ORIGINAL PROCEEDING FROM TRAVIS COUNTY
Cindy Olson Bourland, Justice.
Relator Chris Elliott has filed a petition for writ of mandamus challenging the district court's March 11, 2016 order in a proceeding seeking a presuit deposition under Texas Rule of Civil Procedure 202. The order allows real party in interest, MagneGas Corporation, to take a Rule 202 presuit deposition of Elliott to investigate potential claims related to an article about MagneGas by an anonymous author, "The Pump Stopper." See Tex. R. Civ. P. 202.1(b). Elliott raises six issues, contending that the district court abused its discretion by ordering Elliott's Rule 202 deposition. Among his other complaints, Elliott asserts that the district court's order violates the Texas Citizens Participation Act because an interested party, John Doe 1, who admits to having made an anonymous communication about MagneGas and who Elliott asserts is "The Pump Stopper," filed a motion to dismiss that should have stayed all discovery. See generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (Texas Citizens Participation Act) ("TCPA" or "Act"). Because we conclude that the TCPA mandates that "all discovery in the legal action is suspended until the court has ruled on the motion to dismiss," see id. § 27.003(c), meaning that the district court should not
"The Pump Stopper" published an article on a website called "Seeking Alpha" on December 21, 2015. The article reported negatively on MagneGas's financial prospects. In its Rule 202 petition filed on January 22, 2016, MagneGas, a Delaware corporation with its principal place of business in Florida, sought to depose Elliott, who it alleges is a resident of Travis County. See Tex. R. Civ. P. 202.2(b)(2) (establishing that petition must be filed where witness resides if no suit is yet anticipated).
MagneGas alleges in its Rule 202 petition that "Elliott is affiliated with the website PumpStopper.com" and that the domain name "PumpStopper.com" is registered to Elliott. MagneGas further alleges that:
Although MagneGas's Rule 202 petition does not specifically refer to the December 21, 2015 article or to the statements within it that MagneGas alleges are false and misleading, at the hearing at which the district court addressed the Rule 202 petition, MagneGas's counsel stated that this article was the basis for MagneGas's investigation of its potential claims.
Rule 202 allows a person to petition a trial court for an order authorizing the taking of a deposition to investigate a potential claim or suit, see id. R. 202.1(b), and it requires the petitioner to serve the petition and a notice of the hearing on the petition in accordance with Rule 21a at least 15 days in advance of the hearing on all persons the petitioner seeks to depose, see id. R. 202.3(a); id. R. 21a (establishing service requirements). Instead of setting a hearing and serving Elliott with the petition and notice of hearing, MagneGas first served Elliott with a subpoena for a deposition without obtaining an order authorizing Elliott's deposition based on MagneGas's Rule 202 petition. After Elliott refused through counsel to attend the deposition, MagneGas filed a motion to compel his compliance with the subpoena and set it for a fifteen-minute hearing on March 11, 2016.
Elliott filed a response to MagneGas's motion to compel, objections to the motion to compel and to the Rule 202 petition, a motion to quash the motion to compel, and a motion for protective order. Elliott set the motion to quash and the motion for protective order for an hour-and-a-half-long hearing on April 28, 2016. On March 10, John Doe 1, who identifies himself as "an author, publisher, and/or distributor who utilizes PumpStopper.com," filed a TCPA motion to dismiss both MagneGas's Rule 202 petition and its motion to compel
The day after Doe filed his TCPA motion to dismiss, the district court held a short, non-evidentiary hearing on MagneGas's motion to compel. The district court considered MagneGas's Rule 202 petition at the hearing after MagneGas acknowledged it had not yet been given permission to depose Elliott under Rule 202. Elliott's counsel informed the district court of the pending motions to quash and for protective order, as well as Doe's pending TCPA motion to dismiss, and asked the court to wait and consider the merits and all the issues at once during the April 28 hearing, which would be a longer evidentiary hearing. After considering the parties' arguments only on the Rule 202 petition, the district court granted MagneGas's Rule 202 petition and ordered Elliott's deposition "relating only to the attached [December 21, 2015] article by Pumpstopper" to occur on a mutually agreeable date within 30 days.
