In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00336-CV

___________________________

Original Proceeding

43rd District Court of Parker County, Texas

Trial Court No. CV23-0960

Before Sudderth, C.J.; Birdwell and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

IN RE KENT KADDATZ, Relator
2

MEMORANDUM OPINION

Relator Kent Kaddatz seeks mandamus relief from the trial court’s order

compelling him to submit to a pre-suit deposition under Texas Rule of Civil Procedure 

202. See Tex. R. Civ. P. 202.1 (permitting a person to petition a court for authorization 

to take a deposition to perpetuate or obtain testimony for use in an anticipated suit or 

to investigate a potential legal claim or suit). Because the trial court clearly abused its 

discretion and because Kaddatz lacks an adequate remedy by appeal, we conditionally 

grant mandamus relief.

I. Background

Real party in interest Oil Patch Group, Inc. (OPG) alleges that its president

Derek Elzner formed a competing company named Titan Accommodations, LLC while 

he was working for OPG and then suddenly resigned. Shortly after Elzner resigned, 

several other OPG employees—including Kaddatz—followed suit, and OPG alleges 

that these individuals now work for Titan.

OPG sued Titan, Elzner, and Dwayne Beran (another former OPG employee)

in federal court for various claims arising from alleged employment agreement 

violations and unauthorized use of the company’s trade secrets and confidential 

information (the Titan Lawsuit). In the lawsuit, OPG asserted claims for breach of 

contract, conversion, breach of fiduciary duties, knowing participation in breach of 

fiduciary duties, tortious interference with business relationships and contracts, civil 
3

conspiracy, and violations of the Federal Defend Trade Secrets Act, the Texas Uniform 

Trade Secrets Act, and the Computer Fraud and Abuse Act.

Although Kaddatz is not a named defendant in that case, he is identified in the

complaint as among seven OPG employees who allegedly resigned, joined Titan, and 

“deleted a large number of emails from their OPG email accounts around the time of 

[their] resignations.” OPG has also filed two other federal cases against former 

employees Lenae Beran1 and Danette Mares. According to the mandamus record, all 

three federal cases are still active.

On the same day that it filed the federal complaints, OPG filed a verified Rule 

202 petition in the state district court below seeking Kaddatz’s pre-suit deposition and

document production.

2 Kaddatz filed objections to the petition, asserting that OPG 

had failed to establish that the benefit of allowing the deposition outweighed Kaddatz’s 

burden. See Tex. R. Civ. P. 202.4(a)(2) (requiring petitioner to plead and prove “the 

likely benefit of allowing [it] to take the requested deposition to investigate a potential 

claim outweighs the burden or expense of the procedure”). More specifically, citing 

1

Because two former OPG employees—Dwayne Beran and Lenae Beran—share 

the same last name, we will hereinafter refer to them by their first names.

2

The petition sought documents from Kaddatz concerning his possession or 

transmission of confidential materials and Titan’s use of the same; Kaddatz’s 

employment with Titan; Kaddatz’s communication with Elzner, Dwayne, Lenae, or 

Mares in the months before his resignation from OPG; and communications with 

current or former OPG customers. Although Kaddatz objected below to these 

document requests, the requests are not included in the issue presented in his 

mandamus petition. Thus, we will not address them.
4

our holding in DeAngelis v. Protective Parents Coalition, Kaddatz asserted that the petition

was insufficient to meet Rule 202’s requirements because it “merely parrot[ed] the 

language of Rule 202 without including explanatory facts [or] providing evidence.” See 

556 S.W.3d 836, 855 (Tex. App.—Fort Worth 2018, no pet.) (“A petitioner seeking presuit discovery under Rule 202 must present evidence to meet its burden to establish the 

facts necessary to obtain such discovery.”). He further asserted that OPG had failed to 

properly assess his burden and expense, noting that the Third Court of Appeals has

held in In re Hewlett Packard, that former employees carry a “substantial burden” when 

submitting to a deposition with their former employer regarding why they left to work 

for a competitor and what they are doing for their new employer, “particularly when no 

lawsuit has been filed.” See In re Hewlett Packard, 212 S.W.3d 356, 362 (Tex. App.—

Austin 2006, orig. proceeding [mand. denied]) (requiring an individual to “disclose 

information to a former employer, under oath, as to why he or she left their employ to 

work for a competitor as well as exactly what the individual is doing for the competitor, 

particularly when no lawsuit has been filed, is a substantial burden”). Kaddatz also 

asserted that OPG could have sought the same discovery from him in any of its three

federal cases against Titan and OPG’s former employees. Thus, Kaddatz postulated

that the Rule 202 petition was merely an attempt to circumvent federal-court procedure. 

