in Re PrairieSmarts LLC and Casey Rockwell
in Re PrairieSmarts LLC and Casey Rockwell
Opinion of the Court
OPINION
I. Introduction
Relators PrairieSmarts LLC and Casey Rockwell seek a writ of mandamus directing Respondent to vacate a September 18, 2013 order granting Real Party in Interest TD Ameritrade, Inc.’s rule 202 petition. See Tex.R. Civ. P. 202. Because we hold that Respondent abused his discretion by granting the rule 202 petition and because Relators possess no adequate remedy at law, we will conditionally grant the writ.
II. Factual and Procedural Background
Four former employees of TD Ameri-trade subsequently became employed by PrairieSmarts.
In January 2013, PrairieSmarts filed a patent application
Respondent set a hearing on TD Ameri-trade’s rule 202 petition; a week before the hearing, PrairieSmarts filed affidavits from Dr. Piccinini, Chochon, Nagy, and Rockwell, asserting that no confidential information belonging to TD Ameritrade was utilized in creating the code for Port-folioDefense™ and claiming that the information sought by TD Ameritrade constituted trade secret information belonging to PrairieSmarts.
At the hearing on TD Ameritrade’s rule 202 petition, TD Ameritrade argued that the facts as set forth below constituted “smoke,” “red flags[,]” or “the indicia of a potential appropriation of trade secrets case” sufficient to justify the requested discovery. TD Ameritrade provided Respondent with three demonstrative exhibits that it had created utilizing information from the four affidavits filed by PrairieS-marts. The three exhibits are one-page typed sheets titled, “Facts About PrairieS-marts’s Principals,” “Timeline,” and “Facts Justifying Investigation.” The documents show the dates the four former TD Ameri-trade employees left TD Ameritrade and began employment with PrairieSmarts, provided a comparison of the time it took to create the Profit Margin model at TD Ameritrade versus the time it took to create PortfolioDefense™ at PrairieSmarts, and stated that the following facts justified TD Ameritrade’s investigation via the discovery it had requested from PrairieS-marts: the fact that three of the four PrairieSmarts principals were directly responsible for TD Ameritrade’s confidential risk analysis; the fact that PrairieSmarts’s principals have thirty-one combined years of TD Ameritrade tenure; the fact that five days after Dr. Piccinini left TD Ameri-trade, he co-founded PrairieSmarts; the fact that three months after Rockwell started working at PrairieSmarts, a patent application was filed for PortfolioDe-fense™, while it took fourteen months af
At the hearing, PrairieSmarts argued that the circumstances TD Ameritrade had characterized as smoke or red flags were nothing more than legal activities. Prai-rieSmarts asserted that some of its managing members — three of whom had been terminated by TD Ameritrade — had gone on to other employers before joining Prai-rieSmarts and had continued to work in the same area of expertise. PrairieSmarts contended that it was a mischaracterization to say that it took Dr. Piccinini and the team at TD Ameritrade fourteen months to create Portfolio Margin because twelve of the months were “simply TD Ameritradefs] using their Portfolio Margin to then get to the one-year audit that FINRA would do.” PrairieSmarts denied that PortfolioDefense™ was based on any intellectual property of TD Ameritrade and asserted that TD Ameritrade’s Portfolio Margin is different from PortfolioDe-fense™ because Portfolio Margin was designed for use by brokers — not individual investors; was created to satisfy a government-mandated risk analysis requiring brokers to evaluate volatility and risk of only 3,000 to 4,000 specifically identified stocks; and is a calculation that computes for brokers certain margin requirements for highly leveraged portfolios so that brokers can determine when a customer’s position becomes too risky and threatens the broker’s margin loan. PrairieSmarts contended that, conversely, PortfolioDe-fense™ was designed for use by individual investors, is not limited in its analysis to 3,000 or 4,000 specifically identified stocks, is not required to be submitted to FINRA, and that its design constitutes trade secrets of PrairieSmarts. PrairieSmarts concluded that Portfolio Margin and Port-folioDefense™ are “importantly different” and that TD Ameritrade should not be allowed to take a look “under the hood” at PortfolioDefense™ only to determine that it is not based on TD Ameritrade’s confidential or proprietary assets. PrairieS-marts also claimed that beta testing of PortfolioDefense™ is available through PrairieSmarts’s website and that TD Am-eritrade has the ability to participate in the beta testing
During the hearing, Respondent decided that he would not rely exclusively on Prai-
Respondent subsequently issued a September 18, 2013 order finding that “the likely benefit of allowing TD Ameritrade to take the requested discovery to investigate one or more potential claims outweighs the burden or expense of the procedures set out herein.” The order granted TD Amer-itrade’s rule 202 petition in toto, ordering that the requested depositions be taken within forty-five days and that “each deponent must produce ... all of the documents requested by TD Ameritrade, Inc. as described in its Verified Petition for Rule 202 Deposition.”
