no. 12-0637texasappellatewatch.typepad.com/files/woo-young-brief-on-the... · no. 12-0637...

No. 12-0637 (consolidated with No. 12-0638)

IN THE SUPREME COURT OF TEXAS

IN RE WOO YOUNG MEDICAL CO., LTD.,

Relator,

RELATOR WOO YOUNG MEDICAL CO., LTD.’S BRIEF ON THE MERITS

_______________________ __________________________________ _

Scott P. Stolley State Bar No. 19284350 [email protected]

John H. Martin State Bar No. 13086500 [email protected]

THOMPSON & KNIGHT LLP One Arts Plaza

1722 Routh Street, Suite 1500 Dallas, Texas 75201

214.969.1700 214.969.1751 (facsimile)

Counsel for Relator

Woo Young Medical Co., Ltd.

ORAL ARGUMENT REQUESTED

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LIST OF PARTIES AND COUNSEL

Relator/Defendant Appellate Counsel Woo Young Medical Co., Ltd. Scott P. Stolley John H. Martin Andrew Cookingham Thompson & Knight LLP 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Trial Counsel Charles H. Cole Margaret M. Fitzsimmons Schuyler, Roche & Crisham LLP 130 East Randolph Street Suite 3800 Chicago, Illinois 60601 John H. Martin Timothy E. Hudson Andrew Cookingham Thompson & Knight LLP 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Respondent Counsel Hon. John H. Fostel unknown 271st District Court Wise County Courthouse 101 North Trinity Street Decatur, Texas 76234

Admitted pro hac vice.

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Real Parties in Interest/Plaintiffs Appellate Counsel Christian Helm, M.D. and Brian S. Stagner Sharyn Helm Jody S. Sanders (both appearing individually Kelly Hart & Hallman LLP and as next friends of 201 Main Street Hunter Helm, Quinn Helm,) Suite 2500 and Rubye Helm, minors) Fort Worth, Texas 76102 Lacey Lumpkins Michael Simpson Derrick S. Boyd Kristy P. Campbell Simpson, Boyd, and Powers P.O. Box 957 105 N. State Street, Suite B Decatur, Texas 76234 Trial Counsel Michael Simpson Derrick S. Boyd Kristy P. Campbell Simpson, Boyd, and Powers P.O. Box 957 105 N. State Street, Suite B Decatur, Texas 76234 Additional Defendant Trial Counsel (in Helm and Lumpkins) Heidi A. Chesley McKinley Medical, LLC Gordon & Rees LLP 555 17th Street, Suite 3400 Denver, Colorado 80202

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Additional Defendants Trial Counsel (in Helm and Lumpkins) David M. MacDonald Moog, Inc. Jennifer D. LeBlanc MacDonald Devin, P.C. Curlin Medical, Inc. 1201 Elm Street, Suite 3800 Dallas, Texas 75270 Frederick H. Fern Harris Beach, L.L.P. 100 Wall Street New York, New York 10005 Additional Defendants Trial Counsel (in Helm and Lumpkins) Pryce G. Tucker Orthopedic Resources, Inc. Hartline, Dacus, Barger & Dreyer L.L.P. Southern Innovations, Inc. 6688 N. Central Expressway Suite 1000 Dallas, Texas 75206 Paul W. Bennett Fletcher, Farley, Shipman & Salinas, L.L.P. 8750 N. Central Expressway 16th Floor Dallas, Texas 75231 Additional Defendants Trial Counsel (in Helm and Lumpkins)

A. Bruce Wilson Pylant Medical, Ltd. Ray & Wilson 6300 Ridgelea Place Brett Pylant Suite 1008 Fort Worth, Texas 76116

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Additional Defendants Trial Counsel (in Helm and Lumpkins) Gene M. Williams Stryker Corporation Nicholas N. Deutsch Shook, Hardy & Bacon Stryker Sales Corporation 600 Travis Street, Suite 1600 Houston, Texas 77002 Nonsuited Defendants Trial Counsel (in Helm) Travis J. Sales AstraZeneca Pharmaceuticals LP Kevin T. Jacobs Amy Hefly AstraZeneca LP Patrick R. Byrd Baker Botts, L.L.P. 910 Louisiana Street Houston, Texas 77002 Nonsuited Defendant Trial Counsel (in Helm) Deborah Simmons Celegene Corporation Jones Day 2727 North Harwood Street Dallas, Texas 75201 Nonsuited Defendants Trial Counsel (in Helm) Christopher Forbis Hospira Inc. Sewell & Forbis P.O. Box 534 Hospira Worldwide, Inc. Decatur, Texas 76234 Abbott Laboratories John McCauley Venable LLP 750 East Pratt Street, Suite 900 Baltimore, Maryland 21202

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Nonsuited Defendants Trial Counsel (in Helm) Cynthia K. Hall Carestream Health, Inc., Tucker & Associates as successor and assignee of 4100 Alpha Road, Suite 600 Eastman Kodak Co. Dallas, Texas 75244 Nonsuited Defendant Trial Counsel (in Helm) John W. Proctor APP Pharmaceuticals, L.L.C. Vince Cruz, Jr. Robert Piwetz Brown Dean Wiseman Proctor Hart & Howell 306 West 7th Street, Suite 200 Fort Worth, Texas 76102 Nonsuited Defendants Trial Counsel (in Lumpkins)

A. Bruce Wilson Lucas Morey Ray & Wilson 6300 Ridgelea Place Morey Medical, LLC Suite 1008 Fort Worth, Texas 76116

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TABLE OF CONTENTS

Page

List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . xxi

Mandamus Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii

(1) Deposition of Foreign Witnesses . . . . . . . . . . . . . . . . xxii

(2) Inconvenient Deposition Location . . . . . . . . . . . . . . . xxii

(3) Correctable by Mandamus . . . . . . . . . . . . . . . . . . . . xxii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Woo Young’s Special Appearances . . . . . . . . . . . . . . . 1 (1)

Plaintiffs’ Oral Request for the Depositions . . . . . . . . . . . 2 (2)

Woo Young’s Motion to Reconsider . . . . . . . . . . . . . . . 3 (3)

Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Page

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(1) Depositions of Foreign Witnesses . . . . . . . . . . . . . . . . 4

(2) Inconvenient Deposition Location . . . . . . . . . . . . . . . . 4

(3) Correctable by Mandamus . . . . . . . . . . . . . . . . . . . . . 5

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The trial court abused its discretion by com-pelling Woo Young to produce South Korean witnesses for depositions in the U.S. . . . . . . . . . . . . . . . 6

A. A trial court cannot force a nonparty, foreign witness to travel to the U.S. for a deposition. . . . . . . . . . . . . . . . . . . . . . . . 6

B. Texas courts do not have extraterritorial reach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. It is irrelevant that witnesses have knowledge and are subject to a party’s control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Because personal jurisdiction has not been established, the trial court cannot order Woo Young to produce the wit-nesses in the U.S. . . . . . . . . . . . . . . . . . . . . . 12

2. The trial court abused its discretion because the U.S. is not a reasonable location that is convenient for the witnesses. . . . . . . . . . . . . . . . . . . . . . 16

A. A trial court must set depositions for a location that is authorized under Rule 199.2(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The party seeking the deposition must prove that the location is reasonable and “convenient” for the witness. . . . . . . . . . . . . . 18

Page

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C. The “convenience” requirement is even more stringent for international witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

D. The trial court failed to set the depo-sitions for a reasonable and “convenient” location for the witnesses. . . . . . . . . . . . . . 20

3. Mandamus should issue to vacate the depo-sition order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Affidavit of Margaret M. Fitzsimmons . . . . . . . . . . . . . . . . . . . . . 28

