Defendant's Motion for Protective Order

Beginning of Legal Text

CAUSE NO. 199 596 97

DEFENDANT'S MOTION FOR PROTECTIVE ORDER

Defendant EVAN BROWN asks the Court to protect him from DSC COMMUNICATIONS's AMENDED TEMPORARY ORDER and AMENDED ORDER GRANTING EXPEDITED DISCOVERY and shows:

Introduction

On April 24, 1997, Plaintiff DSC COMMUNICATIONS CORPORATION sued Defendant EVAN BROWN for injunctive relief, breach of contract, and for declaratory judgment seeking to assert ownership and compel - disclosure of a private proprietary intellectual property interest ("the idea" or "the Solution") belonging solely to Defendant.

II.

After having known about the existence of the idea for a year and having made Defendant an offer to acquire the rights to the idea, Plaintiff filed its petition alleging ownership of the idea, sought and obtained the attached Temporary Restraining Order, filed the attached Motion to Expedite Discovery and obtained the attached Order Granting Motion to Expedite Discovery. Under that Order as submitted by Plaintiff, Plaintiff sought to serve Defendant with a deposition notice compelling Defendant to produce all documents relating to the "Solution" before the Court has an opportunity to rule on the ownership of the Solution.

III.

In the Temporary Restraining Order signed by the Court, the Court struck the submitted language compelling Defendant to immediately disclose to Plaintiff the idea which is the object of the suit, and in the Order Granting Motion for Expedited Discovery, the Court again struck the submitted language which would likewise have compelled Defendant to produce for the Plaintiff at deposition any documents containing the idea.

IV.

Apparently unsatisfied with the Temporary Restraining Order and Order Granting Motion entered by Judge Caton,. Plaintiff apparently requested and obtained, without further motion, an Amended Temporary Restraining Order and an Amended Order Granting Notion for Expedited Discovery, both of which put back into the orders the language which had been struck by Judge Caton.

V.

Further, Plaintiff obtained an order granting substituted service based apparently on an affidavit of an attorney for Plaintiff, Eric Pinker, who swears in the affidavit that he has personal knowledge of the facts contained therein but recites alleged facts that he clearly obtained from the process server used by Plaintiff. The affidavit is not sworn to by the referenced process server.

VI.

By its pleadings, Plaintiff is attempting to force Defendant to disclose the idea before the Court has determined its ownership. The Amended Order Granting Motion for Expedited Discovery purports to make Plaintiff's Notice of Intention, with Duces Tecum, validly compel Defendant's attendance despite its improper service upon Defendant less than two days before the time set for the deposition.

VII.

The Notice of Intention to Take Oral and Videotaped Deposition of Evan Brown contains the following objectionable requests:
3. All documents or other materials related to the Solution.

4. All documents or other materials used by you to develop, refine, or conceptualize the Solution.

5. All documents related to any communications between you and any other person or entity concerning the Solution.

6. All agreements between you and any person or entity concerning the Solution.

8. All business plans, strategies, memoranda, or analyses related to the research and development of the Solution.

10. All computer hard drives owned or used by you in the last ten years.

VIII.

Defendant asks the Court to enter an order protecting it from Plaintiff's Amended Temporary Restraining Order, Amended Order Granting Motion for Expedited Discovery, and Notice of Intention to Take Oral and Videotaped Deposition Duces Tecum of Evan Brown.

Argument and Authorities

IX.

A trial court has discretion to protect a party with a protective order. Axelson. Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990); Tex. R. Civ. P. 166b(5). Defendant asks this Court to exercise its discretion and grant a protective order because:
1. the current Amended Temporary Restraining Order purports to compel Defendant to disclose immediately to Plaintiff the idea over which Plaintiff seeks to assert ownership by this action despite the Court's prior determination that Plaintiff was not presently entitled to same. Since ownership of Defendant's idea is the sole issue in the case, its disclosure should occur only upon determination at trial that Plaintiff is the rightful owner of the idea.

2. the current Amended Order Granting Expedited Discovery purports to compel Defendant to produce at deposition all documentation and other matters relating to the Solution, despite the Court's prior determination that Plaintiff was not entitled to require such production at the expedited deposition.

3. Plaintiff's Amended Temporary Restraining Order and deposition notice with duces tecum compel or seek to compel production and disclosure of information protected by the trade secret privilege. See Tex.R.Civ.Evid. 507; Hyde Cory v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958). Specifically, Plaintiff's Amended Restraining Order, and the Amended Order Granting Motion for Expedited Discovery as manifested in the Notice Duces Tecum paragraphs 3, 4, 5, 6, 8, and 10, compel or seek to compel production and disclosure of information regarding details of a process developed by Defendant in connection with his consulting business which gives Defendant an advantage over competitors who do not know or use the process.

4. Plaintiff's Amended Restraining Order and the Amended Order Granting Motion for Expedited Discovery constitute an invasion of a personal property right. See Tex.R.Civ.P. 166b(4). Specifically, Plaintiff Is Amended Restraining Order and the Amended Order Granting Motion for Expedited Discovery as manifested in the Notice Duces Tecum paragraphs 3, 4, 5, 6, 8, and 10, compel or seek to require production and disclosure of information regarding details of a process developed by Defendant which is the intellectual property of its creator. Absent admissible proof by a preponderance of the evidence that the information is the property of Plaintiff, Plaintiff has no more right to the property than any other person or entity. Allowing Plaintiff to obtain the information without trial eliminates the need for the trial and awards Plaintiff the relief sought without the requirement of admissible evidence and proof by a preponderance of the evidence. Defendant informed Plaintiff that the process would be of great value to Plaintiff so Plaintiff now is seeking to have the legal system help it to obtain Defendant's idea without paying for it.

5. Plaintiff's Amended Order Granting Motion for Expedited Discovery fails to give Defendant five days notice of the intent to take Videotaped Deposition as required by Tex.R.Civ.P. 202(1)(a) which does not allow Defendant proper time to object to the videotaped deposition.

Prayer

For these reasons, Defendant asks the Court to set his motion for protective order for hearing and, after the hearing, issue an order protecting Defendant from having to disclose the idea or produce any documents or information revealing the idea in issue until proper proof that Plaintiff is entitled to possession of same by:
1. postponing the date and time of the deposition for at least ten days to allow Defendant to obtain trial counsel, determine objections to the notice of oral and videotaped deposition, and to 'Prepare for the deposition;

2. denying the requested discovery in part. Specifically, refusing to allow compelled disclosure of the "Solution" or documents or other things which might disclose same.

3. modifying the Amended Temporary Restraining Order and Amended Order Granting Motion for Expedited Discovery to restrike the language originally stricken in the Court's initial orders.

Defendant would represent to the Court his willingness to agree to entry of a temporary injunction prohibiting Defendant from disseminating or otherwise disclosing the Solution to any other person or entity until the issue of ownership of the Solution is resolved at trial or otherwise.

Respectfully submitted,

_______________________________
Dale Drake, Attorney at Law
State Bar No. 103700


P.O. Box 1662
110 E. Davis, Suite 200
McKinney, Texas 75070-1662
(972) 548-0800
(972) 758-2222 (Dallas Metro)
(972) 548-8046 (FAX)


Attorney for Defendant

CERTIFICATE OF CONFERENCE

_______________________________
Dale Drake

NOTICE OF HEARING

________________________
Judge Presiding

CERTIFICATE OF SERVICE

________________________________
Dale Drake

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