## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_________________________ __ No. 02

- 21

- 00393

- CV

___________________________

Ori ginal Proceeding 67th District Cour t o f Tarrant County , Texas Trial Court No. 067

- 325026

- 21

Before Kerr , Bird well, and Womack , JJ

. Memoran dum Opinion by Justice Kerr 

### I N RE 

### S KADDEN 

### , A RPS 

### , S LATE 

### , M EAGHER 

### & F LOM 

### LLP , Relator2 MEMORANDUM OPINION
R eal party in interest The Harold E. Riley Foundatio n sued Relator Sk adden, Arps, Slate, M eagher & F lom, LL P

. Skadden fil ed a special appearance. T he
Foundation mo ved to compel production of certain d ocuments , and in turn, Skadden
moved for protection

. The trial court granted the Fo undation ’ s motion to compel a nd
denied Ska dden ’ s motion for prot ection

. Skadd en seeks mandamus relief against th at order

. Because the t rial court
authorize d discovery exceeding wh at is reaso na bly calcula ted to lead to evidence
relevant to the spe cial appearan c e , we conditi onally grant Skadden ’ s petition

. Ba ckground
Skadden is a law firm organized in Delaware with its principal office located in
New York. 1 T he Foundation is a Texas non profit that exists entirely for the benefit of Baylo r University a nd Southwest B aptist Theo logical Seminary. In August 2020, the Foundation ’s th en

- trus tees contacted Skadden in New
York and hir ed it to file a lawsuit in Colo rado on th e Foundation ’s behalf

. Th at suit
involved the Fo undation ’s control righ t s over a Colo rado corp oration. In Septe mber 2020, Baylor and the Seminary sued the Foundation in the 67 th
District Court of Tarrant Co u nty
. To defend th at su it, the Foundation hi red Thompson & Knight LLP , a Texas law firm

. Although Skadden did not r epresent the

1 Skadden has offices in numerous cities, including in Hous ton, Texas.3 Foundation in th at case , Skadden communicate d with attorneys at Thompson & Knight about it.
In February 2021, Baylor and the Seminary settled with the Foundati on, the
fallout of w hich was that Baylor and the Seminary gained control of the Foundation. 2 According to Skadden, its engageme nt letter with the Foundation provided that a change of c ontrol a utomatically termi nate d Skadden ’s re presentation

. Skadden thus
i nf ormed the Foundation that it s represent ation had ended in February 2021 and
asked the Founda tion f or a final payment of s ome $94, 000 i n outstanding legal fees.
This amount was in addition to the approximately $2.5 million that the F oun dation
had already p aid Skadden to represent it in the Colorado la w suit

. T he Foundation a sked Skadden for a copy of its entire client f ile to scruti nize
Skadden ’s re presentation and its bills

. But Skadden b alked : “ [T]he request is currently
b r oader than wh at [the Foundation] agreed would constitute its C lien t File in the engagement letter, dated August 23, 2020

. . . , inclu ding that it is not entitled to Skadden Work Product, which i s owned by the Fir m. ” 3 In the same respon s e , Skadden ag ain asked for payment of its outsta nding le gal fees

.

2 Various power struggles over the Foundation after it s founder h ad died are not relevant here.

3 Both “ Clien t File ” and “ Work Product ” were defined terms in the engagement letter.4 I n May 2021 , t he Found ation sued Skadden in Tarr ant County for a declaration
that it was entitled to eve r ything in the cli e nt file , inclu ding Skadden ’ s int e r nal
correspo ndence and work product

. I t also alleged that Skadd en had overbilled it

. 4
Skadden filed a special appearance and, subject to that sp eci al appearance, a motion to change venue to Harris County, where Skadden ha s a Texas offic e . In late June, t he Foundation serve d a document request to which Skadden

— claiming t h at the request went far beyo nd any discovery needed to resolve the
threshold jur isdictional issue

— respon ded with a motion for protecti on . In October 2021, t he Foundation move d to co mpel pr oduction and , a month later, responded to
Sk a dden’s motion for protect ion

. Skadden responded t o the Foundation ’ s motion to compel

. A fter a hearing, the trial court sign e d a n order o n Novembe r 11 , 2021, gr anting
the Foundation ’s motion to co mpel and den ying Skadde n ’s motion for protecti on . Skadden ’ s mandam us followed.

