Velocity Databank, Inc. v. Shell Offshore, Inc.
2014 Tex. App. LEXIS 13949
| Tex. App. | 2014Background
- Shell licensed geophysical (velocity) data from Velocity Databank for Gulf of Mexico operations.
- In Oct. 2000, a Shell employee (Schubert) emailed an MMS analyst about two velocity surveys, noting one was from Velocity Databank and criticizing its quality.
- MMS posted the survey and interlineated comments on its public TIMS website that described the Velocity Databank survey as "bogus" and "fictitious."
- Velocity Databank discovered the MMS posting in Nov. 2010 and notified Shell; Shell apologized and said MMS had editorialized the comments and later removed the surveys.
- Velocity Databank sued Shell for defamation/libel on Nov. 9, 2011 (more than ten years after MMS’s Oct. 19, 2000 publication); Shell moved for summary judgment based on the one-year statute of limitations. The trial court granted summary judgment; Velocity Databank appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discovery rule applies to bar limitations for these defamation claims | Discovery rule applies because the defamatory statements were not inherently discoverable or public knowledge | The MMS posting on a publicly accessible federal website made the statements public knowledge, so the discovery rule does not apply | Held for Shell: TIMS publication is public knowledge; discovery rule inapplicable |
| Whether publication on a government website is equivalent to "mass media" or public dissemination | TIMS is not mass media and unlikely to be read by the public, so matter is not public knowledge | Internet and public agency websites can constitute public knowledge; audience breadth is irrelevant | Held for Shell: accessibility of the TIMS site makes the statements publicly available |
| Whether plaintiff exercised reasonable diligence to discover the statements | Plaintiff argues it did not learn of the posting until 2010 despite due diligence | Defendant contends plaintiff could have discovered the public posting earlier; limitations ran from publication | Court concluded discovery rule inapplicable; did not need to reach diligence question |
| Whether summary judgment on limitations was proper | Plaintiff contends summary judgment improper because discovery rule applies and factual disputes exist about knowledge/diligence | Defendant argues it conclusively proved accrual date and negated discovery rule | Summary judgment affirmed: accrual at Oct. 19, 2000 and discovery rule not available |
Key Cases Cited
- Kelley v. Rinkle, 532 S.W.2d 947 (Tex. 1976) (discovery rule applies to libel to credit agency; court noted discovery rule need not apply when defamation is made public via mass media)
- Shell Oil Co. v. Ross, 356 S.W.3d 924 (Tex. 2011) (readily accessible, publicly available industry information is not inherently undiscoverable)
- S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (defining "inherently undiscoverable" for discovery-rule tolling)
- KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (defendant seeking limitations summary judgment must conclusively prove accrual and negate discovery rule)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (plaintiff pleading discovery rule shifts burden to defendant to conclusively negate it)