The Texas Supreme Court Gets on the Board Early with a “Non-Opinion” on the Applicability of the Texas Anti-Slapp to TRCP 202 (Pre-Suit Depositions)

Texas Rule of Civil Procedure 202 allows a litigant to take pre-suit depositions to investigate claims and/or preserve evidence prior to actually  filing a lawsuit.  Some Texas COAs have determined that a “202 Petition” is covered by the Texas Anti-Slapp because of the breadth of the definition of “[l]egal action,” defined as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”

 In Glassdoor, Inc., Doe 1, and Doe 2 v. Andra Group, LP, Ca. No. 17-0463, the petitioner, Andra Group, filed a 202 Petition to discover the identity of unknown individuals that allegedly disparaged/defamed the company with online posts on Glassdoor.  The trial court denied Glassdoor’s Texas Anti-Slapp motion and the Dallas COA, upheld (assuming (without deciding) the Texas Anti-Slapp applied and that Andra Group met its evidentiary burdens (s to the elements of a 202 Petition).

 Glassdoor argued at the trial court that the 202 should be denied because the statute of limitations on any claims against the Doe Defendants expired, mooting any potential claim Andra Group could investigate. The TSC reversed on the mootness argument, and sidestepped whether a 202 Petition is actually covered by the Texas Anti-Slapp.

 The TSC’s discussion on statute of limitations is instructive as it noted that once the petitioner knew of the statements the clock starts ticking, and it is upon the injured party to use whatever tools, including a “Doe lawsuit,” to discover who made the statements.

 The TSC also denied Glassdoor’s request for recovery of attorneys’ fees (distinguishing its mootness analysis from State v. Harper, 562 S.W.3d 1, 6 (Tex. 2018)).  Because the statute of limitations issue mooted the 202 Petition (and Glassdoor failed to win its Texas Anti-Slapp motion at the trial court) Glassdoor could not recover attorneys’ fees. 

In essence, Glassdoor’s mootness argument defeated its Texas Anti-Slapp motion.

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