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In re Pickrell

Court of Appeals of Texas, Tenth District

April 19, 2017

IN RE JEREMY PICKRELL AND ERBE USA, INC.

         Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice.

         In this mandamus petition, relators, Jeremy Pickrell and Erbe USA, Inc., contend that the trial court abused its discretion by ordering the deposition of Pickrell and the production of various documents under Texas Rule of Civil Procedure 202. See Tex. R. Civ. P. 202. Because we conclude that real party in interest CONMED Corporation has failed to provide sufficient evidence to establish the Rule 202 factors, and because Rule 202 does not authorize the pre-suit discovery of documents, we conditionally grant relators' mandamus petition.

         I. Background

This mandamus proceeding arises out of CONMED's verified, pre-suit petition to take a Rule 202 deposition of its former employee, Pickrell, and to obtain various documents. Specifically, in its verified petition, CONMED asserted the following:
CONMED requests the Rule 202 deposition of its former employee, Jeremy Pickrell ("Pickrell"), for the purpose of investigating whether Pickrell has honored his non-disclosure, non-compete, client non-solicitation, and employee non-solicitation agreements and/or whether Pickrell has complied with his common law and statutory duties regarding CONMED's confidential information and trade secrets since his December 15, 2016 resignation.
. . . .
Ultimately, CONMED seeks to determine whether there is a factual basis for CONMED to assert claims against Pickrell for breach of any of his restrictive covenant agreements and/or breach of his common law and statutory duties concerning CONMED's confidential information and trade secrets. CONMED further seeks to determine if injunctive relief is warranted, if any equitable extension of one or more of Pickrell's restrictive covenants is appropriate, and/or whether Pickrell has proximately caused CONMED contractual or economic damages since resigning.

         CONMED also noted that Pickrell previously worked for CONMED as a sales representative and that he signed non-disclosure, non-compete, client non-solicitation, and employee non-solicitation provisions as part of his employment agreement with the company.[1]

However,
[s]ince his resignation, CONMED learned that Pickrell may be violating his contractual, common law, and statutory duties owed to CONMED. Shortly after the end of his employment with the Company, upon information and belief, Pickrell started working for Erbe USA, Incorporated ("Erbe") in a sales capacity. Erbe is a direct competitor of CONMED and it markets directly to the same customer base as CONMED. Pickrell may, in fact, be working in the same or substantially similar capacity as his role with CONMED, in the same territory, in violation of his contractual promises.

         Other than its verified petition and the argument of counsel at the hearing on the Rule 202 requests, CONMED did not proffer any additional evidence supporting its contentions.

         In any event, based on the aforementioned belief that Pickrell may be violating his employment agreements with CONMED by working for Erbe, CONMED ...


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