Opinion
No. 02-06-402-CV.
Opinion issued March 29, 2007.
Appealed from the 141st District Court of Tarrant County.
PANEL A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. INTRODUCTION
Appellants, multiple John Does, attempt to appeal from the trial court's rule 202.1 discovery order. For the reasons set forth below, we hold that we lack jurisdiction over Appellants' appeal. Accordingly, we grant Appellee Gerald W. Haddock's motion to dismiss this appeal and order the appeal dismissed for want of jurisdiction.
II. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Texas Rule of Civil Procedure 202.1(b), Haddock filed a petition to investigate claims. Haddock's petition alleged that he desired to investigate "libel and/or slander claims against certain individuals who posted defamatory statements about [him] on a Yahoo! Finance message board." The petition explained that the alleged defamatory statements were made about Haddock and his business associates in connection with a proxy fight relating to a business proposal made to the Sabine Royalty Trust. Examples of the allegedly defamatory messages were attached to the petition, but the individuals making the statements could be identified only by their screen names. A list of the screen names for which Haddock sought corresponding names, addresses, and telephone numbers is set forth in Haddock's petition. Because Haddock anticipated a lawsuit against these individuals for actual and punitive damages, the petition sought an order from the trial court authorizing Haddock to send a subpoena and deposition on written questions to Yahoo!, Inc. requesting identifying information of the persons listed by their screen names who had posted the allegedly defamatory internet statements.
The trial court entered an order authorizing the discovery Haddock had requested, and Yahoo!, Inc. allegedly posted the trial court's order on the official business web site where the allegedly defamatory messages had been posted. Appellants purportedly saw the order on the web site and filed "John Doe(s)' Motion to Quash and for Protective Order." In response, Haddock filed a motion to compel the discovery.
After a hearing at which counsel for Haddock, Yahoo!, Inc., and Appellants were present, the trial court entered a September 18, 2006 order granting Haddock's motion to compel in part and ordering Yahoo!, Inc. to answer Haddock's written deposition questions seeking the names, addresses, and phone numbers of the individuals Haddock had identified by screen name as posting the allegedly defamatory statements on the Yahoo! Finance message board. The trial court granted Appellants' motion for a protective order to the extent that the information to be disclosed by Yahoo!, Inc. was limited to the individuals' names, addresses, and phone numbers.
Appellants sought mandamus relief from the trial court's September 18, 2006 order, and this court denied their petition. See In re Doe(s), No. 02-06-00379-CV, 2006 WL 3114458, at *1 (Tex.App.-Fort Worth Oct. 27, 2006, orig. proceeding) (mem. op.). Appellants subsequently filed this appeal. In two issues, Appellants claim that an appeal is the proper vehicle for them to challenge the trial court's order and that the trial court erred by ordering the discovery because "the speech cannot support a defamation cause of action as a matter of law."
Yahoo!, Inc. has not appealed the trial court's September 18, 2006 order.
III. WHEN ARE RULE 202 ORDERS APPEALABLE?
Rule 202 of the rules of civil procedure incorporates the prior equitable bill of discovery procedures previously found in rules 187 and 737. See TEX. R. CIV. P. 202 cmt. 2. Consequently, the case law interpreting these prior rules is helpful in our interpretation of rule 202.
All rule references herein are to the Texas Rules of Civil Procedure unless otherwise indicated.
Under both rule 202 and the prior rules, if a petition to investigate a claim seeks discovery from a third party against whom suit is not contemplated, then the trial court's ruling on the petition is final and appealable. See Ross Stores, Inc. v. Redken Lab., Inc., 810 S.W.2d 741, 742 (Tex. 1991); Parker v. Lindsey, No. 05-98-01249-CV, 1999 WL 446067, at *1-2 (Tex.App.-Dallas 1999, pet. denied) (both construing rule 737). Conversely, if the petition to investigate a claim seeks discovery from a party against whom a suit is specifically contemplated, then the trial court's ruling on the petition is not final and appealable, and the appellate court must dismiss the appeal. See, e.g., In re Poteete, No. 02-05-00433-CV, 2006 WL 176965, at *1 (Tex.App.-Fort Worth Jan. 26, 2006, no pet.) (mem. op.) (construing rule 202 and dismissing appeal); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex.App.-Waco 2005, no pet.) (same); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902-03 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (construing rule 737 and dismissing appeal); In re Am. State Bank, No. 07-03-0483-CV, 2005 WL 1967262, at *2 (Tex.App.-Amarillo 2005, pet. denied) (mem. op.) (construing rule 202 and dismissing appeal); see also IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex.App.-Dallas 2005, no pet.) (construing rule 202 and holding that denial of request for rule 202 deposition of party against whom suit was specifically contemplated was not appealable). The Texas Supreme Court has explained the distinction in finality between an order entered based on a petition that seeks discovery from a third party against whom suit is contemplated and an order entered on a petition that seeks discovery from a third party against whom suit is not contemplated:
Bill of discovery orders directing discovery against third parties against whom suits are not contemplated are ends in themselves, resolving all discovery issues between the bill of discovery plaintiff and the discovery defendant and acting as mandatory injunctions against the discovery defendant. Such orders are therefore final and appealable.