OPG responded, arguing that because the parties had tentatively agreed on 

deposition terms (which Kaddatz later rejected), Kaddatz could not show that the 

deposition was a substantial burden. To support its argument on the question of 
5

burden, OPG included an exhibit reflecting an email from OPG’s counsel to Kaddatz’s 

counsel containing OPG’s proposed deposition terms (the Deposition-Terms Email).

Regarding its need for pre-suit discovery, OPG’s response pointed to an email 

from Lenae to Dwayne and Mares containing a Titan expense report that used a form 

that was allegedly misappropriated from OPG (the Expense-Report Email). The

Expense-Report Email was attached to the Rule 202 petition and is the basis for most 

of the claims asserted in the Titan Lawsuit. OPG acknowledged that it “certainly could 

sue [Kaddatz] directly [and] then depose [him] in both that lawsuit (and in the Pending 

[Titan Lawsuit])[,] [b]ut that is not what OPG is trying to do.” Instead, according to 

OPG, it did not want to sue Kaddatz until it had “cognizable claims against him.”

While neither side offered any evidence at the Rule 202 petition hearing, the

petition, the Expense-Report Email, and the Deposition-Terms Email were discussed. 

At the hearing, OPG offered two primary arguments: (1) that while OPG could file 

suit against Kaddatz, it preferred to wait to do so until it had investigated the potential 

claims, and (2) that Kaddatz’s burden was low because “he knows, and [he has]

conceded, [that] he could be deposed in another case.” The trial court took the petition 

under advisement, indicating that it would review Rule 202 and compare it to the 

Expense-Report Email before ruling.

After its review, the trial court granted the petition and ordered Kaddatz’s 

deposition, limiting the deposition to two hours. Additionally, the trial court ordered

that OPG stipulate that the time used for the deposition would be subtracted from the 
6

time permitted under the Federal Rules of Civil Procedure for any subsequent 

depositions of Kaddatz that were taken “in the lawsuit currently pending in federal 

court between [OPG] and Derek Elzner, Dwayne Beran, and Titan Accommodations, 

LLC.” This mandamus proceeding followed, and the trial court granted Kaddatz’s 

motion to stay the proceedings pending the outcome of this original proceeding.

II. Discussion

Kaddatz contends that the trial court clearly abused its discretion by granting the 

Rule 202 petition because OPG failed to “meaningfully explain” its need for pre-suit 

discovery and failed to introduce competent evidence to support its petition. 

Alternatively, Kaddatz argues that even if OPG’s petition and exhibits are considered 

as evidence, they fail to prove that pre-suit discovery is necessary. Finally, Kaddatz also 

asserts that he has no remedy by appeal from the trial court’s order because the 

opportunity to appeal would come only after the deposition had occurred.

A. Mandamus Standard

Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25 

(Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both 

that the trial court clearly abused its discretion and that the party has no adequate 

remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig. 

proceeding). 

A trial court abuses its discretion when a decision is arbitrary, unreasonable, and 

without reference to guiding principles. Id.; see Walker v. Packer, 827 S.W.2d 833, 839–
7

40 (Tex. 1992) (orig. proceeding). We defer to a trial court’s factual determinations that 

have evidentiary support, but we review the trial court’s legal determinations de novo. 

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). An 

error of law or an erroneous application of the law to the facts is always an abuse of 

discretion. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91–92 (Tex. 2019) (orig. 

proceeding).

An appellate remedy’s adequacy has no specific definition; “the term is ‘a proxy 

for the careful balance of jurisprudential considerations’ [that implicate both public and 

private interests,] and its meaning ‘depends heavily on the circumstances presented.’” 