TD Ameritrade’s rule 202 petition requested — and Respondent’s order authorized — TD Ameritrade to depose Rockwell and PrairieSmarts and to elicit testimony on at least the following topics:
a. Any and all patent applications related to any PrairieSmarts tool, software, or system (including but not limited to PortfolioDefense™) filed by or caused to be filed by PrairieSmarts or any one or more of its managing members, including any and all patent applications that form the basis of PrairieS-marts’[s] claims that PortfolioDefense™ is patent pending.
b. The time horizon, statistical distribution, and confidence interval used in any PrairieSmarts tool, software, or system (including but not limited to Portfo-lioDefense™) and whether any one or more of the time horizon, statistical distribution, and confidence interval support what PrairieSmarts refers to as the “Range of Motion (History).”
c. The approach used in the implied volatility-based model of any PrairieS-marts tool, software, or system (including but not limited to PortfolioDefense™ ), including how PrairieSmarts converts option pricing to what it refers to as the “Range of Motion (Implied).”
d. Identification of methods, concepts, or ideas imported from the dissertation of Renaud “Ron” Piccinini into any PrairieSmarts tool, software, or system (including but not limited to Portfo-lioDefense™).
e. How PortfolioDefense performs calculations in 3/10 of a second, as Prai-rieSmarts claims.
f. Whether PrairieSmarts purchased, generated, or otherwise acquired historical market, financial, and/or securities data for use in designing, developing, and testing PortfolioDefense™, and, if so, from what source such data was purchased or otherwise acquired.
g. Whether PrairieSmarts used TD Ameritrade’s Confidential and Proprietary Assets, including historical market, financial, and/or securities data, in designing, developing, and testing Portfo-lioDefense™.
h. The disposition, from October 2012 up to and including the present, of any privately purchased external storage device and other similar hardware that Mr. Rockwell used while employed by TD Ameritrade to access TD Ameri-trade resources (including TD Ameri-trade’s systems and data, including TD Ameritrade’s Confidential and Proprietary Assets).
i. The design, development, and testing of PortfolioDefense™, including the*303 identity of contributors and the history of development.
TD Ameritrade’s rule 202 petition requested Relators to produce — and Respondent’s order required Relators to produce — for inspection and copying at their depositions' the following categories of documents:
a. Any and all patent applications related to any PrairieSmarts tool, software, or system (including but not limited to PortfolioDefense™) filed by or caused to be filed in any patent office by PrairieSmarts or any one or more of its managing members, including any and all patent applications that form the basis of PrairieSmarts’[s] claims that Port-folioDefense™ is patent pending.
b. Documents sufficient to show the identity of contributors and the history of development of any PrairieSmarts tool, software, or system (including but not limited to PortfolioDefense™), including information from a code repository, project tracking software, version control systems, and vendor contracts.
c. Documents sufficient to show any and all source(s) from which PrairieS-marts purchased, generated, or otherwise obtained historical market, financial, and/or securities data for use in designing, developing, and testing Port-folioDefense™.
d. Documents sufficient to show the identification of methods, concepts, or ideas imported from the dissertation of Renaud “Ron” Piccinini into any Prai-rieSmarts tool, software, or system (including but not limited to PortfolioDe-fense™).
e. Documents sufficient to show the time horizon, statistical distribution, and confidence interval used in any PrairieS-marts tool, software, or system (including but not limited to PortfolioDefense™ ).
