Nos.

21-0363, 21-0650

IN THE SUPREME COURT OF TEXAS

In re Walmart, Inc. and Wal-Mart Stores Texas, LLC,

Relators.

Original Proceeding
from the 448th Judicial District Court, El Paso County, Texas
Cause No. 2019DCV3471

REAL PARTIES’ RESPONSE IN OPPOSITION TO RELATORS’

EMERGENCY MOTION FOR TEMPORARY RELIEF

THE AMMONS LAW FIRM, LLP

Robert E. Ammons
Texas Bar No. 01159820
Adam Milasincic
Texas Bar No. 24079001
3700 Montrose Boulevard
Houston, Texas 77006
Phone: (713) 523-1606
Fax: (713) 523-4159
rob@ammonslaw.com
adam@ammonslaw.com

Attorneys for Real Parties in Interest

 TABLE OF CONTENTS

Table of Authorities .................................................................................................. ii

I. BACKGROUND ..............................................................................................1
II. WALMART DOES NOT MEET THE STANDARD FOR AN
EMERGENCY STAY ...............................................................................................3
a. Walmart Will Not Face Irreparable Injury or Mootness if the
Depositions Continue. .............................................................................3
b. The Precedent Walmart Relies on Does Not Warrant a Stay of All
Depositions..............................................................................................6
III. CONCLUSION ..............................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................14
CERTIFICATE OF SERVICE ................................................................................14

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 TABLE OF AUTHORITIES
Page(s)

Cases

In re Allied Chem. Corp., 227 S.W.3d 652 (Tex. 2007) .............................................. 6

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) ............................... 8

Ford Motor Co. v. Castillo,

279 S.W.3d 656 (Tex. 2009) ................................................................................ 8

In re Citizens Supporting Metro Sols., Inc., No. 14-07-00190-CV,

2007 WL 4277850 (Tex. App.—Houston [14th Dist.] Oct. 18,
2007) (mem. op.) (orig. proceeding) .................................................................... 9

O’Brien v. Brown,
409 U.S. 1 (1972) .................................................................................................. 3

Republican Party of Texas v. Dietz,

940 S.W.2d 86 (Tex. 1997)............................................................................... 3, 7

Texaco, Inc. v. Sanderson,

898 S.W.2d 813 (Tex. 1995) ....................................................................9, 10, 11

Timberwalk Apartments, Partners, Inc. v. Cain,

972 S.W.2d 749 (Tex. 1998) .......................................................................passim

Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623 (Tex. Civ. App.—
Houston [14th Dist.] 1979, writ ref’d n.r.e.)......................................................... 8

In re Walmart, Inc.,
620 S.W.3d 851 (Tex.App.—El Paso 2021) ........................................................ 2

Statutes & Rules

Tex. R. App. P. 52.10(a) ............................................................................................ 3

Tex. R. App. P. 52.10(b) ............................................................................................ 3

Tex. R. Civ. P. 192.3(a) ......................................................................................... 8, 9

Tex. R. Civ. P. 199.5(e) ............................................................................................. 5

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Tex. R. Civ. P. 199.5(f) .......................................................................................... 5, 7

Tex. R. Civ. P. 199.5(g) ............................................................................................. 5

Tex. R. Civ. P. 199.6 .................................................................................................. 5

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 Shortly after its attorneys completed their deposition of yet another plaintiff,

Relators Walmart, Inc. and Wal-Mart Stores Texas, LLC (collectively “Walmart”)

moved this Court for an emergency order staying all deposition discovery in the

District Court until this Court rules on Walmart’s two petitions for mandamus. Rel.

Br. at p.13. Because Walmart can simply preserve any objections that arise during

the course of the October 8 deposition, a point Walmart itself concedes, there is no

ongoing emergency warranting a stay of all depositions in the underlying action. For

this and the following reasons, the Court respectfully should deny Walmart’s

emergency-stay motion.

I. BACKGROUND

The present motion for an emergency stay implicates a long series of ongoing

discovery disputes in the underlying action. However, that history can more or less

be boiled down to the circumstances constituting the present so-called “emergency.”