Allstate Indem. Co., 622 S.W.3d at 883 (quoting In re Prudential Ins. of Am., 148 S.W.3d 

124, 136 (Tex. 2004) (orig. proceeding)); In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 

2005) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136); see also In re McAllen 

Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding) (“Whether a clear 

abuse of discretion can be adequately remedied by appeal depends on a careful analysis 

of costs and benefits of interlocutory review.”).

An appellate remedy is adequate when any benefits to mandamus review are 

outweighed by the detriments. Prudential, 148 S.W.3d at 136. But even when the 

benefits of mandamus review outweigh the detriments, we must consider whether the 

appellate remedy is nonetheless adequate. Id. In evaluating the benefits and detriments, 

we consider whether mandamus will preserve important substantive and procedural 

rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) 
8

(orig. proceeding). The danger of permanently losing substantial rights occurs when 

the appellate court would not be able to cure the error, when the party’s ability to 

present a viable claim or defense is vitiated, or when the error cannot be made a part of 

the appellate record. ERCOT, Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 

S.W.3d 628, 641 (Tex. 2021) (orig. proceeding) (citing In re Van Waters & Rogers, Inc., 

145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding)). We should also consider whether 

mandamus will allow us “to give needed and helpful direction to the law that would 

otherwise prove elusive in appeals from final judgments” and “whether mandamus will 

spare litigants and the public ‘the time and money utterly wasted enduring eventual 

reversal of improperly conducted proceedings.’” Team Rocket, 256 S.W.3d at 262 

(quoting Prudential, 148 S.W.3d at 136).

An order allowing a pre-suit deposition of an anticipated defendant under Rule 

202, as here, is not a final, appealable order. In re Jorden, 249 S.W.3d 416, 419 (Tex. 

2008) (orig. proceeding). Thus, mandamus is the proper method to challenge such an 

order. In re Campos, No. 2-07-197-CV, 2007 WL 2013057, at *3 (Tex. App.—Fort 

Worth July 12, 2007, orig. proceeding [mand. denied]) (per curiam) (citing Hewlett 

Packard, 212 S.W.3d at 360).

B. Applicable Law

Rule 202 authorizes pre-suit depositions in two circumstances: (1) “to perpetuate 

or obtain the person’s own testimony or that of any other person for use in an 

anticipated suit” or (2) “to investigate a potential claim or suit.” Tex. R. Civ. P. 202.1;
9

DeAngelis, 556 S.W.3d at 853. But, as the Texas Supreme Court has pointed out, “[t]he 

intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not 

to be taken lightly.” In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (per curiam) (orig. 

proceeding). And as we have noted, “Rule 202 depositions are not now and never have 

been intended for routine use. There are practical as well as due process problems with 

demanding discovery from someone before telling them what the issues are.” DeAngelis, 

556 S.W.3d at 855 (quoting Jorden, 249 S.W.3d at 423). The supreme court has further 

cautioned that courts must “strictly limit and carefully supervise pre-suit discovery to 

prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (per curiam) 

(orig. proceeding) (quoting Tex. R. Civ. P. 202.5).

As to pleading, while Rule 202 does not require the pleading of a specific cause 

of action, it does require that the petitioner “state the subject matter of the anticipated 

action, if any, and the petitioner’s interest therein.” DeAngelis, 556 S.W.3d at 853. A

Rule 202 petition that “merely tracks the language of Rule 202 in averring the necessity 

of a pre-suit deposition, without including any explanatory facts,” will not suffice to 

meet the petitioner’s burden. Id. at 856 (quoting In re East, 476 S.W.3d 61, 69 (Tex. 

App.—Corpus Christi–Edinburg 2014, orig. proceeding)); see also Does, 337 S.W.3d at 

865 (concluding that petitioner’s “sketchy” allegations mostly concerning a third party 

“made no effort to present the trial court with a basis for the [Rule 202] findings”).

As to proof, a Rule 202 petitioner must provide more than mere allegations to 

obtain a Rule 202 deposition. DeAngelis, 556 S.W.3d at 855. The petitioner must 
10

“present evidence to meet its burden to establish the facts necessary to obtain such 

discovery.” Id. And, because pleadings—even if sworn or verified—are not generally 

considered competent evidence, Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 

S.W.2d 656, 660 (Tex. 1995), we have held that ordinarily a Rule 202 petitioner cannot

rely upon a verified pleading to meet its burden of proving the facts asserted in its 

petition. DeAngelis, 556 S.W.3d at 855–56.

