Federal Rules of Civil Procedure). While the majority also cites to federal jurisprudence, at least one federal court in Texas has held that compelling a corporate representative to testify at trial on enumerated topics is permissible, so long as the testimony is "within the scope of what was previously given by Defendants' corporate designee at his Rule 30(b)(6) deposition." MC Asset Recovery, LLC v. Castex Energy, Inc. , No. 4:07-CV-076-Y, 2013 WL 12171724, at *1 (N.D. Tex. Jan. 7, 2013).
FedEx Ground also contends it "has not agreed to make its corporate representative available to testify live at trial, but instead plans to rely on the deposition testimony taken under Rule 199.2(b)(1)."
FedEx Ground's complaint on appeal is three-fold:
(1) a witness who is not individually a party cannot be compelled by subpoena to attend trial more than 150 miles from where he resides; (2) there is no rule or statute or other authority by which the trial court can compel a party to produce a corporate representative to appear at trial to testify on 25 topics; and (3) the trial subpoenas do not provide adequate time for compliance or adequate protection from undue burden and expense.
I would deny FedEx Ground's petition because (1) several of the issues are moot; (2) several of the issues are unripe; (3) several of the issues have been waived; (4) Texas courts are inherently authorized to administer justice (including the prevention of injustice); (5) the trial court acted in accordance with Texas Rule of Civil Procedure 1 ; and (6) the trial court did not compel a witness to attend more than 150 miles from where he resides.
I. Mootness
Brown argues several of FedEx Ground's alleged errors have become moot, i.e. , (1) a trial subpoena to Michael Sear, (2) a trial subpoena to a corporate representative beyond subpoena range, and (3) a trial subpoena including a categorical list of examination topics. Brown has assured us "he will not issue such subpoenas in a reset of the trial in this matter." Misrepresentations in Texas courts carry well-known consequences. Therefore, I cannot presume any Texas lawyer would attempt to gain a tactical advantage anywhere (much less here) by making material misrepresentations to this Court. As a result, the propriety of these three specific categories of Brown's subpoenas is moot and we have no reasonable cause to believe the propriety of these subpoenas will resurface.
See Poff v. Guzman , 532 S.W.3d 867, 871 n.3 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("A trial court may have inherent authority to impose death penalty sanctions when a party has committed perjury or fabricated evidence.") (citing JNS Enter., Inc. v. Dixie Demolition, LLC , 430 S.W.3d 444, 452-53 (Tex. App.—Austin 2013, no pet.) (noting that a trial court has inherent authority to impose sanctions for a party's deplorable conduct, and that fabricating evidence is the most egregious conduct amounting to a "fraud on the court") (quotation omitted)); Daniel v. Kelley Oil Corp. , 981 S.W.2d 230, 232-36 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (en banc) (noting that the trial court (1) had implied power to manage controversies before it, (2) did not err by resolving a factual dispute as to whether certain evidence had been fabricated, and (3) did not err by imposing death penalty sanctions); and Vaughn v. Tex. Emp't Comm'n , 792 S.W.2d 139, 144 (Tex. App.—Houston [1st Dist.] 1990, no writ) (no abuse of discretion when trial court dismissed a party's causes of action after the party committed perjury during discovery)).
II. Ripeness
FedEx Ground's third issue (concerning sufficient time to comply with the trial court's order) is neither ripe nor preserved. "Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction[.]" Patterson v. Planned Parenthood of Houston & Se. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998) (citing Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) ). Therefore, ripeness is "subject to de novo review that a court can raise sua sponte." Mayhew , 964 S.W.2d at 928. Even if this issue was ripe and preserved, it is now moot because FedEx Ground has had six additional months to prepare since the trial court's order and would (in my opinion) receive a stay of 30 additional days to cure any potential prejudice. See generally Tex. R. Civ. P. 1.
