delivered the opinion of the Court.
In this original mandamus proceeding, we must decide whether the trial court abused its discretion by summarily refusing the plaintiffs request to conduct portions of a temporary injunction hearing involving alleged trade secrets outside the presence of the defendant’s designated representative. We must also decide whether the trial court abused its discretion by ordering the production of an affidavit purportedly involving these alleged trade secrets without conducting an in camera review of the affidavit. We hold that the trial court abused its discretion in both instances. Because no adequate appellate remedy exists, we conditionally grant mandamus relief against the trial court.
I. Background
M-I L.L.C. d/b/a M-I Swaco (M-I) and National Oilwell Vareo, L.P. (NOV) are competitors providing solid-control equipment and services to the oil-and-gas industry. One aspect of both companies’ solid-control business involves mesh screens that filter solid matter, such as drilling cuttings, from drilling fluid. These screens allow expensive drilling fluids to be reused, and thus lower the overall cost of drilling. Both companies have invested heavily in researching, developing, and promoting their respective screens.
In May 2012, Jeff Russo was promoted to business development manager of M-I’s
In February 2014, Russo left M-I and accepted a position in NOV’S Conroe, Texas, office as the global product line manager of NOVs screen division. The following month M-I sent Russo a letter stating its belief that he remained in possession of “trade secrets and confidential information” belonging to M-I, which it was “inevitable” he would disclose to NOV. M-I also stated that Russo was in breach of a non-compete agreement he executed when he joined M-I and demanded that he “remove [him]self from any position of employment or job duties in the same or similar product line, segment, or division at NOV that [he] worked in at M-I.” If Russo failed to comply with M-I’s demand, M-I stated it would file suit against him and seek a restraining order to protects its interests.
In response to M-I’s letter, Russo filed suit, requesting that his non-compete agreement with M-I be declared unenforceable. M-I counterclaimed against Russo for breach of the non-compete agreement, breach of fiduciary duty, misappropriation of trade secrets, and tortious interference. M-I also asserted third-party claims against NOV for misappropriation of trade secrets and tortious interference. M-I sought both declaratory and injunctive relief.
At an August 8, 2014, hearing on M-I’s application for a temporary injunction, MI sought to establish its trade secrets through the oral testimony of LaTosh'a Moore, the global business line manager of its screens division. M-I requested that everyone, except the parties’ counsel, their experts, and Russo be excluded from the courtroom. The trial court denied M-I’s request, finding that the exclusion of NOV’s designated representative, Federico Mezzatesta, would be a “total violation of due process.” The trial court did, however, state that it would order Mezzatesta not to disclose or use any trade secrets he heard.
Concerned about disclosing Moore’s testimony to Mezzatesta, M-I asked that the hearing be recessed so it could petition the court of appeals for a writ of mandamus. The trial court agreed to the requested recess and asked M-I to make an offer of proof, with Mezzatesta absent, to create a record for the court of appeals. After NOV suggested that the offer of proof could be accomplished by affidavit, however, the trial court instructed M-I to “submit whatever you have.” ■
With the temporary injunction hearing recessed, M-I filed a petition for writ of mandamus in the court of appeals. As an offer of proof, M-I submitted in camera to the court of appeals (not the trial court) an affidavit from Moore detailing the testimony she was prepared to offer at the temporary injunction hearing. Russo and NOV objected to the affidavit as an ex parte communication and moved for access to it in the court of appeals. On November 4, 2014, the court of appeals denied their motion for access, along with M-I’s mandamus petition. See In re M-I, L.L.C., No. 14-14-00705-CV,
That same day, Russo and NOV moved the trial court to compel M-I to produce the Moore affidavit they submitted in camera to the court of appeals, arguing it was a discoverable witness statement under Texas Rule of Civil Procedure 194.2. On November 11, 2014, the trial court
II. Scope of Review
Mandamus relief is available when two conditions are met. First, the trial court abuses its discretion. See Walker v. Packer,
To constitute an abuse of discretion, the trial court’s decision must be “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker,
In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made. See Univ. of Tex. v. Morris,
III. Analysis
A. Refusal to Exclude NOV’s Designated Representative
M-I challenges the trial court’s refusal to conduct portions of the temporary injunction hearing involving alleged trade secrets outside the presence of Mezzatesta, NOV’s designated representative. The trial court declined to exclude Mezzatesta from the temporary injunction hearing on the grounds that it would be “a total-violar tion of due process.” Accordingly, our analysis begins with the U.S. Constitution’s Fourteenth Amendment Due Process -Clause.
