In re John Does 1 and 2
PRK Enterprises brought a pre-litigation discovery proceeding under Rule 202 of the Texas Rules of Civil Procedure, seeking to identify the anonymous creators of several blogs, www.operationkleinwatch.blogspot.com, http://www.notthisonetoojacques.blogspot.com/, and www.samtheeagleusa.blogspot.com where PRK owner Philip Klein was criticized. The bloggers moved to quash the subpoena, but the trial court denied that motion (and the Texas Court of Appeals affirmed) on the ground that Google had purportedly consented to the discovery. (Google does not quite characterize it that way - it says that it entered agreements that were intended to allow the bloggers’ First Amendment rights to be be resolved prior to Google providing any identifying information to Klein). The bloggers sought mandamus from the Texas Supreme Court, arguing both that their First Amendment right to speak anonymously had been disregarded, and that the order compelling discovery was in violation of the procedures required by Texas law. The Supreme Court reached only the latter ground, saying that the agreement of the party seeking discovery and the party from which discovery was sought was not a sufficient basis for an order compelling discovery because the trial court must still make the findings required by the Rule, that allowing the discovery "may prevent a failure or delay of justice in an anticipated suit," and 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." The Court remanded the case to allow the trial court to decide whether that text could be met.
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