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Appendices and Record in Helm (separately bound and filed with the petition for writ of mandamus)

A ― Plaintiffs’ Second Amended Petition . . . . . . . . . . Tab A B ― Verified Special Appearance of Defendant Woo Young Medical Co., Ltd. and Subject Thereto and Without Waiving its Verified Special Appearance, Original Answer to Plaintiffs’ Second Amended Petition . . . . . . . . . . Tab B C ― Supplement in Support of Verified Special Appearance of Defendant Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . Tab C

Page

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D ― Defendant Woo Young Medical Co., Ltd.’s Answer to Plaintiff’s First Set of Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . Tab D E ― Defendant Woo Young Medical Co., Ltd.’s Responses to Plaintiff’s First Request for Production . . . . . . . . . . . . . . . . . . . . . . . . . . Tab E F ― Plaintiffs’ Third Amended Petition . . . . . . . . . . . . Tab F G ― Plaintiff’s First Motion to Compel Discovery from Woo Young Medical Co., Ltd. . . . . . . . . . . . Tab G H ― Defendant Woo Young Medical’s Response in Opposition to Plaintiff’s First Motion to Compel Discovery . . . . . . . . . . . . . . . . . . . . . Tab H I ― Plaintiffs’ Amended Second Motion to Compel Discovery from Woo Young Medical Co., Ltd. . . . . . Tab I J ― Transcript of May 2, 2012 Hearing . . . . . . . . . . . . Tab J K ― Order on Plaintiffs’ First Motion to Compel Discovery from Woo Young Medical Co., Ltd. . . . . . Tab K L ― Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiffs’ Amended Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . Tab L M — Order on Plaintiffs’ Amended Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . . . . . Tab M

Page

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N — Plaintiffs’ Response to Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiffs’ Amended Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . Tab N O — Transcript of May 29, 2012 Hearing . . . . . . . . . . . Tab O P — Order Denying Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiffs’ Amended Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab P Q — Order Granting Defendant’s Motion for Stay . . . . . . Tab Q R — Court of Appeals’ Order, July 5, 2012 (consolidating mandamus proceedings) . . . . . . . . . Tab R S — Court of Appeals’ Order, July 5, 2012 (requesting a response from the Real Parties in Interest) . . . . . . . . . . . . . . . . . . . . . . . . . . Tab S T — Court of Appeals’ Memorandum Opinion, July 27, 2012 (denying Woo Young’s mandamus petitions) . . . . . . . . . . . . . . . . . . . . Tab T

_______________________________________________________________ Appendices and Record in Lumpkins (separately bound and filed with the petition for writ of mandamus)

A ― Plaintiff’s Second Amended Petition . . . . . . . . . . Tab A

Page

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B ― Verified Special Appearance of Defendant Woo Young Medical Co., Ltd. and Subject Thereto and Without Waiving its Verified Special Appearance, Original Answer to Plaintiff’s Second Amended Petition . . . . . . . . . . Tab B C ― Supplement in Support of Verified Special Appearance of Defendant Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . Tab C D ― Defendant Woo Young Medical Co., Ltd.’s Answer to Plaintiff’s First Set of Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . Tab D E ― Defendant Woo Young Medical Co., Ltd.’s Responses to Plaintiff’s First Request for Production . . . . . . . . . . . . . . . . . . . . . . . . . . Tab E F ― Plaintiff’s Third Amended Petition . . . . . . . . . . . . Tab F G ― Plaintiff’s Amended Motion to Compel Discovery from Woo Young Medical Co., Ltd. . . . . Tab G H ― Transcript of May 2, 2012 Hearing . . . . . . . . . . . . Tab H I ― Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiff’s Amended Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . Tab I J — Order on Plaintiff’s Amended Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . . . . . . . . . Tab J K — Plaintiff’s Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab K

Page

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L — Plaintiffs’ Response to Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiffs’ Amended Second Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . Tab L M — Transcript of May 29, 2012 Hearing . . . . . . . . . . . Tab M N — Order Denying Defendant Woo Young Medical Co., Ltd.’s Motion to Reconsider Order on Plaintiff’s Amended Motion to Compel Discovery From Woo Young Medical Co., Ltd. . . . . . . . . . . . . . . . . . . . . . . Tab N O — Order Granting Defendant’s Motion for Stay . . . . . . Tab O P — Court of Appeals’ Order, July 5, 2012 (consolidating mandamus proceedings) . . . . . . . . . Tab P Q — Court of Appeals’ Order, July 5, 2012 (requesting a response from the Real Parties in Interest) . . . . . . . . . . . . . . . . . . . . . . . . . . Tab Q R — Court of Appeals’ Memorandum Opinion, July 27, 2012 (denying Woo Young’s mandamus petitions) . . . . . . . . . . . . . . . . . . . . Tab R

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INDEX OF AUTHORITIES

Page

CASES

Attaya v. Shoukfeh, 962 S.W.2d 237 (Tex. App.—Amarillo 1998, pet. denied) ......................................................................................................... 9

Borden, Inc. v. Valdez, 773 S.W.2d 718 (Tex. App.—Corpus Christi 1989, orig. proceeding) ............................................................. 7, 10, 24, 25

Butan Valley, N.V. v. Smith, 921 S.W.2d 822 (Tex. App.—Houston [14th Dist.] 1996, no writ) .................................................................... 7, 14

Chicago Life Ins. Co. v. Cherry. 244 U.S. 25, 37 S. Ct. 492 (1917) ............ 12

Dr. Pepper Co. v. Davis, 745 S.W.2d 470 (Tex. App.—Austin 1988, orig. proceeding) ......................................................................................... 9

Dresser Indus., Inc. v. Solito, 668 S.W.2d 893 (Tex. App.—Houston [14th Dist.] 1984, orig. proceeding) ................................................ 7, 19, 20

Farmland Indus., Inc. v. Grain Bd. of Iraq, Civ. A. No. 86-3298, 1987 WL 19222 (D.D.C. Oct. 16, 1987) .................................................. 14

Gilliland v. Hurley, Civ. A. No. 09-1621, 2010 WL 830968 (W.D. Pa. Mar. 4, 2010) ....................................................................................... 15

Haas v. George, 71 S.W.3d 904 (Tex. App.—Texarkana 2002, no pet.) ............................................................................................................ 16

Hicks v. Sias, 102 S.W.2d 460 (Tex. Civ. App.—Beaumont 1932, writ ref’d) ............... 8

In re Aubin, 29 S.W.3d 199 (Tex. App.—Beaumont 2000, orig. proceeding) .............. 8

In re Gen. Elec. Co., 271 S.W.3d 681 (Tex. 2008) ...................................................................... 8

In re Grass, 153 S.W.3d 659 (Tex. App.—Tyler 2004, orig. proceeding) .................................................................................... 17, 18, 19

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In re Prince, No. 14-06-00895-CV, 2006 WL 358984 (Tex. App.—Houston [14th Dist.] Dec. 12, 2006, orig. proceeding) ............................................. 9

In re Prince, No. 14-06-00895-CV, 2006 WL 3589484 (Tex.App.—Houston [14th Dist.] Dec. 12, 2006, orig. proceeding) ............................ 24

In re Rogers, 43 S.W.3d 20 (Tex. App.—Amarillo 2001, orig. proceeding) .......................................................................................... 19, 23

In re Sheppard, 193 S.W.3d 181 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) ................................................................................................ 15

In re Stern, 321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) ......................................................................................... 9

In re Turner, 243 S.W.3d 843 (Tex. App.—Eastland 2008, orig. proceeding) .................................................................................... 18, 19, 20

In re W. Star Trucks US, Inc., 112 S.W.3d 756 (Tex. App.—Eastland 2003, orig. proceeding)6, 18, 19, 23, 25