Real Parties in Interest Jessica Garcia et al. commenced this action on August 30,

2019, in El Paso County District Court against Relators Walmart et al. to recover

damages stemming from a mass-shooting that occurred at an El Paso Walmart. 12th

Amend. Compl.

Relevant to the present “emergency” motion are a series of rulings by the

District Court and the El Paso Court of Appeals on the scope of discovery applicable

to Real Parties in Interest’s premises-liability claims against Walmart. On March

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26, 2021, the El Paso Court of Appeals granted in part and denied in part Walmart’s

petition for mandamus regarding seven categories of written discovery objected to

by Walmart. In re Walmart, Inc., 620 S.W.3d 851, 857, 868 (Tex.App.—El Paso

2021). Unhappy with this ruling, Walmart brought a mandamus petition before this

Court on April 26, 2021, challenging the El Paso Court of Appeals’ ruling.

While this first mandamus petition was pending before this Court, Walmart

moved the District Court for a protective order on July 16, 2021, limiting discovery

to the sole topic of prior shootings at the Cielo Vista Walmart store, which Walmart

contends is the only subject for discovery allowed under Timberwalk Apartments,

Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998). Mandamus Record I (“MRI”)

002. The District Court held a hearing on Walmart’s protective-order motion on

July 22, 2021. The District Court ruled from bench, and incorporated its oral ruling

by signed order filed on July 27, 2021. Relator’s Appendix (“App.”) 2. Unhappy

with this order, Walmart filed a second mandamus petition directly with this Court

on August 3, 2021.

The present so-called “emergency” relates to the depositions in the District

Court—where only one further deposition is currently scheduled. The deponent on

October 8 is low-ranking employee of the Cielo Vista Walmart store, who was an

eyewitness to the shooter’s activities in Walmart’s parking lot, and who had the

opportunity to view the shooter in real time on Walmart’s surveillance video

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cameras. Walmart cannot, and does not, argue that this witness lacks discoverable

information. Moreover, the parties served a notice of this witnesses’s deposition on

August 10, 2021. Walmart waited six weeks, until September 28, to claim that an

“emergency” exists because Walmart will be unduly burdened in preparing this one

witness (and other future, currently unscheduled witnesses) for potential questions

that Walmart deems irrelevant. Rel. Br. at p. 4, 7.

Because Walmart can simply preserve any objections that arise during the

course of the October 8 deposition, a point Walmart itself concedes, and for the

related reasons set forth below, there is no emergency warranting a stay of all

depositions in the underlying action. Therefore, this Court should deny Walmart’s

request for an emergency stay.

II. WALMART DOES NOT MEET THE STANDARD FOR AN

EMERGENCY STAY

a. Walmart Will Not Face Irreparable Injury or Mootness if the

Depositions Continue.

In its briefing, Walmart does not even identify a standard for the imposition

of an emergency stay. All Walmart cites are the rules of appellate procedure which

allow an appeals court to stay underlying proceedings and to grant “any just relief”

pending action on the mandamus petition. Rel. Br. at p. 5, 12; see Tex. R. App. P.

52.10(a)-(b).

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 In Republican Party of Texas v. Dietz, this Court issued an emergency stay

pending action on a mandamus petition, and then issued an opinion explaining the

Court’s rationale in granting the stay. 940 S.W.2d 86, 87 (Tex. 1997). There, this

Court explained that its stay decision was based on consideration of the following

factors: “the importance of the questions presented, the limited time before the

controversy would be mooted, whether irreparable injury would occur in the absence

of a stay, and the probability that the lower court was in error.” Id., citing O’Brien

v. Brown, 409 U.S. 1, 3, 92 S. Ct. 2718, 2719-20 (1972). None of these factors

warrant an emergency stay of all depositions in the District Court.