4 In t he Foundation’s manda mus response, it summarized its suit against Skadde n as follows: “The underlying l a wsuit is a bout the su b stan ce of Skadden’s representation of the Foundation and its charging of exorbitant and wastef ul fees, in part to benefit indi vidu al, self

- dealing Foun dation Trustees [who] were not its clients [ and who ] were unqualified and conflict e d as to th e Foundatio n

– S kadden’s true client.”5 Discussion
I. Mandamus Mandamus relief is proper only to cor r ect a clear abuse of dis c retion whe n there is no “adequate re medy at law, such as a normal appeal.” In re H.E .B. Grocer y Co.,
L.P. , 492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding ) (quoting State v. Walker , 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceed i ng)). W hen the ben efits of mandamus outweigh its detriments , appellate courts must consider whether the appellate remedy is adequate

. In re Prudentia l Ins. Co. o f Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proc eeding). A clear failure by the trial court to analyze or apply the law co r rectly
constitutes an ab u se of disc retion. Walke r v. Packer , 827 S.W. 2d 833, 840 (Tex. 1992) (orig. proceedin g). Moreov er , mandamus is appropriate to correct “[a]n order compelling discovery that is well outside the proper bounds.” In re Am. Optical Corp. , 988 S.W.2d 711, 713 (Te x . 1998) (o rig. proceedi n g).
II. Spe cial Appearance s A nonresident defendant may file a special appearance to object to the trial

c ourt ’ s jurisdiction on th e ground that the defendant “is not amenable to process issued by the cour t s of this State.” Tex. R

. Civ. P. 120a(1). The p u rpose of a s pecial appearance is to allow a nonresident defendant to at t ack the trial court ’ s jurisdiction

over it without subjectin g it self to the jurisdiction of the court generally. C.W. Brown Mach. Shop , Inc. v. Stanley Mach. C o rp. , 670 S.W.2d 791, 79 3 (Tex. Ap p.

— Fort Worth 1984, no writ).6 The plai ntiff bears the initi al b urden of pleading allegations sufficient to show the proper exercise of jurisdiction. Luciano v. SprayFoamPolymers.com, LLC , 625 S.W. 3 d 1, 8 (Tex. 2021)

. The b urden then shifts to th e defendant t o negate all the alleged j urisdictional bases

. Id.
III. Spe c i al App ear ances and Discovery Under Rule 120a, a defendant who files a special appearance is entitled to have the issue of personal j u risdiction heard and dec i ded before any other ma t ter ; th us, d i scovery is limited to matters directly relevant to th e specia l appearance

. In re Doe , 444 S.W.3d 603, 608 (Tex. 2014) ( orig. proceeding) ; Stanton v. Gloersen , No. 05

- 16

- 00214

- CV, 2016 WL 716655 0 , at *6 (Tex . App.

— Dalla s Nov. 30, 2016, pet. de n ied ) (mem. o p.) (citing Doe , 444 S.W.3d at 608 ) . A court should not reach the merits of the case when deciding a special appearance. See Michiana Easy Livin ’ Country, Inc. v. Holten , 168 S.W. 3d 777, 791

– 9 2 ( Tex. 2005) ; In re Cho , N o . 02

- 17

- 00254

- CV,
2017 W L 3911002, a t * 2 (T ex. App.

— Fort Worth Sept. 7, 2017, orig. proceeding ) ( m em. op.)

. To allow general discovery against a defendant o ver which the trial cour t may not have personal jurisdiction denies the de f endant the protec tion th at Texas proced ure affords it. Doe , 44 4 S.W.3d at 6 08

. IV. Personal Jur i s diction
T o issue a bindin g judgment , a co urt must have both subject

- matter j uris diction over a case and personal jurisdiction over the parties

. Luciano , 625 S.W.3d at 7

– 8

. Person al jurisdiction in volves a court ’ s abili t y to bind a p arty to its judgment. Id. at 8.7 Whether a court m ay exercise po wer over a party is a legal question , whi ch we review
de novo ; bu t r esolving this question of law may require a court to decide questions of
f

act. Id. When, as here, the trial co ur t does not is sue findings of fact , we presume that
al l factual disputes were resolved in favor of the trial court ’ s d ecision unless they are challenged on appeal. Id.
A defendant ’ s contacts wit h the forum may authorize the court to e xercise either general or specific j urisdiction. Id. A court has general jurisdiction over a nonresident defendant whose affi liations with t he State are so continuous and systematic as to render it essentially at hom e in the forum State. Id. By contrast,

s pecific jurisdiction co ver s defendan ts who are less intimately connected with a State

