                        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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