Crucially, Walmart faces neither irreparable injury nor even mootness if the

depositions are allowed to proceed in the normal course. As Walmart itself concedes

in its moving brief, “a defendant can preserve objections” to what it perceives to be

improper deposition questions. Rel. Br. at p. 7. If a party were able to stay

depositions and seek mandamus relief every time they anticipated being asked

objectionable questions during the course of a deposition, no discovery would ever

be completed in any Texas case.

An example of the allegedly improper questions that supposedly warrant

emergency relief is telling. In its motion, Walmart cites the following passage as

exemplifying the sort of deposition exchange that warrants emergency relief from

the state’s highest Court:

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See Rel. Br. at p. 9; Rel. App. 4.

To begin, there is nothing improper about such questions, as explained in more

detail below. Even if there were, Walmart faces no preparatory burden in having its

fact witness answer such questions. The witness’s answers are simple: “No.”

Moreover, Walmart’s attorney objected to the form of the question, preserving

Walmart’s ability to seek exclusion of this one-word answer at trial.

Because a proper legal avenue exists to challenge the propriety of deposition

testimony—by rule objections need not even be stated to be preserved and later

raised with the trial court, and instructions not to answer may only be provided in

limited circumstances—there is no basis either for mandamus relief or an emergency

stay in the present circumstances. See Tex. R. Civ. P. 199.5(e)-(g), 199.6.

It is also noteworthy that Walmart completed the deposition of yet another

plaintiff just hours before filing its “emergency” motion in this Court. Although

Walmart’s mandamus petition has been pending for months, Walmart continued to

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take numerous depositions and—only after finishing them all—decided that an

“emergency” requires stopping further testimony.

There is no emergency in having to prepare for a deposition which may be

later challenged in the trial court in due course, Walmart has not demonstrated either

irreparable injury or mootness warranting an emergency stay of ongoing discovery

in the District Court.

b. The Precedent Walmart Relies on Does Not Warrant a Stay of All

Depositions.

A common error runs throughout Walmart’s discovery challenges before the

District Court, the El Paso Court of Appeals, and this Court, which negates any need

for an emergency stay of depositions in the District Court. Throughout its briefing

in all of its currently pending motions, Walmart takes the position that the scope of

discovery is definitely entirely by Timberwalk, when that is neither what the

Timberwalk opinion nor the rules of civil procedure provide.

In effect, Walmart says that no deposition questions should be allowed unless

the question is, in effect, “do you know of any mass shootings at Walmart’s Cielo

Vista store in the four years before August 2019?”1 In reality, restricting discovery so

narrowly would itself be an abuse of discretion. In re Allied Chem. Corp., 227 S.W.3d

652, 658 (Tex. 2007) (“[W]e have granted mandamus when a discovery order severely

1
See Pet. at 16 (court should “only allow discovery of documents specifically related to active
shooters on or near the Cielo Vista store property”).

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compromises a party’s ability to present any case at all at trial.”). Walmart ignores

that foreseeability is not the only issue for discovery, that Timberwalk is not the only

way to prove foreseeability, and that prior crimes need not be identical to establish

foreseeability.

Timberwalk is a decision centering on the proper instruction to the jury in a

premises-liability case involving the criminal acts of third parties. 972 S.W.2d at

752. As such, Timberwalk defines the considerations that go into the foreseeability

element of a premises liability claim only. Id. at 756-57. The list of factors relied

on by Walmart—“whether any criminal conduct previously occurred on or near the

property, how recently it occurred, how often it occurred, how similar the conduct

was to the conduct on the property, and what publicity was given”—are limited

solely to the element of duty. Id. at 757.

Walmart takes the Timberwalk opinion and twists it into something it

decidedly is not: an exclusive list of the only discovery allowed in a premises

liability case. Timberwalk nowhere implies that foreseeability is the only topic for

discovery in a premises case. Instead, Timberwalk states that “[f]oreseeability is the

beginning, not the end, of the analysis.” 972 S.W.2d at 756 (quoting Lefmark Mgmt.

Co. v. Old, 946 S.W.2d 52, 59 (Tex. 1997) (Owen, J., concurring)).

