In re Does 1-10

242 S.W.3d 805

In re DOES 1-10.

No. 06-07-00123-CV.

Court of Appeals of Texas, Texarkana.

Submitted October 24, 2007.

Decided December 12, 2007.

James R. Rodgers, Judy Hodgkiss, The Moore Law Firm, LLP, Paris, for relator.

R. Wesley Tidwell, Ellis & Tidwell, LLP, Paris, Cory Hohnbaum, King & Spalding, LLP, Charlotte, NC, for real party in interest.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributor John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog¹ as fac_p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital. The ISP, SuddenLink Communications, is not a party to the lawsuit; Essent PRMC is the corporate identifier for Paris Regional Medical Center. For reasons stated in the opinion, we conditionally grant the writ of mandamus.

I. Factual and Procedural Background

The Hospital sued Does 1-10 alleging that Doe 1 had set up a blog that contained many scurrilous comments that "unfairly disparage and criticize the Hospital, its employees and the doctors who admirably serve patients there on a daily basis" and that his postings were defamatory. The Hospital also alleged that some postings to the blog had disclosed confidential patient health information and generally complained that the postings "are otherwise actionable under federal and state law."²

Procedurally, the Hospital filed a petition against the Does—combined with an "ex parte request to non-party to disclose information" directed at SuddenLink, explicitly based on 47 U.S.C.A. § 551(c) (West 2001 & Supp.2007), asking the trial court to direct SuddenLink to disclose the identities of the Does. On the day of filing (June 19, 2007), the court granted the motion. On July 23, the court issued a second "agreed" order, stating that the Hospital and SuddenLink had agreed to amend the prior order which provided for notice to the Does with opportunity for them to respond. If no response was made, SuddenLink was to disclose the information. Counsel James Rodgers appeared on behalf of the unnamed subscriber by letter filed August 6, and thereafter at a hearing conducted September 7. At that time, the only information before the trial court consisted of an unsworn petition, with no evidentiary attachments or affidavits. No evidence was presented at the hearing, only argument of counsel. At the conclusion of the hearing, the trial court allowed additional briefing to be submitted by Wednesday of the following week.

The trial court sent a letter to counsel dated September 14 in which, after quoting excerpts from two cases, it found that good cause had been shown and the "burden by plaintiff has been met to meet the requirements of the exceptions to the Communication Act to grant the request by Plaintiff . . . ." and directed counsel to prepare an order for the court's signature.

On September 24, counsel for Doe 1 filed a letter pointing out the inherent weakness of the Hospital's case as pled, correctly noting that no evidentiary support had been provided by the Hospital in support of its claims and that, in the absence of any such support, even the lowest level of review suggested by the courts as authorizing such discovery had not been met.

Three days later, on September 27, for the first time, counsel for the Hospital provided a petition with some form of evidentiary support—in the form of an affidavit from a representative of the Hospital stating that the statements in the petition were true and attached copies of the blog and various documents generated by the Hospital in an attempt to bolster its breach of contract claims against Does 2-10.

On the following Monday, October 1, the trial court signed an order explicitly stating it had considered the September 27 filing, as well as everything that had previously been presented to the court, overruled Doe's objection to the agreed order, and ordered SuddenLink to disclose the name and address of the subscriber.

II. Requirements for Mandamus Relief

A. General Requirements

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985).

With respect to the resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990). Review of a trial court's determination of legal principles controlling its ruling applies a much less deferential standard, since the trial court has no discretion in determining what the law is or applying the law to those facts. Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex.1996); Walker, 827 S.W.2d at 840. Consequently, the trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Huie, 922 S.W.2d at 927-28.

B. Adequate Remedy at Law

We must initially determine whether the Relator has another adequate remedy at law, such as a normal appeal. Such a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842. A party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error or evaluate its impact. This occurs when the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privilege, West v. Solito, 563 S.W.2d 240 (Tex.1978), or trade secrets without adequate protections to maintain the confidentiality of the information, Automatic Drilling Machs., Inc. v. Miller, 515 S.W.2d 256, 259 (Tex.1974).

This situation falls squarely within that reasoning. If discovery is allowed, then the identity of the blogger is revealed, the damage is done, and it cannot be rectified. Thus, mandamus is appropriate relief.

Further, a remedy by appeal may also be inadequate when it is insufficient to protect a specific constitutional right asserted by the relator. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex.1996); In re Hinterlong, 109 S.W.3d 611, 621 (Tex. App.-Fort Worth 2003, orig. proceeding). Thus, there is also irreparable harm that would be done to the defendant's constitutional right to anonymous free speech if we allowed discovery to proceed without constitutionally adequate safeguards.

C. Clear Abuse of Discretion

The remaining question is whether the trial court correctly applied the law to its ruling, and as "[a] trial court has no `discretion' in determining what the law is or applying the law to the facts;" Huie, 922 S.W.2d at 927-28; Walker, 827 S.W.2d at 840, the issue may be addressed through mandamus. "Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ." Walker, 827 S.W.2d at 840; In re Rozelle, 229 S.W.3d 757, 761 (Tex.App.-San Antonio 2007, orig. proceeding).

Application of the law is not limited to purely substantive matters. The Texas Supreme Court has in two recent cases addressed the application of procedural rules under such a rubric, and we shall do likewise. See In re Pirelli Tire, L.L.C., No. 04-1129, ___ S.W.3d ___, 2007 Tex. LEXIS 980 (Tex. Nov. 2, 2007); In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex.2004).

A failure by the trial court to analyze or apply the law correctly, as when a discovery order conflicts with the Texas Rules of Civil Procedure, constitutes an abuse of discretion. Walker, 827 S.W.2d at 840; In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003). Therefore, a discovery order that entirely disregards the Texas Rules of Civil Procedure is likewise an abuse of discretion.

It is within our purview to determine whether the court properly analyzed and applied the law to this particular portion of the proceeding.

III. Standing

The Hospital argues Relator, Doe 1, does not have standing to assert this petition for writ of mandamus. It is true Doe 1 has not been served with citation and his appearance was in response to the court's order requiring notice to him and allowing an opportunity to respond. However, the rules of discovery allow any person "from whom discovery is sought, and any other person affected by the discovery request" to move for a protective order. TEX.R. CIV. P. 192.6(a). One of the reasons to ask for such relief is to protect the movant from "invasion of personal, constitutional, or property rights." TEX.R. CIV. P. 192.6(b). A court may then make any order in the interest of justice that denies or limits the requested discovery. TEX.R. CIV. P. 192.6(b)(1), (2). The request of Doe 1 that his name should not be released is based on a possible invasion of personal and constitutional rights. We believe the rules of procedure authorize a relator to move for such protection and hence grants standing to bring this action. See In Re Shell E & P, Inc., 179 S.W.3d 125, 130 (Tex.App.-San Antonio. 2005, orig. proceeding). We realize the trial...