On April 1, MagneGas filed a motion to compel Elliott's compliance with the Court's March 11 order on its Rule 202 petition and set the motion to compel for hearing on April 8. On April 6, Elliott filed his petition for writ of mandamus with this Court and an emergency motion for temporary relief. This Court granted the emergency motion on April 7, staying all proceedings pending further order of this Court.
Elliott challenges the district court's order on MagneGas's Rule 202 petition, raising six issues, five that relate to the Rule 202 petition and one that asserts the order violates the TCPA's discovery stay. We turn to the issue of the TCPA discovery stay because it is dispositive of Elliott's petition for mandamus.
Standard of review
We review the district court's order granting the Rule 202 petition for presuit discovery for an abuse of discretion. In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex. App.-Austin 2006, orig. proceeding [mand. denied]). To obtain the extraordinary remedy of mandamus relief, a relator must show both that the trial court clearly abused its discretion and that the relator has no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
An improper order under Rule 202 may be set aside by mandamus. In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam). When discovery is sought from a potential defendant in a contemplated lawsuit, Rule 202 orders have been considered ancillary to the possible subsequent suit and thus neither final nor appealable.
An abuse of discretion occurs when the trial court's decision is so arbitrary and unreasonable that it amounts to clear and prejudicial error of law or if the trial court clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839-40. A trial court has no discretion in determining what the law is or applying the law to the facts of the case, even if the law is somewhat unsettled. In re Jorden, 249 S.W.3d at 424.
Texas Rule of Civil Procedure 202.1(b) permits a person to petition a trial court for an order authorizing the taking of depositions before a suit is filed in order "to investigate a potential claim or suit." Tex. R. Civ. P. 202.1(b). Rule 202 depositions are not intended for routine use. In re Jorden, 249 S.W.3d at 423. "Courts must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule." In re Wolfe, 341 S.W.3d at 933. The trial court "must order a deposition to be taken if, but only if, it finds that ... the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure." Tex. R. Civ. P. 202.4(a)(2).
Whether a motion to dismiss under the Texas Citizens Participation Act may be considered in a Rule 202 proceeding is an issue of first impression presented by this petition for writ of mandamus.
A key component of the TCPA is the provision of a mechanism for early dismissal of "legal actions" that are based on a party's exercise of the right of free speech, the right to petition, or the right of association. Id. § 27.003; see also id. § 27.001(2)-(4) (defining "exercise of the right of association," "exercise of the right of free speech," and "exercise of the right to petition"). Section 27.003 allows a litigant to seek dismissal of a "legal action" that is "based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association." Id. § 27.003(a). A "legal action" is defined very broadly in the TCPA and means "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." Id. § 27.001(6).
The Act contemplates that the "court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of ... the right of free speech...." Id. § 27.005(b). The Act then shifts the burden to the nonmovant, allowing the nonmovant to avoid dismissal of the legal action only by "establish[ing] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). The court may allow specified and limited discovery relevant to the motion on a showing of good cause, but otherwise "all discovery in the legal action is suspended until the court has ruled on the motion to dismiss." Id. §§ 27.003(c),.006(b).
Effect of Doe's TCPA motion on the Rule 202 proceeding
Elliott asserts that Doe timely filed his motion to dismiss under the TCPA and that the filing of his motion stayed all discovery in the Rule 202 proceeding. MagneGas responds that Doe waived his motion by failing to timely set it for hearing and by failing to prosecute it and that the Act has no application to a Rule 202 petition.