• f. Documents sufficient to show the approach used in the implied volatility-based model of any PrairieSmarts tool, software, or system (including but not limited to PortfolioDefense™).
g. Documents sufficient to show the manner in which PortfolioDefense performs calculations in 3/10 of a second, as PrairieSmarts claims.
The order also contained an “Attorney’s Eyes Only” provision, limiting access of the above information but permitting disclosure to TD Ameritrade of “the general nature of the Attorney’s Eyes Only Information, without disclosing the specifics of any such information, and to the extent such general disclosure is necessary for advising [TD Ameritrade].”
PrairieSmarts filed this petition for writ of mandamus, and we granted temporary emergency relief, staying the depositions and associated document production granted by Respondent’s order. TD Ameri-trade timely filed a response; PrairieS-marts timely filed a reply.
III. The Issues PRESENTED
In three issues, PrairieSmarts contends in its petition for writ of mandamus that TD Ameritrade failed to meet its burden under Texas Rule of Civil Procedure 202 to show that the benefit of possibly avoiding the expense of a lawsuit outweighs the burden on PrairieSmarts of disclosing trade secrets, that TD Ameritrade failed to meet its burden under Texas Rule of Evidence 507 to show how lack of presuit access to PrairieSmarts’s trade secrets would so impair the presentation of TD Ameritrade’s case on the merits that there is a real threat of an unjust result, and that venue for TD Ameritrade’s rule 202 petition is not proper in Tarrant County to obtain the deposition of PrairieSmarts’s corporate representative.
Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630-31 (Tex.) (orig. proceeding), cert. denied, - U.S. -, 133 S.Ct. 167, 184 L.Ed.2d 35 (2012); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A party to a rule 202 petition against whom suit is anticipated may seek review of an allegedly improper rule 202 order via mandamus. In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding); In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding); In re Emergency Consultants, Inc., 292 S.W.3d 78, 80 (Tex.App.-Houston [14th Dist.] 2007, orig. proceeding [mand. denied] ); In re Hewlett-Packard, 212 S.W.3d 356, 360 (Tex.App.-Austin 2006, orig. proceeding). A party to a rule 202 proceeding has no adequate remedy by appeal if the trial court abused its discretion by ordering discovery that would compromise procedural or substantive rights. In re Chernov, 399 S.W.3d 234, 235 (Tex.App.-San Antonio 2012, orig. proceeding). As in other original proceedings, we review a trial court’s order granting a verified petition to take depositions before suit under an abuse of discretion standard. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 568-69 (Tex.App.-Dallas 2011, orig. proceeding).
V. AppliCable Law
A. Trade Secrets
A trade secret “is one of the most elusive and difficult concepts in the law to define.” Lear Siegler, Inc. v. Ark-Ell Springs, Inc., 569 F.2d 286, 288 (5th Cir. 1978). Generally, a trade secret is any formula, pattern, device, or compilation of information used in a business, which gives the owner an opportunity to obtain an advantage over his competitors who do not know or use it. Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1123 (5th Cir. 1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); In re Bass, 113 S.W.3d 735, 739 (Tex. 2003) (orig. proceeding) (quoting Computer Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996)). Combinations of disclosed technologies may constitute a trade secret. See, e.g., Ventura Mfg. Co. v. Locke, 454 S.W.2d 431, 432-34 (Tex.Civ.App.-San Antonio 1970, no writ).
Texas courts consider the following factors in determining whether the material at issue qualifies for the trade secret privilege: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of the measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex. 2009) (orig. proceeding); Bass, 113 S.W.3d at 739. All six factors need not exist to establish a trade secret because trade secrets do not fit neatly into each factor every time and because other factors may also be relevant depending on the circumstances of a particular case. Bass, 113 S.W.3d at 740.