The Fourteenth Amendment Due Process Clause guarantees that states shall not deprive a “person”
When the government functions as adjudicator of dueling private interests, as it does in this, case, three competing factors, are balanced to determine what process is due: (1) “the private interest that will be affected by the official action,” Mathews v. Eldridge,
In effect, “the plaintiffs interest [is placed] on the scale opposite considerations of the vulnerability of the defendant’s interest, in a context where there is a presumptively greater weight [given] to the interests of the [parties] in avoiding summary deprivation and in having an opportunity to participate in the decision-making process prior to any official action.” Linda Beale, Connecticut v. Doehr and Procedural Due Process Values: The Sniadach Tetrad Revisited, 79 Cornell L. Rev. 1603, 1646 (1994) (footnotes omitted) (internal quotation marks omitted). Because of the presumption in favor of participation, due process ordinarily will preclude courts from excluding parties or their representatives from proceedings, at least when they are able to understand the proceedings and to assist counsel in the presentation of the case. See Helminski v. Ayerst Lab., Div. of Am. Home Prods. Corp.,
In the present case, this balancing required the trial court to determine the degree of competitive harm M-I would have suffered from the dissemination of its alleged trade secrets to Mezzatesta.
This balancing also required the trial court to determine the degree to which NOV’S defense of M-I’s claims would be impaired by Mezzatesta’s exclusion. See Garcia,
The record before us is clear that the trial court did not balance the competing interests. Without even hearing Moore’s testimony identifying M-I’s alleged trade secrets, the trial court' concluded: “You sued them. They stay, period.” Without knowing what M-I’s alleged trade secrets were, the trial court simply could not have conducted the required balancing.
The trial court apparently believed NOV had an absolute due process right to have its designated representative present at the temporary injunction hearing. However, the due—process right of a party to be present at a civil trial—much less the right of a party to have a designated representative present at a temporary-injunction hearing—is not absolute. See Air Prods. & Chems., Inc. v. Johnson,
If the trial court conducted the required balancing, it may have been within its discretion to decide that due process required NOV’s designated representative to be present. However, the trial court was required, at a minimum, to conduct that balancing. By failing to do so, the trial court abused its discretion. See Garcia,
2. Texas Law
Relying .on an analogy to the Star Chamber,
a. Open Courts
NOV first argues that exclusion of its designated representative would violate the Texas Constitution’s “open-courts” provision. Tex. Const. art. 1, § 13. That provision states that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Id. While NOV’s position is not entirely clear, it appears to interpret the clause “all courts shall be open” as guaranteeing a right of public access to court proceedings, which Mezzatesta was entitled to exercise.
In the absence of any convincing argument or citation to any authority by NOV, we question whether the open-courts provision does, in fact, guarantee such a right of public access, and whether NOV would have standing to assert such a right if it existed, as it.would ostensibly belong to Mezzatesta personally as a member of the public, not to NOV as an entity.
To the extent the open-courts provision might confer a right of public access,
b. The Rule
NOV next asserts that the exclusion of its designated representative would violate “the Rule.” See Tex. R. Civ. P. 267(a) (defining “placing witnesses under the rule” as the process of swearing in the witnesses and removing them from the courtroom, where they cannot hear the testimony of any other witness); see also Tex. R. Evid. 614. The Rule provides that trial courts “shall” exclude witnesses upon the request of a party. Tex. R. Civ. P. 267(a). However, three classes of witnesses are exempt from the operation of the Rule, including “an officer or employee of a party that is not a natural person and who is designated as its representative by its attorney.” Id.(b).
While NOV is correct to recognize that Mezzatesta, as its designated representative, would not have been subject to mandatory exclusion had M-I invoked the Rule, M-I did not rely on the Rule to exclude Mezzatesta. Rather, it relied upon the Texas Uniform Trade Secrets Act. See Tex. Civ. Prac. & Rem. - Code §§ 134A.001-.008. The Rule’s exemption for designated representatives does not apply to the Trade Secrets Act, as that exemption is expressly limited to “[t]his rule.” Tex. R. Civ. P. 267(b); see also Tex. R. Evid. 614.