Section 27.004 of the Act establishes that:
Tex. Civ. Prac. & Rem. Code § 27.004(a), (c). Doe first set the motion to dismiss for hearing on March 30, which is only 20 days after he served MagneGas with the motion. He later amended the notice of hearing, setting the motion to dismiss for hearing at the same time as Elliott's motions (which Doe had joined) that were set for hearing on April 28 — only 49 days after March 10. Consequently, Doe's hearing date of April 28 was timely under the Act.
MagneGas further argues that "Doe has done absolutely nothing to prosecute" the motion to dismiss because "he has submitted no affidavit stating the factual bases for his claimed privilege under [Section] 27.006(a), he has sought no discovery under [Section] 27.006(b), and he has wholly failed to present his motion to [the district court] or to obtain any ruling on it." None of these criticisms are valid. Under Section 27.006(a) of the Act, the trial court may consider pleadings when determining whether to dismiss a legal action — the Act does not require a movant to present testimony or other evidence to satisfy his evidentiary burden. See In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015) ("[T]he court is to consider the pleadings and any supporting and opposing affidavits" when considering dismissal. (emphasis added)); Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.-Austin 2015, no pet.). Similarly, while Section 27.006(b) of the Act provides that "[o]n a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion," nothing in the Act requires a party to seek discovery relevant to the motion. Tex. Civ. Prac. & Rem. Code § 27.006(b). And as discussed above, Doe timely set his motion for hearing; the hearing was stayed, along with all other proceedings, when we granted Elliott's motion for temporary relief on April 7. Accordingly, we conclude that Doe has not waived his motion to dismiss.
The crux of the matter here is whether Doe's filing of a TCPA motion to dismiss stayed all discovery in the Rule 202 proceeding.
We review issues of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Our primary objective when construing statutes is to give effect to the Legislature's intent, which we seek first and foremost in the text of the statute. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631-32 (Tex. 2008). The plain meaning of the text is the best expression of legislative intent, unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results. Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We must apply the statute as written. Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per curiam).
On its face, the Rule 202 petition fits the description of covered filings under the TCPA — i.e., it is a petition or other judicial pleading or filing that seeks legal or equitable relief against Elliott — a presuit deposition — to enable MagneGas to investigate potential claims against the authors, publishers, and distributors of statements that MagneGas alleges are false and misleading, including Doe. See Tex. Civ. Prac. & Rem. Code § 27.001(6). MagneGas asserts in the Rule 202 petition that if MagneGas confirms that the individuals affiliated with the PumpStopper or PumpStopper.com are publishing false and misleading information about MagneGas, MagneGas will know "that bringing a lawsuit against those individuals is warranted." (Emphasis added.) At the hearing on the Rule 202 petition, MagneGas stated it needs to identify these parties and that its claims could include defamation, market manipulation, and securities fraud.
The TCPA's purpose is "to encourage and safeguard the constitutional rights of persons to ... speak freely ... to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Id. § 27.002. The Act accomplishes its purpose by providing a mechanism for early dismissal of "legal actions" that are based on a party's exercise of the right of free speech. Id. § 27.003. Doe alleges that his exercise of the right of free speech is the basis for MagneGas's Rule 202 petition seeking to depose Elliott to discover from him Doe's identity, which Doe asserts would violate Doe's First Amendment right to anonymous free speech.
MagneGas argues that we should construe the word "petition" as used in the definition of a "legal action" as the state-court analogue of a federal "complaint," meaning a pleading that asserts a "cause of action" or a "claim" because this reading would be consistent with MagneGas's view that the purpose of the statute is to dispose of lawsuits.
Rule 202 requires a person seeking an order from the trial court for a presuit deposition to file a "petition." See Tex. R. Civ. P. 202.1 ("A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions....); id. R. 202.2 (entitled "Petition"; establishing requirements for petition); id. R. 202.3 ("[T]he petitioner must serve the petition...."); see also Black's Law Dictionary 1261 (9th ed.) ("Petition" means "formal written request presented to a court or other official body...."). When construing the Act, we presume that the Legislature included each word in the statute for a purpose and that the Legislature promulgated the definition of a "legal action" in the Act with an awareness of the Texas Rules of Civil Procedure, including Rule 202's provision for the filing of a "petition."
