Summary
Justice Debra H. Lehrmann, joined by Justices Johnson, Boyd, and Devine, dissents from the Texas Supreme Court’s decision concerning pre-suit discovery under Texas Rule of Civil Procedure 202. The dissent argues that requiring a court to establish personal jurisdiction over an anonymous anticipated defendant before ordering discovery to identify that defendant is premature and effectively prevents redress for anonymous online defamation. It also discusses the First Amendment implications of discovering the identity of an anonymous blogger.
Topics
Practice areas
Questions Presented
- Whether Texas Rule of Civil Procedure 202 requires a trial court to establish personal jurisdiction over an anonymous anticipated defendant before authorizing pre-suit discovery from an Internet service provider to reveal the defendant's identity.
- Whether imposing a personal-jurisdiction requirement before the identity of an anonymous defendant can be discovered is consistent with the purpose of Rule 202 and due process principles.
- Whether Rule 202's required findings necessarily account for First Amendment concerns relating to anonymous speech.
Holdings
- The dissent would hold that a trial court need not establish personal jurisdiction over an anticipated defendant before authorizing Rule 202 pre-suit discovery, and at minimum should not be required to establish personal jurisdiction over an anonymous potential defendant when doing so is impossible before the defendant's identity is disclosed.
- The dissent states that, regardless of which standard governs disclosure of an anonymous speaker's identity, the findings required by Rule 202 necessarily require consideration of First Amendment concerns.
Key quotations
“In requiring courts to establish personal jurisdiction over potential defendants before signing a discovery order, the very purpose of which is to enable an individual to determine the identity of the person to be sued, the Court turns the rule on its head.” (4)
“However, a court cannot conduct a minimum-contacts analysis while wearing a blindfold; when a party chooses to remain anonymous, a court is powerless to evaluate his connection to the forum state.” (5)
“I would hold that a trial court need not establish personal jurisdiction over an anticipated defendant in order to authorize pre-suit discovery.” (9)
Factual background
Reynolds and its CEO Robert Brockman alleged that an anonymous blogger called the Trooper published statements comparing Brockman to Bernie Madoff, accusing him of stealing from everyone equally, and calling him a crook. They anticipated claims for defamation, business disparagement, and breach of fiduciary duty. To identify the blogger, they sought Rule 202 pre-suit discovery from Google, which had a Texas office, and filed the petition in Harris County based in part on Brockman's Texas residence.
Procedural history
Reynolds and Brockman petitioned the trial court for an order requiring Google to disclose information identifying the anonymous blogger known as the Trooper. The trial court ordered the Rule 202 discovery. The Supreme Court of Texas majority concluded that the trial court abused its discretion because it lacked personal jurisdiction over the anonymous anticipated defendant; Justice Lehrmann, joined by Justices Johnson, Boyd, and Devine, dissented from that conclusion.