In re W. Star Trucks US, Inc., 112 S.W.3d 756 (Tex. App.—Eastland 2003, orig. proceeding) ............................................................................. 17

In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 Tex. App. LEXIS 6817 (Tex. App.—Austin 2010, orig. proceeding) ........................ 6

In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 Tex. App. LEXIS 6817 (Tex. App.—Austin Aug. 16, 2010, orig. proceeding) ....... 18

Nationale Industrielle Aerospatiale v. United States Dist. Ct., 482 U.S. 519, 107 S. Ct. 2542 (1987) .............................................................. 19

Pennoyer v. Neff, 95 U.S. 714 (1878) ............................................................. 8

Pillar Corp. v. Enercon Indus. Corp., 694 F. Supp. 1353 (E.D. Wis. 1988) .......................................................................................................... 15

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Prudential Prop. & Cas. Co. v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97 (Tex. App.—Texarkana 1999, pet. dism’d by agr.) ......................... 6, 23

Schwartz v. F.M.I. Props. Corp., 714 S.W.2d 97 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) ............................................... 8

Shaffer v. Heitner, 433 U.S. 186 (1977) ......................................................... 8

Simplex Time Recorder Co. v. Hancock, No. 14-95-00141-CV, 1995 Tex. App. Lexis 886, at *8-10 (Tex. App.—Houston [14th Dist.] Apr. 27, 1995, orig. proceeding) ............................................................... 21

Simplex Time Recorder Co. v. Hancock, No. 14-95-00141-CV, 1995 Tex. App. LEXIS 886, at *8-10 (Tex. App.—Houston [14th Dist.] Apr. 27, 1995, orig. proceeding) ......................................... 7, 10, 11, 21, 24

U.S. Cf. Carriere v. Shuffield, 949 S.W.2d 862 (Tex. App.—Beaumont 1997, no pet.) ........................................................................... 15

U.S. See Roquemore v. Roquemore, 431 S.W.2d 595 (Tex. Civ. App.—Corpus Christi 1968, no writ) ................................................. 13, 16

United States v. Halliburton Co., 270 F.R.D. 26 (D.D.C. 2010) ................. 14

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ........................................... 24

Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153 (Tex. 1988) 6, 17, 23, 24, 25

STATUTES

Tex. Gov’t Code Ann. § 22.002 .................................................................... xx

RULES

TEX. R. APP. P. 52.7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

TEX. R. CIV. P. 120a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. CIV. P. 176.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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TEX. R. CIV. P. 176.6(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

<<so: 005>>Tex. R. Civ. P. 176.6(b), 199 ........................................................................ 10

<<so: 006>>Tex. R. Civ. P. 199.2(b)(1), 199 ................................................................... 18

<<so: 008>>Tex. R. Civ. P. 199.2(b)(2)(D) ...................................................................... 18

Tex. R. App. P. 52.7(a) ................................................................................. xx

Tex. R. App. P. 9.4(i)(e) ............................................................................... 29

Tex. R. Civ. P. 120a ........................................................................................ 9

Tex. R. Civ. P. 176.3(a) .................................................................................. 9

Tex. R. Civ. P. 199.2(b)(2) ......................................................... 17, 18, 24, 25

Tex. R. Civ. P. 199.2(b)(2)(E) ...................................................................... 18

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STATEMENT OF THE CASE

The Order in Question

These consolidated original proceedings involve an order by the

Honorable John Fostel (271st District Court of Wise County). The order

requires a South Korean corporate defendant (Relator Woo Young Medical

Co., Ltd.) to produce two nonparty, foreign witnesses for oral depositions in

the United States, while Woo Young’s special appearances are still pending.

(App. Tab F at 4; App. Tab M at 2; App. Tab P; Lumpkins App. Tab J at 2;

Lumpkins App. Tab N.)1 Both witnesses live in South Korea. (App. Tab L at

Exh. 1, ¶¶ 2-3, 6, Exh. 2, ¶¶ 2-3, 6.) One witness is Woo Young’s CEO,

while the other worked for a Woo Young affiliate. (App. Tab L at Exh. 1, ¶

3, Exh. 2, ¶ 3.)

The Underlying Lawsuits

The underlying lawsuits are Helm v. Moog, Inc., No. CV11-01-063, and

Lumpkins v. Moog, Inc., No. CV11-08-697, both pending in the 271st

District Court of Wise County. (App. Tab A; Lumpkins App. Tab A.) The

Plaintiffs in the underlying cases (the “Helm Family” and “Lumpkins”) are

the Real Parties in Interest in these original proceedings. (App. Tab F at 1-2;

1 To avoid duplication, Woo Young has generally cited only to the Helm

appendices, which will be cited as “App. Tab ___.” (See pages viii-x, above.) When it is necessary to cite to appendices in the Lumpkins case, they will be cited as “Lumpkins App. Tab ___.” (See pages x-xii, above.)

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Lumpkins App. Tab A at 1-2.) The deposition order at issue applies in both

cases. (App. Tab M at J; App. Tab O at 1, 3; Lumpkins App. Tab J at 2.)

Proceedings in the Court of Appeals

Seeking relief from the deposition order, Woo Young filed mandamus

petitions in both Helm and Lumpkins on June 29, 2012 (Cause Nos. 2-12-

263-CV and 2-12-264-CV) in the Fort Worth Court of Appeals. At Woo

Young’s request, the court of appeals consolidated the two proceedings.

(App. Tab R.) The court of appeals requested and received a response from

the Real Parties in Interest (App. Tab S), but before Woo Young’s deadline

to file a reply brief, the court of appeals denied both mandamus petitions.

(App. Tab T.) The court issued a two-sentence memorandum opinion dated

July 27, 2012. (Id.) The opinion was issued per curiam by Justices Sue

Walker, Bill Meier, and Lee Gabriel. (Id.)

Relief Requested in This Court

Woo Young requests mandamus relief from the order compelling it to

bring the two witnesses to the U.S. for depositions. (App. Tabs M & P;

Lumpkins App. Tabs J & N.) The order is improper because: (1) a trial court

has no authority to reach outside of Texas and compel a foreign defendant to

bring nonparty foreigners to the U.S. for depositions, particularly while the

defendant’s special appearance is pending; and (2) the deposition location is

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not an authorized location under Rule 199.2(b)(2), because the U.S. is

neither a reasonable location nor a “convenient” one for the South Korean

witnesses.

Consolidation in this Court

In this Court, Woo Young filed parallel mandamus proceedings in

Helm and Lumpkins (Nos. 12-0637 and 12-0638). Woo Young filed a

motion to consolidate these parallel proceedings, which this Court granted

on August 31, 2012. Woo Young does not need temporary relief since the

trial court has stayed the deposition order. (See App. Tab Q; Lumpkins App.

Tab O.)

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STATEMENT OF JURISDICTION

This Court has jurisdiction under a statute stating that the Court may

issue all writs of mandamus, agreeable to the principles of law regulating

those writs, against a district judge. TEX. GOV’T CODE ANN. § 22.002(a)

(Vernon Supp. 2012).

STATEMENT REGARDING ORAL ARGUMENT

Woo Young suggests that the Court will benefit from the opportunity to

question counsel at oral argument about: (1) a trial court’s power to compel

a foreign defendant to produce nonparty, foreign witnesses for depositions in

the U.S., particularly when the foreign defendant’s special appearance is still

pending; and (2) whether compelling nonparties to travel nearly halfway

around the world to be deposed meets Rule 199.2(b)(2)’s requirement that

the deposition location be reasonable and “convenient” for the witnesses.

Woo Young therefore requests oral argument.

MANDAMUS RECORD

Per the usual procedure, Woo Young has compiled and submitted the

mandamus record that it believes is pertinent to this proceeding. See TEX. R.

