Texas Supreme Court Declines to Decide Whether Anti-SLAPP Motion Applies in Pre-Suit Depositions in Texas

The Texas Supreme Court punted on deciding an important issue for litigants facing online defamation and disparagement in Glassdoor, Inc. v. Andra Group, LP, No. 17-0463 (Tex. January 25, 2019).

The Texas Citizens Participation Act (“TCPA”), often referred to as the Texas Anti-SLAPP law, protects the first amendment freedoms of individuals and businesses.  It does so by essentially requiring that a plaintiff have sufficient evidence to prove the case soon after the litigation is filed.  Since the TCPA was enacted about 7 years ago, much of the litigation has concerned a person’s freedom of speech versus liability for defamation.  Many of these cases involve online speech, whether it be emails, texts, online reviews or online bullying. The Glassdoor case concerned anonymous online defamatory reviews.

This case pitted the Andra Group, LP, an online clothing boutique, against Glassdoor, Inc., a website publishing anonymous reviews designed to assist employees in finding information about employers.  In 2015, Andra discovered that someone posted damaging disparaging comments against Andra on Glassdoor.  The anonymous poster stated that Andra violated labor laws, had illegal hiring practices, engaged in racial and sexual orientation harassment, hired illegal immigrants and had a racist and sexist supervisor.  Andra was obviously concerned that potential employees reading these posts would be dissuaded from applying for a position with Andra.

Andra disputed the truth of the postings but had no idea who posted these online reviews.   Was it a former employee, a competitor seeking to damage Andra, or someone who had a personal grudge against Andra or its owners?  Andra had legal rights to pursue for defamation and business disparagement but did not know who to sue.  Andra could not sue Glassdoor, the publisher, because the federal Communications Decency Act protects online publishers.  Without knowing who posted the reviews, Andra did what the Texas Rules allow in this situation–file a proceeding under Texas Rule of Civil Procedure 202 to take a deposition of Glassdoor.

Glassdoor opposed the taking of its deposition.  Glassdoor did not want to be in the position of revealing its posters. Glassdoor filed a motion to dismiss the Rule 202 proceeding stating that Andra had failed to meet the requirements of the TCPA and provide clear and specific evidence of its claims and damages.  Andra stated that the TCPA did not apply to the Rule 202 proceeding, as it was seeking a deposition, and not suing Glassdoor.  Andra also stated that if the TCPA applied, Andra was only required to prove that the benefits of taking the deposition outweighed the harm.  The trial court, and the 5th District Court of Appeals, agreed with Andra and allowed the deposition to take place.  Before that happened, Glassdoor appealed to the Texas Supreme Court.

A funny thing happened on the way to the Supreme Court.  In the time between Andra filing the Rule 202 proceeding and reaching the Texas Supreme Court, the statute of limitations ran on Andra’s defamation and business disparagement claims against the anonymous posters.  First year law students might question why the statute of limitations would make a difference at this stage.  After all the statute of limitations is an affirmative defense that could be used by the anonymous poster not Glassdoor.  The Supreme Court recognized this fact, but in an apparent issue of first impression held in a footnote that “where the statute of limitations runs on a claim as a matter of law while a Rule 202 petition seeking to investigate that claim is being litigated, the Rule 202 proceeding is rendered moot.” See slip copy, pg. 6 fn. 3. In other words, the Supreme Court created a new rule of law that a litigant had better get an order in a Rule 202 proceeding and take the deposition before the statute of limitations runs. The court cited no cases, nor any legislative text, in stating this new rule.  As a result of finding the matter moot, the Texas Supreme Court punted on deciding the issue that was front and center, i.e., whether the TCPA applied to a Rule 202 proceeding.

So what is a business in Andra’s position to do? Many small businesses face anonymous online attacks, some of which we have found to be instigated by competitors pretending to be customers.  What can these businesses do?  The Texas Supreme Court cited to In re Does 1–10, 242 S.W.3d 805, 814 (Tex. App.—Texarkana 2007, orig. proceeding), where a hospital that suffered anonymous reviews sued several unknown parties (called Does 1-10).  There are problems to this approach, and it can be ridiculously expensive, but the court in that case stated that the hospital could bring suit and use Texas discovery rules to determine the persons who wrote the reviews.  It may be that the Texas Supreme Court in Glassdoor approved that procedure.

It is great that we have a robust freedom of speech and are allowed to anonymously comment as to any matter of subjects.  However, when malefactors can spread falsehoods and damage legitimate Texas businesses with impunity, and the only protection is to rely on the courts, it makes it difficult for less established businesses to defend against those who would damage them.