Chief Justice HECHT delivered the opinion of the Court, in which Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice BROWN joined.
Rule 202 of the Texas Rules of Civil Procedure allows "a proper court" to authorize a deposition to investigate a potential claim before suit is filed.
Calling himself "the Trooper", an anonymous blogger
To discover the Trooper's identity, Brockman and Reynolds (whom we refer to collectively as Reynolds) filed a Rule 202 petition in the district court in Harris County, seeking to depose Google, Inc., which hosts the blog. The petition requests that Google disclose the name, address, and telephone number of the owner of the blog website and the email address shown on the site. The petition states that Reynolds "anticipate[s] the institution of a suit" against the Trooper. Reynolds says it will sue for libel and business disparagement, and, if the Trooper is a Reynolds employee, for breach of fiduciary duty. With the court's permission, Reynolds gave the Trooper the notice of the petition required by Rule 202 by sending it to the blog email address.
Google does not oppose Reynolds' petition,
The trial court ordered that Google be deposed as requested to "prevent a failure or delay of justice in an anticipated suit."
This Court promulgated Rule 202 as part of its 1999 revision of the Texas Rules of Civil Procedure governing discovery. Rule 202 covers the subjects of two repealed rules, Rule 187, permitting discovery to perpetuate testimony, and Rule 737, providing for a bill of discovery. The practice of taking discovery to perpetuate testimony in imminent danger of being
The requirement that a request for pre-suit discovery be filed in a "proper court" has been part of the perpetuation-of-testimony procedure since 1879,
The "proper court" phrase was not used in Rule 737 or its statutory predecessors. The 1923 statute required a bill of discovery to be brought in a trial court "having jurisdiction of the subject matter of litigation".
Rule 202 now requires all requests for pre-suit discovery to be filed in a "proper court":
As under former Rule 187, a proper court must be one with venue over an anticipated action, though if none is anticipated, the court must be in the county where the witness resides. While Rule 202 is silent on the subject, we think it implicit, as it has always been, that the court must have subject-matter jurisdiction over the anticipated action. The rule cannot be used, for example, to investigate a potential federal antitrust suit or patent suit, which can be brought only in federal court. We must determine whether a proper court must also have personal jurisdiction over the potential defendant. For two reasons, we think it must.
First: To allow discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford. Under Rule 120a, a defendant who files a special appearance in a suit is entitled to have the issue of personal jurisdiction heard and decided before any other matter.
Not only would the use of Rule 202 eviscerate the protections of Rule 120a, the burden on the defendant could be significant. Suppose a plaintiff sues an Alaska resident in Texas, the case is dismissed for want of personal jurisdiction, and undaunted, the plaintiff undertakes discovery in Texas under Rule 202 for what may eventually be a suit in Alaska. It is no answer that the Rule 202 court must weigh the burden or expense on the defendant in deciding whether to allow the discovery
Nor is it any answer to say that a potential defendant can choose to ignore the Rule 202 discovery sought from a third party. In doing so, he runs the risk that it will be used against him in a suit later filed in a court that does have jurisdiction. Rule 120a deems this risk unacceptable. A potential defendant should not be forced to choose between defending discovery in a forum where a claim cannot be prosecuted and risking that it will be used later in a forum where he is subject to suit.
The Trooper cannot ignore this Rule 202 proceeding without losing his claimed First Amendment right to anonymity. By ordering discovery from Google, the court has adjudicated that claim. He has thus been forced to litigate the merits of an important issue before a court that has not been shown to have personal jurisdiction over him.
The Trooper insists that this violates not only Rule 202 but due process as well. It is true that the liberty interest protected by the Fourteenth Amendment "constrains a State's authority to bind a nonresident defendant to a judgment of its courts" and does not prohibit all state court proceedings.
Earlier this year, in Walden v. Fiore, the Supreme Court repeated the emphasized sentence, adding: "[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State."
Second: To allow a Rule 202 court to order discovery without personal jurisdiction over a potential defendant unreasonably expands the rule. Even requiring personal jurisdiction over the potential defendant, Rule 202 is already the broadest pre-suit discovery authority in the country.