The genesis of Rule 202 is in equity. Rule 202 incorporates two repealed Rules. See In re Doe (Trooper), 444 S.W.3d 603, 605 (Tex. 2014). Repealed Rule 737 provided for a bill of discovery, which was originally an English common-law equitable device for obtaining discovery from an opposing party in a pending suit by filing the bill in chancery (a court of equity). Id. at 606-07 & nn.10-14 (addressing repealed Rule 737 and bills of discovery). Repealed Rule 187 also derived from an English common-law equitable proceeding to perpetuate testimony in imminent danger of being lost, typically by the death or departure of the witness. See Trooper, 444 S.W.3d at 605-06 & nn.8-9
In addition, the Texas Supreme Court, in the context of considering whether the statute limiting discovery in health-care lawsuits precludes Rule 202 presuit depositions, has recognized that a "`cause of action' relates to facts, whether or not suit is ever filed." In re Jorden, 249 S.W.3d at 421-22 (holding that statute that specifically applies to "a cause of action against a health care provider" applies both before and after a cause of action is filed and therefore precludes Rule 202 depositions to investigate potential claims against health-care providers). MagneGas's Rule 202 petition asserts a set of facts giving rise to its potential claims. For all these reasons, the TCPA's broad definition of "legal action" encompasses MagneGas's Rule 202 petition.
Furthermore, the Act's plain language provides that although the court may allow specified and limited discovery relevant to the TCPA motion to dismiss on a showing of good cause, otherwise "all discovery in the legal action is suspended until the court has ruled on the motion to dismiss." Tex. Civ. Prac. & Rem. Code §§ 27.003(c), .006(b). The district court's order granting MagneGas's Rule 202 petition was not the "specified and limited discovery relevant to the [TCPA] motion [to dismiss]" that the Act contemplates. Id. § 27.006(b) (emphasis added). The district court had no discretion to order a deposition based on MagneGas's Rule 202 petition before ruling on Doe's TCPA motion to dismiss, and consequently, we will conditionally grant Elliott's petition for writ of mandamus. Because we conclude that the TCPA requires a stay of all discovery until the district court rules on Doe's motion to dismiss, we need not reach Elliott's other issues related to the Rule 202 petition.
Our discussion of the TCPA and its standards is specifically limited to the issues
The concurrence suggests that the district court should have put aside the process set forth in the TCPA and instead engaged in an admittedly "unsettled" analysis to require a "threshold showing" when faced with a First Amendment objection raised in the Rule 202 proceeding below. Op. at 467-70. Citing to dicta in In re Does 1-10, 242 S.W.3d 805, 820-23 (Tex. App.-Texarkana 2007, orig. proceeding), the concurrence would conclude that this "threshold showing" is a precondition to unmasking anonymous speakers, thus providing a basis for the district court to avoid addressing the TCPA motion to dismiss that is the subject of this mandamus petition. We do not agree that In re Does 1-10, which predates the TCPA, mandates some "threshold showing" that would preempt the more settled framework of the TCPA now in place.
The concurrence also urges that including Rule 202 petitions in the Act's definition of a "legal action" is incompatible with TCPA Sections 27.005 and 27.006. Op. at 477-80. Contrary to the concurrence's suggestion, however, the process established for a trial court's consideration of a TCPA motion to dismiss can be applied in the context of a Rule 202 petition, construing the statute liberally as we have been instructed. See Tex. Civ. Prac. & Rem. Code § 27.011(b). The concurrence's concern over language in the TCPA referring to the "essential element of the claim" and the need to state facts on which the "liability" or "defense" is based deconstructs the Act at the expense of its plain meaning and the Legislature's intent, which is to safeguard citizens' rights to participate and speak freely by preventing the legal system from being used offensively to chill those rights.
