eBay Inc. v. Mary Kay Inc.
Dallas Court of Appeals, No. 05-14-782-CV (June 25, 2015)
Justices Lang-Miers, Brown (Opinion), and Stoddart
Mary Kay sought to discover the identities of 48 eBay sellers who were selling Mary Kay products online in anticipation of filing suit against those individuals for trademark infringement, copyright infringement, unfair competition, and other claims. The trial court granted Mary Kay’s verified Rule 202 petition and ordered eBay to provide Mary Kay, by deposition on written questions, the name, address, telephone number, fax number, and email address associated with each of the 48 user names. eBay appealed. The Dallas Court of Appeals reversed and rendered, denying Mary Kay’s Rule 202 petition.
The Dallas Court relied on the August 2014 Texas Supreme Court decision in In re Doe (Trooper), 444 S.W.3d 603 (Tex. 2014). The Supreme Court held in Trooper that, under Rule 202, the court must have personal jurisdiction over the potential defendant before ordering pre-suit discovery. Otherwise, the Court reasoned, the potential defendant would be deprived of the protections of Texas procedure, including the right to have discovery limited to jurisdictional issues before any special appearance is heard, and it would be unreasonable for Texas courts to order discovery without personal jurisdiction over the potential defendant. To rule otherwise would allow Rule 202 to be used “by anyone in the world to investigate anyone else in the world against whom suit could be brought within the court’s subject-matter jurisdiction.”
Because Mary Kay did not know the identities of the 48 sellers, it could not meet its burden to plead jurisdictional facts to establish the trial court’s personal jurisdiction over them. The trial court, therefore, abused its discretion in ordering the discovery.