A trial court's discretion under the rule cannot be the solution. While a court certainly has discretion to limit Rule 202 discovery, it must exercise that discretion with reference to guiding rules and principles.
The burden is on the plaintiff in an action to plead allegations showing personal jurisdiction over the defendant.
* * * * * *
We conclude that the trial court's order dated July 15, 2011, exceeded its authority under Rule 202. We conditionally grant Doe's petition for writ of mandamus, and direct the trial court to vacate its order. We are confident the trial court will comply, and our writ will issue only if it does not.
Justice LEHRMANN filed a dissenting opinion, in which Justice JOHNSON, Justice BOYD, and Justice DEVINE joined.
Justice LEHRMANN filed a dissenting opinion, in which Justice JOHNSON, Justice BOYD, and Justice DEVINE joined.
The ever-rising cost of litigation impacts the ability of ordinary citizens to access our courts to pursue justice. Today the Court misinterprets our rules of civil procedure to create a quagmire for persons injured by anonymous Internet bloggers by forcing them to either file potentially fruitless lawsuits in an attempt to determine the identity of the alleged wrongdoer or waive redress. At best, this unnecessarily increases litigation costs for those persons injured by online defamation, while imposing additional burdens on our already overloaded court system. At worst, it deprives injured parties of reparation.
In today's case, involving the permissible scope of pre-suit discovery in Texas, the Court holds that the applicable procedural rule requires that personal jurisdiction be established over an anticipated defendant — even when that defendant's identity is withheld — before such discovery may be granted. And it does so despite the fact that it would be impossible for a court to make the required minimum-contacts determination with respect to a potential party who refuses to reveal the jurisdictional facts (such as identity and domicile) that form the basis for that decision. This effectively abolishes a cause of action for defamation against a person who claims anonymity, particularly when the defamation occurs online. Because the Court requires a premature and impossible showing, in the process allowing an alleged tortfeasor to hide behind his anonymity regardless of whether the First Amendment allows it, I respectfully dissent.
For all its virtues as a forum for communication, the Internet also presents many dangers. This is particularly true when speech is published anonymously. "[A]nonymity in cyberspace is not just different in degree from anonymity in real space.... [I]t is the ability to hide absolutely who one is." Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 876-77 (1996). In many instances, this diminution in accountability results in a proliferation of defamatory speech. Michael S. Vogel, Unmasking
As such, modern technology has made the ability to seek redress for injury due to defamation that much more important, and that much more difficult. In the face of these modern-day realities, today the Court further cripples that ability, effectively extinguishing the claims of those who have the misfortune of being defamed by one who conceals his identity. And it does so irrespective of whether the alleged defamer's anonymity is protected by the First Amendment. Quite simply, Texas law provides a right of recourse to those injured by defamation. TEX. CONST. art. I, § 13; Neely v. Wilson, 418 S.W.3d 52 (Tex.2013). That right should not be compromised simply because the defamatory speech occurs anonymously, as is frequently the case online.
In this case, The Reynolds & Reynolds Co. and its CEO Robert Brockman (collectively, Reynolds) sought pre-suit discovery under Texas Rule of Civil Procedure 202. Specifically, Reynolds petitioned the trial court for an order requiring Google to disclose information that would reveal the identity of "the Trooper" — the anonymous blogger that Reynolds and Brockman anticipated suing for defamation, business disparagement, and breach of fiduciary duty. The petition complained of statements on the Trooper's blog that compared Brockman to Bernie Madoff, proclaimed that Brockman "stole from everyone equally," and asserted that Brockman had a reputation for being "a crook" in his community.
Rule 202 provides that a petition for an order authorizing a deposition upon written questions for use in an anticipated suit must "be filed in a proper court of any county: (1) where venue of the anticipated suit may lie, if suit is anticipated; or (2) where the witness resides, if no suit is yet anticipated." TEX.R. CIV. P. 202.2(b). Reynolds filed the petition in Harris County, which qualifies as a county "where venue of the anticipated suit may lie" in light of the verified allegations that Brockman resided there. TEX. CIV. PRAC. & REM.CODE § 15.017 (providing that a defamation suit may be filed "in the county in which the plaintiff resided at the time of the accrual of the cause of action"). However, the Court holds that Reynolds failed to file the Rule 202 petition in a "proper court" because the petition lacked allegations showing the trial court had personal jurisdiction over the anonymous Trooper.