In the Rule 202 proceeding here, MagneGas seeks Doe's identity from Elliott, which Doe asserts in his TCPA motion impinges on Doe's right of anonymous free speech. If Doe can show that Magne-Gas's Rule 202 petition seeking to discover Doe's identity from Elliott is a legal action against Doe and by a preponderance of the evidence that MagneGas's petition "is based on, relates to, or is in response to" Doe's exercise of the right of free speech — issues that the district court must consider before we may — the burden shifts to MagneGas to establish by clear and specific evidence a prima facie case for each essential element of "the claim in question," which Doe asserts in his motion to dismiss is "the challenged claim" of defamation that MagneGas seeks to investigate against Doe.
In avoiding application of the TCPA's framework, the concurrence continues to strain against the broad wording of the TCPA, digging deeper
Having concluded that the TCPA stays all discovery until the trial court rules on a motion to dismiss filed under the Act, we conditionally grant Elliott's petition for writ of mandamus and direct the district court to vacate its March 11, 2016 order on MagneGas's Rule 202 petition. See Tex. R. App. P. 52.8(c). The writ will issue only if the district court fails to comply. We also lift the stay of the underlying proceedings. See id. R. 52.10(b).
Concurring Opinion by Justice Pemberton
Bob Pemberton, Justice.
While I join in the Court's judgment conditionally granting mandamus relief, I
WHAT THIS CASE IS ACTUALLY ABOUT
This original proceeding arises from what is, at its core, a discovery dispute, albeit one implicating some First Amendment concerns. That dispute has centered on the attempt by MagneGas to obtain, through Rule of Civil Procedure 202, a deposition calculated to unmask the anonymous person or persons behind "The Pump Stopper's" December 2015 article without regard to First Amendment limitations on that discovery. The First Amendment has been authoritatively held to encompass a right to speak anonymously,
The precise threshold showing of merit required of the claimant remains somewhat
The district court ordered Elliott's Rule 202 deposition without requiring a threshold showing of any kind regarding the merits of MagneGas's potential claims and despite objections from Elliott and one of the anonymous speakers (Doe) that preserved the complaint. Elliott brings this First Amendment objection forward as his principal asserted ground for mandamus relief. This ground plainly has merit, and mandamus relief should conditionally issue for this reason alone.
THE TCPA IS UNHELPFUL IN RESOLVING THIS CASE
The Court chooses a more circuitous analytical path, endorsing a novel alternative theory aimed at invoking the TCPA's more general protections against speech-based claims and related discovery. Prior to the hearing on MagneGas's Rule 202 petition, counsel representing the anonymous speaker Doe (who, incidentally, also represents Elliott, the witness whose deposition was being sought) filed on Doe's behalf what purports to be a "motion to dismiss" the Rule 202 petition under TCPA Section 27.003(a), the Act's provision authorizing a motion to dismiss "a legal action" alleged to be "based on, relate[d] to, or ... in response to a party's exercise of the right of free speech, right to petition, or right of association."
The Court endorses Elliott and Doe's creative invocation of the TCPA, and the cornerstone of its reasoning is that Magne-Gas's Rule 202 petition or proceeding is, in itself, a "legal action" that Doe could move to dismiss under Section 27.003(a), making the requested deposition — the sole relief sought in that "legal action" — also "discovery in the legal action" that is suspended by 27.003(c). As an initial observation, the Court's venture into the intricacies of the TCPA is ultimately of little practical value in resolving the pivotal issue in this proceeding — which, again, centers on the extent
Under the circumstances here, at least, overlaying the parties' First Amendment dispute with the TCPA's procedural framework serves only to delay and complicate resolution unnecessarily, contrary to the Act's manifest purposes to secure quick and inexpensive dismissal of meritless "legal actions" that threaten expressive freedoms.