It is a bedrock rule of civil procedure that, in regards to the scope of discovery,

“[i]t is not a ground for objection that the information sought will be inadmissible at

7
trial if the information sought appears reasonably calculated to lead to the discovery

of admissible evidence.” Tex. R. Civ. P. 192.3(a). “In general, a party may obtain

discovery regarding any matter that is not privileged and is relevant to the subject

matter of the pending action.” Id. The phrase “relevant to the subject matter” in

Rule 192.3(a) is “liberally construed to allow the litigants to obtain the fullest

knowledge of the facts and issues prior to trial.” Ford Motor Co. v. Castillo, 279

S.W.3d 656, 664 (Tex. 2009) (quotation omitted).

In light of this broad approach to discovery, there is no basis to Walmart’s

assertions that discovery may be limited to only the foreseeability factors ultimately

weighed by a fact finder as set forth in Timberwalk.

For instance, proximate cause requires evidence of whether “a security

presence and response . . . would have defused the situation and prevented the”

injuries. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). Breach

is an equally crucial element, which asks if Walmart took “whatever action [was]

reasonably prudent under the circumstances to reduce or to eliminate the

unreasonable risk.” Id. at 770–71. Logically, critical evidence of what a prudent

storekeeper should do can be gleaned from what Walmart actually does at its other

stores. Id.; Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 626 (Tex. Civ.

App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.).

8
 Second, even as to foreseeability, the Timberwalk factors do not set forth the

only relevant evidence. According to this Court, “the Timberwalk factors are not

exclusive” and “are not the only reasons that a criminal act might be deemed

foreseeable.” Del Lago, 307 S.W.3d at 768. Foreseeability can be proven with

“‘other types of evidence’ besides ‘similar incidents in the immediate vicinity.’” Id.

at 768 n.14 (quoting Timberwalk, 972 S.W.2d at 759 (Spector, J., concurring)). “The

nature and character of the premises can be a factor that makes criminal activity

more foreseeable.” Id. at 768. For example, Plaintiffs are entitled to discovery about

whether Walmart’s “mode of doing business, or observation or past experience”

made violent crime at the store foreseeable. Id. at 769.2

Timberwalk does not define the complete scope of discovery, Rule 192.3 does.

So long as the deposition questions are reasonably calculated to lead to the discovery

of other admissible evidence, they are a proper topic of discovery as provided for

the rules of civil procedure.

Just as Walmart misconstrues the relation of Timberwalk to the scope of

discovery, the other case law Walmart relies on does not necessitate a finding of an

emergency in the present matter. Texaco actually supports Real Parties in Interest’s

2
Walmart asserts that Del Lago does not apply here. However, Plaintiffs have pleaded
claims based on Del Lago, and “discovery mandamus cannot be used to obtain an advance
adjudication of the merits.” In re Citizens Supporting Metro Sols., Inc., No. 14-07-00190-CV, 2007
WL 4277850, at *3 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007) (mem. op.) (orig.
proceeding).

9
position, not Walmart’s. There, this Court stated “[a] specific request for discovery

reasonably tailored to include only matters relevant to the case is not overbroad

merely because the request may call for some information of doubtful relevance.

Parties must have some latitude in fashioning proper discovery requests.” Texaco,

Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). Here, the District Court has

shaped the scope of discovery so as reasonably to lead to relevant matters; that some

deposition questions may yield testimony ultimately held to be inadmissible at trial

is no basis to stay all depositions on an emergency basis. None of Walmart’s

authorities even involve the granting of an emergency stay, let alone support the

finding of one under the present facts.

III. CONCLUSION

For the above stated reasons, this Court respectfully should deny Walmart’s

motion for an emergency stay of all depositions in the underlying action. Walmart

does not satisfy the standard for an emergency stay. There is no threat of mootness

because Walmart, by its own admission, may preserve any objections to deposition

testimony. There is no basis for a writ of mandamus, let alone an emergency stay of

all depositions. Therefore, the request for an emergency stay should be denied.

