Dow Jones & Co. v. Highland Capital Mgmt., L.P.
564 S.W.3d 852
| Tex. App. | 2018Background
- Highland Capital obtained a 2014 permanent injunction against its former manager Patrick Daugherty prohibiting disclosure of Highland's confidential information after litigation and a jury finding of contract and fiduciary breaches.
- In 2016 the Wall Street Journal published an article reporting investor allegations about Highland; Highland suspected Daugherty may have been a source.
- Highland sought discovery from Daugherty and then served a third-party subpoena on Dow Jones (WSJ's publisher) asking whether Highland was mentioned in communications between Daugherty and WSJ reporters during April–October 2016.
- Dow Jones moved to dismiss the subpoena under the Texas Citizens Participation Act (TCPA), and sought a protective order and to quash; the trial court denied the TCPA motion; Dow Jones appealed interlocutorily.
- The primary legal question was whether a third-party discovery subpoena (and related show-cause supplements) qualifies as a "legal action" under the TCPA such that the TCPA dismissal procedure applies.
Issues
| Issue | Plaintiff's Argument (Highland) | Defendant's Argument (Dow Jones) | Held |
|---|---|---|---|
| Whether a third-party discovery subpoena is a "legal action" under the TCPA | Subpoena and show-cause supplements are filings requesting relief and thus fall within the TCPA catch-all | Subpoena (and related filings) are covered by the TCPA; dismissal appropriate | No. TCPA does not apply to third-party discovery subpoenas under these circumstances |
| Whether the subpoena seeks "legal or equitable relief" | Discovery is a request for relief ancillary to enforcing injunction | Discovery is equivalent to a Rule 202 petition or other filing requesting relief | No. Third-party discovery is not traditional legal/equitable relief (money damages or injunction) |
| Proper scope of the TCPA "catch-all" phrase "any other judicial pleading or filing that requests legal or equitable relief" | The phrase should include creative filings like discovery-related supplements | The catch-all should be read broadly to cover filings that effectively seek relief | Court construes the catch-all narrowly (ejusdem generis) and limits it to items like lawsuits, petitions, claims |
| Whether applying TCPA to subpoenas would further statutory purpose | TCPA protects speech and petition; should prevent burdens on expressive rights even in discovery | Applying TCPA to discovery would spawn collateral TCPA motions, delay, and undermine TCPA's purpose of quick dismissal of meritless claims | Applying TCPA to subpoenas would create absurd, burdensome results; court declines extension |
Key Cases Cited
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (statutory construction principles; de novo review of statute)
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (court must enforce statute as written; avoid rewriting text)
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (apply plain meaning unless absurd result)
- In re Office of Att'y Gen., 422 S.W.3d 623 (Tex. 2013) (read statute contextually and give effect to every word)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (describing TCPA purposes and dismissal procedure)
- In re Elliott, 504 S.W.3d 455 (Tex. App.-Austin 2016) (Rule 202 petitions held within TCPA definition of legal action)
- Paulsen v. Yarrell, 537 S.W.3d 224 (Tex. App.-Houston [1st Dist.] 2017) (discussing catch-all provision and limits)
- Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015) (ejusdem generis canon limiting general words following specific list)
- Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014) (use of dictionaries and other sources to determine ordinary meaning)