C. Analysis

Because OPG sought Kaddatz’s deposition to investigate a potential claim or 

suit, see Tex. R. Civ. P. 202.1(b), OPG had to both plead and prove that “the likely 

benefit of allowing [it] to take the requested deposition to investigate a potential claim 

outweigh[ed] the burden or expense of the procedure,” see Tex. R. Civ. P. 202.4(a)(2).

Kaddatz contends not only that OPG failed in its pleadings and proof but also that 

Rule 202 relief is inappropriate here because OPG can obtain the same discovery in any 

of its pending federal cases. 

1. OPG’s Rule 202 Petition

According to Kaddatz, OPG’s petition merely tracked Rule 202’s language and 

included no factual allegations to explain “why it is so important that OPG seek pre-suit

discovery” from Kaddatz. With regard to potential claims and the need for pre-suit 

discovery, OPG’s petition contains the following relevant allegations:

• Elzner suddenly resigned from OPG;
11

• Elzner had registered “a new and directly competing company, Titan 

Accommodations, LLC,” two months before his resignation;

• OPG has lost at least two customers to Titan, “representing millions 

in annual revenue to OPG”;

• before his resignation, Elzner “attempted to surreptitiously and 

improperly ‘terminate’ his employment agreement along with other 

employees’ employment agreements”;

• the employment agreements contained “restrictive covenants and 

nondisclosure obligations”; 

• two days after Elzner resigned, Kaddatz and “at least seven other OPG 

managers and employees known to be close to Elzner” resigned;

• OPG believes that all of the former employees who resigned shortly 

after Elzner now work for Titan;

• OPG has evidence in the form of the Expense-Report Email

demonstrating that its former employees are misappropriating OPG’s 

confidential information; and

• the Titan expense reports “are almost identical to the confidential 

expense reports used by OPG, which Elzner, Lenae, [Dwayne], and 

Mares would have had access to and used as key employees of OPG.” 

OPG further asserted in its petition that it sought pre-suit discovery to explore 

Kaddatz’s role in the former employees’ resignations and Titan’s formation and use of 

OPG’s “trade secrets, confidential information, and property” and to determine 

whether it has any legal claims against Kaddatz, including breach of fiduciary duty and 
12

violations of the Federal Defend Trade Secrets Act and the Texas Uniform Trade 

Secrets Act.3

Although OPG’s petition explains the basis for OPG’s potential claims against 

Kaddatz, it does not explain why OPG needs Kaddatz’s pre-suit deposition. See 

DeAngelis, 556 S.W.3d at 856. In fact, OPG’s petition contains no factual allegations

concerning Rule 202’s requirements at all. See Tex. R. Civ. P. 202.4(a)(2); Does, 337 

S.W.3d at 865; DeAngelis, 556 S.W.3d at 856. 

Addressing the burden or expense of the Rule 202 deposition request, see Tex. 

R. Civ. P. 202.4(a)(2) (permitting pre-suit depositions “if, but only if” the trial court 

finds that “the likely benefit of allowing the petitioner to take the requested deposition 

to investigate a potential claim outweighs the burden or expense of the procedure”), 

OPG’s petition asserts:

• “The benefit of allowing OPG to conduct the requested oral 

deposition duces tecum to investigate potential claims outweighs the 

burden or expense of authorizing the deposition of [Kaddatz], who 

will have specific knowledge regarding OPG’s specific and potential 

claims against [Kaddatz]”;

• “[T]he burden or expense of allowing the requested Rule 202 

deposition to take place and production of documents is low, as 

[Kaddatz] resides in Parker County and OPG’s counsel will work with 

[Kaddatz] to schedule the deposition at a mutually convenient time and 

place”; and 

3

OPG also filed identical petitions seeking Rule 202 depositions from the 

remaining four former employees identified in the Titan Lawsuit.
13

• OPG “will conduct the requested deposition within the time and other 

limitations as set forth in the Texas Rules of Civil Procedure.”

These conclusory assertions merely track the language of Rule 202, see Tex. R. Civ. P. 

202.1, 202.4, and concede no more than is required under our discovery rules, see Tex. 