IN ANY EVENT, ELLIOTT WOULD HAVE NO RIGHT TO RELIEF UNDER THE TCPA IF THE COURT'S CENTRAL PREMISE IS CORRECT
Moreover, if, as the Court holds, Magne-Gas's Rule 202 petition is the relevant "legal action" under the TCPA, that central premise would be fatal to Elliott's attempt to invoke the discovery stay under Section 27.003(c). This is apparent from the text of TCPA Section 27.003(a), which states in full: "If a legal action is based on, relates to, or is in response to
THE COURT'S VIEW OF A TCPA "LEGAL ACTION" IS MISTAKEN AND PROBLEMATIC
The Court proceeds nonetheless to pronounce that Rule 202 proceedings, or at least those like MagneGas's that seek to investigate potential claims, are in themselves "legal actions" subject to motions to dismiss under TCPA Section 27.003(a).
To the extent any such ramifications truly reflect the Legislature's intent expressed through the TCPA, it is not our proper judicial role to countermand them, of course, barring some constitutional impediment. But a correct understanding of the TCPA requires more than first-blush impressions of words read in isolation — we must also consider the larger statutory and jurisprudential context that informs the meaning of statutory text.
We must presume that the Legislature was aware of the existence of Rule 202 and
This definition "is both expansive and varied, referring to an entire action or proceeding (`lawsuit'); particular pleading instruments and claims for relief (`petition, complaint, cross-claim, or counterclaim,' plus the catch-all of `any other judicial pleading or filing that requests legal or equitable relief'); and also `cause of action,' which generally denotes particular facts that would entitle a person to seek some form of legal or equitable relief."
The Court asserts that a Rule 202 petition qualifies as a "legal action" by virtue of two of these components of the TCPA definition. First, the Court relies on "petition," deducing that because Rule 202 terms the pleading made under that rule a "petition,"
Whether a Rule 202 petition might fall within "any other judicial pleading or filing that requests ... equitable relief" — the Court's alternative rationale — is potentially a closer call, at least when considering the internal structure of the "legal action" definition standing alone. While the definition's "any other judicial pleading or filing that requests legal or equitable relief" catchall is contextually limited to the same general kind or class as the specific references preceding it,
But the Court's notion that "equitable relief" within the definition refers to any "judicial pleading or filing" having equitable origins or components should give some pause. A Rule 202 petition seeking to investigate potential claims is hardly the only Texas "judicial pleading or filing" that would "request ... equitable relief" in this
An alternative view of the "legal action" definition's reference to "legal or equitable relief" is that it denotes the traditional law-equity distinction that lives on in what are termed the "legal" versus "equitable" remedies obtainable when liability under some substantive right of recovery is proven; i.e., the "legal" remedy of money damages versus the "equitable" relief of injunctions, specific performance, and the like.
Examination of the TCPA as a whole confirms that the Legislature intended this narrower notion of "any other judicial pleading or filing that requests legal or equitable relief," as well as the more technical meaning of "petition" urged above. Instructive provisions begin with Section 27.005, which prescribes the standards under which Section 27.003(a) motions to dismiss "the legal action" are decided.
As we must presume the Legislature was aware,
The Court does not contend otherwise — in fact, it acknowledges that the "claim in question" under Section 27.005 (i.e., that which has "essential elements," seeks to impose "liability," and has "defenses" with "essential elements") must necessarily refer to the alleged potential claims underlying a Rule 202 petition and not to the petition itself.
The Court insists that any such doubts regarding textual support for its construction should be overlooked because the Legislature directed that the TCPA be "construed liberally to effectuate its purpose and intent fully."
Nor does the Court's construction ultimately advance the TCPA's goal of protecting free expression, the side of the Act's balancing equation that the Court is tacitly favoring here. What the Court's construction encourages is piecemeal or seriatim "motions to dismiss" attacking myriad "legal actions" that consist merely of individual filings within or related to a lawsuit, as opposed to the underlying lawsuit and substantive claims that are the Act's core focus. As such motions proliferate, application of the TCPA strays from — and, indeed, undermines through cost and delay — its manifest purpose to secure quick and inexpensive dismissal of meritless "legal actions" that threaten expressive freedoms.