"A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass." Vill. of Tiki Island v. Premier Tierra Holdings Inc. , 555 S.W.3d 738, 745 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Save Our Springs Alliance v. City of Austin , 149 S.W.3d 674, 683 (Tex. App.—Austin 2004, no pet.) (citing Patterson , 971 S.W.2d at 442 )). Here, FedEx Ground elected to forego requesting a continuance (which would have foreseeably developed the record); instead, it argued that under these circumstances, the Rules do not require it to produce anyone at trial. That decision deprives this Court of subject-matter jurisdiction to consider the question of whether the trial court erred with respect to the time for compliance because FedEx Ground never presented these issues thereto; if a motion for continuance had been granted, there would be no appeal on that issue and if it had been denied, then we would have cause to address it with a properly developed record.
Specifically, FedEx Ground contends, "If the trial court's ruling is allowed to stand, then parties in any case could serve a trial subpoena on the eve of trial (through service on counsel) that would require an organization or corporation, whose employees may be in another state or another country, to prepare a corporate representative to testify live at trial on an unlimited number of topics. This is not, and should not be, the law in Texas."
See 13B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3532.3 (3d ed. 1984) ("adjudication may be postponed until a better factual record is available, ‘[e]ven though the challenged statute is sure to work the injury alleged’ ") (quoting Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 300, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ); Gene R. Nichol, Jr., Ripeness and the Constitution , 54 U. Chi. L. Rev. 153, 177 (1987) ("Litigation based upon hypothetical possibility rather than concrete fact is apt to be poor litigation. The demand for specificity, therefore, stems from a judicial desire for better lawmaking."); June F. Entman, Flawed Activism: The Tennessee Supreme Court's Advisory Opinions on Joint Tort Liability and Summary Judgment , 24 Mem. St. U. L. Rev. 193, 199 (1994) ; and Felix Frankfurter, A Note on Advisory Opinions , 37 Harv. L. Rev. 1002, 1002-03 (1924).
I therefore reject FedEx Ground's third issue in its entirety because it requires us to presume the trial court addressed an issue we have no cause to believe it addressed. See Rios v. Tex. Bank , 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no writ) (citing Union City Body Co. v. Ramirez , 911 S.W.2d 196, 202 (Tex. App.—San Antonio 1995, orig. proceeding) (holding a party may not lead a trial court into error and then complain about it on appeal)). FedEx Ground had time to file a motion for continuance, but did not do so; therefore, it also failed to preserve error on this ground. See id. ; see also Garcia-Ramirez v. State , No. 05-13-01514-CR, 2014 WL 5477014, at *2 (Tex. App.—Dallas Oct. 30, 2014, pet. ref'd) (mem. op., not designated for publication) ("Having failed to do so [request a continuance], he ‘cannot now be heard to complain.’ ") (quoting Barnes v. State , 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (quoting Hubbard v. State , 496 S.W.2d 924, 926 (Tex. Crim. App. 1973) )); Gorham v. Wainwright , 588 F.2d 178, 180 (5th Cir. 1979) (citing United States v. Scruggs , 583 F.2d 238, 242 (5th Cir. 1978) ); and United States v. James , 495 F.2d 434, 437 (5th Cir. 1974).
Finally, ripeness considerations require courts "to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Perry v. Del Rio , 66 S.W.3d 239, 249-50 (Tex. 2001) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ). Here, the issue is not fit for judicial decision because (1) the properly construed question was presented neither below nor here; (2) FedEx Ground did not request relief afforded under the Rules; (3) Brown's subpoenas are moot; (4) there is no evidence of hardship to FedEx Ground; and (5) any undue hardship would be rectified via the time that has passed since the trial court's order plus a 30-day stay. This evidence-less and improperly presumed hardship to FedEx Ground is even less compelling when viewed in light of the conduct that created it.
III. Waiver
No fact in the record could lead us to believe the trial court's ruling imposed an undue burden on FedEx Ground. Specifically, there are no facts tending to show FedEx Ground lacks employees it could reasonably produce at trial who have personal knowledge of the relevant subject matters identified through the deposition of its designated corporate representative. Therefore, the merits of FedEx Ground's third issue are not before us. See Indep. Insulating Glass/Sw., Inc. v. Street , 722 S.W.2d 798, 802 (Tex. App.—Fort Worth 1987, orig. proceeding) ("Any party who seeks to exclude matters from discovery on grounds that the requested information is unduly burdensome, costly or harassing to produce, has the affirmative duty to plead and prove the work necessary to comply with discovery.").
