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Click here for the full text of this decision FACTS:In this original proceeding, the petitioner seeks a writ of mandamus to direct the trial court judge to vacate his order of Jan. 6, 2006, granting Dell’s motion to take depositions prior to suit of Scott Bartlow, Brian Thome, and Brandon (Charles) McLamb pursuant to Texas Rule of Civil Procedure 202. Relators are Hewlett-Packard Company, Bartlow, Thome and McLamb. The proposed deponents are former employees of Dell who are now employed at Hewlett-Packard. Each of the proposed deponents had signed employment agreements while employed at Dell limiting their disclosure of confidential and proprietary information of Dell both during and after their employment. They also signed new employment agreements with Hewlett-Packard limiting their disclosure of confidential and proprietary information of Hewlett-Packard. Dell claims that it suspects the proposed deponents are misappropriating Dell’s trade secrets for the benefit of Hewlett-Packard and seeks to investigate its suspicions by utilizing Rule 202 pre-suit depositions of its former employees. HOLDING:Conditionally granted. Dell has not established that the benefit of the requested depositions outweighs the potential burden or expense of the procedure as required by Rule 202. Further, Dell has not established that the discovery of Hewlett-Packard’s trade secret information is necessary for the fair adjudication of an existing claim or defense. Under Rule 202, a person may petition the court for an order authorizing the taking of a deposition to investigate a potential claim or suit without actually filing a lawsuit. The trial court shall authorize a pre-suit deposition if, and only if, the court finds that “the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.” According to Dell, if the testimony of the proposed deponents confirms Dell’s suspicions that Hewlett-Packard is misappropriating Dell’s trade secrets, Dell will benefit from the knowledge that a lawsuit against Hewlett-Packard is warranted. If, on the other hand, the testimony of the proposed deponents reveals that Hewlett-Packard is not misappropriating any of Dell’s trade secrets, the benefit to both parties will be the saved expense of prosecuting and defending a suit. Requiring an individual to sit for a deposition and disclose information to a former employer, under oath, as to why he or she left their employ to work for a competitor as well as exactly what the individual is doing for the competitor � particularly when no suit has been filed � is a substantial burden, the court decides. It is intrusive, expensive and time-consuming. The court notes that complications involved in responding to questions designed to ferret out trade secret information of the individual’s current employer, together with how such information might or might not have been affected by knowledge gained while with a previous employer, make the burden of such a deposition even more onerous. For Dell to be entitled to Rule 202 depositions under these circumstances, the likely benefit of the depositions must outweigh this substantial burden. The benefit articulated by Dell is that Dell may be able to determine whether it has legitimate claims against relators. Such knowledge would likely be a benefit to Dell. However, this benefit, alone, does not outweigh the burden imposed on the potential deponents, particularly where valuable trade secrets are involved, the court decides. Dell’s view of Rule 202′s benefit/burden analysis would allow individuals or companies to take pre-suit depositions of business competitors in a broad range of circumstances because the expense of taking a limited number of depositions can almost always be argued to be less than the expense of filing and prosecuting a lawsuit. Allowing companies to conduct pre-suit depositions based solely on the possibility that a lawsuit may be avoided would allow companies to use Rule 202 to gain access to the trade secrets of competitors under the pretext of investigating suspected, but unknown, claims. In light of the substantial burden to Hewlett-Packard and the proposed deponents, as well as the danger that potential litigants could use Rule 202 for anti-competitive purposes, the court concludes that Dell has not met its burden of establishing that the benefit of the requested depositions in the situation presented by this case outweighs the burden or expense of the procedure. Relators also contend that the trial court abused its discretion by allowing discovery of Hewlett-Packard’s trade secrets without a showing that the discovery is necessary to a fair adjudication of a claim or defense by Dell. The trial court’s order permitting Dell to discover Hewlett-Packard’s trade secrets without having conducted a balancing test weighing the harm to Hewlett-Packard against a need by Dell to have the information to prosecute an existing, known claim constitutes an abuse of discretion, the court holds. OPINION:Waldrop, J.; Law, C.J., Puryear and Waldrop, J.J.

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