APP. P. 52.7(a). The mandamus record is separately bound as the appendices

to petitions for writ of mandamus in Helm and Lumpkins. (See pages viii-

xii, above.)

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ISSUES

(1) Deposition of Foreign Witnesses — Does a trial court have

the power to reach outside of Texas and compel nonparty, foreign witnesses

to travel to the U.S. for depositions?

(2) Inconvenient Deposition Location — Did the trial court abuse

its discretion by ordering that nonparty, foreign witnesses must travel nearly

halfway around the world to be deposed in the U.S., in violation of the

requirement in Texas Rule of Civil Procedure 199.2(b)(2) that the deposition

location must be reasonable and “convenient” for the witnesses?

(3) Correctable by Mandamus — When a trial court abuses its

discretion by ordering nonparty, foreign witnesses to appear for oral

depositions in the U.S., is the order correctable by mandamus?

RELATOR WOO YOUNG MEDICAL CO., LTD.’S BRIEF ON THE MERITS – Page 1

INTRODUCTION

This Court should grant review to address two important issues about

the extent of a trial court’s power over nonparty witnesses from outside of

Texas. First, the Court can explain that Texas courts do not have the

extraterritorial authority to reach outside of Texas and order a nonparty,

foreign witness to appear in the U.S. for a deposition. Second, with respect

to the requirement that a deposition location must be reasonable and

“convenient” for the witness, the Court can explain that it is outside the trial

court’s discretionary boundaries to compel nonparty, foreign witnesses to

travel almost halfway around the world to be deposed in the U.S.

STATEMENT OF FACTS

Woo Young’s Special Appearances (1)

The Helm Family alleges that Plaintiff Christian Helm suffered

cartilage degeneration in his shoulder as a result of using a pain pump

allegedly manufactured by Woo Young. (App. Tab A at 6-9; App. Tab F at

4-7.) Lumpkins alleges that she suffered cartilage degeneration in her knee

as a result of using a pain pump allegedly made by Woo Young. (Lumpkins

App. Tab A at 4-7; Lumpkins App. Tab F at 4-7.)

Woo Young is a South Korean company, with headquarters in Seoul,

South Korea. (App. Tab B at 2-3; App. Tab F at 4; App. Tab L at Exh. 1,


¶3.) Woo Young has no contacts with the State of Texas: It is not licensed to

do business in Texas, owns no property in Texas, has no office or employees

in Texas, and does not sell its products in Texas. (App. Tab B at 2-3; App.

Tab C at Exh. A at 1-3.) Woo Young has sold its products in the United

States only through distributors. (App. Tab L at Exh. 1, ¶3, Exh. 2, ¶3.)

Given its lack of contact with Texas, Woo Young filed special appearances

in Helm and Lumpkins, both of which are still pending. (App. Tabs B & C;

App. Tab J at 18:14.)

Plaintiffs’ Oral Request for the Depositions (2)

During a hearing on motions to compel discovery (which did not

pertain to depositions), Plaintiffs’ counsel orally requested the trial court to

compel Woo Young to produce two South Korean witnesses for deposition

in the United States. (App. Tab I; App. Tab J at 7:18-8:22.) One witness

(Young Gyu-Lee) is Woo Young’s CEO, while the other witness (Seong

Kwon) was an employee of a Woo Young affiliate.2 (App. Tab L at Exh. 1, ¶

3, Exh. 2, ¶ 3.) Both witnesses are nonparties, are citizens and residents of

South Korea, and work or formerly worked in or near the city of Seoul.

(App. Tab A at 1-5; App. Tab F at 1-4; App. Tab L at Exh. 1, ¶¶ 2-3, Exh. 2,

2 On December 31, 2012, Kwon retired, so he no longer works for the Woo

Young affiliate. Because Kwon’s retirement occurred after Woo Young filed its mandamus petitions in this Court, Woo Young has included an affidavit to establish this new fact. (See page 28, below.)


¶¶ 2-3.)

Before the hearing, Plaintiffs’ counsel had sent a letter requesting dates

to depose Lee and Kwon. (App. Tab L at Exh. 4 at 5-6.) Woo Young’s

counsel responded by offering to conduct the depositions in South Korea or

by videoconference, which would allow the witnesses to remain in South

Korea and counsel to remain in the U.S. (App. Tab L at Exh. 4 at 2-3.)

Plaintiffs’ counsel later refused that offer. (See App. Tab N at 7-8.) Until the

sudden request made orally at the hearing, Woo Young had no warning that,

at that hearing, the Plaintiffs would ask the trial court to compel Woo Young

to produce Lee and Kwon for depositions in the U.S. (App. Tab J at 7:18-

8:22; App. Tab L at Exh. 4 at 5-6.)

At the conclusion of the hearing (at which there were no witnesses), the

trial court orally ordered Woo Young to produce Lee and Kwon for

depositions in the United States. (App. Tab J at 17:6-9.) The court later

memorialized this in a written order. (App. Tab M at 2.)

Woo Young’s Motion to Reconsider (3)

Given that the Plaintiffs’ deposition request and Woo Young’s

opposition had never been presented to the trial court in writing, Woo Young

promptly filed a motion to reconsider. (App. Tab L.) Woo Young submitted

affidavits from Lee and Kwon, demonstrating that it would be burdensome


and inconvenient for them to travel to the U.S. for depositions. (App. Tab L

at Exhs. 1 & 2.) The trial court held a hearing (again, without witnesses),

and denied the motion to reconsider, but stayed the deposition order so that

Woo Young could pursue mandamus relief. (App. Tab O at 19:18-20:12.)

The court later memorialized both orders in writing. (App. Tabs P & Q.)

SUMMARY OF THE ARGUMENTS

(1) Depositions of Foreign Witnesses — Texas appellate courts

have consistently recognized that there is a territorial limit to the reach of

Texas trial courts. That limited reach does not authorize trial courts to

compel nonparties from other states to appear in Texas to testify. Similarly,

Texas courts cannot reach outside of the U.S. to compel nonparty foreigners

to appear in Texas. It follows that the trial court exceeded its reach here, by

ordering nonparty, foreign witnesses to appear for depositions in the U.S.

This is even more true given that Woo Young’s special appearances are still

pending. Since personal jurisdiction has not been established, the trial court

cannot order Woo Young to produce South Korean employees for

depositions in the U.S.

(2) Inconvenient Deposition Location — Under Rule 199.2(b)(2),

a trial court’s power to specify a deposition location is limited. The location

must be both reasonable and “convenient” for the witness. Here, Lee and


Kwon (both of whom are nonparties) are citizens of South Korea, where

they reside, are employed, and regularly transact business. The record does

not show that it is convenient for them to come to the U.S. for depositions.

The trial court had no discretion to conclude that it is convenient for them.

Common sense says that it is not reasonable or convenient to force

nonparties to travel nearly halfway around the globe to give depositions in

the U.S. Accordingly, the trial court abused its discretion by specifying an

unreasonable and inconvenient deposition location.

(3) Correctable by Mandamus — There is no remedy by appeal

when a trial court abuses its discretion by (1) compelling a foreign defendant

to produce nonparty, foreign witnesses for depositions in the U.S., and (2)

ordering a witness to appear for an oral deposition at an unreasonable and

inconvenient location. This abuse of discretion is therefore correctable by

mandamus. Accordingly, this Court should grant mandamus relief to vacate

the deposition order in Helm and Lumpkins.


ARGUMENTS

1. The trial court abused its discretion by compelling Woo Young to produce South Korean witnesses for depositions in the U.S.

A. A trial court cannot force a nonparty, foreign witness to travel to the U.S. for a deposition.

Texas courts have consistently ruled that trial courts cannot reach

outside of Texas and force nonparties from other states to travel to Texas to

give a deposition. This Court recognized this in Wal-Mart Stores, Inc. v.

