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Defendant's Attorney: Jonathan Lehrmann, Daniel Erwin, Jessica Zavadil Barger, Peter Carl Blomquist, Darrell L. Barger, Matthew Gelina, Thomas C. Wright, Michael A. Choyke
Houston, Texas – Personal Injury lawyer represented Plaintiff who sued FedEx Ground Package System, Inc., alleging injuries resulting from a collision with a FedEx truck.
Zach Brown sued FedEx Ground Package System, Inc., alleging
injuries resulting from a collision with a FedEx truck.
A week before trial, Brown served FedEx with a subpoena. The
subpoena commanded the presence at trial of “[a] Corporate
Representative for FedEx Ground Package System, Inc.” living within
150 miles of the Harris County Courthouse.
FedEx moved to quash the trial subpoena. FedEx argued that
“[t]here is no legal authority for compelling a corporate representative
of a party to attend trial and testify,” other than through taking a
representative’s oral deposition under Texas Rule of Civil Procedure
199. Brown responded that Rule 176.2(a) grants that authority, arguing
that it permits a party to serve a compliant trial subpoena upon a
corporate representative. The trial court denied FedEx’s motion to
FedEx sought mandamus relief in the court of appeals,
granted relief. 609 S.W.3d 153, 162 (Tex. App.—Houston [14th Dist.]
2020). The court of appeals relied exclusively on Rule 199, analogizing
it to the corresponding Federal Rule of Civil Procedure, 30(b)(6). Id. at
160-62. The court observed that the federal courts widely interpret Rule
30(b)(6) to exclude the power to subpoena a corporate representative to
testify at trial. The court of appeals agreed with FedEx that, similarly,
Rule 199 does not provide such authority. Id. Without addressing
Brown’s argument that Rule 176 confers that authority, the court held
that the trial court erred in denying FedEx’s motion to quash the trial
1 While the mandamus proceeding was pending in the court of appeals,
Brown withdrew the subpoena and argued that the issue was moot. But FedEx
noted that Brown had not abandoned “his pursuit to require FedEx Ground to
present a corporate representative to testify at trial.” Brown does not raise the
mootness issue in this Court.
2 The court of appeals also granted relief from Brown’s trial subpoena
seeking to compel FedEx employee Michael Sear, whom Brown’s counsel
deposed in Pennsylvania and who lives outside the geographic limits of the
In this Court, Brown seeks relief from the court of appeals’ ruling.
Brown does not challenge the court of appeals’ interpretation of Rule
199. Rather, he urges that Rule 176 provides authority for the trial
subpoena, and the court of appeals did not address this argument.
When granting relief in an original proceeding, “the court must
hand down an opinion as in any other case.” TEX. R. APP. P. 52.8(d).
Such an opinion must address “every issue raised and necessary to final
disposition of the appeal.” TEX. R. APP. P. 47.1; see Cardwell v.
Whataburger Rests. LLC, 484 S.W.3d 426, 428 (Tex. 2016).
Brown raised the argument that corporate-representative trial
subpoenas are available under Rule 176 in both the trial court and the
court of appeals. Brown observes that Rule 176.6(b) states that a
corporation may “designate one or more persons to testify on its behalf
as to matters known or reasonably available to the organization” in
response to a valid subpoena “commanding testimony.” TEX. R. CIV. P.
176.6(b). He further notes that an appropriate corporate-representative
subpoena may command a person to “attend and give testimony at a . . .
trial.” TEX. R. CIV. P. 176.2(a).
district court’s subpoena authority. 609 S.W.3d at 159-60. Brown does not
challenge this part of the court of appeals’ order, which remains intact.
Without comment on the merits, we conclude that the court of
appeals was obliged to address Brown’s Rule 176 arguments, together
with FedEx’s other arguments challenging the subpoena,
granting FedEx relief.
Outcome: We hold that the court of appeals erred in quashing a
corporate-representative trial subpoena as lacking authority under Rule
199 without addressing whether Rule 176 applies and examining the
proper scope of that rule in the trial context. Accordingly, without
hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant
the petition for a writ of mandamus in part and direct the court of
appeals to vacate its order granting relief quashing Brown’s trial
subpoena. The writ will issue only if the court of appeals does not