In re Cauley, 437 S.W.3d 650

Efficien Technology, LLC (successor to NRR) seeks a Rule 202 presuit deposition of former NRR employee Phil Cauley about a device it believes is similar to NRR’s "carbonator."
Efficien relied on investigator photos, patents, Cauley’s prior assignment(s) to NRR, a prior injunction, and settlement documents to justify investigation of claims including patent infringement, trade-secret misappropriation, and unfair competition.
Efficien identified six broad deposition topics (device construction, designs/blueprints, funding sources, interested persons/entities, intended use, and Cauley’s access to NRR information) and submitted proposed questions; Cauley objected claiming trade-secret privilege.
The trial court allowed a subset of written questions (no follow-ups) and required Cauley to answer under oath and produce a lease; the court did not include the explicit Rule 202 findings in its order.
Cauley petitioned for mandamus, arguing the order (1) failed to make the required Rule 202 finding, (2) forced disclosure of trade secrets without adequate proof, and (3) abused discretion in authorizing presuit discovery.

Issue	Plaintiff's Argument (Cauley)	Defendant's Argument (Efficien)	Held
Whether Cauley proved the information sought is a trade secret	Cauley: his affidavit shows answering would disclose trade secrets and thus bars the deposition	Efficien: Cauley’s affidavit is conclusory; authorized questions do not necessarily seek trade secrets	Held: Cauley’s affidavit was conclusory and insufficient; trial court could reasonably conclude authorized questions did not require disclosure of trade secrets
Whether Rule 202 presuit discovery may proceed without explicit findings	Cauley: trial court must make the statutory/Rule 202 finding; absence is reversible error	Efficien: the required finding can be implied from the record	Held: Explicit Rule 202 finding is required; cannot be implied. Ordering presuit discovery without it is an abuse of discretion
Whether Cauley waived complaint about missing findings by approving order as to form	Cauley: approval as to form does not waive substantive error	Efficien: approval as to form waived the objection	Held: Approval as to form does not waive substantive error; no waiver found
Whether presuit deposition was otherwise within court’s discretion	Cauley: presuit discovery is extraordinary and must be narrowly tailored; here it was improperly authorized	Efficien: needed to investigate; benefit outweighs burden	Held: Because the court failed to make the required Rule 202 finding, authorization was an abuse of discretion and mandamus relief was warranted

In re Olshan Found. Repair Co., 328 S.W.3d 883 (Tex. 2010) (mandamus prerequisites and abuse-of-discretion standards)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (appellate review standards for discretionary and legal determinations)
In re Does, 337 S.W.3d 862 (Tex. 2011) (Rule 202 requires explicit findings; findings may not be implied)
In re Jorden, 249 S.W.3d 416 (Tex. 2008) (presuit discovery is not for routine use and must be strictly limited)
In re Bass, 113 S.W.3d 735 (Tex. 2003) (burden-shifting: once trade secret is shown, party seeking discovery must show reasonable necessity)
In re Union Pac. R.R. Co., 294 S.W.3d 589 (Tex. 2009) (trade-secret factors and necessary trial-court determination)
In re Hewlett Packard, 212 S.W.3d 356 (Tex.App.—Austin 2006) (presuit-deposition order is not appealable; mandamus is proper)
In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (courts must strictly limit and carefully supervise presuit discovery)