In re Elliott
504 S.W.3d 455
| Tex. App. | 2016Background
- An anonymous author using the name “The Pump Stopper” published a negative article about MagneGas on Seeking Alpha (Dec. 2015); MagneGas sought a Rule 202 presuit deposition to investigate potential claims and identify the author.
- MagneGas filed a Rule 202 petition (Jan. 22, 2016) and later served Elliott (alleged owner/operator of PumpStopper.com) with a subpoena for a deposition; Elliott refused and the matter went to the district court.
- John Doe 1 (who claims to be the anonymous author) filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), asserting the petition related to his exercise of free speech and seeking to invoke the TCPA discovery stay.
- The district court held a short hearing, granted MagneGas’s Rule 202 petition, and ordered Elliott’s deposition before ruling on Doe’s TCPA motion; Elliott petitioned this court for mandamus relief.
- The appellate panel considered whether the TCPA applies to Rule 202 proceedings and whether Doe’s timely TCPA motion suspended discovery pending resolution.
Issues
| Issue | Plaintiff's Argument (Elliott/Doe) | Defendant's Argument (MagneGas) | Held |
|---|---|---|---|
| Whether TCPA applies to a Rule 202 petition (is a Rule 202 "legal action") | TCPA applies; the Rule 202 petition is a judicial filing seeking equitable relief and thus a "legal action" under TCPA | TCPA does not apply to Rule 202 because TCPA targets lawsuits/claims, not investigatory petitions | Held: TCPA covers Rule 202 petitions that seek presuit discovery as they fit the Act’s broad definition of "legal action" (court construes petition/equitable relief language broadly) |
| Whether filing a TCPA motion to dismiss suspends all discovery in a Rule 202 proceeding | Doe timely filed TCPA motion; discovery is stayed by §27.003(c) until the court rules | MagneGas argued Doe waived or that TCPA does not apply; thus discovery should proceed | Held: Filing a TCPA motion stays all discovery, and the district court abused its discretion by ordering the deposition before ruling on the TCPA motion |
| Whether the district court abused its discretion in granting Rule 202 deposition before TCPA ruling | Granting deposition before TCPA ruling violated statutory stay and abused discretion | District court had discretion to address Rule 202 petition and order deposition | Held: Court abused its discretion; mandamus conditionally granted to vacate the March 11 order |
| Whether mandamus is the proper remedy for review of Rule 202 order | Rule 202 order is not appealable when tied to potential suit; mandamus is appropriate | MagneGas did not dispute mandamus as improper here | Held: Mandamus appropriate because (1) Rule 202 order is ancillary to potential suit and not appealable and (2) a clear legal error (violation of TCPA stay) was shown |
Key Cases Cited
- In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (mandamus proper to review improper Rule 202 order)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (Rule 202 presuit discovery is ancillary to anticipated suit; courts must limit presuit discovery)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (court considers pleadings and affidavits when resolving TCPA motions; explains evidentiary standards)
- In re Doe (Trooper), 444 S.W.3d 603 (Tex. 2014) (discusses Rule 202 origins and limits; Rule 202 petition historically equitable)
- In re Hewlett-Packard Co., 212 S.W.3d 356 (Tex. App.—Austin 2006) (orig. proceeding) (standard of review for Rule 202 orders)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus requires showing clear abuse of discretion and lack of adequate appellate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus review)