Street, 754 S.W.2d 153, 155 (Tex. 1988) (orig. proceeding), holding that

Wal-Mart chairman Sam Walton could not be compelled to travel from

Arkansas to Texas to give a deposition.3 Other courts have ruled similarly,

even when the witness was a party’s employee:

In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 Tex. App. LEXIS 6817, at *3-6 (Tex. App.—Austin Aug. 16, 2010, orig. proceeding) (party’s in-house counsel, who lived and worked in Iowa, could not be forced to give a deposition in Travis County).

In re W. Star Trucks US, Inc., 112 S.W.3d 756, 764-65 (Tex. App.—Eastland 2003, orig. proceeding) (party’s employee, who lived and worked in Oregon, could not be forced to give a deposition in Amarillo or Sweetwater).

3 In subsequent proceedings, the trial court ordered Walton to appear in Fort

Worth, as part of a sanction order. The appellate courts refused to disturb this ruling. Wal-Mart Stores, Inc. v. Street, 761 S.W.2d 587, 589-91 (Tex. App.—Fort Worth 1988, orig. proceeding [leave denied]). Because the proceeding involved a sanction, it is not applicable here.


Prudential Prop. & Cas. Co. v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97, 104 (Tex. App.—Texarkana 1999, pet. dism’d by agr.) (in a subrogation case, the policyholders, who lived in Arizona, were merely witnesses, and could not be compelled to give depositions in Texas).

Simplex Time Recorder Co. v. Hancock, No. 14-95-00141-CV, 1995 Tex. App. LEXIS 886, at *8-10 (Tex. App.—Houston [14th Dist.] Apr. 27, 1995, orig. proceeding) (not designated for publication) (party’s employees, who lived and worked in Massachusetts or New Hampshire, could not be forced to give depositions in Houston).

Borden, Inc. v. Valdez, 773 S.W.2d 718, 721 (Tex. App.—Corpus Christi 1989, orig. proceeding) (party’s employee, who lived and worked in Ohio, could not be forced to give a deposition in Hidalgo County).

Given that Texas courts cannot compel nonparties from other states to

travel to Texas, it follows that Texas courts cannot compel nonparty

foreigners to travel to Texas for a deposition. At least two Texas courts have

agreed, even when the witness is an employee or principal of the defendant:

Butan Valley, N.V. v. Smith, 921 S.W.2d 822, 828-29 (Tex. App.—Houston [14th Dist.] 1996, no writ) (Saudi Arabian resident, who was a director and sole shareholder of the defendant company, could not be compelled to appear for a deposition in Houston).

Dresser Indus., Inc. v. Solito, 668 S.W.2d 893, 894-96 (Tex. App.—Houston [14th Dist.] 1984, orig. proceeding) (international witnesses, who were employees of the defendant’s subsidiaries or joint ventures, could not be compelled to give depositions in Houston).

This case is slightly different, in that the trial court has not ordered the

South Korean witnesses to travel to Texas. Instead, the court ordered them to


appear anywhere in the U.S. But this difference does not justify the order.

The trial court has still exceeded its power by reaching outside of Texas and

ordering two nonparties to travel nearly halfway around the globe to give

depositions in the U.S. (See the cases cited on pages 6-7, above.)

B. Texas courts do not have extraterritorial reach.

That the trial court lacks this power is confirmed by the rule that Texas

courts do not have extraterritorial power. See, e.g., In re Aubin, 29 S.W.3d

199, 202 (Tex. App.—Beaumont 2000, orig. proceeding) (“The authority of

every tribunal is necessarily restricted by the territorial limits of the State in

which it is established.” (quoting Pennoyer v. Neff, 95 U.S. 714, 720 (1878),

overruled in part on other grounds by Shaffer v. Heitner, 433 U.S. 186

(1977))); Hicks v. Sias, 102 S.W.2d 460, 464 (Tex. Civ. App.—Beaumont

1937, writ ref’d) (“[T]he authority of every court is restricted by the

territorial limits of the state in which it is established.”).

Thus, it is a basic principle that “no State may exercise direct

jurisdiction and authority over persons or property outside its territory.”

Schwartz v. F.M.I. Props. Corp., 714 S.W.2d 97, 100 (Tex. App.—Houston

[14th Dist.] 1986, writ ref’d n.r.e.). Indeed, a Texas court’s subpoena power

does not extend outside of Texas. See, e.g., In re Gen. Elec. Co., 271

S.W.3d 681, 689 (Tex. 2008) (orig. proceeding) (witnesses in Maine are


outside a Texas court’s subpoena power); see also TEX. R. CIV. P. 176.3(a)

(subpoena range is limited to 150 miles from where the person resides or is

served).

Therefore, the trial court cannot reach outside of Texas and across the

Pacific Ocean, to order that South Korean nonparties come to the U.S. to

testify. (See the cases cited on pages 6-8, above.) Cf. In re Prince, No. 14-

06-00895-CV, 2006 WL 3589484, at *4 (Tex. App.—Houston [14th Dist.]

Dec. 12, 2006, orig. proceeding) (Texas court had no authority to order a

Texas nonparty witness to appear for a deposition in California); Dr. Pepper

Co. v. Davis, 745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig.

proceeding) (trial court had no authority to order the defendant’s general

counsel, who lived and worked in Dallas, to appear for a trial in Austin).

Further, since the trial court cannot directly order Lee and Kwon to

come to the U.S., the court cannot accomplish this indirectly by ordering

Woo Young to produce them in the U.S. See, e.g., Attaya v. Shoukfeh, 962

S.W.2d 237, 241 (Tex. App.—Amarillo 1998, pet. denied) (“[T]he trial court

may not accomplish indirectly that which it cannot do directly … .”).

C. It is irrelevant that witnesses have knowledge and are subject to a party’s control.

Woo Young agrees that it can be subjected to some limited

jurisdictional discovery. See, e.g., TEX. R. CIV. P. 120a; In re Stern, 321


S.W.3d 828, 839 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding).

From the premise that the trial court can subject Woo Young to limited

jurisdictional discovery, the Plaintiffs extrapolate that the trial court must

have power over persons who are subject to Woo Young’s control. (Resp. to

Mand. Pet. at 6, 7.) But that extrapolation does not follow from the premise.

Corporate employees are not parties. See, e.g., In re Wells Fargo Bank,

N.A., 2010 Tex. App. LEXIS 6817, at *4; Simplex Time Recorder Co., 1995

Tex. App. LEXIS 886, at *8; Borden, Inc., 773 S.W.2d at 721. As non-

parties, they are not subject to the court’s control when outside of Texas.

(See the cases cited on pages 6-8, above.) A Texas court has no

extraterritorial power to force employees from outside of Texas to come to

Texas. (See id.) It follows that the trial court cannot force Woo Young’s

South Korean employees to come to the U.S.4 And given that Kwon has

retired, the trial court’s power to force him to come to the U.S. is even more

tenuous.

An illustrative case is Simplex Time Recorder Co. v. Hancock, No. 14-

95-00141-CV, 1995 Tex. App. LEXIS 886, at *8-10 (Tex. App.—Houston

4 The rules contain a procedure to depose an organization by having the

organization designate individuals to testify on its behalf. See TEX. R. CIV. P. 176.6(b), 199.2(b)(1). This procedure is not at issue in this case, since the Plaintiffs did not request the trial court to order, and the court did not order, a corporate deposition. (App. Tab J at 7:18-8:22; App. Tab M at 2.) Even under this procedure, it would be improper to order that a corporate representative deposition must take place in the U.S. while a foreign corporation’s special appearance is pending. See the cases cited on pages 12-16, below.