As an initial matter, I question whether personal jurisdiction over an anticipated defendant is ever a prerequisite to obtaining pre-suit discovery. The rule itself makes no mention of personal jurisdiction, which stands to reason given that the rule permits discovery even when the petitioner is so uncertain about the nature of his claim that he does not yet anticipate suit. This conclusion is consistent with the constitutional
Significantly, even if the phrase "proper court" in Rule 202 contemplates personal jurisdiction over the anticipated defendant as a general matter, imposing this requirement when that person chooses to remain anonymous undermines its rationale. In requiring courts to establish personal jurisdiction over potential defendants before signing a discovery order, the very purpose of which is to enable an individual to determine the identity of the person to be sued, the Court turns the rule on its head. In light of the rule's purposes, one of which is to permit a potential plaintiff to investigate her claim before filing suit, this construction is untenable.
Moreover, at its core, this holding effectively bars redress when the injury is the result of online activity. It is difficult at best to sue and serve citation on an anonymous "John Doe" defendant. This difficulty is magnified when the defendant is an online blogger whose identity is virtually impossible to uncover absent a procedural rule to allow for such disclosure. While it is conceivable that an injured party could file a lawsuit against "John Doe" and subpoena the nonparty Internet service provider to uncover the tortfeasor's identity, such a process is cumbersome, costly, inefficient, and possibly fruitless. It is particularly problematic in Texas given that, as the Court recognizes, the plaintiff bears the initial burden of pleading allegations sufficient to show personal jurisdiction over the defendant. 444 S.W.3d at 610 (citing Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.2010)). And it is simply unnecessary, as a rule exists for this exact purpose. See In re Does 1 & 2, 337 S.W.3d 862, 864-65 (Tex.2011) (holding that the trial court abused its discretion in failing to make the required findings under Rule 202 before ordering an Internet service provider to disclose the identity of an anticipated defendant).
The Court's understanding of Rule 202 subverts not only the purpose of pre-suit discovery, but the entire concept of personal jurisdiction. A court's exercise of personal jurisdiction over a party is predicated on an analysis of his connections with the forum state. Kelly, 301 S.W.3d at 655. However, a court cannot conduct a minimum-contacts analysis while wearing a blindfold; when a party chooses to remain anonymous, a court is powerless to evaluate his connection to the forum state. Several federal district courts have noted
The Court concludes that interpreting Rule 202 not to require personal jurisdiction would "make Texas the world's inspector general." 444 S.W.3d at 611. I disagree. In the first place, I am unpersuaded that Texas will be inundated by parties seeking the discovery of anonymous individuals simply because Internet hosts may be served with Rule 202 petitions in our State. The Court does not cite, and I have not found, any authority from another state requiring a trial court to establish personal jurisdiction over an anonymous party before compelling revelation of his identity from another source. In order for Texas to become a haven for those seeking pre-suit discovery of anonymous individuals, it must first become more attractive to petitioners than other states. We have not been presented with compelling evidence that this is the case. Indeed, some states that allow pre-suit discovery expressly recognize it as a mechanism to uncover the identity of an anticipated party. See OHIO CIV. R. 34(D)(3) (allowing pre-suit discovery that "is necessary to ascertain the identity of a potential adverse party"); see also In re Cohen, 25 Misc.3d 945, 887 N.Y.S.2d 424 (Sup.Ct. 2009) (holding that petitioner was entitled to "pre-action disclosure of information as to the identity of [an] [a]nonymous [b]logger" because she had "sufficiently established the merits of her proposed cause of action for defamation ... and that the information sought [was] material and necessary to identify the potential defendant").
