Dallas Court of Appeals, No. 05-16-00189-CV (March 24, 2017)
Justices Francis, Stoddart, and Whitehill (Opinion, linked here)
Rule 202 permits a deposition before a lawsuit is filed for two purposes: (1) “to perpetuate or obtain . . . testimony . . . for use in an anticipated suit” and (2) “to investigate a potential claim or suit.” Before the petition is heard, notice must be given to the proposed deponent, and if suit is “anticipated,” notice must also be given to persons expected to be adverse to the petitioner in the anticipated suit. Notice can be given to unnamed persons by publication.
Andra gave notice to Glassdoor but failed give notice to the anonymous reviewers. The trial court concluded Andra’s petition sought to investigate a “potential” claim, not an “anticipated” claim, such that the reviewers need not be given notice. The court of appeals held this was not an abuse of discretion. The petition largely tracked the language of the “potential claim” portion of Rule 202. The Court also questioned whether a Rule 202 petition filed solely to identify anonymous reviewers seeks “testimony” within the meaning of the rule.
Glassdoor argued suit was “anticipated” because Andra already had the negative reviews and only sought the identity of the reviewers. The Court disagreed. Even if Andra learned the reviewers’ identities, suit would not inevitable. Andra would then need to learn more about the reviewers and their relationship with the company to evaluate certain defenses, such as substantial truth, before deciding whether to file suit.