FedEx Ground also failed to argue to the trial court that the order compelling it to produce a corporate representative to testify on 25 topics was unduly burdensome. To the extent FedEx Ground contends it needed more than one person to testify on these topics or that the trial court's order was otherwise unduly burdensome, we have been presented with no evidence that it sought any relevant relief pertaining to the trial court's rulings before seeking appellate relief, e.g. , (1) rehearing concerning the number of corporate representatives it was entitled to produce, (2) rehearing concerning the number of issues it was ordered to prepare, (3) clarification of the court's order in the event of a latent ambiguity, (4) leave to identify more than one corporate representative, or (5) additional time to prepare. We have also been presented with zero evidence showing the existence (much less details) of such a burden or that said burden was presented to the trial court. Precedent regarding relators' failure to pursue available remedies precludes us from addressing this issue altogether. See Indep. Insulating Glass/Sw., Inc. , 722 S.W.2d at 802. IV. Inherent Authority
Even if we choose to believe these issues are ripe, preserved, and not moot, the majority wrongly relies upon the absence of express permission in the Rules to support its conclusion that the trial court abused its discretion when it ordered FedEx Ground to produce either Sear or someone else of its choice at trial. Absent a compelling reason it could not do so, I believe the inequity of the posture FedEx Ground created is readily apparent and that the trial court had inherent authority to rectify same.
"Corporations can act only through human agents[.]" Arshad v. Am. Express Bank, FSB , 580 S.W.3d 798, 808 (Tex. App.—Houston [14th Dist.] 2019, no pet.). During litigation, Brown (who carries the plaintiff's burden at trial) deposed FedEx Ground's designated representative. Brown (seemingly acknowledging the trial court had no jurisdiction to compel Sear's attendance) asked the trial court to compel FedEx Ground to produce a live witness at trial; presumably, the trial court perceived this to be a reasonable request. I have no cause to believe the trial court abused its discretion when it used its inherent authority to administer justice. See Eichelberger v. Eichelberger , 582 S.W.2d 395, 398 (Tex. 1979) (inherent powers "are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity").
See also id. ("In addition to the express grants of judicial power to each court, there are other powers which courts may exercise though not expressly authorized or described by constitution or statute. These powers are woven into the fabric of the constitution by virtue of their origin in the common law and the mandate of Tex. Const. Art. II, Sec. 1, of the separation of powers between three co-equal branches. They are categorized as ‘implied’ and ‘inherent’ powers, though some courts have also used the terms incidental, correlative and inferred.... The courts of this state have long recognized these powers. Their use has continued unchallenged through constitutional revision, express legislative confirmation, as well as the sometimes overbroad statements of our own courts."); Burttschell v. Sheppard , 123 Tex. 113, 69 S.W.2d 402, 403 (1934) ("It has also been said that the inherent powers of courts are those which are essential to their existence and to the due administration of justice.") (citing 15 C. J. 732); In re Collins , 242 S.W.3d 837, 847-48 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding) (quoting Eichelberger , 582 S.W.2d at 398 ); and id. (quoting Hale v. State , 55 Ohio St. 210, 45 N.E. 199, 200 (1896) ) ("The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court, or the purpose of its creation fails. Without such power, no other could be exercised.").
Texas trial courts have been authorized to reasonably tailor remedies to the circumstances of a case without express authority since the early days of the Republic. See Teas v. Robinson , 11 Tex. 774, 777 (1854) ("[I]n cases not provided for by statute, it is within the legal powers of the Court, to devise and authorize such appellate process as may be necessary to enforce its own jurisdiction, and secure the rights of parties interested a hearing and a revision of the judgments in this Court."). Texas trial courts are also inherently authorized to summon witnesses "and compel their attendance upon the court, to the end that justice may be administered." Burttschell v. Sheppard , 123 Tex. 113, 69 S.W.2d 402, 403 (1934) (citing 7 R. C. L. 1033; 15 C. J. 732, s 30; Hale v. State , 55 Ohio St. 210, 45 N. E. 199 (1896) ; and State ex rel. Rudolph v. Ryan , 327 Mo. 728, 38 S.W.2d 717 (1931) ). This "power to compel attendance of witnesses is one of the most vital necessities to a court in order for it to carry out the purposes for which it is created." Id. at 403-04.
