in Re PrairieSmarts LLC and Casey Rockwell ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00338-CV
IN RE PRAIRIESMARTS LLC AND
CASEY ROCKWELL
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ORIGINAL PROCEEDING
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CONCURRING OPINION
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The majority holds that TD Ameritrade failed to meet its burden to establish
necessity under rule 507’s burden-shifting framework because the facts that TD
Ameritrade rely upon are relevant only to its rule-202 burden and merely
demonstrate that PrairieSmarts’s trade secret information might be useful in
prosecuting a lawsuit. This court’s conclusion that TD Ameritrade failed to meet
its burden under rule 507 does not prohibit TD Ameritrade from potentially
making the required showing under rule 507 in the event that it later sues
PrairieSmarts and a similar dispute arises regarding production of the same
contested documents. Cf. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.
1993) (reasoning that a trial court generally retains plenary power over its
interlocutory orders until a final judgment is entered); Reynolds v. Sw. Bell Tel.,
L.P., No. 02-05-00356-CV, 2006 WL 1791606, at *4 (Tex. App.—Fort Worth
June 29, 2006) (mem. op.) (explaining that trial court may consider second
motion for summary judgment after denying first, interlocutory motion for
summary judgment). Accordingly, I concur in the majority opinion insofar as it
addresses the parties’ status in regard to the rule 202 presuit efforts to obtain
depositions and discovery, but I would specifically hold that this opinion, which
addresses rule 202 of the Texas Rules of Civil Procedure in conjunction with rule
507 of the Texas Rules of Evidence, does not preclude a trial court from
revisiting this discovery issue if any of the parties to this mandamus action files a
petition for relief.
/s/ Bill Meier
BILL MEIER
JUSTICE
DELIVERED: January 23, 2014
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