. Id. The minimum contacts necessary for specific juris diction are established if (1) t he defendant purposefully avails itself of t h e pri vilege of conductin g activities in the
forum state and (2 ) t he suit ar ise s out of or re late s to the defendant ’ s contact s with the
forum

. Id. at 8

– 9

. T he due

- process touchsto n e for specific jurisdiction is “purposeful availment.”
Michiana , 168 S.W.3d at 784

. “ Purposeful availme nt ” ha s t hree aspect s :

• Fi rst, only the defendant ’ s contacts w ith the forum count

— “ purposeful avail ment ” ensures that a defendant will not subject itself to jurisdiction based sole l y on another par ty ’ s or a third person ’ s unilateral activity

.

• Second, the a cts relied on must be pu rposeful rather than fo rtu itous

— a d efendant who reach es out beyond one st at e and create s continuing relationships and obligations with citizens of another state is subject to t he latt er ’ s jurisdiction in sui t s based on those activit ies ; b y contrast, a def endant8 will not subject it self to ju risdiction based sole l y on random, isola ted, or fortuitous conta cts
.

• Third, the defendant mus t seek some benefit, advantage, or profit by “a vailing” itself of the jurisdic t ion

— j urisdiction is prem ised on the notion that a no n resident impliedly con se nt s to suit if it invokes the be nefits and prot ections of a forum ’ s laws

. Luciano , 625 S.W.3d at 9

– 10 ; Michiana , 168 S.W.3d at 7 85. Because neither party argues that general jur i sdiction exists, we cons ider only specific jurisdiction. See Luciano , 625 S.W.3d at 9

. V. Applicatio n A. Abuse of Disc r e tio n T he mere existence of an attorney

- client relations hip , without more, does not confer personal jurisdiction over a non resident at t orney in the forum state

. Ah rens & DeAngeli, P.L.L.C. v. Flinn , 318 S.W.3d 474, 4 8 4 ( Tex. App.

— Dallas 2010, pet. denied) , ove rruled on other grounds by Steward Health Car e Sys. LLC v. Saidara , 633 S.W.3d
120 , 127

– 29 , 127 n.8 (Tex. App.

— Dal las 2021, no pet

. )

. Telephone calls and

c orre spondence directed at the forum state are generally insufficient. Id. Work performed outside the state is also insufficient. Id. ; Markett e v. X

- Ray X

-Press Co rp. , 240 S.W.3d 464, 468

– 69 (Tex. App.

— Houston [14 th Dist.] 2007 , no p et. ) (op. on
reh ’ g).
Att orne ys from Skadden ’ s Delaware an d New York offi ces worked on the
Col orado lawsu it

. S kadden c ont e nds tha t it s attorneys performed th at work in9 Delaware, New York, o r Col o ra do. As noted , these attorneys also communic ated with Thompson & Knight abou t the Texas litigation. The Foundation sought ( and t he trial court allow ed ) d iscovery of Sk ad den ’ s Delaware an d New Yo rk attor ney s ’ internal communica t ions and analyses pri mar ily
abou t the Texas li t i g at ion and, to a more limited exten t , about the Colorado liti gation , with the latter target ing Skadden ’ s communications and analy s e s about w hether the
Colo rado l i tigat ion presen t ed a conflict o f interest bet w een the Foundation and i ts
f

ormer trus te e s : (1) Internal communic atio ns, memoranda, and documents related to Skadden

. . . attending and assisting with deposition pr eparation of Fou ndation witnesses for their T exas d epo sitions in the Ba ylo r/ [ Seminary ] Litigat i on, and subsequent revie w of the deposition transcripts; (2) Internal comm unications, memoranda, and documents related to Skadden [ ’ s ] research into the role of Foundat ion directors and application of Delaware law to iss ues arising in the Tex as litigat ion; (3) I n ternal communications, m emor anda, and documen ts related to Skadde n [ ’ s] research into any conflicts of interest in Foundation directors placing themselves on the B oard of [the Co lorado compa ny] ; (4) In ternal communic ations , memoranda, and docu ments rel ated to Skadden [ ’ s] research int o Di rector Qualificati on Memorandum prep ared by Skadden