See also Ashford v. Goodwin , 103 Tex. 491, 131 S.W. 535, 538 (1910) ("Although, looking to this statute alone, the procedure is meager, yet the district court has authority in such conditions to adopt a rule of procedure, if necessary for its government in the examination of such cases, and to apply to the facts of the case before it any and all rules of procedure which can be made applicable to the issues to be investigated, which are not in conflict with the provisions of any statute or the Constitution.") (citing Pendley v. Berry , 95 Tex. 72, 65 S.W. 32, 33 (1901) (providing a procedural remedy contrary to the relevant language because it was "inconceivable" the authors intended to limit "ample and reasonable rules" in such an unreasonable manner)); id. ("It must be borne in mind that these provisions are not intended to confer or to defeat the right of appeal, but to aid in its exercise, and mere incompleteness of the provisions does not necessitate a denial of the right. The courts are clothed with power, by rule or construction consistent with the express statutory regulations, to help them out so as to perfect and preserve the right.") (citing Wheeler v. State , 8 Tex. 228, 230 (1852) (providing an unprovided remedy after concluding it was "manifest that the suing out of a writ of error against the State was not particularly in the contemplation of the Legislature")); id. (citing Teas , 11 Tex. at 777 ); Wheeler , 8 Tex. at 231 ("There seems no ground why the process should be thus incumbered."); and Bennett v. Jackson , 172 S.W.2d 395, 397 (Tex. Civ. App.—Waco 1943, writ ref'd w.o.m.) ("Reasonable adherence to the established rules by each and all, consistent with a proper exercise of sound judicial discretion, is indispensable to the administration of justice according to law as distinguished from justice according to the personal opinion of the individual attempting to assist in its administration."). Cf. In re Easton , 203 S.W.3d 438, 442 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) ("Inherent power of the courts has existed since the days of the Inns of Court in common law English jurisprudence.") (quoting Eichelberger , 582 S.W.2d at 398-99 ).
See also Link v. Wabash R.R. Co. , 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (" ‘[I]nherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. That it has long gone unquestioned is apparent not only from the many state court decisions sustaining such dismissals, but even from language in this Court's opinion in Redfield v. Ystalyfera Iron Co. , 110 U.S. 174, 176, 3 S. Ct. 570, 28 L. Ed. 109 [ (1884) ]."); Burttschell , 69 S.W.2d at 403 (quoting State ex rel. Rudolph v. Ryan , 327 Mo. 728, 38 S.W.2d 717, 730-31 (1931) ("Circuit courts have jurisdiction over criminal cases. Section 22, art. 6, Const. They are authorized by the Constitution to try such cases. They cannot do so without witnesses. Authority to compel the attendance or production of witnesses is an element of jurisdiction. It is essential to the existence of said courts and to the due administration of justice. 15 C. J. 732. Without such authority, there is no jurisdiction. In other words, said courts have the inherent power to compel the attendance or production of witnesses. Having such power, they are authorized to issue process, ‘according to the principles and usages of law,’ for that purpose. Yeoman v. Younger , 83 Mo. 424, loc. cit. 429. Furthermore, by statute, declaratory of the common law, ‘all courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, according to the principles and usages of law.’ Section 1844, Rev. St. 1929 (Mo. St. Ann. s 1844, p. 2565) ....").
Because trial courts (as opposed to parties) have this well-established authority to compel the production of witnesses, I know of no reason they would lack the authority to order a corporation that "can act only through human agents" ( Arshad , 580 S.W.3d at 808 ) to produce the representative(s) of its choice at trial, particularly in cases where (1) the corporation failed to introduce any evidence of undue burden, hardship, or oppression and (2) the trial court presumably perceived a party erecting an unreasonable obstacle to the presentment of the case. See Smirl v. Globe Labs. , 144 Tex. 41, 188 S.W.2d 676, 678 (1945) (the Texas Supreme Court "has always held that where a practice is established by a rule of court it is competent for the court so to adapt its exercise as to prevent any particular oppression and to make it yield to the particular circumstances of the case"); see also id. (quoting Mills v. Bagby , 4 Tex. 320 (1849) ); id. (quoting Stephens v. Herron , 99 Tex. 63, 87 S.W. 326, 328 (1905) ); and id. ("If these rules were established by the court, to secure the dispatch of business, and promote the ends of justice, the court would be competent so to modify them, as to prevent any particular hardship or serious injury.") (quoting De Leon v. Owen , 3 Tex. 153, 154 (1848) ).