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Respectfully submitted,

THE AMMONS LAW FIRM, LLP

/s/ Robert E. Ammons

Robert E. Ammons
Texas Bar No. 01159820
Adam Milasincic
Texas Bar No. 24079001
3700 Montrose Boulevard
Houston, Texas 77006
Phone: (713) 523-1606
Fax: (713) 523-4159
rob@ammonslaw.com
adam@ammonslaw.com

ATTORNEYS FOR REAL PARTIES IN

INTEREST JESSICA GARCIA,
Individually, and on Behalf of the Estate
of GUILLERMO GARCIA, Deceased
and As Next Friend of K.G. and G.G.,
Minors, JANE DOE 1, Individually and
on Behalf of the Estate of JOHN DOE 1,
Deceased, and As Next Friend of MINOR
DOE 1 and MINOR DOE 2, ARNULFO
RASCON, MARIO DE ALBA,
Individually and As Next Friend of E.D.,
a Minor, OLIVIA RODRIGUEZ
MARIZCAL, Individually and As Next
Friend of E.D., a Minor, ALICE
ENGLISBEE, Individually and on Behalf
of the Estate of ANGELINA
ENGLISBEE, Deceased, JANE DOE 2,
Individually and on Behalf of the Estate
of JOHN DOE 2, Deceased, JOHN DOE
3, JOHN DOE 4, JANE DOE 3, JANE
DOE 4, and JANE DOE 5, Individually
and on Behalf of the Estates of JOHN
DOE 5 and JANE DOE 6, Deceased,
JANE DOE 7, JOHN DOE 6, JANE DOE

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8, JANE DOE 9, JANE DOE 10, JOHN
DOE 7, Individually and on Behalf of the
Estate of JOHN DOE 8, Deceased,
MARIO PEREZ, MARTHA JUAREZ,
Individually and on Behalf of the Estate
of LUIS JUAREZ, Deceased, LUIS
JUAREZ, JR., and MARTHA
SANTISETBAN, DINA LIZARDE,
Individually and on Behalf of the Estate
of JAVIER RODRIGUEZ, Deceased,
OCTAVIO LIZARDE, MICHELLE
GRADY, JOHN DOE 9, Individually and
on Behalf of the Estate of JANE DOE 11,
Deceased, JOHN DOE 10, JOHN DOE
11, JOHN DOE 12, JANE DOE 12, JANE
DOE 13, AND HARRY DEAN
RECKARD

FEARS NACHAWATI LAW FIRM

/s/ Stephen Brice Burris

Majed Nachawati
State Bar Number 24108319
Matthew McCarley
State Bar Number 24041426
Stephen Brice Burris
State Bar Number 24092200
S. Ann Saucer
State Bar Number 00797885
5473 Blair Rd.
Dallas, Texas 75231
Telephone: (214) 890-0711
Facsimile: (214) 890-0712
mn@fnlawfirm.com
mmccarley@fnlawfirm.com
brice@fnlawfirm.com
asaucer@fnlawfirm.com

ATTORNEYS FOR REAL PARTIES IN

INTEREST, PAUL JAMROWSKI,

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DAVID BONILLA, MISTI
JAMROWSKI, SYLVIA SAUCEDO,
SILVESTRA LEDESMA, P.C.,
L.C., CRUZ VELASQUEZ, NICOLASA
MENA VELASQUEZ, ARTURO
SANCHEZ, RAUL FLORES, JR.,
ADRIANA FLORES, LETICIA
SALDANA, ROSEMARY VEGA, ROSA
BARRON

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 CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word, this brief contains 2907 words,

excluding the portions of the brief exempt from the word count under Texas Rule of

Appellate Procedure 9.4(i)(1).

/s/ Robert E. Ammons

Robert E. Ammons

CERTIFICATE OF SERVICE

I hereby certify that on October 4, 2021, a true and correct copy of this

response was served via electronic service through eFile.TXCourts.gov on all parties

through counsel of record.

/s/ Robert E. Ammons

Robert E. Ammons

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