. . . for use in the Texas litigation; (5) Internal communications, memorand a, and docu ments related to Skadden [ ’ s] rese arch into Cost Bullets Memorandum to b e used in the Texas l itigation; and (6) Internal doc uments reflecting its preparation f or ( including developing strategies with Texas counsel), attendance at, and subsequent rev iew of th e transcripts o f any of the hearing s10 conducted in the Bayl or/ [S eminary ] L itigat ion [th at] was pending in [Tarrant Coun ty]

. The Foundation asserts in response to Skadden ’ s mandamus arguments that

t he subject matter of the communicati ons and analyses are relevant: “ The internal
communications s ought by the Fou n d ati on will li kely re veal the breadth of Ska dden’s
involv ement and its purposeful availment in participating in the

. . . Baylor/ [S eminary ] [Tarrant County] Litigat ion. ” The Fo undation adds , “ It is apparent that Skadden
failed t o produce many docume nts rel evan t to its c ontacts with Texas

— such as
inte r nal communications related to

. . . the prior Baylor/ [S eminary ] Litigation. ”
Skadden ’ s mandamus reply synthesize s its a rgument differently : Skadden has a l ready produced every co mmun ication with [the Foun dation] and the Th ompson & Knig ht lawyers, as well as with lawyers who represented the for mer directors of [the Foundat ion]

. In contrast, the trial court’s order compels the production of Skadden’s wholly i n ternal communications a nd d ocuments that wer e never sent to anyone who appeared in the parallel Texas litigation. [Foo tnote s omitte d.] As Skadden argu ed, “ [i] nternal communications t hat were not sent to [the Foundation] or its lawyers at Thompson & Knight cannot re veal a ny new c o ntacts wit h Texas. That inf ormation instea d re lates to the meri ts of the dispute. ” We agree with S kad den.
Because t he S kadden atto rney s work ed out of the Delaware and New Yo rk
office s and performed some wo rk in Colora d o , it follo ws that the di s covery the
F oundatio n seeks relates to ac tivitie s performed in Delaware , New York , or Colorado

.11 F or speci fic

- juri sdiction purposes, the Foundation ’ s request ed dis covery cannot h elp
it establish personal jurisdiction over S kad d en . Regard less of the sub ject mat ter of th e internal communicatio ns, t he y neit her ori ginated in Texas nor were they directed

towa rd a nyone in T exas . See Michiana , 168 S.W. 3d at 791

– 9 2 ( “ [W]e disapprove of those opinions holding that .

. . specific jurisdi c t ion turns on whether a d efen dant ’ s

contac ts were tor tious ra ther than the con tacts themselves. ” ); 5 Markette , 240 S.W.3d at 469 ( “ [T] he supreme court has rejected the notion of focusing on where a d efendant
directed a tort or where the effects of tortious conduct wi ll be felt in d etermining specific jurisdiction

. ” )

. 6 A nd the work th at Skadden performed occurred in jurisdictions other than Texas

. See Ahrens & DeAngeli, P.L.L.C. , 318 S.W.3d at 479

– 80,
484 , 486

– 87 ; 7 Markette , 240 S.W.3d at 469 ( “ [ The Indiana a tt orney ’ s] judgme nt, whic h will be the focus of the underlying litigation, was exercised in Indiana .

. . . ” ).

5 In Michiana , the plaintiff alleged tort, contract, and statutory claim s. 168 S.W.3d at 791.

6 In Markette , the plain tiff alleged legal malpractice “ and man y related claims, in c l uding frau d, negligen t mis representation, breach of fiduciary duty, and breach o f contract. ” 240 S.W.3d at 466.