A litigant may claim a privilege to refuse to disclose a trade secret so long as the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. Tex.R. Evid. 507. Thus, in determining whether a trade secret must be disclosed, a trial court utilizes a two-step, burden-shifting procedure. In re Cont’l
The burden on the party seeking discovery of trade secrets requires a demonstration with specificity of exactly how the lack of the trade secret information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 733 (Tex. 2003) (orig. proceeding). The test cannot be satisfied merely by general assertions of unfairness. Id. Nor is necessity established by a claim that the information would be useful rather than necessary. See In re XTO Res. I, LP, 248 S.W.3d 898, 905 (Tex.App.-Fort Worth 2008, orig. proceeding). If an alternative means of proof is available that would not significantly impair the presentation of the case’s merits, then the information is not necessary. See Union Pac. R.R. Co., 294 S.W.3d at 592-93. Finally, this specificity showing must be made with regard to each category of trade secret information that is sought. In re Goodyear Tire & Rubber Co., 392 S.W.3d 687, 696 (Tex.App.-Dallas 2010, orig. proceeding). Only if the requesting party meets this burden of establishing that the trade secret information is necessary for a fair adjudication of its claims should the trial court compel disclosure of the trade secret information, subject to an appropriate protective order. Cont’l Gen. Tire, Inc., 979 S.W.2d at 613.
B. Rule 202 of the Texas Rules of Civil Procedure
Texas Rule of Civil Procedure 202 permits a person to petition a trial court for authorization to take a deposition before suit is filed in two circumstances: (1) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (2) to investigate a potential claim or suit. Tex.R. Civ. P. 202.1(a), (b). The trial court may order that the requested deposition be taken only if it expressly finds either (1) that allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit or (2) 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. In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding); Jorden, 249 S.W.3d at 423.
Rule 202 depositions are not now and never have been intended for routine use. Jorden, 249 S.W.3d at 423. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are. Id. To prevent an end-run around discovery limitations that would govern the anticipated suit, a rule 202 petitioner cannot obtain by rule 202 what it would be denied in the anticipated action. Wolfe, 341 S.W.3d at 933. Accordingly, courts must strictly limit and carefully supervise presuit discovery to prevent abuse of the rule. Id.
C. To Obtain Presuit Discovery of Information that Qualifies as Trade Secret Information, the Burdens Imposed Under Rule of Evidence 507 and Rule of Civil Procedure 202 Must Both Be Satisfied
Rule 202.5 provides, “The scope of discovery in depositions authorized by this
A rule 202 petitioner must also establish either that allowing the requested deposition may prevent a failure or delay of justice in an anticipated suit or that the likely benefit of allowing the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure. Tex.R. Civ. P. 202.4(a)(1), (2); Does, 337 S.W.3d at 865. This is a totally separate burden than the burden shifted to a party seeking discovery of information proved by the party resisting discovery to constitute trade secret information. Compare Does, 337 S.W.3d at 865, with Bridgestone/Firestone, Inc., 106 S.W.3d at 733.
So, a rule 202 petitioner seeking presuit discovery of information that has been proven to be trade secret information must first satisfy the burden under rule 507 of the rules of evidence of demonstrating the necessity for its discovery of the trade secret information by showing with specificity exactly how denial of the discovery will impair the presentation of its case on the merits to the extent that an unjust result is likely. See Bridgestone/Firestone, Inc., 106 S.W.3d at 733; Cont’l Gen. Tire, Inc., 979 S.W.2d at 613. If a rule 202 petitioner satisfies this burden of showing the necessity for discovery of the trade secret information, the rule 202 petitioner must next show that it is entitled to obtain such trade secret information presuit because allowing the requested deposition and associated document production may prevent a failure or delay of justice in an anticipated suit or that the likely benefit of allowing the requested deposition and associated document production to investigate a potential claim outweighs the burden or expense of the procedure. Tex.R. Civ. P. 202.4(a)(1), (2); Does, 337 S.W.3d at 865. In summary, a rule 202 petitioner seeking presuit discovery of information that has been proven to be trade secret information must satisfy both of the two distinct and separate burdens imposed under rule 507 of the rules of evidence and under rule 202 of the rules of civil procedure. See Hewlett-Packard, 212 S.W.3d at 363-64 (addressing both burdens); In re Rockafellow, No. 07-11-00066-CV, 2011 WL 2848638, at *3 (Tex.App.-Amarillo 2011, orig. proceeding) (mem. op.) (same).
