A COURT WITHOUT PERSONAL JURISDICTION OVER THE POTENTIAL DEFENDANT IS NOT A “PROPER COURT” FOR RULE 202 PRE-SUIT DISCOVERY

In re Doe a/k/a “Trooper”
Supreme Court of Texas, No. 13-0073 (August 29, 2014)
Chief Justice Hecht (Opinion), Justice Lehrmann (Dissent)
In a five-to-four decision, the Supreme Court of Texas held that a petitioner seeking pre-suit discovery under Rule 202 for use in an anticipated suit must “plead allegations showing personal jurisdiction over the defendant.” A company and its CEO filed a Rule 202 petition seeking to depose Google in order to discover the name, address, and telephone number of an anonymous blogger, “the Trooper,” who made negative comments concerning both the company and the individual, comparing the CEO to Bernie Madoff, Satan, and Bozo the Clown. The Trooper specially appeared and opposed the pre-suit discovery. The Supreme Court ruled that Rule 202’s requirement that the pre-suit petition be filed in a “proper court” implicitly mandated that the court have both subject matter jurisdiction over the potential lawsuit and personal jurisdiction over the potential defendant. If pre-suit discovery were allowed without personal jurisdiction, the Court reasoned, Rule 202 could be used by anyone in the world to investigate anyone else in the world. While noting that Rule 202 is already the broadest pre-suit discovery authority in the country, the Court refused to “interpret Rule 202 to make Texas the world’s inspector general.” Writing for the four-justice minority, Justice Lehrmann dismissed the majority’s concerns as unsubstantiated, and further explained that the Court’s holding unnecessarily increases the cost of litigation based on online, anonymous defamation. The holding, she explained, effectively forces an injured party to choose between filing a potentially fruitless lawsuit and simply waiving redress when the injury results from online activity.

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