R. Civ. P. 202.5 (“The scope of discovery in depositions authorized by this rule is the 

same as if the . . . potential claim had been filed.”); id. 199.2(b)(2) (requiring oral 

depositions to take place at a reasonable time and place, such as the county in which 

the deponent resides). On its face, the petition is insufficient to demonstrate a need for 

pre-suit discovery. See DeAngelis, 556 S.W.3d at 856; Hewlett Packard, 212 S.W.3d at 362 

(holding that the benefit of determining whether petitioner has a legitimate claim against 

respondent is not sufficient alone to outweigh the burden on potential deponent). 

2. OPG’s Rule 202 Evidence

As to his contention that OPG failed to offer any evidence to support its petition, 

Kaddatz points out that OPG relied solely on its verified petition, the Expense-Report 

Email, and the Deposition-Terms Email—none of which were offered into evidence at 

the Rule 202 petition hearing.

OPG responds that Rule 202 “says nothing about the form of the evidentiary 

proof required” and that “it would be strange” to hold that a verified petition could not 

support a Rule 202 deposition when a declaration is sufficient to support a temporary 

restraining order or summary judgment. Moreover, according to OPG, Kaddatz waived 
14

the admissibility issue by failing to object and commenting on the weight of the 

evidence.

Notably, however, OPG asserts only that Kaddatz failed to object “when OPG 

clearly tendered [the Expense-Report Email] to the trial court as evidence.” OPG does 

not contend that Kaddatz waived the admissibility of the petition or the DepositionTerms Email. Nor does it assert that its counsel tendered the Expense-Report Email 

based on personal knowledge of the same. See In re Estate of Arndt, 187 S.W.3d 84, 87 

(Tex. App.—Beaumont 2005, orig. proceeding) (holding that trial court could rely on 

counsels’ representations regarding timeliness of discovery responses as factual matters 

within their personal knowledge because “[u]nsworn factual statements and 

representations by an attorney can constitute evidence” when opponent fails to object 

“in circumstances that clearly indicated each was tendering evidence on the record 

based on personal knowledge on the contested issues” (internal quotation omitted)).

Although OPG admits that it did not formally offer any evidence at the hearing, 

it contends that it handed over, and the trial court considered, its verified petition and 

the two exhibits by reference. OPG refers us to the trial court’s order stating that the 

trial court based its decision on “the [p]etition, the evidence, and any other relevant 

pleadings and arguments of counsel” as proof that the trial court heard and considered 

evidence when making its determination. Even if we hold otherwise, OPG contends

that it would be “pointless” for us to grant the petition for writ of mandamus because 
15

it will simply use “the magic words ‘I hereby move to admit’ the evidence” on the next 

go-round to ensure that its petition and exhibits are formally admitted into evidence.

While courts should not issue mandamus “if for any reason it would be useless 

or unavailing,” this rule applies to circumstances in which the mandamus would compel 

the respondent to do something that is impossible to do, and the mandamus would be 

fruitless. Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (orig. proceeding) 

(quoting Holcombe v. Fowler, 9 S.W.2d 1028, 1028 (1928) (orig. proceeding)); see also 

Manion v. Lockhart, 114 S.W.2d 216, 219 (1938) (orig. proceeding) (citing Holcombe, 118 

Tex. at 42, 9 S.W.2d at 1028); see, e.g., Dow Chem. Co., 909 S.W.2d at 504–05 (dismissing 

mandamus petition as moot because rejoinder of claims requested in mandamus 

petition was impossible since severed claims had been removed to federal court and 

could not be resolved in state court); In re Smith Cnty., 521 S.W.3d 447, 454 (Tex. App.—

Tyler 2017, orig. proceeding) (denying mandamus as moot because recordings of closed 

governmental meetings had been published as requested in mandamus petition); In re 

Garza, No. 07-14-00347-CV, 2014 WL 5255162, at *2 (Tex. App.—Amarillo Oct. 14, 

2014, orig. proceeding) (mem. op.) (noting that mandamus directing county judge to 

certify write-in candidate would not place candidate on ballot as requested in mandamus 

petition because county judge does not prepare ballots); In re Patton, No. 06-12-00024-

CR, 2012 WL 629153, at *1 (Tex. App.—Texarkana Feb. 28, 2012, orig. proceeding)

(mem. op.) (denying mandamus petition seeking order compelling trial court’s answer 

to petition for bill of review because equitable bill of review is unavailable in criminal 
16

cases); In re Charleston, No. 06-10-00037-CR, 2010 WL 1878690, at *2 (Tex. App.—

Texarkana May 12, 2010, orig. proceeding) (mem. op.) (denying mandamus because 

trial court had taken action requested in mandamus petition).