Ross Stores, Inc., 810 S.W.2d at 742.
IV. THE PRESENT ORDER IS NOT APPEALABLE
Here, Haddock's rule 202 petition seeks — and the trial court authorized — discovery from Yahoo!, Inc., a third party against whom suit is not contemplated. Thus, the trial court's order is final as to Yahoo!, Inc. and is appealable by Yahoo!, Inc. See id. But Yahoo!, Inc. has not perfected an appeal; Yahoo!, Inc. is not a party to this appeal.
Haddock's rule 202 petition specifically seeks from Yahoo!, Inc. "identifying information" concerning persons who used twenty-eight identified screen names to post allegedly defamatory statements about Haddock on the Yahoo! Finance internet message board — Appellants. The petition indicates that Haddock anticipates suing these individuals "to recover actual and punitive damages" for "making defamatory statements about [Haddock]." Clearly, Haddock could have sought this information directly from Appellants if he had known Appellants" identities. And clearly Haddock could have bypassed the use of a rule 202 procedure altogether if he had known the identities of the individuals using the specified screen names on the Yahoo! Finance internet message board; Haddock could simply have filed suit against the individuals.
The question then is whether Appellants, as nonparties to the rule 202 proceeding — that is, Appellants are neither the bill of discovery plaintiffs nor the bill of discovery defendants — may appeal the trial court's order requiring Yahoo!, Inc. to disclose to Haddock Appellants' names, addresses, and phone numbers so that they may be sued by Haddock. Rule 202.5 provides that "depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit." TEX. R. CIV. P. 202.5. Looking to the rules governing depositions of nonparties in a pending suit, generally nonparties in a pending suit may challenge a discovery order only via a writ of mandamus, not by an appeal. See In re Metro ROI, Inc., 203 S.W.3d 400, 403 (Tex.App.-El Paso 2006, orig. proceeding); In re Bain, 144 S.W.3d 236, 239 (Tex.App.-Tyler 2004, orig. proceeding). Thus, the procedural rules applicable to nonparties indicate that the present rule 202 discovery order, like other discovery orders, is not appealable by a nonparty. Instead, Appellants' remedy is by mandamus.
Rule 202.5 also provides that "[t]he scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed." TEX. R. CIV. P. 202.5. And the scope of discovery in a pending suit expressly includes "the name, address, and telephone number of any potential parties" and the "name, address, and telephone number of persons having knowledge of relevant facts." See TEX. R. CIV. P. 194.2(b), (e). Thus, the information sought by Haddock is discoverable. See also Barron v. Vanier, 190 S.W.3d 841, 843-44 (Tex.App.-Fort Worth 2006, no pet.).
As previously noted, Appellants filed a petition for writ of mandamus, and this court denied it.
Because the trial court's September 18, 2006 rule 202 order authorizes Haddock to obtain Appellants' names, addresses, and phone numbers from Yahoo!, Inc. as opposed to from Appellants; because Yahoo!, Inc. has not appealed the trial court's order; and because persons like Appellants against whom a lawsuit is contemplated may generally not appeal a rule 202 order, we hold that the trial court's order here is not appealable by Appellants. No statute exists giving this court jurisdiction over an appeal by Appellants from the trial court's rule 202 discovery order in what essentially is soon to be a pending lawsuit against Appellants. See, e.g., Thomas, 166 S.W.3d at 747 (dismissing appeal).
In their first issue, Appellants claim that the trial court erred by eliminating their constitutional right to speak anonymously based merely on Haddock's allegation that their speech was defamatory when it was not defamatory as a matter of law. Because we have determined that we lack jurisdiction over Appellants' appeal, we need not reach this issue. See TEX. R. APP. P. 47.1 (recognizing appellate court must only address issues necessary to disposition of appeal).
We note, however, that Appellants' appendix contains samples of the allegedly defamatory postings and that a disclaimer appears at the bottom of almost every posting stating:
Reminder: . . . Never assume that you are anonymous and cannot be identified by your posts. Please read our Terms of Service.
Thus, Appellants' right to speak anonymously appears contrary to the warnings on the Yahoo! Finance message board.
V. CONCLUSION
Having determined that Appellants may not appeal from the trial court's September 18, 2006 order authorizing the disclosure to Haddock of Appellants' names, addresses, and phone numbers, we hold that we lack jurisdiction over this appeal and dismiss it for want of jurisdiction.