Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2018-26459
consists of Justices Keyes, Higley, and Landau.
BETH LANDAU, JUSTICE
Hughes is the subject of a petition for pre-suit discovery
filed by Peter Giammanco-Hughes's former boss who seeks
her deposition to investigate, before filing suit, whether
she is the source of rumors that he committed sexual
misconduct in the workplace. See Tex. R. Civ. P.
202.1. Hughes moved to dismiss the petition under the Texas
Citizens Participation Act (TCPA or the "Act"),
arguing that Giammanco seeks her deposition as retribution
for an employment-discrimination charge she filed with the
Equal Employment Opportunity Commission (EEOC) and to
discourage others from speaking out against the
discriminatory employment practices. See Tex. Civ.
Prac. & Rem. Code §§ 27.001-.011. After the
trial court denied her motion to dismiss, Hughes filed this
interlocutory appeal. See id. § 51.014(a)(12)
(authorizing appeal of interlocutory order denying TCPA
motion to dismiss). In accordance with this Court's
precedent holding that a Rule 202 petition is not a
"legal action" subject to a TCPA motion to dismiss,
we affirm. See Caress v. Fortier, No.
01-18-00071-CV, 2019 WL 2041325, at *2 (Tex. App.-Houston
[1st Dist.] May 9, 2019, no pet. h.).
is an executive and officer at U.S. Legal Support, Inc., a
national litigation services and support company. Hughes
worked for U.S. Legal for more than a decade, first, in sales
and, later, as the HIPAA Privacy Officer, reporting directly
to Giammanco. U.S. Legal terminated Hughes's employment
in November 2017 when, according to Giammanco, her position
alleges that, after Hughes left the company, he learned of
rumors that he had acted inappropriately at work. The rumored
misconduct, which Giammanco asserts did not take place,
included an extra-marital affair with a co-worker and his
promotion of one or more female employees in exchange for
sexual favors. Giammanco claims that accusations of sexual
misconduct are "highly damaging" to men in his
he believes Hughes may be a source of the rumors he claims
are personally and professionally damaging, Giammanco seeks
to depose Hughes under Rule of Civil Procedure 202 before
deciding whether to sue her. See Tex. R. Civ. P.
202.1 ("A person may petition the court for an order
authorizing the taking of a deposition . . . (a) to
perpetuate or obtain the person's own testimony or that
of any other person for use in an anticipated suit; or (b) to
investigate a potential claim or suit."). Giammanco says
the purpose of the requested deposition is "to
investigate . . . and determine whether litigation should be
initiated against Hughes for potential claims of defamation,
tortious interference with existing contract, and tortious
interference with prospective relations."
Giammanco identified three deposition topics:
(1) Any statements Hughes made about Giammanco before or
after U.S. Legal terminated her employment;
(2) Any statements Hughes made, whether before or after U.S.
Legal terminated her employment, about Giammanco's
relationship with female employees; and
(3) Any knowledge Hughes has of statements made by current or
former U.S. Legal employees about Giammanco's conduct,
reputation, and relationships with female employees.
asserts that, because these topics are limited in scope, the
likely benefit of allowing him to depose Hughes outweighs the
burden or expense of a deposition. See Tex. R. Civ.
P. 202.4(a)(2) (requiring trial court to order properly
requested pre-suit deposition if it finds that "the
likely benefit of allowing" the deposition
"outweighs the burdens or expense of the
filed a combination response, opposing the requested
deposition and moving to dismiss Giammanco's endeavor
under the TCPA. See Tex. Civ. Prac. & Rem. Code
§ 27.003(a) ("If a legal action is based on,
relates to, or is in response to a party's exercise of
the right of free speech, right to petition, or right of
association, that party may file a motion to dismiss the
legal action."). Hughes ascribes the termination of her
employment not to any corporate reorganization but to her
decision to challenge U.S. Legal's employment practices
as contrary to federal law. Hughes avers that, in "the
years and months" before she lost her job, U.S. Legal
discriminated against female employees on the basis of sex
and then retaliated against her when she reported it to human
resources personnel, eventually leading her to file a
discrimination charge with the EEOC in December 2017 and an
amended charge in February 2018. She argues that
Giammanco's Rule 202 petition is a "legal
action" based on or related to her rights of free
speech, to petition, and of association and that, in order to
avoid dismissal, Giammanco had to (but could not) establish
by clear and specific evidence that the likely benefit of the
requested deposition outweighed the burden or expense.
denied that she is the source of any "false or damaging
information about Giammanco" and pointed to allegations
made in a 2012 lawsuit involving Giammanco as evidence that
the complained-of rumors were circulating long before she
left U.S. Legal.
opposed dismissal, arguing in response that the TCPA does not
apply to a Rule 202 proceeding and that, even if it does
apply, he established the elements not only for a pre-suit
deposition but also of his potential claims with sufficient
factual detail to avoid dismissal. Giammanco supported his
response with two affidavits-(1) the employee with whom he is
alleged to have had an affair and (2) a former employee. The
first affiant denied the affair and stated that she learned
of Hughes's statements about the alleged affair from
coworkers. The second affiant recalled Hughes making a
statement about the alleged affair, but she opined that
Hughes was not spreading a rumor because others had made the
an oral hearing, the trial court denied Hughes's motion
to dismiss. Hughes appealed and moved for an emergency stay
of the trial proceedings pending the resolution of her
appeal. Because we granted a stay, the trial court has not
yet ruled on Giammanco's Rule 202 petition.
determining whether the trial court erred by refusing to
dismiss Giammanco's Rule 202 petition under the TCPA, we
begin with the legal standards that guide our
determination-specifically, the standard codified by the
Legislature for dismissal of a "legal action"
brought to chill the valid exercise of protected rights,
see Tex. Civ. Prac. & Rem. Code §§
27.001-.011, and the standard promulgated by the Texas
Supreme Court for pre-suit discovery, see Tex. R.
Civ. P. 202.
A.Principles of law and ...