D. Analysis
1. PrairieSmarts Established that the Information Sought by TD Ameri-trade Concerning PortfolioDe-fense™ Constitutes Privileged Trade Secret Information
Dr. Piccinini explained in his affidavit that PortfolioDefense™ is “based on my life[’s] work in this area and put into functional computer code using Mr. Rockwell’s computer programming expertise.” He stated that the details of how Portfo-lioDefense™ works and how it was developed are not known outside of PrairieS-marts and that it cannot be duplicated by others without access to PortfolioDe-
Applying the trade secret factors enunciated by the Texas Supreme Court, each of the factors weighs in favor of Relators; the record establishes and we hold that Relators met their burden of showing that all but one category of the information sought by TD Ameritrade — both by asking deposition questions on the topics listed above
2. TD Ameritrade’s Burden Under Rule of Evidence 507 Not Satisfied
Once PrairieSmarts met its burden to establish that the information sought by TD Ameritrade constituted privileged trade secret information under rule 507 of the Texas Rules of Evidence, the burden then shifted to TD Ameritrade to show that the trade secret information sought is necessary for a fair adjudication of TD Ameritrade’s claims. See Cont’l Gen. Tire, Inc., 979 S.W.2d at 613. In its second issue, PrairieSmarts argues that TD Ameritrade did not satisfy this burden because TD Ameritrade did not produce any evidence or expert testimony to support its contention that the trade secret information sought by TD Ameritrade from PrairieSmarts is necessary to support any claim against PrairieSmarts.
TD Ameritrade contends that it met its burden of establishing necessity under the rule 507 burden-shifting analysis. It references the facts that it presented at the hearing in the trial court on its rule 202 petition — these are the same facts contained in the three demonstrative exhibits titled, “Facts About PrairieSmarts’s Principals,” “Timeline,” and “Facts Justifying Investigation.” These facts, TD Ameri-trade contends, indicate “the highly suspect circumstances at play here.” TD Ameritrade asserts that it established necessity because “the [trade secret] information at issue is the very subject of TD Ameritrade’s claim of misuse or misappropriation.”
The facts relied upon by TD Ameritrade to justify investigation into a claim against PrairieSmarts are facts relevant to the rule 202 burden, not to the burden shifted to TD Ameritrade under rule 507. That is, the facts contained in the three demonstrative exhibits titled, “Facts About PrairieSmarts’s Principals,” “Timeline,” and “Facts Justifying Investigation” are relevant to establishing whether TD Ameritrade met its rule 202 burden to show that the benefit of allow
Because PrairieSmarts established that all of the information sought by TD Ameri-trade in its verified rule 202 petition, with the exception of deposition topic (h), constitutes trade secret information, and because TD Ameritrade failed to satisfy the burden under rule 507 of the rules of evidence of establishing necessity, we hold that Respondent abused his discretion by ordering the presuit depositions and the document production. See Bass, 113 S.W.3d at 738 (“If a trial court orders production once trade secret status is proven, but the party seeking production has not shown a necessity for the requested materials, the trial court’s action is an abuse of discretion.”). We sustain Rela-tors’ second issue.
VI. CONCLUSION
Having determined that Respondent abused his discretion by issuing an order permitting presuit discovery of information and documents that were proven to be subject to a trade secrets privilege in the absence of proof of necessity by TD Amer-itrade, we conditionally grant the writ. Respondent is directed to vacate his September 18, 2013 order authorizing the pre-suit depositions of Rockwell and PrairieS-marts and compelling the production of documents concerning PortfolioDefense™ .
MEIER, J., filed a concurring opinion.
. PrairieSmarts is a Nebraska start-up company.
. TD Ameritrade’s counsel explained that "the [Portfolio Margin application] is something that the government requires of organizations like TD Ameritrade to demonstrate how we’re managing risk in our clients' portfolios. And the government allows us to develop proprietary means to do that.”
. Patent applications are maintained by the United States Patent and Trademark Office as confidential for eighteen months after the application is filed or until issuance of the patent, whichever comes first, and the information regarding patent applications may not be released before that time without the permission of the applicant. See 35 U.S.C.A. § 122 (West 2001).
. Because the arguments of Relator PrairieS-marts and Relator Rockwell are identical in this original proceeding, except as to the venue issue, we sometimes refer to both Relators collectively as PrairieSmarts.
