Recently in In re Hartford Cas. Ins. Co., 01-22-00926-CV (Tex. App. Jul 18, 2023), Hartford Casualty Insurance Company filed a petition for a writ of mandamus challenging the trial court’s order compelling the deposition of a Hartford corporate representative. (Click here for the opinion) The court of appeals granted the petition. In granting the mandamus, the court of appeals reviewed In re USAA Gen. Indem. Co., 624 S.W.3d 782 (Tex. 2021) and Hartford’s contention that their case was distinguishable based on the holding in In re Home State, 2022 WL 1467984.
Hartford based their petition on the grounds that the request for a corporate representative deposition was duplicative of what was produced in discovery, that the request was not permitted under Texas Rules of Civil Procedure 192.4, and not proportional to the needs of the case under the standards set out by the Texas Supreme Court. In discovery, Hartford produced Declaration of James Doan, a Hartford “Claims Consultant,” as well as its entire non-privileged claim file, including: the Policy, Hartford’s written discovery responses, Privett’s (Plaintiff’s) previously produced medical records, excerpts from Privett’s deposition, the police report from the automobile accident, Privett’s letter of representation, Hartford’s responsive acknowledgement letters containing a questionnaire application for benefits, various correspondence related to medical records, photographs of the damaged vehicles, and Privett’s corporate representative deposition notice. Hartford also argued that the court should follow the Dallas court of appeals decision in In re Home State, 2022 WL 1467984. In the Dallas case, the arguments made by the insurance company and document production were similar to Hartford’s. Ultimately, the Dallas court held that the information provided by the insurer combined with the lack of personal knowledge, established that a corporate representative’s deposition would provide little, if any, additional benefit in relation to the cost. Id. at 4. Based on these arguments and the record presented, the court agreed with Hartford, and the reasoning held in In re Home State.
This begs the question as to whether or not the corporate representative deposition is worth it in first party cases. In 2021, the Texas Rules of Civil Procedure made disclosures mandatory and much of the information sought is being produced with those disclosures. From a plaintiff perspective, depending on the case, the insurance company on the other side, and where the case is in litigation, it can be a tactic to get the ball rolling or get the insurance company to take the case more seriously. If the behavior by the insurance company is truly egregious, the deposition would be beneficial on the attorneys’ fees argument after trial. There is a risk for plaintiffs. Litigation costs on the file for the client matter. Declaratory action attorneys’ fees are not a guarantee. From the defense perspective, the major insurance companies are used to these requests now. For the most part, the requests do not change the value of the case, but rather prolong the litigation. At the end of the day, the documents are being produced and the corporate representative cannot give information they do not have personal knowledge on. While costs matter for the insurance company, plaintiffs have more risk. Balancing the information sought and the needs of the case, and what has already been produced, it would be better spending the cost of the deposition toward a mediation to test the waters on the position of the parties and maybe get a resolution. If it does not settle, revisit the need of the deposition.
