Case of the Day: Peiqing Cong v. ConocoPhillips Co., 2016 U.S. Dist. LEXIS 154505 (S.D. Tex. Nov. 8, 2016)

Summary:

Chinese fishermen suffered harm from a massive oil spill in China's Bohai Bay, in an oil field developed by (among other parties) ConocoPhillips China. The plaintiffs fishermen sued in the Texas state court, petitioning for a pre-suit deposition of ConocoPhillips executive to investigate potential claims pursuant to Texas Rules of Civil Procedure 202. Defendant removed to the federal court. Plaintiffs claimed that the removal was improper, because a Rule 202 petition is a discovery device rather than a civil lawsuit.

The court found that a Rule 202 petition was a civil lawsuit, which is removable to a federal court. Further, the court found that the plaintiffs filed the petition for the purpose of harassment rather than good faith investigation of the facts. The court found that the plaintiffs were substituting a properly pleaded complaint with a simpler Rule 202 petition. The court denied the petition.

Takeaway:

Texas Rule 202 is a kind of a crazy thing. It allows a party to conduct discovery prior to filing a suit for investigative purposes. Because discovery in U.S. civil litigation may become abusive very quickly, it is a great way to harass a defendant without filing a case. And because Texas is a home to a number of international energy companies like ConocoPhillips, this device is exploited to the maximum. Who would have thought Chinese fishermen would be able to engage in this type of sophisticated international litigation tactic?

Don't cry for the international energy companies, however. When oil companies become the plaintiffs, they are quite happy to exploit Rule 202 as well.