OPG does not contend that mandamus here would compel the respondent to 

do something that is impossible to do. Rather, it merely contends that mandamus 

would be fruitless because OPG would ensure that its petition and exhibits are 

considered as evidence by formally moving to have them admitted into evidence at a 

subsequent hearing. But OPG’s argument requires a leap of faith that if the evidence 

were offered, it would be admitted. That is not a forgone conclusion. See Bay Area 

Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (“The Rules of 

Evidence govern admissibility of evidence in court proceedings.”); Laidlaw Waste Sys., 

904 S.W.2d at 660 (“Generally, pleadings are not competent evidence, even if sworn or 

verified.”); DeAngelis, 556 S.W.3d at 855 (“Generally, a Rule 202 petitioner may not rely 

upon its verified pleading to prove the facts asserted in its petition.”). Thus, we reject 

OPG’s assertion that mandamus would be futile or pointless. See Dow Chem. Co., 909 

S.W.2d at 505.

Regardless, as we explain below, we need not address OPG’s theory that the 

petition and exhibits were informally admitted by reference or properly considered due 

to Kaddatz’s waiver because, even if impliedly admitted into evidence and fully 

considered by the trial court, OPG’s petition and exhibits fall short of addressing the 

requirements of Rule 202. See Tex. R. Civ. P. 202.4(a)(2); see also DeAngelis, 556 S.W.3d 
17

at 856 (declining to address whether Rule 202 petition can be considered as evidence 

because petition and exhibits failed to demonstrate need for pre-suit discovery). Thus, 

even if they were considered by the trial court, OPG would still have failed to offer any 

evidence to support its Rule 202 petition, and formally offering them as evidence in any 

subsequent hearing would not remedy that defect.

a. The Expense-Report Email

According to OPG, the Expense-Report Email “shows the unquestionable theft 

and use of OPG’s Confidential Information by certain Former OPG Employees” and 

“underscores the significant benefit of obtaining pre-suit discovery from Kaddatz—to 

ascertain whether Kaddatz was personally involved in the conspiracy, whether OPG has 

viable claims against Kaddatz personally, and to prevent further damage to OPG’s 

business due to Kaddatz’s potential personal conduct.”

Although the email and Kaddatz’s alleged relationship with those named in it

may raise the question of Kaddatz’s involvement in the third-party acts that OPG 

alleges, OPG still fails to explain why it needs pre-suit discovery to resolve the question. 

See Tex. R. Civ. P. 202.4(a)(2); see DeAngelis, 556 S.W.3d at 857 (holding Rule 202 

petitioner’s voluminous evidence addressing only the anticipated legal claim did not 

address “why the benefit of the requested deposition[s] . . . outweigh[ed] the burden or 

expense of the procedure” (internal quotation marks omitted)); but cf. In re City of Tatum, 

578 S.W.3d 203, 211 (Tex. App.—Tyler 2019, orig. proceeding) (holding that trial court 

did not abuse discretion by ordering Rule 202 deposition because it would clarify 
18

complex state and federal jurisdictional issues implicated in potential claims and 

deponent was custodian of records at issue); Glassdoor, Inc. v. Andra Grp., LP, 560 S.W.3d 

281, 288–93 (Tex. App.—Dallas 2017) (holding that trial court did not abuse its 

discretion by granting Rule 202 depositions to discover anonymous reviewers’ identity 

based on harm and damages resulting from unfavorable business reviews), judgment 

vacated and cause dismissed on other grounds, 575 S.W.3d 523 (Tex. 2019). OPG’s bald

assertion that it needs pre-suit discovery to determine whether it has legitimate claims 

against Kaddatz personally is insufficient to justify the burden of pre-suit discovery. See 

Hewlett Packard, 212 S.W.3d at 362.