[14th Dist.] Apr. 27, 1995, orig. proceeding) (not designated for

publication), in which the trial court ordered the defendant corporation to

produce four non-Texas employees for oral depositions in Houston. In

granting mandamus relief, the court of appeals held that “the fact that the

four witnesses are under the control and supervision of Simplex is irrelevant

… .” Id. at *9. It follows that the Plaintiffs cannot force Woo Young to bring

foreign witnesses to the U.S. just because the witnesses work for Woo

Young. See id.; In re W. Star Trucks U.S., Inc., 112 S.W.3d at 764 (county

of suit was not a proper location to depose a party’s Oregon employee). (See

also the cases cited on pages 6-8, above.)

The Plaintiffs have also argued that the trial court’s order is proper

because Lee and Kwon signed verifications and have relevant knowledge.

But the fact that a non-Texas witness signed an affidavit does not give the

trial court power to require the witness to come to Texas (or to the U.S.). See

In re Wells Fargo Bank, N.A., 2010 Tex. App. LEXIS 6817, at *3-6 (that a

witness signed an affidavit does not override the rules for determining the

proper deposition location). Similarly, “[w]hether a witness possesses

‘relevant knowledge’ is not a consideration in determining where a

deposition may take place.” Simplex Time Recorder Co., 1995 Tex. App.

LEXIS 886, at *8-9.


If a trial court has power over a person merely because that person has

knowledge or works for a party, then Texas trial courts would have

worldwide reach because such a person could conceivably be found

anywhere on the globe. Obviously, Texas courts do not have global

jurisdiction and reach. Nor should they. A court’s territorial power does not

expand to cover any and every person outside of Texas who may have some

relevant knowledge or some connection to a party. Cf. Chicago Life Ins. Co.

v. Cherry, 244 U.S. 25, 37 S. Ct. 492, 493 (1917) (a court cannot bind all

interested persons “by its mere assertion of its own power”).

This Court should grant this mandamus petition and confirm that trial

courts do not have the power to compel nonparty, foreign witnesses to come

to the U.S. to testify, even when the witnesses are employees of a party. The

Court should further confirm that trial courts cannot accomplish the same

result indirectly by compelling corporate parties to produce foreign

employees for depositions in the U.S.

D. Because personal jurisdiction has not been established, the trial court cannot order Woo Young to produce the witnesses in the U.S.

Another compelling factor is that Woo Young’s special appearances are

still pending. Because the Plaintiffs have not established (indeed, cannot

establish) that the trial court has personal jurisdiction over Woo Young (see


App. Tabs B & C), the trial court lacks authority to order Woo Young to

produce foreign employees for depositions in the U.S. See Roquemore v.

Roquemore, 431 S.W.2d 595, 599-600 (Tex. Civ. App.—Corpus Christi

1968, no writ).

In Roquemore, a non-custodial parent (the father) sued a custodial

parent (the mother) in Nueces County to change the custody of their child.

Id. at 596-97. The mother, who lived and worked in Illinois, filed a special

appearance. Id. at 597. Before ruling on the special appearance, the trial

court ordered the mother to appear for an oral deposition in Nueces County.

Id. at 597-98.

On appeal, the mother argued that the trial court had erred by

compelling her to appear at a deposition in the county of suit while her

special appearance was pending. Id. at 600. The court of appeals agreed,

noting that “the trial court ... should not have fixed, over objection, the place

of taking [the mother]’s deposition in Nueces County, Texas, and ... should

have granted [the mother]’s motion to have her oral deposition taken in

Illinois.” Id.

A court therefore abuses its discretion by ordering a non-Texan who

has filed a special appearance to give a deposition in the county of suit. It

follows that, at least until personal jurisdiction is established, the court


cannot reach out and compel a defendant to produce witnesses at a location

outside the defendant’s home jurisdiction. This precludes a court from

compelling a foreign defendant to produce foreign witnesses in the U.S. See

Butan Valley, N.V., 921 S.W.2d at 829 (Saudi Arabian resident, who was a

director and sole shareholder of the defendant company, had to be deposed

in Saudi Arabia).

Several federal courts have recognized that it is not proper to compel a

foreign defendant to bring witnesses to the U.S. while a personal-jurisdiction

challenge is pending. In United States v. Halliburton Co., 270 F.R.D. 26

(D.D.C. 2010), a Jordanian corporate defendant challenged jurisdiction and

sought to quash a notice to depose a corporate representative in the U.S. The

court granted the motion and ordered that the deposition take place in

Jordan. Id. at 29 (“Plaintiff fails to cite a single case ordering the deposition

of a foreign corporation to take place in the United States when the foreign

corporation was contesting personal jurisdiction and consented to a

deposition abroad in accordance with the Federal Rules.”); see Farmland

Indus., Inc. v. Grain Bd. of Iraq, Civ. A. No. 86-3298, 1987 WL 19222, at

*3 (D.D.C. Oct. 16, 1987) (where an Iraqi defendant was challenging

personal jurisdiction, the court noted that the “plaintiff cites no authority on

point for the proposition that the Court should order all depositions to take


place in the United States at defendant’s costs”).

Other federal courts have ruled similarly:

Gulf Union Ins. Co. of Saudi Arabia v. M/V Lacerta, No. 91 Civ. 2814 (PKL), 1992 WL 51532, at *5 (S.D.N.Y. Mar. 9, 1992) (ordering that the deposition of a Malta corporate defendant (which was challenging personal jurisdiction) be taken in Malta).

Pillar Corp. v. Enercon Indus. Corp., 694 F. Supp. 1353, 1362-63 (E.D. Wis. 1988) (while a German corporate defendant was challenging personal jurisdiction, the deposition of its president should be taken in Germany).

Gilliland v. Hurley, Civ. A. No. 09-1621, 2010 WL 830968, at *4 (W.D. Pa. Mar. 4, 2010) (where the case was pending in Pennsylvania, jurisdictional depositions of California individual defendants were ordered to take place in California if telephone depositions were inadequate).

These cases are consistent with the legal reality that because

jurisdiction over Woo Young has not been established, Woo Young is not

properly a party to the underlying cases. See, e.g., In re Sheppard, 193

S.W.3d 181, 188-89 (Tex. App.—Houston [1st Dist.] 2006, orig. pro-

ceeding) (a defendant is not a party to the case until the trial court has

personal jurisdiction over it). As a nonparty, Woo Young cannot, consistent

with due process, be compelled to submit to burdensome discovery, such as

producing foreign employees for depositions in the U.S. Cf. Carriere v.

Shuffield, 949 S.W.2d 862, 864 (Tex. App.—Beaumont 1997, no pet.) (it

was an abuse of discretion to order production of records from a nonparty


corporation).

It would be an anomaly to allow the trial court to order Woo Young to

produce foreign witnesses in the U.S. before there is even jurisdiction to hail

Woo Young into a Texas court. See Haas v. George, 71 S.W.3d 904, 915

(Tex. App.—Texarkana 2002, no pet.) (“Generally, a trial judge has control

over only those parties properly before the court.”). Because the trial court,

constitutionally, has no personal jurisdiction over Woo Young, the court has

no power to require Woo Young to produce nonparty, foreign witnesses for

depositions in the U.S. See Roquemore, 431 S.W.2d at 600. The trial court

has no such extraterritorial power during merits discovery — let alone

during jurisdictional discovery. (See the cases cited on pages 6-8, above.)

Thus, the trial court abused its discretion.

2. The trial court abused its discretion because the U.S. is not a reasonable location that is convenient for the wit-nesses.

