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Glassdoor, Inc. v. Andra Group, LP

Court of Appeals of Texas, Fifth District, Dallas

March 24, 2017

GLASSDOOR, INC., DOE 1, AND DOE 2, Appellants
v.
ANDRA GROUP, LP, Appellee

         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-09362

          Before Justices Francis, Stoddart, and Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         Appellant Glassdoor, Inc. maintains a website on which it allowed people to post anonymous reviews of appellee Andra Group, LP as an employer. Some negative reviews were posted.

         Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers' identities. Glassdoor, joined by appellants Doe 1 and Doe 2, filed a Texas Civil Practice and Remedies Code Chapter 27 (anti-SLAPP) dismissal motion. The trial court denied that motion and granted in part the Rule 202 petition. Glassdoor and Does 1 and 2 timely appealed.

          Appellants assert that the trial court erred by (i) concluding that Chapter 27 did not apply and (ii) granting Rule 202 relief. Addressing the issues in reverse order, we conclude that (i) the trial court did not abuse its discretion by granting Rule 202 relief, and (ii) the trial court did not err by denying appellants' dismissal motion even if Chapter 27 applies to Rule 202 proceedings. Accordingly, we affirm the trial court's order.

         I. Background

         A. Factual Allegations

         Andra's Verified Petition Requesting Deposition Before Suit alleged the following facts: Glassdoor operates a website that it describes as a free jobs and career website. The website offers access to "user-generated . . . ratings and reviews."

         Negative comments about Andra were posted in ten anonymous reviews on the Glassdoor website. One of the reviews was posted by someone who claimed to be an Andra interview candidate. The others were posted by people who claimed to be current or former Andra employees. The oldest review was dated 8 July 2014, while the newest was dated 30 June 2015.

         B. Procedural History

         Andra filed its Rule 202 petition on 17 August 2015. It sought to depose a Glassdoor representative to discover the identities and account information of the persons who wrote the allegedly defamatory reviews. Andra stated its purpose as follows:

Andra desires to obtain the testimony of Glassdoor to investigate potential claims for defamation or business disparagement. Andra does not anticipate any claims against Glassdoor, and only seeks to investigate potential claims by Andra against anonymous persons or entities who posted false and defamatory statements against Andra on Glassdoor's website . . . .
Glassdoor answered.

          Soon thereafter, Glassdoor and Does 1 and 2 filed a Chapter 27 dismissal motion.[1] Does 1 and 2 claimed that they wrote two of the reviews identified in Andra's petition. Appellants attached evidence to their motion, including an affidavit and copies of the ten reviews identified in Andra's petition.

         Andra filed a combined response to the dismissal motion and brief in support of its Rule 202 petition. Andra attached three affidavits and other exhibits to the response.

         Appellants filed a combined response to Andra's Rule 202 brief and reply in support of their dismissal motion.

         The trial judge held a hearing on Andra's petition and appellants' motion. The judge invited Andra to file additional evidence and deferred ruling. Andra filed a supplemental response to the dismissal motion, with a supplemental affidavit attached.

         Appellants filed a reply to Andra's supplemental response.

         The trial judge then held another hearing. The next day, the judge signed an order denying appellants' dismissal motion and granting in part Andra's Rule 202 petition. The order limited the deposition to two specific reviews posted on Glassdoor's website, and it further purported to limit the deposition to five specific statements within those reviews. The two reviews identified in the order were not reviews that Does 1 and 2 claimed to have written. The order also required Glassdoor to produce certain categories of documents.

         Appellants timely appealed.[2]

          II. Analysis

         We address appellants' second issue first.

         A. Issue Two: Did the trial court err by granting Andra's Rule 202 petition?

         At the outset we note that Does 1 and 2 are unaffected by the trial court's order granting in part Andra's Rule 202 petition. That is, the trial court did not permit Andra to discover Doe 1's and 2's identities. Because Doe 1 and 2 were not injured by the Rule 202 order, we conclude they lack standing to assert issue two. See Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999) (per curiam) (appellant may not complain of errors that do not injure it or that merely affect the rights of others). We review issue two with respect to Glassdoor only.

         Glassdoor supports issue two with three arguments: (i) Andra did not give proper notice as required by Rule 202; (ii) the trial court erred by finding that the likely benefit of the discovery outweighed the burden or expense; and (iii) Andra did not overcome Glassdoor's First Amendment defense. We disagree with each argument.

         1. Standard of Review

         We review a trial court's order granting Rule 202 relief for abuse of discretion. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 568-69 (Tex. App.-Dallas 2011, no pet., orig. proceeding). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). Under this standard we defer to the trial court's factual determinations if they are supported by evidence, but we review the trial court's legal determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011).

          2. Applicable Law

         Rule 202 authorizes a person to seek a court order authorizing an oral deposition or a deposition on written questions for two purposes: (i) to perpetuate or obtain a person's testimony for use in an anticipated suit or (ii) to investigate a potential claim or suit. Tex.R.Civ.P. 202.1. The petition must state either that the petitioner anticipates a suit in which the petitioner may be a party or that the petitioner seeks to investigate a potential claim by or against the petitioner. Id. 202.2(d).

         At least 15 days before the petition is heard, the petitioner must serve the petition and notice of the hearing "on all persons petitioner seeks to depose and, if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the anticipated suit." Id. 202.3(a) (emphasis added). The rule authorizes service by publication on "[u]nnamed persons described in the petition whom the petitioner expects to have interests adverse to petitioner's in the anticipated suit, if any." Id. 202.3(b)(1).

         If the court grants Rule 202 relief, it must find that

(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Id. 202.4(a)(1)-(2). The finding must be express. In re Dallas Cty. Hosp. Dist., No. 05-14-00249-CV, 2014 WL 1407415, at *2 (Tex. App.-Dallas Apr. 1, 2014, orig. proceeding) (mem. op.).

          The petitioner bears the burden of producing evidence to support the necessary finding. See id. at *3; In re Campo, No. 05-13-00477-CV, 2013 WL 3929251, at *1 (Tex. App.-Dallas July 26, 2013, orig. proceeding) (mem. op.).[3]

         3. Application of the Law to the Facts

         a. Did Andra fail to give proper notice of the petition and hearing?

         Glassdoor argues first that the trial court abused its discretion by granting Rule 202 relief because Andra did not give notice to the ...


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