b. The Deposition-Terms Email

OPG contends that the Deposition-Terms Email is “significant evidence 

demonstrating [that] Kaddatz’s claimed substantial burden . . . was disingenuous at 

best.” But although OPG characterizes the email as an “exchange” between the parties,

the email reflects only a single communication from OPG to Kaddatz with OPG’s 

“proposal regarding the Rule 202 petitions and prospective depositions,” referring to 

all of the Rule 202 petitions that OPG filed against Kaddatz and four other former 

employees. OPG offered no evidence of any prior communications to provide context 

for the proposal. Instead, citing counsels’ argument during the hearing, OPG contends 

that it showed that OPG had agreed to “Kaddatz’s proposal” to minimize his 

deposition burden and that Kaddatz had suddenly objected to the deposition’s timing. 
19

Argument, however, is not evidence. See DeAngelis, 556 S.W.3d at 855. Furthermore, 

the record reflects that the parties never actually reached an agreement.

More to the point, Rule 202 petitions present due-process concerns by 

demanding discovery from someone before telling them what the issues are. See id.

OPG’s Deposition-Terms Email purports to address only the requested deposition’s 

time and pecuniary cost. Yet, a former employee shoulders an unquantifiable,

substantial burden when forced to submit to a deposition before a former employer 

and disclose why he left to work for a competitor, explain what he is doing for that 

competitor, and discuss how his current work might or might not have been affected 

by knowledge gained while working for his former employer. See Hewlett Packard, 212 

S.W.3d at 362. This is especially true when no lawsuit has been filed. See id.

OPG offered no evidence to address this burden, and OPG’s sole stated 

benefit—determining whether it has cognizable claims against Kaddatz—does not 

outweigh this burden. See id. Likewise, OPG’s offer to minimize Kaddatz’s burden and 

expense without explaining why it needs pre-suit discovery—when, as discussed below,

it has alternative means available—does not suffice. See DeAngelis, 556 S.W.3d at 842, 

856–57.

3. Alternative Means of Discovery

Citing In re Hanover Insurance Co., No. 01-13-01066-CV, 2014 WL 7474203, at *3 

(Tex. App.—Houston [1st Dist.] Dec. 30, 2014, orig. proceeding) (mem. op.), Kaddatz 

points out that OPG could obtain the same discovery requested here via third-party 
20

discovery in any of its three pending federal lawsuits against Titan and other former 

employees. Indeed, OPG admitted, and the trial court’s order acknowledged, that OPG 

could obtain Kaddatz’s deposition in the Titan Lawsuit. 

Nonetheless, OPG maintains that it is entitled to pre-suit discovery despite 

available alternative means, arguing that Hanover is inapplicable for three reasons. First, 

OPG contends that Hanover “was analyzed under a different standard for Rule 202—

deposition sought to prevent a failure or delay of justice (rather than a deposition where 

the benefit outweighs the burden).” See Tex. R. Civ. P. 202.1(a), (b). Regardless of 

which ground a petitioner chooses, however, it must still show that “the 

deposition[s] . . . must occur in a Rule 202 proceeding before, and not after,” it sues the 

respondent. DeAngelis, 556 S.W.3d at 842, 857 (quoting Hanover, 2014 WL 7474203, at 

*3). OPG next argues that the Hanover petitioner had ample opportunity to obtain 

discovery in litigation that had been ongoing for over year. But OPG cites no evidence 

that it has been prevented from doing the same in any of its three federal lawsuits.

“Finally, and most importantly,” OPG contends that Hanover does not apply 

because it did not concern a “serious ongoing and irreparable harm.” According to 

OPG, it sought Kaddatz’s pre-suit deposition “to limit continued or future harm caused

by Kaddatz’s suspected theft or misappropriation of OPG’s Confidential Information.”

Yet OPG neither mentioned this ground in its petition nor offered any evidence to 

support it. See id. at 855–56. Nor does it explain why this distinction renders Hanover

inapplicable. Regardless, as Kaddatz points out in his reply brief, any ongoing harm 
21

was mitigated by an agreed preliminary injunction that OPG obtained in the Titan 

Lawsuit.