The majority's acceptance of FedEx Ground's argument authorizes parties (and corporations in particular) to replicate this abuse of Texas procedure ad infinitum. Under the majority's analysis, corporations can preclude opposing parties from satisfying their burden at trial via live witnesses simply by (1) identifying an out-of-state corporate representative it never intends to produce at trial, (2) refusing to identify one or more corporate representatives with relevant knowledge within the 150-mile radius (or refusing to represent that there is no such person), and (3) refusing to seek a rehearing, a continuance, or any other relief that would create the proper record. I cannot presume our system permits this outcome (especially under these circumstances) and have been pointed to no authority that says otherwise.
V. Texas Rule of Civil Procedure 1
For decades, the Texas Rules of Civil Procedure have sought to create a universal set of guidelines to facilitate justice in Texas courts. See, e.g., Red River Valley Pub. Co. v. Bridges , 254 S.W.2d 854, 862 (Tex. Civ. App.—Dallas 1952, writ ref'd n.r.e.) ("The new Rules [of Civil Procedure] were adopted to eliminate, within reason, pure technicalities, not to perpetuate old ones."), disapproved of on other grounds by Flanigan v. Carswell , 159 Tex. 598, 324 S.W.2d 835 (1959). Because these Rules govern procedure, they effectively govern "every step which may be taken from the beginning to the end of a case." See Brooks v. Tex. Emp'rs Ins. Ass'n , 358 S.W.2d 412, 414 (Tex. Civ. App.—Houston 1962, writ ref'd n.r.e.) (citing 72 C.J.S. Practice p. 471, 473). Like the United States Constitution, the Texas Rules of Civil Procedure open with the most fundamental rule. See Brightwell v. Rabeck , 430 S.W.2d 252, 257 (Tex. Civ. App.—Fort Worth 1968, writ ref'd n.r.e.) ("The controlling rule is T.R.C.P. 1.") (citing "the discussion under the rule in Vernon's Texas Rules of Civil Procedure"). Texas Rule of Civil Procedure 1 provides:
See also Order of Approval of the Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98-9196, at ¶ 5 (Tex. Nov. 9, 1998), printed in 61 Tex. Bar J. 1140 (Dec. 1998), as amended by Order Approving Technical Corrections to the Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98–9224 (Tex. Dec. 31, 1998), printed in 62 Tex. Bar J. 115 (Feb. 1999). ("The application of these revised rules in pending cases, as provided by paragraph 3 of this Order, must be subject to Rule 1 of the Rules of Civil Procedure, must be consistent with the purposes of the revised rules to streamline discovery procedures and to reduce costs and delays associated with discovery practice, and must be without undue prejudice to any person on account of the transition from the prior rules.").
See also id. ("Generally, the rules are but tools to be used in procedural conduct aimed at the objective of accomplishing justice. They are not ends within themselves, but are means to that end. If their application would effect injustice they are to be disregarded for that is the antithesis of their purpose. They should never be applied to defeat the ‘justice and right of the case’ which Judge Phillips said in Gilmore v. O'Neil , 107 Tex. 18, 173 S.W. 203 (1915), was ‘what the law of a case ought to be.’ "); Bennett , 172 S.W.2d at 397 ("The ultimate purpose of all rules of procedure is to secure to every litigant a fair and impartial adjudication of his rights under established principles of substantive law to the end that justice may be done. Rule 1 of Texas Rules of Civil Procedure. In order to accomplish this objective, certain qualifications, prerogatives and responsibilities are definitely required of, vested in and placed upon the trial judge, jury, witnesses, and each participant in all the courts. Reasonable adherence to the established rules by each and all, consistent with a proper exercise of sound judicial discretion, is indispensable to the administration of justice according to law as distinguished from justice according to the personal opinion of the individual attempting to assist in its administration.").
