6th Court Allows Judge Carlos Cortez's Rule 202 Deposition of Randy Johnston

Texarkana's 6th Court of Appeals ruled on Oct. 8 that a trial court did not abuse its discretion when it ruled that 44th District Court Judge Carlos Cortez could hold a pre-suit deposition of Dallas lawyer Randy Johnston, who filed a complaint against Cortez with the State Commission on Judicial Conduct.

In May Cortez filed his petition in Dallas County pursuant to Texas Rule of Civil Procedure 202. Cortez is considering filing a defamation suit against Johnston, a partner in Johnston Tobey, based on allegedly defamatory statements made by Johnston about Cortez to the media and to a number of attorneys and judges in Dallas when Johnston disclosed the complaint in late October 2009, according to the decision in In Re: Coyt Randal Johnston.

Johnston previously has denied that he has defamed Cortez. [ See " War Over Words " Texas Lawyer , May 31, 2010, page 1 .]

Cortez sought to take only Johnston's deposition and named and served only Johnston in connection with his request. Cortez bases his anticipated suit on e-mail correspondence sent by Johnston; Cortez's counsel stated at the Rule 202 hearing that "a suit can be brought against Mr. Johnston." At the hearing, Cortez's counsel testified that five other sitting judges or justices in Dallas were "mentioned in (Johnston's) e-mails." Cortez's counsel further stated that those five judges "may be the source (of the information uttered by Johnston), or there may have been other judges who are the source of this information," according to the decision.

Cortez's counsel is Broadus Spivey of Austin's Spivey & Grigg.

The trial court approved Cortez's Rule 202 request on Sept. 10 — a ruling that Johnston took the Dallas' 5th Court of Appeals for review via petition for writ of mandamus. After all justices on the 5th Court recused themselves from hearing the petition, the Texas Supreme Court assigned the matter to the 6th Court, according to the decision.

Specifically, Johnston argued in his petition that in mentioning the five judges at the hearing, Cortez indentified them as potential defendants and, thus, should have been required to serve them with notice of the hearing to support a valid deposition order, according to the decision. But the 6th Court disagreed.

"The foregoing testimony never accuses any of the judges of being a source of defamatory material. It simply says that they were mentioned in Johnston's e-mails and speculates that they may or may not have been Johnston's sources," wrote Chief Justice Josh Morriss in an opinion joined by Justices Bailey Moseley and Jack Carter.

"While the trial court might have been within its discretion had it found that the five judges were thus indentified as 'persons (Cortez) expects to have interests adverse to (Cortez's) in the anticipated suit' against Johnston, such is not the case here. Therefore, we conclude that Cortez's failure to serve notice of the hearing on the five mentioned judges does not support Johnston's requested mandamus relief." [ See the opinion .]

While Rule 202 allows such pre-suit depositions to be taken to "prevent a failure or delay of justice in anticipated suit," Johnston argued in his petition that no evidence supports such a finding, the 6th Court wrote.

"The statute of limitations on a defamation suit against Johnston and others may very well run near the end of October 2010. Yet, it would appear that Cortez has been aware of Johnston's utterances since shortly after they were made and had not actively pursued the available relief to resolution until less than two months before the expiration of the statute of limitations. Any 'emergency' appears to be of his own making. Further, given his knowledge as to Johnston, if Cortez believes he has a viable lawsuit against Johnston, he could file it today, thus obviating any concern over failure or delay of justice as to Johnston," Morriss wrote.

"Other potential parties, beyond Johnston, pose a more sticky question and are the sole supporting reason provided by Cortez to support his need for a deposition. Cortez claims that he does not know their identities and seeks to determine such at the deposition," Morriss wrote.

But the 6th Court found that the trial judge was within his authority to reject Johnston's argument that no evidence supports allowing the Rule 202 deposition to prevent a failure or delay of justice. "We cannot conclude that the trial court acted outside the parameters of its authority, or without reference to the guiding principles of the rule at issue," Morriss concludes in his opinion. "Accordingly, we find no abuse of discretion."

Cortez and Johnston decline comment. Spivey says he believes the decision is correct and is contacting Johnston's lawyer to schedule the deposition.

Tom Melsheimer, managing principal of the Dallas office of Fish & Richardson who represents Johnston, says his client is not concerned about being deposed by Cortez.

"We have never been concerned with giving a deposition; rather, our concern has always centered around the Dallas judges and others whose rights the Judge's petition implicates," Melsheimer writes in an e-mailed statement. "I think the Texarkana Court of Appeals has helped us resolve this issue in a way that is fair to everyone, though we will evaluate our options regarding further review."

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