Second, the Court ignores the provisions of Rule 202 that operate more generally to prevent global discovery in Texas. The Court considers a situation in which no party asserts a constitutional right to anonymity and all parties have been identified: "[s]uppose a plaintiff sues an Alaska resident in Texas, the case is dismissed for want of personal jurisdiction, and undaunted, the plaintiff undertakes discovery in Texas under Rule 202 for what may eventually be a suit in Alaska." 444 S.W.3d at 609. A trial court would likely abuse its discretion in granting the petition, not because it lacks jurisdiction over the Alaska resident, but because it would not work a failure or delay of justice to deny a petition when the litigation the parties contemplate will be conducted in a distant forum. TEX. R. CIV. P. 202.4(a)(1). Moreover, the benefit of allowing a petitioner to compel the deposition of the resident of a distant state would not outweigh the burden
Finally, the Court's holding does not reduce or circumscribe pre-suit discovery of anonymous parties in Texas. Instead, it is the end of such discovery. Again, when a party chooses to conceal his identity, he prevents the trial court from conducting a minimum-contacts analysis to determine whether it may exercise personal jurisdiction over him. I would not permit a party who issues defamatory speech to hide behind the Constitution to foreclose a lawsuit by remaining anonymous — not when that same document provides a recourse for such speech. TEX. CONST. art. I, §§ 8, 13. The plain language of the rule does not compel that result, and I would not adopt it.
Further, any First Amendment right to anonymity the Trooper may have is protected irrespective of the personal jurisdiction issue.
The parties in this case dispute which, if any, of these standards should apply in the context of pre-suit discovery of an anonymous speaker's identity under Rule 202. See TEX.R. CIV. P. 202.4(a)(1) (providing that a trial court "must order a [pre-suit]
I would hold that a trial court need not establish personal jurisdiction over an anticipated defendant in order to authorize pre-suit discovery. At the very least, I would not require the trial court to do the impossible and establish personal jurisdiction over an anonymous potential defendant as a condition precedent to ordering pre-suit disclosure of his identity. Because the Court erroneously holds that the trial court abused its discretion in ordering discovery under Rule 202 based on its lack of personal jurisdiction over the Trooper, I respectfully dissent.
Justice LEHRMANN, joined by Justice JOHNSON, Justice BOYD, and Justice DEVINE, dissenting.
Act approved March 16, 1848, 2d Leg., R.S., ch. 95, § 18, 1848 Tex. Gen. Laws 106, 111, reprinted in 3 H.P.N. Gammel, The Laws of Texas 1822-1897, at 111 (Austin, Gammel Book Co. 1898). The statute was amended in 1874 to refer to a filing in the district court. Act approved April 14, 1874, 14th Leg., R.S., ch. 82, § 1, 1874 Tex. Gen. Laws 103, reprinted in 8 H.P.N. Gammel, The Laws of Texas 1822-1897, at 105. The 1879 codification substituted "proper court". TEX.REV.CIV. STAT. ANN. art. 2222 (1879). That phrase carried through subsequent codifications. TEX.REV. CIV. STAT. ANN. art. 2277 (1895); TEX.REV.CIV. STAT. ANN. art. 3653 (1911); TEX.REV.CIV. STAT. ANN. art. 3742 (1925). It remained when the statute was revised slightly in 1927, Act of Feb. 19, 1927, 40th Leg., ch. 53, § 1, 1927 Tex. Gen. Laws 76, and when the statute was copied into the 1941 Rules of Civil Procedure, TEX.R. CIV. P. 187, 136 Tex. 431, 499 (Sept. 1, 1941). The rule was rewritten in 1962, TEX.R. CIV.P. 187, 1962 TEX. B.J. 371, 424, 426 (May 22, 1962, eff.Sept.1, 1962), to be more like Rule 27 of the Federal Rules of Civil Procedure. See General Commentary, TEX.R. CIV. P. ANN. 187 (Vernon 1967) (noting that the 1962 revision was modeled after the federal rule). The revised rule provided in part:
The rule was revised slightly in 1971, TEX.R. CIV.P. 187, 455-456 S.W.2d (Texas Cases) xxxii, xliv-xlvi (July 21, 1970, eff.Jan.1, 1971), and 1973, TEX.R. CIV. P. 187, 483-484 S.W.2d (Texas Cases) xxix, xlii-xliii (eff.Feb.1, 1973), and was then replaced by Rule 202.
Alexander, supra note 10, at 484-485 (1924). See also Simkins, supra note 10, at 98-99.