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Pre-Suit Discovery Requires Subject Matter and Personal Jurisdiction

The Case:Blog Picture.jpg

In re Doe, 444 S.W.3d 603 (Tex. 2014)

Brief Facts:

A blogger known as "the Trooper" began disparaging Reynolds & Reynolds, Co. ("Reynolds") online. To discover the blogger's identity, Reynolds filed a Rule 202 petition in Harris County seeking to depose Google to determine the actual identity of the Trooper. Google hosted the blog where the Trooper shared his posts. The trial court authorized service on the Trooper via an email to his blog email address.

In response, the Trooper filed a special appearance. The Trooper asserted that his only contact with Texas was that his blog could be read on the Internet there. He further asserted that he did not have minimal contacts with Texas sufficient for personal jurisdiction. Finally, he argued that, since no court in Texas had personal jurisdiction over him, there was no "proper court" under Rule 202 to order a deposition to investigate a suit in which he may be a defendant.

The trial court ordered the deposition. The Trooper sought mandamus relief in the appellate court, which was denied. The Trooper then sought mandamus relief from the Texas Supreme Court.

The Texas Supreme Court's Decision:

The Texas Supreme Court granted mandamus relief. The Court began by noting that Rule 202 can be used to both (1) investigate suits before they are filed and (2) preserve testimony. The Court next examined the requirement of subject matter and personal jurisdiction for a Rule 202 petition.

The Court found that Rule 202 requires subject matter jurisdiction. A party cannot investigate a potential federal antitrust suit or patent suit that can be brought only in federal court. The Court also found that Rule 202 requires personal jurisdiction for two reasons.

First, if it did not, the target of a Rule 202 petition would not be afforded protections other litigants enjoy, such as filing a special appearance and limiting proceedings to the issue of personal jurisdiction first. Second, if personal jurisdiction was not a requirement, Rule 202 could be used to investigate anyone against whom suit could be brought within a Texas court's subject-matter jurisdiction.

What to Take Away:

Know your target in pre-suit discovery. That includes where your target is located and their activities in Texas. If no personal jurisdiction exists (or you do not plead sufficient facts to establish personal jurisdiction), Rule 202 cannot be used to investigate your claim.

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