A. A trial court must set depositions for a location that is authorized under Rule 199.2(b)(2).

The trial court’s order is an abuse of discretion for another reason —

because it violates Rule 199.2(b)(2), which states:

(2) Time and Place. The notice must state a reasonable time and place for the oral deposition. The place may be in: (A) the county of the witness’s residence;


(B) the county where the witness is employed or regularly transacts business in person; (C) the county of suit if the witness is a party or a person designated by a party under Rule 199.2(b)(1); (D) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or (E) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. TEX. R. CIV. P. 199.2(b)(2) (emphasis added).

Rule 199.2(b)(2) establishes the only permissible locations where a

witness may be deposed. See, e.g., In re Grass, 153 S.W.3d 659, 662 (Tex.

App.—Tyler 2004, orig. proceeding). It is an abuse of discretion to compel a

witness to appear for a deposition at a location that is not authorized by Rule

199.2(b)(2). E.g., Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex.

1988) (orig. proceeding); In re W. Star Trucks US, Inc., 112 S.W.3d 756,

764-65 (Tex. App.—Eastland 2003, orig. proceeding).

In this case, when responding to Woo Young’s mandamus petitions, the

Plaintiffs did not argue that subparts (A)-(D) of Rule 199.2(b)(2) are

applicable.5 Instead, the Plaintiffs argued that subpart (E) applies because

5 Indeed, none of the counties specified Rule 199.2(b)(2)(A)-(D) is applicable


the U.S. is a “convenient” location for the depositions. As discussed below,

this argument fails.

B. The party seeking the deposition must prove that the location is reasonable and “convenient” for the witness.

Rule 199.2(b)(2) permits a trial court to order that an oral deposition

occur “at any other convenient place.” TEX. R. CIV. P. 199.2(b)(2)(E); see In

re Turner, 243 S.W.3d 843, 846 (Tex. App.—Eastland 2008, orig.

proceeding) (“When a deposition takes place outside one of the counties

specifically identified by Rule 199.2(b)(2), it must be at a convenient place.”

(emphasis in original)). The rule also requires that the deposition location be

“reasonable.” TEX. R. CIV. P. 199.2(b)(2); see, e.g., Wal-Mart Stores, Inc.,

754 S.W.2d at 155.

“‘Convenience’ is determined from the perspective of the witness,” not

the party who seeks the deposition. In re Grass, 153 S.W.3d at 662; accord

In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 Tex. App. LEXIS

6817, at *3 (Tex. App.—Austin Aug. 16, 2010, orig. proceeding); In re W.

Star Trucks US, Inc., 112 S.W.3d at 765. to Lee or Kwon. Their residence is in South Korea, where they are employed (or were employed) and regularly transact business in person. (App. Tab L at Exh. 1 at 1-2, Exh. 2 at 1-2.) See TEX. R. CIV. P. 199.2(b)(2)(A), (B). The county of suit (Wise County) is not applicable, because neither Lee nor Kwon has been formally designated as a corporate representative in response to a corporate-deposition request. (See App. Tab J at 7:18-8:22; App. Tab L at Exh. 4 at 2-3, 5-6.) See TEX. R. CIV. P. 199.2(b)(1), 199.2(b)(2)(C). Finally, neither of them has been personally served with a subpoena, and neither of them is a transient person. (App. Tab J at 7:18-18:22; App. Tab L at Exh. 1 at 1-2, Exh. 2 at 1-2.) See TEX. R. CIV. P. 199.2(b)(2)(D).


The burden is on the party seeking the deposition to establish that the

location is convenient for the witness. See, e.g., In re Grass, 153 S.W.3d. at

663; In re W. Star Trucks US, Inc., 112 S.W.3d at 765; In re Rogers, 43

S.W.3d 20, 29 (Tex. App.—Amarillo 2001, orig. proceeding).

When a court addresses the convenience factor, “an attorney’s

preference for an oral deposition [in person] is not synonymous with an

actual need for one.” In re Turner, 243 S.W.3d at 847. Also, it is irrelevant

that it may be more efficient or cost-effective for the witness to fly to the

lawyers’ location, rather than vice versa. See In re Wells Fargo Bank, N.A.,

2010 Tex. App. LEXIS 6817, at *5-6 (Rule 199.2(b) does not “require that

efficiency or cost-consciousness override its express provisions”).

C. The “convenience” requirement is even more stringent for international witnesses.

The “convenience” analysis is even more important when international

travel is involved because “the potential for abuse is very great in such cases

… .” In re Turner, 243 S.W.3d at 846; accord Dresser Indus., Inc. v. Solito,

668 S.W.2d 893, 895 (Tex. App.—Houston [14th Dist.] 1984, orig.

proceeding); see Société Nationale Industrielle Aérospatiale v. United States

Dist. Ct., 482 U.S. 519, 107 S. Ct. 2542, 2557 (1987) (“American courts, in

supervising discovery proceedings, should exercise special vigilance to

protect foreign litigants from the danger that unnecessary, or unduly


burdensome, discovery may place them in a disadvantageous position. …

Objections to ‘abusive’ discovery that foreign litigants advance should

therefore receive the most careful consideration.”).

With respect to international travel, the “trial judge must be especially

sensitive to the (1) actual need for the requested depositions and (2)

alternative means of taking the depositions.” Dresser Indus., Inc., 668

S.W.2d at 895; accord In re Turner, 243 S.W.3d at 846. When a party seeks

to require a witness to travel internationally, the court must address the

adequacy of alternative means to take the deposition. In re Turner, 243

S.W.3d at 846. It is an abuse of discretion when the court fails to address

this issue. Id. at 847-48. It is also an abuse of discretion to order the

deposition when there is an adequate alternative means. Id. at 847.

D. The trial court failed to set the depositions for a rea-sonable and “convenient” location for the witnesses.

The Plaintiffs did not carry their burden to show that the U.S. is a

reasonable and convenient location for Lee and Kwon. In fact, the evidence

is to the contrary:

Both Lee and Kwon are citizens of, reside in, and work or formerly worked in South Korea.

Neither of them has ever resided or been employed in the U.S.


Neither witness has any plans to come to the U.S. in the near future.

To travel to the U.S., each witness would have to take a trans-Pacific flight lasting twelve hours or longer and costing several thousand dollars.

Traveling to the U.S. would require Lee, the CEO of Woo Young, to be away from the management of his company for several days.

(App. Tab L at 7, and at Exhs. 1 & 2.) It defies common sense even to

suggest that it is reasonable and “convenient” for two business executives to

be forced to fly halfway around the world to give depositions for

jurisdictional discovery. To compel such travel makes a mockery of the

“convenience” requirement.

The fact that Woo Young has sold its products in the U.S. through

distributors is irrelevant to the convenience analysis. See Simplex Time

Recorder Co. v. Hancock, No. 14-95-00141-CV, 1995 Tex. App. Lexis 886,

at *8-10 (Tex. App.—Houston [14th Dist.] Apr. 27, 1995, orig. proceeding)

(not designated for publication). In Simplex, the trial court ordered a

defendant to produce four non-Texas employees for depositions in Houston.

Id. at *3-4. The plaintiff argued that this order was proper because the

defendant did business in Houston. Id. at *8-9. The court of appeals rejected

this argument because if this were relevant, it would “allow a party to take

the deposition of any employee in any city where that company or


corporation kept an office or did business.” Id. at *10 (emphasis in original).

Among other things, this would improperly give Texas courts extraterritorial

reach. Thus, under Rule 192.2(b)(2), it is irrelevant that Woo Young does

business elsewhere in the U.S.