4 That injunction applies to the defendants and “anyone acting or purporting 

to act in concert or participation with them,” and relevant to this mandamus 

proceeding, the injunction (1) prevents further OPG employment-agreement breaches;

(2) preserves relevant documents, including OPG’s confidential information and trade 

secrets; and (3) orders the return of documents containing OPG’s trade secrets and 

confidential information. Thus, to the extent the ongoing-harm distinction is material, 

it has been resolved.

Citing no authority, OPG contends that the availability of discovery via existing 

litigation should not bar Rule 202 depositions. Otherwise, according to OPG, an 

“aggrieved victim” could not “investigate potential claims against other wrongdoers if 

it previously sued a responsible party that, for example, had disappeared, went 

insolvent, or refused to file an answer to the lawsuit.”5 But availability of discovery 

through other means must factor in. Because Rule 202 depositions “are not now and 

4

Kaddatz attached a file-stamped copy of an Agreed Preliminary Injunction 

Order issued by the U.S. District Court, Southern District of Texas, in case number 

4:23-cv-2268, styled Oil Patch Group, Inc. v. Derek Elzner, Dwayne “Bubba” Beran, [and]

Titan Accommodations, LLC, on June 30, 2023. At Kaddatz’s urging, we take judicial 

notice of this court record. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 

(Tex. 2012) (holding that, when asked, “a court will take judicial notice of another 

court’s records if a party provides proof of the records”).

5

OPG has not asserted, and the record does not reflect, that any of these 

circumstances exist here. And OPG admitted at the hearing that it could sue Kaddatz 

but that it would prefer to first obtain pre-suit discovery to determine whether it 

“should or shouldn’t bring this case.”
22

never have been intended for routine use,” allowing a party to use Rule 202 as mere 

preference over other currently available mechanisms would do just that. Id. at 855

(quoting Jorden, 249 S.W.3d at 423); see Wolfe, 341 S.W.3d at 933 (“Courts must strictly 

limit and carefully supervise pre-suit discovery to prevent abuse of the rule.”); see also In 

re Ramirez, No. 13-21-00215-CV, 2022 WL 627155, at *10 (Tex. App.—Corpus Christi–

Edinburg Mar. 3, 2022, orig. proceeding) (mem. op.) (granting mandamus to vacate 

order allowing Rule 202 deposition of petitioner’s former employee concerning tradesecret theft because petitioner failed to meet its Rule 202 burden, admitted it could sue 

the former employee, and failed to explain why discovery could not be obtained from 

former employee in pending arbitration or lawsuit).

OPG also contends that it needs Kaddatz’s Rule 202 deposition to “explore 

[Kaddatz’s] role in the Former OPG Employees’ coordinated resignations[] and their 

campaign to unlawfully help Elzner start a competing business using misappropriated 

trade secrets, confidential information, and property of OPG and, accordingly, explore 

whether [OPG] has potential legal claims arising from those events against [Kaddatz] 

individually.” But OPG does not explain why it could not obtain this very same 

information from Kaddatz, or Elzner himself, in the Titan Lawsuit. See, e.g., Camoco, 

LLC v. Leyva, 333 F.R.D. 603, 613 (W.D. Tex. 2019) (permitting deposition of nonparty 

former employee regarding aspects of past employment with plaintiff, present 

employment, and relationship with defendant). The trial court’s order even 
23

acknowledged this by ordering OPG to stipulate that it would subtract its Rule 202 

deposition time from Kaddatz’s subsequent deposition in that lawsuit.

In sum, OPG failed to allege any facts or offer any evidence to explain why it is 

entitled to depose Kaddatz under Rule 202. See Does, 337 S.W.3d at 865; DeAngelis, 556 

S.W.3d at 855–56. Accordingly, we hold that the trial court abused its discretion by 

granting OPG’s Rule 202 petition. Having already concluded that Kaddatz has no 

adequate remedy by appeal, see Campos, 2007 WL 2013057, at *3, we sustain Kaddatz’s 

sole issue.

III. Conclusion

Having sustained Kaddatz’s sole issue, we conditionally grant the writ of 

mandamus. The trial court is ordered to vacate its order granting OPG’s Rule 202 

petition and render an order denying the same. Our writ will issue only if the trial court 

fails to comply.

All pending motions are denied as moot.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: November 2, 2023