For its part, the Trade Secrets Act requires trial courts to take reasonable measures to protect trade secrets and creates a presumption in favor of granting protective orders to preserve the secrecy of trade secrets, which may include provisions for, among other things, “holding in camera hearings.” Tex. Civ. Prac. & Rem. Code § 134A.006. The Act unfortunately does not take the trouble to define “in camera hearings,” and the parties offer competing interpretations. NOV asserts that “in camera hearings” refers simply to proceedings closed to the general public, while M-I asserts that “in camera hearings” also refers to proceedings in which a party or its representatives (but not its attorneys) are excluded. Specifically, NOV asserts that, when a trade secret is known to all parties, an in camera hearing involves the exclusion of everyone “except the parties, both of whom must already know the secret, and their counsel, who must have been apprised thereof.” Taylor Iron & Steel Co. v. Nichols,
c. Rule 76a
NOV also asserts that exclusion of its designated representative would be inconsistent with Texas Rule of Civil Procedure 76a. By its express terms, however, Rule 76a only governs the sealing of “court records.” It does not implicate oral testimony, and thus' does not apply to M-I’s request to exclude Mezzatesta from portions of the temporary injunction hearing.
d. Offensive Use
NOV lastly asserts that M-I forfeited its right to use the trade-secret privilege as a “shield” to exclude its designated representative from portions of the temporary injunction hearing involving trade secrets by using those same trade secrets as a “sword” in pursuing its misappropriation claim. We have previously recognized that certain privileges may be waived by offensive use, but have limited such waiver to instances'where a party attempts to protect outcome-determinative information from any discovery. See Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton,
B. Disclosure of the Moore Affidavit
The Moore affidavit was never submitted to the trial court. It was instead submitted directly to the court of appeals for in camera review. Nonetheless, the trial court ordered the Moore affidavit produced over M-I’s assertions that it contained trade secret information. Because the Moore affidavit itself was the only evidence that could substantiate whether it did, in fact, contain, trade secrets, the trial court had no choice but -to review it in camera before ruling on whether to produce, it over M-I’s assertion that it contained trade secrets. See Weisel Enters., Inc. v. Curry,
The trial court apparently believed that, even if the Moore affidavit did contain trade secrets, its disclosure was necessary
IY. Conclusion
The trial court abused its discretion when it concluded that the exclusion of NOV’s designated representative from portions of the preliminary injunction hearing involving alleged trade secrets would violate due process without balancing the competing interests at stake. See Garcia,
The trial court also abused its discretion when it ordered the Moore affidavit disclosed without reviewing it in camera. Accordingly, we conditionally issue the writ of mandamus directing the trial court to withdraw that order.
The actual writs will only issue if the trial court fails to comply with this opinion.
Notes
. The Texas Constitution, in contrast to the United States Constitution, guarantees "due
. Limited liability companies and limited partnerships like M-I and NOV may sue and be sued in their own name, and thus like corporations are treated as “persons” for purposes of the Fourteenth Amendment Due Process Clause. See, e.g., Grosjean v. Am. Press. Co.,
. At this preliminary stage, the trial court need not determine that the information is, in fact, a trade secret. See Ctr. For Econ. Justice v. Am. Ins. Ass’n,
. To decide the preliminary question of whether Mezzatesta could be excluded from the temporary injunction hearing, the trial court could have conducted an in camera hearing with Mezzatesta absent or ordered the parties to provide affidavits for its in camera inspection. While this evidence would necessarily overlap to some extent with the evidence at the preliminary injunction hearing, it was necessary for the trial court to consider this evidence before deciding whether to exclude Mezzatesta from the temporary injunction hearing.
. The Star Chamber was "[a]n English court having broad civil and criminal jurisdiction at the king's discretion and noted for its secretive, arbitrary, and oppressive procedures, including compulsory self-incrimination, inquisitorial investigation, and the absence of juries." Black’s Law Dictionary 1626 (10th ed.2014).
. While there is some evidence to suggest that the clause guaranteeing "open courts” was originally understood to establish a right of public access to court proceedings, see John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America (Philadelphia, Childs & Peterson 8th ed., rev., improved and greatly enl. 1859) (interpreting "open court” as used in "the constitution of some states” to mean “free access is admitted in courts to all persons who have a desire to enter there, while it can be done without creating disorder”), this Court has traditionally interpreted that clause in light of the following clause as merely requiring courts to be in operation and available for redressing injury. See, e.g., Trinity River Auth. v. URS Consultants, Inc.-Tex.,