It is also not probative that Lee and Kwon have attended trade shows in

the U.S. Although it is not entirely clear from the record when or where

these trade shows occurred, or how many shows either witness attended, the

number is relatively few over a period of several years. (See App. Tab L at

Exh. 1, ¶ 5, Exh. 2, ¶ 5.) Each witness testified that he has no plans to attend

any future trade shows in the U.S. (or to return to the U.S. at all). (App. Tab

L at Exh. 1, ¶ 5, Exh. 2, ¶ 5.) In any event, their prior attendance at trade

shows does not show that it is convenient for them to be forced to fly nearly

halfway around the globe to give depositions.

Further, the Plaintiffs made no showing of a need for in-person

depositions in the U.S. or of the inadequacy of alternative deposition

methods. See In re Turner, 243 S.W.3d at 847-48 (need and inadequacy of

alternative deposition methods not shown); Dresser Indus., Inc., 668 S.W.2d

at 895-96 (same). The Plaintiffs have the options to depose Lee and Kwon

in-person in South Korea, or by videoconference, both of which are adequate


means. (App. Tab L at Exh. 4 at 3.)6

Under this record, the trial court had no discretion to conclude that the

Plaintiffs proved that it is reasonable and convenient for the witnesses to

force them to cross the Pacific Ocean to be deposed. If the trial court did

have discretion under this record, it seems unlikely that it would ever be an

abuse of discretion to order a nonparty foreigner to appear in the U.S.,

especially if the foreigner had ever been to the U.S. This would be an

astonishing power grab — for Texas courts to have the power to freely order

foreigners to appear in the U.S.

In summary, the trial court abused its discretion by ordering that the

depositions be held in the U.S., which is neither reasonable nor a convenient

location for the witnesses. See, e.g., Wal-Mart Stores, Inc., 754 S.W.2d at

155 (Texas was neither reasonable nor convenient for an Arkansas witness);

In re W. Star Trucks US, Inc., 112 S.W.3d at 765 (no showing that Texas

location was convenient for an Oregon witness); In re Rogers, 43 S.W.3d at

29 (no showing of reasonableness or convenience); Prudential Prop. & Cas.

Co. v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97, 104 (Tex. App.—Texarkana

6 The Plaintiffs argued in the court of appeals that Woo Young is trying to

prevent all jurisdictional discovery. This is not true. Woo Young recognizes that it can be subjected to limited jurisdictional discovery. See pages 9-10, above. Woo Young stands by its offer to present Lee for deposition in South Korea or by videoconference. (App. Tab L at Exh. 4 at 2-3.) Since Kwon has retired, Woo Young no longer has control over him.


1999, pet. dism’d by agr.) (no evidence that Texas deposition location was

reasonable or convenient for Arizona witnesses); Simplex Time Recorder

Co., 1995 Tex. App. LEXIS 886, at *8 (same for Massachusetts and New

Hampshire witnesses); Borden, Inc. v. Valdez, 773 S.W.2d 718, 721 (Tex.

App.—Corpus Christi 1989, orig. proceeding) (same for Ohio witness).

3. Mandamus should issue to vacate the deposition order.

Mandamus is available to correct a trial court’s clear abuse of discretion

when there is no adequate remedy by appeal. E.g., Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); Borden, Inc., 773 S.W.2d

at 720. “When a trial court improperly orders … that a deposition be taken at

a location contrary to the Texas Rules of Civil Procedure, the order

constitutes an abuse of discretion and remedy is by writ of mandamus.”

Borden, Inc., 773 S.W.2d at 720 (citing Wal-Mart Stores, Inc., 754 S.W.2d

at 155); see, e.g., In re Prince, No. 14-06-00895-CV, 2006 WL 3589484, at

*2 (Tex.App.—Houston [14th Dist.] Dec. 12, 2006, orig. proceeding)

(“Following Street, courts routinely permit mandamus review of cases

alleging an improper location for a deposition.”).

The order compelling Lee and Kwon to appear for oral depositions in

the U.S. exceeds the trial court’s authority and violates the express terms of

Rule 199.2(b)(2), thus constituting a clear abuse of discretion. Mandamus


should issue to remedy this abuse of discretion. See, e.g., Wal-Mart Stores,

Inc., 754 S.W.2d at 155; In re W. Star Trucks US, Inc., 112 S.W.3d at 764;

Borden, Inc., 773 S.W.2d at 721.

CONCLUSION AND PRAYER

Texas courts have little power over nonparties and no power to force

nonparties outside of Texas to come to Texas. It follows that the trial court

here has no power to reach outside of Texas and force South Korean

nonparties to come to the U.S. for depositions. The trial court exceeded its

territorial authority and violated Rule 199.2(b)(2), thus clearly abusing its

discretion. Woo Young requests that the Court correct this ruling by issuing

a writ of mandamus directing the trial court to (1) vacate the deposition

order, and (2) enter an order that Lee and Kwon may be deposed in South

Korea or by videoconference. Woo Young further requests general relief.


Respectfully submitted, THOMPSON & KNIGHT LLP

By: /s/ Scott P. Stolley Scott P. Stolley State Bar No. 19284350 Email: [email protected] John H. Martin State Bar No. 13086500 Email: [email protected]

One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Telephone: (214) 969-1700 Facsimile: (214) 969-1751

COUNSEL FOR RELATOR WOO YOUNG MEDICAL COMPANY, LTD.


VERIFICATION

State of Texas § § County of Dallas §

Before me, the undersigned authority, on this date personally appeared

Scott P. Stolley, who was duly sworn, and stated that:

(1) he is one of the lawyers for Relator Woo Young Medical Co., Ltd.; and

(2) after reviewing this brief on the merits, he believes that every

factual statement in the brief is supported by competent evidence included in the appendix and record, except for the information in footnote 2. The information in footnote 2 is supported by the Affidavit of Margaret M. Fitzsimmons on page 28, below.

Scott P. Stolley Subscribed and sworn to before me on January 29, 2013. Notary Public, State of Texas Printed Name of Notary My Commission Expires:


AFFIDAVIT OF MARGARET M. FITZSIMMONS

State of Illinois § § County of Cook §

Before me, the undersigned authority, on this date personally appeared

Margaret M. Fitzsimmons, who stated the following under oath:

(1) I am Margaret M. Fitzsimmons. I am an attorney with Schuyler, Roche & Crisham, P.C. in Chicago, Illinois. I am one of the lawyers for Woo Young Medical Co., Ltd., in the Helm and Lumpkins cases.

(2) The statements within this affidavit are within my personal

knowledge and are true and correct. (3) On December 31, 2012, we were alerted by Woo Young that Mr.

Seong Kwon was retiring as of December 31, 2012. Margaret M. Fitzsimmons Subscribed and sworn to before me on January 29, 2013. Notary Public, State of Illinois Printed Name of Notary My Commission Expires:


CERTIFICATE OF COMPLIANCE

This brief was prepared using Microsoft Word 2010 in Times New

Roman font. This brief contains 6,085 words, not counting the sections

excluded by TEX. R. APP. P. 9.4(i)(1).

/s/ Scott P. Stolley Scott P. Stolley


CERTIFICATE OF SERVICE

On January 29, 2013, a copy of this brief on the merits was served on the following by CaseFileExpress, certified mail, return receipt requested, or email, as indicated below: Respondent Hon. John H. Fostel 271st District Court Wise County Courthouse 101 North Trinity Street Decatur, Texas 76234 Via Certified Mail RRR #7011 1150 0001 5528 9936

Counsel for Real Parties in Interest Michael Simpson Derrick S. Boyd Kristy P. Campbell Simpson, Boyd & Powers P.O. Box 957 105 N. State Street, Suite B Decatur, Texas 76234 [email protected] [email protected] [email protected] Via CaseFileExpress and email Brian S. Stagner Jody S. Sanders Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 [email protected] [email protected] Via CaseFileExpress and email

/s/ Scott P. Stolley Scott P. Stolley

518731 000002 5905731.1

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