But there is a construction of the TCPA that would advance the Act's purposes in the Rule 202 context, yet remain faithful to the statute's terms. It is the one already suggested by the preceding analysis — the "legal action" is not the Rule 202 petition or proceeding in itself, but the underlying potential claim or anticipated suit that is the predicate for the petition. In addition to avoiding the burdens, inefficiencies, and potential gamesmanship invited by the Court's construction, this view of the "legal action" more importantly squares with Section 27.005 and 27.006(a) and also with the unity Section 27.003(a) requires between the person whose free expression is threatened by the "legal action" and the "party" to the "legal action" who can bring the motion. I would hold that the Legislature
Alternatively, even if a Rule 202 petition might fall within "legal action" in an abstract application of the TCPA's definition, I would hold for these reasons that the relevant "legal action" under Section 27.003(a) and (c) is the underlying potential claim or anticipated suit made the basis for the petition. As this Court's prior TCPA jurisprudence has recognized, application of the Act's "legal action" definition turns not only of whether there exists some correspondence between the definition and the particular pleading or filing at issue, but also the particular context in which external provisions of the Act are actually using or applying the term "legal action" and the Act's broader policies.
This construction of "legal action," to be sure, creates some potential tension with certain of the TCPA's other textual features. Most obviously, one might ask how a party could file a "motion to dismiss"
These potential discrepancies are resolved by remembering that a Rule 202 deposition is not an end in itself, but is in aid of an underlying potential or anticipated "legal action."
REGARDLESS, THE TCPA SHOULD INFORM THE JUDICIARY'S APPLICATION OF RULE 202
On the other hand, it is conceivable that the TCPA, correctly construed, does not address Rule 202 depositions at all. In that event, the Act's policies should nevertheless inform judicial application of Rule 202 in cases where the underlying potential claims or anticipated suit would implicate TCPA-protected expression. For that matter, perhaps these judicially created and
While not qualifying the remedy as "equitable relief" in the sense of the TCPA "legal action" definition, Rule 202 explains that pre-suit depositions to investigate potential claims are "equitable in nature," and a corollary, the rule adds, is that "a court must not permit it to be used inequitably."
More generally, precedents from both the Texas Supreme Court and this Court have recognized that judicial application of equity-rooted remedies should be informed by — and, sometimes, altered significantly in deference to — the legislative policy judgments reflected in intervening statutory enactments, even where the statutes themselves would not directly reach the subject matter of the dispute before the court. This is the approach the high court has applied with regard to equitable prejudgment interest,
The foregoing considerations would suggest that Rule 202's application should be constrained, as a matter of the rule's own internal limiting principles, along the following lines:
• Consistent with TCPA Sections 27.003(a) and (c), a trial court would lack discretion to grant a Rule 202 petition in the face of an objection asserting that the petition is predicated on a potential claim or anticipated suit that would be "based on, related to, or in response to" the "exercise of" the "right of free speech," "right of association," or "right to petition" as the Act defines those concepts.
• It the objector can make a showing that the potential claim or anticipated suit is in fact one "based on, related to, or in response to" the "exercise of" the "right of free speech," "right of association," or "right to petition," the Rule 202 petition would be denied unless the petition can present the "prima facie" case consistent with TCPA Section 27.005(c) for each essential element of at least one underlying claim. In that event, the burden would likewise shift back to the objector consistent with Section 27.005(d).
These limitations on Rule 202 depositions or discovery deriving from the TCPA would not be exclusive, of course, and other grounds for objections or protection might well come into play.
I agree that mandamus should conditionally issue to restrain the district court's order, but I disagree with the Court's analysis of the TCPA or that we should even address that statute here.