7 In Ahrens & DeAngeli , t he record show ed that attorneys with p laces of business es in Washington and Id aho performed legal work in Washington o r Idaho,
no t Texas, on beha l f of their T e xas client and that the attorneys communicat ed with the i r Texas client from Washing ton or Idaho

. The court concluded that the Wash ing ton and Idaho attor neys , their Washington law firm, and a c o rp oration that the att o rneys had formed with its place of business in Idaho had negated the existence of contacts between each of them and Texas and that the trial court had thus improper ly exerci se d personal j urisdiction o ver them

. 318 S.W.3d at 479

– 80, 484 , 486

– 87

.12 The Texas Supreme Court’s recent case , In re Christianson Air Conditioning & Plumbing, LLC , does not change our analysis. No. 20

- 0384, 2022 WL 3 33367 (Tex. Feb. 4, 2022) (orig. proceeding). That case dealt with discovery re levant to personal jurisdiction that overlapped with discovery re levant to the merits. Id. at *4. The question was whether the overlapping merits discovery justified denying the personal

jurisdiction discovery, with the supreme court observing that “[n]oth ing in Rule 120a or our cases suggests that jurisdictional discov ery must relate exclusively to the jurisdictional question, as the court of appeals held. To the contrary, we ha ve indicated that jurisdictional discovery may overlap with merits issues in ce rtain
circumstances.” Id. at * 3. In contrast, the Foundation’s di scovery will not lead to anything relevant to personal jurisdiction, nor do we purport to hold that the
Foundatio n is limited to discovery “exclusively” related to jurisdiction.
Another recen t case to which the Foundation has called our attention, Ringham
v. Bernstein , is also distinguishable. No. 05

- 21

- 00526

- CV, 2022 WL 68221 (Tex. App.

— Dallas Jan. 5, 2022, no pet. h.). There, the out

- of

- state defendants

— who were appealing the denial of their special appearances

— specifically tar geted a Texas
resident as their client. Id. at *5. Here, the Foundation specifically sought out services
from Skad den offices outside Texas.
Because the t rial cou rt authorize d discovery exceeding wh at wa s reaso na bly
cal culated to lead to evidence relevant to the spe cial appearance , w e hold that the trial13 c ourt abused its di scretion by granting the Foundation ’ s motion to c omp el and by denying Skadden ’ s motion for prote ction

. B
. Ina dequate R emedy at Law
The Foundation ne xt argues that we should deny mandamus relief because
Skadden has a n adequate remedy by i nter locutory appeal after the trial court rules on
Skadden ’ s special appe ar anc e: “ Fina lly, Skadden is not entitled to mandamus relief
bec a use it has a n adequate remedy at law through a possibl e interlocuto ry appeal in
the event it be l ieves the trial court inco rrectl y denies Skadden’s special appearance. ” We disagree. For good reason , Ska dd en has not asked us to review the tr ial court ’ s ruling on its speci al appearance

— t he trial court has not yet ruled on i t
. R ather, Skadden has
aske d us to review the trial court ’ s discovery order in the context of i t s spe cial
appearance. Mandamus lies if a trial court p ermit s a plaintiff to engage in discovery
unrelated to a d efendant’s pendin g special appearance. See Cho , 2 0 17 WL 3911 002, at
*2 ( citi ng Doe , 444 S .W.3d at 608 )

. T he trial court ’ s order might well advance the
Foundation ’ s merits discovery , but it will not advance res olving Skadde n ’ s special
appearance. M andamus is appropria te to co rrect a n order comp elling discovery that i s well outsid e the proper bounds. Am. Optical Corp. , 988 S.W.2d at 713

.14 Conclusion
We ho ld that t he trial c ourt abused its discretion by granting the Fo undatio n ’ s motion to compel and by denying Skadden ’ s m otion fo r protect ion and th at Skadden
has no other adequate rem edy at law

. We conditionally grant Sk adden ’ s petition and
dire ct the trial court to :

• vacate it s November 1 1, 2 021 order direct ing Skadden to produce the do cum ents identified in cate gories (1) t hrough ( 6) a bove pending the special appea r ance ;

• grant Skadden’s motion for protecti on of the se docum ents pending the special appea r ance ; and

• deny the F ound at ion ’s motion to compel production of the se documents pending the special appearance
. 8
Because we a re confident that the trial court will comply wit h th e s e dir ective s , th e wri t will issue only if the trial court f ails to do so.

/s/ Elizabeth Kerr Elizabeth Kerr Jus tice
Delivered: February 18, 2022

8 The order al so required Skadden to p roduce a witness for a deposition to address personal jurisdiction. Skadden does not r equest any relief from that portion o f the order.