Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-09362
Justices Francis, Stoddart, and Whitehill
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.
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
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.
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
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.
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
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 . . . .
thereafter, Glassdoor and Does 1 and 2 filed a Chapter 27
dismissal motion. 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.
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.
filed a combined response to Andra's Rule 202 brief and
reply in support of their dismissal motion.
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.
filed a reply to Andra's supplemental response.
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
address appellants' second issue first.
Issue Two: Did the trial court err by granting Andra's
Rule 202 petition?
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
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.
Standard of Review
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.
2. Applicable Law
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).
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).
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
(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.).
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.
Application of the Law to the Facts
Did Andra fail to give proper notice of the petition and
argues first that the trial court abused its discretion by
granting Rule 202 relief because Andra did not give notice to