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
See also Lochinvar Corp. v. Meyers , 930 S.W.2d 182, 186-87 (Tex. App.—Dallas 1996, no writ) ("Rule 1 of the Texas Rules of Civil Procedure mandates that all rules of civil procedure be given a liberal construction to promote the just, fair, equitable and impartial adjudication of the rights of litigants.... The Texas Rules of Civil Procedure have the same force and effect as statutes. The court should liberally construe them to ensure a fair and equitable adjudication of the rights of the litigants without ignoring their plain meaning.") (citing Methodist Hosps. of Dallas v. Corp. Communicators, Inc. , 806 S.W.2d 879, 884 (Tex. App.—Dallas 1991, writ denied) ).
This need to liberally construe rules governing Texas civil procedure is not new. See Whitsett v. Whitsett , 201 S.W.2d 114, 123 (Tex. Civ. App.—Fort Worth 1947, writ ref'd n.r.e.) ("We do not find the rules of the court to place such onerous burden on appellants; however, we do not find any cases directly in point on this subject; but we do find that the new rules are made to prevent extra expense to litigants and are to be liberally construed.") (citing Tex. R. Civ. P. 1 and Smirl , 188 S.W.2d at 676 ); see also Stone v. Tex. Emp'rs Ins. Ass'n , 154 Tex. 21, 273 S.W.2d 59, 60 (1954). Permitting FedEx Ground to designate an out-of-state witness in response to allegations in Texas despite an unwillingness to cause that person (or any other person) under its control to appear in Texas is neither just, fair, expeditious, cost-effective, practical, nor the product of liberal construction; therefore, the majority's issuance of a writ of mandamus improperly ignores the purpose of our shared rules.
Finally, I believe the trial court acted in accordance with Texas Rule of Civil Procedure 1 because FedEx Ground's conduct both (1) unreasonably inhibited the "just, fair, equitable and impartial adjudication" of Brown's case and (2) warranted reasonable relief the trial court had inherent authority to fashion. The procedural remedies available to a trial court under these circumstances are naturally not narrow and (depending on the level of ascertained fault) include re-opening of the discovery period, instructions, presumptions, costs, and sanctions. Under the circumstances (particularly without being asked for a continuance), the trial court chose the least severe remedy and simply instructed FedEx Ground to make a choice; FedEx Ground declined and instead sought extraordinary relief. Providing a party with a reasonable choice to remedy an unreasonable posture of its creation is consistent with Texas Rule of Civil Procedure 1, particularly when viewed in light of the express authority bestowed upon trial courts to justly, fairly, equitably, and impartially facilitate justice.
VI. Brown's request to have Sear appear at trial is not before us.
According to FedEx Ground, the trial court ruled FedEx Ground was not required to produce Sear at trial. See Tex. R. Civ. P. 176.3(a). Neither FedEx Ground nor Brown has appealed this ruling and it is not before us. Instead, FedEx Ground was ordered to produce Sear or someone else of its choosing. I would therefore reject FedEx Ground's first issue because the trial court has not ordered it to produce someone at trial who lives more than 150 miles from the Harris County Courthouse.
Importantly, FedEx Ground does not seek mandamus relief on the ground that the trial court abused its discretion when it fashioned this procedure under these facts. Instead, it argues the trial court lacked the authority to compel it to produce anyone. Because I believe otherwise based on inherent authority and Texas Rule of Civil Procedure 1, I reject both FedEx Ground's argument and the majority's acceptance thereof.
CONCLUSION
The majority ignores long-standing authorities and the trust Texas has uninterruptedly placed in trial court judges to reasonably exercise their discretion in the administration of justice. Given the court's authority to compel the attendance of witnesses, I cannot conclude it (under these facts) abused its authority by instructing FedEx Ground to produce someone of its choosing at trial. The nature of corporate representatives precluded Brown from controlling who FedEx Ground designated and no known rule authorizes corporations to subvert justice by refusing to produce live witnesses at trial where there is no undue burden or oppression (an issue that is not before us because FedEx Ground failed to address it below). I therefore dissent from the conditional granting of this mandamus.
( Wise, J., majority).