John Doe Can Remain Anonymous and Not Be Deposed in Pre-Litigation Discovery

16 September 2014 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

Since the plaintiff did not a file a lawsuit against John Doe, the Texas trial court had no jurisdiction to allow the plaintiff to take the deposition of “Trooper,” an anonymous blogger who launched on on-line attack on the CEO of a company who lives in Houston. In the case of In Re John Doe a/k/a “Trooper” on August 29, 2014 the Texas Supreme Court ruled 5-4 the pre-litigation discovery seeking John Doe’s identity is unacceptable in Texas, and the discovery to learn the identity of John Doe can only proceed if a lawsuit is filed.

The Supreme Court said that under “Rule 202 the Texas Rules of Civil Procedure allows “a proper court” to authorize a deposition to investigate a potential claim before suit is filed” however if the court does not have “personal jurisdiction over the potential defendant, or if not, the rule violates due process guaranteed by the Fourteenth Amendment.”

The Trooper’s blogs were critical of Houston resident Robert T. Brockman, CEO of Reynolds & Reynolds Co. “a privately held company, headquartered in Ohio with offices in Texas and elsewhere, that develops and markets software for use by auto dealerships.”

The Court recited these facts in the case:

To discover 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, but the Trooper does, appearing through counsel as John Doe, without revealing his identity. The Trooper filed a special appearance, asserting that his only contact with Texas is that his blog can be read on the Internet here. He argues that because he does not have minimal contacts with Texas sufficient for a court in this State to exercise personal jurisdiction over him, there is no “proper court” under Rule 202 to order a deposition to investigate a suit in which he may be a defendant. The Trooper also moved to quash the discovery on the ground that he has a First Amendment right to speak anonymously.

Since a lawsuit had not been filed against John Doe, John Doe could not make a Special Appearance under Rule 120a to defend the lack of jurisdiction.  

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