. TD Ameritrade also admitted into evidence screen shots from PrairieSmarts’s website and the FINRA application for Portfolio Margin.
. In his affidavit. Dr. Piccinini likens the beta testing to “a free trial of Microsoft Word[— the user can try the product] without being able to access the underlying programming and source code that allows Microsoft Word to operate and that is the confidential, proprietary, and trade secret information of Microsoft.”
. This is the position taken by TD Ameritrade; it argues that "the Rule 507 analysis applicable here should be exactly the same as it would be had TD Ameritrade actually filed its trade secret misappropriation claim first and then sought the same discovery.”
. TD Ameritrade contends that PrairieSmarts does not rely on the documents themselves to meet the burden of establishing trade secret status. But Relators’ unopposed motion to file documents under seal that was filed in this court explained that PrairieSmarts submitted for in camera review by Respondent the documents that it contends are protected and requests that those documents be filed under seal in our court as part of the mandamus proceeding so that we may examine all of the evidence considered by Respondent. Thus, the documents were before Respondent and are before us in addressing the issue of trade secret status.
. See In re Lowe’s Cos., 134 S.W.3d 876, 879-80 (Tex.App.-Houston [14th Dist.] 2004, orig. proceeding) (addressing assertion of trade secret privilege to information sought in a deposition).
.Respondent’s order, although containing the "Attorney's Eyes Only” provision, did not make an express finding that PrairieSmarts had established that information sought by TD Ameritrade constituted trade secrets; TD Ameritrade asserts in its response to PrairieS-marts petition for writ of mandamus that the information is not subject to a trade secret privilege. As set forth above, the record conclusively establishes that PrairieSmarts proved its trade secret privilege, except with regard to deposition topic (h).
. PrairieSmarts also argues that TD Ameri-trade cannot meet its burden of establishing that the trade secret information sought by TD Ameritrade is necessary for the fair adjudication of the merits of an existing claim because there is no existing claim. See, e.g., Bass, 113 S.W.3d at 743 (explaining in a non-rule 202 case that "in order for trade secret production to be material to a litigated claim or defense, a claim or defense must first exist” and holding as a matter of law the claim did not exist); Hewlett-Packard, 212 S.W.3d at 363 (citing Bass in a rule 202 proceeding for the proposition that "[i]n order for a trial court to determine whether the trade secret production is necessary for a fair adjudication of a claim or defense, a claim or defense must first exist” and holding that, because no claims existed, the required showing of a specific, real threat of an unjust result as opposed to a theoretical, possible threat of an unjust result was not possible). In light of rule 202.5's provision that "[t]he scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed,” we decline to hold that a rule 202 petitioner can never obtain presuit discovery of trade secret information simply because a suit has not been filed.
. TD Ameritrade does not link the requested trade secret discovery to proof of any element of any cause of action.
. While evidence that trade secret information is not available through any other means is not a required showing, it is evidence supporting a finding of necessity for disclosure. See Union Pac. R.R. Co., 294 S.W.3d at 593.
. TD Ameritrade also argues that Respondent "would have been within its discretion to include consideration of the protective order’s terms and conditions in its weighing of the ultimate likely benefit and the burden.” That a trial court has ordered the parties to enter into a protective order with respect to trade secret information, however, does not dispense with the requesting party's burden to establish the necessity for the discovery of the trade secret information. See Hewlett-Packard, 212 S.W.3d at 364 (citing Cont’l Gen. Tire, Inc., 979 S.W.2d at 610).
. Because PrairieSmarts’s second issue is dispositive, we need not address its other issues.
. Although deposition topic (h) in TD Ameri-trade's rule 202 petition does not seek trade secret information, because rule 202’s benefit-burden analysis will be different given the viability of only one topic on which only Rockwell may be deposed, this provision must likewise be vacated. Nothing in this opinion, however, precludes further action in the trial court by the parties, if they so choose, to attempt to obtain a presuit deposition concerning deposition topic (h) from Rockwell only, not PrairieSmarts. And nothing in this opinion precludes Respondent from hearing such a request or ruling on it after conducting the rule 202.4(a)(2) benefit-burden test.
Concurring Opinion
Justice, concurring.
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 Am-eritrade 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 Am-eritrade 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
Reference
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