Glassdoor, Inc., Doe 1, and Doe 2 v. Andra Group, LpGlassdoor, Inc., Doe 1, and Doe 2 v. Andra Group, Lp
This case involves a petition under
I. Background
Glassdoor, Inc., operates a jobs and recruiting website on which users may post, anonymously if they wish, reviews and ratings of their current and former employers. The reviews are available to site users free of charge, but users must agree to the site’s terms and conditions to obtain full access to the site. Glassdoor has no involvement in drafting or editing the reviews its users post.
Between July 2014 and June 2015, ten negative reviews of Andra Group, L.P.—an online clothing retailer based in Dallas—were posted on Glassdoor’s site by anonymous individuals identifying themselves as current or former Andra employees. In August 2015, Andra filed a Verified Petition Requesting Deposition Before Suit, seeking to depose Glassdoor under
Glassdoor filed an answer opposing the requested relief and asserting that disclosure of the reviewers’ identities would violate the First Amendment. Glassdoor also filed a motion to dismiss Andra’s petition under the Texas Citizens Participаtion Act (TCPA). See
On February 18, 2016, the trial court issued an order denying the motion to dismiss and granting Andra’s request to depose Glassdoor under Rule 202. The court expressly found that the “benefit of allowing Andra . . . to investigate statements [it] believes to be defamatory outweighs any burden on Glassdoor.” However, the trial court limited the deposition’s scope to two posts dated July 8, 2014, and October 22, 2014, respectively, neither of which was authоred by Doe 1 or Doe 2. The court further limited the deposition to the following statements in those posts:
- Andra’s hiring practices are illegal.
- Andra is violating labor laws.
- Andra is engaged in harassment based upon race and sexual orientation.
- [I]llegal immigrants are working at Andra.
- Andra’s supervisor Jorge is racist and sexist[].
Glassdoor and Does 1 and 2 appealed the order.1 See In re Jorden, 249 S.W.3d 416, 419 & n.7 (Tex. 2008) (explaining that when suit is not contemplated against the target of the Rule 202 petition, the pre-suit discovery order is final and appealable). Although the order effectively denied Andra’s petition to depose Glassdoor as to eight of thе ten posts at issue, Andra did not cross-appeal.
The court of appeals affirmed. ___ S.W.3d ___, 2017 WL 1149668 (Tex. App.—Dallas March 24, 2017). The court first held that Andra was not required to give the anonymous reviewers notice of the petition, concluding that such notice is not required when the petition seeks to investigate a potential claim rather than to perpetuate or obtain testimony for use in an anticipated suit. Id. at *4. On the merits of the Rule 202 petition, the court of appeals held that the trial court did not abuse its discretion in finding that the likely benefit of allowing discovery as to two of the reviewers outweighed the burden or expense of the procedure. Id. at *5. In so holding, the court determined that Andra “gave the trial court a reasonable basis to conclude that Andra may be able to develop a viable business disparagement claim,” which, unlike libel, has a two-year statute of limitations. Id. at *6–7. The сourt also rejected Glassdoor’s argument that the two reviews on which discovery was granted contain only nonactionable expressions of opinion and hyperbole, concluding that the reviews include factual assertions such as that Andra engaged in illegal conduct and employed illegal immigrants. Id. at *8.
As to the TCPA motion, the court of appeals assumed without deciding that the TCPA can apply to Rule 202 proceedings and held that the trial court did not err in denying the motion because Andra met its evidentiary burden to avoid dismissal under the Act. Id. at *10–11. The court held that Andra produced clear and specific
II. Mootness
The overarching issues presented are whether the trial court (1) erred in denying the TCPA motion and (2) abused its discretion in ordering pre-suit discovery under Rule 202. Before we may reach either of these issues, however, we must determine whether the proceedings are moot. As we have explained, a case becomes moot during the pendency of the litigation “if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in the outcome.” Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). If a case becomes moot, the court must vacate all previously issued orders and judgments and dismiss the case for want of jurisdiction. Id.
A. Rule 202 Petition
Glassdoor argues in part that Andra’s request for relief under Rule 202 is moot because, even assuming Andra’s potential claims are governed by a two-year limitations period, that period has now expired.2 We agree that, if the statute of limitations now conclusively bars Andra’s as-yet unfiled claims, then a court order allowing Andra to investigate those claims serves no legal purpose. See id. (“Put simply, a case is moot when the court’s action on the merits cannot affect the parties’ rights or interests.“). Accordingly, we address the limitations issue first.3
The statute of limitations on a libel claim is one year from the date the cause of action accrues,
In turn, claims for defamation and business disparagement generally accrue when the allegedly defamatory matter is published or circulated. See Childs v. Haussecker, 974 S.W.2d 31, 36–37 (Tex. 1998) (holding that a cause of action generally accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of the injury or if all the rеsulting damages have yet to occur). However, we will assume that Andra would have the benefit of the discovery rule, meaning its causes of action did not accrue until it learned of, or in the exercise of reasonable diligence should have learned of, the existence of the negative reviews. See Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex. 1976) (holding that the discovery rule applies in a defamation action based on a false credit report). Thе reviews about which Andra complains in its Rule 202 petition were posted between July 2014 and June 2015, and Andra necessarily learned of their existence before filing that petition in August 2015. Thus, giving Andra the benefit of the discovery rule, more than two years have elapsed since the accrual of Andra’s causes of action for defamation and business disparagement against all ten of the anonymous reviewers whose identity Andra seeks.
Nevertheless, Andra argues that its potential claims against the reviewers are not time-barred for two reasons. First, Andra contends that posts on Glassdoor’s website are “restricted-access publications” that Glassdoor “republishes” each time it grants access to a site user. Therefore, a new cause of action arises each time a user accesses a review. Second, Andra argues that the reviewers’ anonymity defers accrual of Andra’s causes of action against them. We disagree on both counts.
As Andra recognizes, Texas courts apply the “single publication rule” in cases of alleged libel in mass print media. See, e.g., Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880, 889 (Tex. App.—Dallas 2000, no pet.) (citing cases). Under that rule, a cause of action accrues “on the last day of the mass distribution of the printed matter containing the defamatory statement,” which is when “the publisher of the statement has made the libelous matter available to his intended audience.” Id.; see also Holloway v. Butler, 662 S.W.2d 688, 692 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (explaining that the single publication rule “applies strictly to multiple copies of a libelous article published as part of a single printing“); cf. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 173 (Tex. 2003) (noting that the single publication rule “is clearly designed to protect publishers from repeated liability based on old publications“).
Applying Texas law and noting the consеnsus among courts that have addressed the issue, the United States Court of Appeals for the Fifth Circuit has held that this rule applies to publicly available information on the internet. Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144–46 (5th Cir. 2007). Texas courts of appeals agree, emphasizing that the policies supporting application of the rule apply equally in the internet context. See Mayfield v. Fullhart, 444 S.W.3d 222, 229–30 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also Cruz v. Van Sickle, 452 S.W.3d 503, 518 n.20 (Tex. App.—Dallas 2014, pet. denied) (finding the reasoning in Belo persuаsive). These policies include preventing stale claims and avoiding the “‘potential for endless retriggering
Andra protests application of the single publication rule to posts on Glassdoor’s site because “Glassdoor has absolute and complete ability to control and has undisputed title and interest in the posts.” This argument echoes previously rejected attempts to distinguish internet publications from print media based on the ease with which editors may alter оr remove content. Belo, 512 F.3d at 144. Courts routinely find this distinction insufficient to “corrupt the analogy between internet and print publication,” explaining that, just as continuing to make a defamatory book available from a print publisher’s stock is not republication, neither is continuing to make a defamatory article available on a website. Id. at 145 (quoting Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1133 (9th Cir. 2006)).
Andra further argues that the single publication rule does not apply to a “restricted acсess site” like Glassdoor’s. Andra contends that the method by which Glassdoor allows users to access the reviews is akin to the “confidential and restricted dissemination” of credit reports, which some courts have held are published anew each time they are transmitted. E.g., Hyde v. Hibernia Nat’l Bank, 861 F.2d 446, 450 (5th Cir. 1988). In Stephan v. Baylor Medical Center, the Dallas Court of Appeals relied on Hyde in holding that each release of a federally mandated hospital report about adverse actions taken against a doctor, which report is confidential and disclosed only to limited persons upon request, “is a new publication and possibly a separate tort.” 20 S.W.3d 880, 889 (Tex. App.—Dallas 2000, no pet.); see also Wheeler v. Methodist Hosp., 95 S.W.3d 628, 640 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (same). The court concluded that, under the circumstances, each transmission encompassed an intent by the publisher to reach a new and different audience, justifying a new cause of action. Stephan, 20 S.W.3d at 889.5
Of course, the one piece of information that Glassdoor does withhold from the public is the identity of the reviewer (if the reviewer chooses to post anonymously), and Andra contends that this presents “discovery rule issues.” We disagree. When the discovery rule applies—and we have already assumed without deciding that it applies to Andra’s potential claims—it tolls accrual of a cause of action “until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another.” Childs, 974 S.W.2d at 40. At that point, “limitations commences, even if the plaintiff does not know the exact identity of the wrongdoer.” Id. (emphasis added). Andra necessarily discovered the reviews before filing its Rule 202 petition, at which time its causes of action commenced even though it did not know the authors’ identities. Andra could have filed suit and conducted discovery about those identities, but chose instead to proceed under Rule 202, thereby risking the timeliness of its potential claims. See In re Does 1–10, 242 S.W.3d 805, 814 (Tex. App.—Texarkana 2007, orig. proceeding) (noting that “in most cases involving Internet lawsuits based on libel or breach of contract, the scenario is that suit is brought against a Doe defendant, and the plaintiff at some point early in the proceeding seeks to discover his or her identity . . . through the discovery tools of that forum“).
Accordingly, we hold that the statute of limitations barred Andra’s potential claims against each of the ten anonymous reviewers no later than two years after it discovered their respective reviews. Andra necessarily discovered the reviews before filing its Rule 202 petition in August 2015, meaning the statute of limitations has now run on the claims it seeks to investigate. Accordingly, Andra’s Rule 202 petition is moot.
B. TCPA Motion
Although Glassdoor urges that the Rule 202 petition is moot, it argues that its TCPA motion to dismiss the action is not because the motion includes a request for attorney’s fees. We disagree.
We have recognized that a case may become moot as to some claims or issues, but remain “live” as to others. State v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). In Harper, we explained the circumstances under which “a claim for attorney’s fees ‘breathes life’ into a suit that has become moot in all other respects.” Id. at 7 (quoting Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988)). We held that when a party seeks attorney’s fees under a prevailing-party statute like the TCPA, the claim for fees remains a live controversy if the party prevailed before the underlying
III. Conclusion
Because the statute of limitations has conclusively run on the potential claims Andra seeks to investigate under Rule 202, Andra’s petition for рre-suit discovery is moot. Further, because Glassdoor and Does 1 and 2 did not prevail on their TCPA motion to dismiss before the petition was rendered moot, that motion is moot as well. Accordingly, we vacate the judgments of the trial court and court of appeals, and we dismiss the case for want of jurisdiction.
Debra H. Lehrmann
Justice
OPINION DELIVERED: January 25, 2019