Domingo Rivera Cyber Lawyer Blog

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Internet Defamation Subpoena Quash Case - Verifone

As part of many Internet defamation cases, parties find the need to move to quash a subpoena.  Sometimes a non-party Internet Service Provider (ISP) also needs to move to quash the subpoena based on various grounds.  That was the case here with Verifone.  The opinion follows.

Case No.18-mc-80087-VKD
July 23, 2018
Re: Dkt. Nos. 1, 13

Before the Court is non-party Verifone, Inc.'s ("Verifone") Motion to Quash Gesten's Subpoena for Deposition of Verifone, Inc. (Dkt. No. 1) and Ryan Gesten's Motion to Transfer NonParty Verifone Inc.'s Motion to Quash Subpoena to Southern District of Florida (Dkt. No. 13). Having considered the parties' moving papers, declarations, and exhibits as well as the parties' arguments at the hearing on July 17, 2018, for the reasons set forth below, the Court (1) DENIES Verifone's motion to quash the subpoena without prejudice, (2) DENIES Mr. Gesten's motion to transfer the motion to quash, and (3) STAYS Verifone's compliance with the subpoena pending further ruling from the Court.
A. Non-Party Subpoena to Verifone
Ryan Gesten is the plaintiff in an action pending in the Southern District of Florida against Burger King Corporation ("Burger King") for violation of the Fair and Accurate Credit Transactions Act ("FACTA"). Gesten v. Burger King Corp., Case No. 18-20450-Civ-Altonaga (S.D. Fla.) ("the underlying action"). FACTA prohibits retailers or merchants from printing more
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than the last five digits or the expiration date of a credit or debit card number on any receipt provided to the cardholder at the point of sale or transaction. 15 U.S.C. § 1681c(g)(1).
Non-party Verifone reportedly provides software and hardware devices used in credit/debit card transactions, including the printing of receipts. See Dkt. No. 2, Ex. A at 8-9. Verifone is headquartered in San Jose, California, within the Northern District of California. Dkt. No. 1 at 3. On May 18, 2018, Mr. Gesten served a subpoena on Verifone seeking deposition testimony about the Verifone software and devices used at Burger King restaurants, including the software configuration and update processes, the interface between Verifone and Burger King's devices, and any communications between Verifone and Burger King relating the alleged FACTA violation. Dkt. No. 2, Ex. B at 16-17. The subpoena identifies San Jose, California as the place of compliance. Id. at 13.
On May 25, 2018, Verifone moved to quash the subpoena, arguing that: (1) the subpoena is invalid because the issuing court, the Southern District of Florida, lacks subject matter jurisdiction because Mr. Gesten failed to adequately plead a concrete injury and thus lacks Article III standing, and (2) the subpoena demands compliance within 11 days and thus fails to allow reasonable time to comply.1 Dkt. No. 1 at 5-8. Mr. Gesten opposed the motion to quash on the ground that he had suffered concrete injuries that gave him standing, namely: (1) he was deprived of his substantial FACTA rights, (2) he was exposed to the risk of identity theft, (3) his privacy interests were breached by exposing his account information to the Burger King cashier, (4) he had to take additional action to secure the non-compliant receipt to avoid further disclosure of his credit card information, and (5) his privacy interests were harmed. Dkt. No. 21 at 6-13.
On June 11, 2018, Mr. Gesten filed a motion to transfer Verifone's motion to quash pursuant to Fed. R. Civ. P. 45(f), arguing that exceptional circumstances favor transfer because the Southern District of Florida had already found standing to sue in other FACTA cases with similar facts, and because transfer was necessary to avoid conflicting rulings regarding standing. Dkt. No.
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B. Status of Proceedings in the Underlying Action
In the underlying action, Mr. Gesten alleges that Burger King violated FACTA's privacy protections by providing him a receipt that showed the first six digits and the last four digits of his credit card. Dkt. No. 1 at 4. It is not clear whether the Burger King cashier handed Mr. Gesten the receipt directly, or whether the cashier left it lying on a tray on the counter in plain view for less than a minute while Mr. Gesten was occupied with retrieving condiments. Dkt. No. 22-2 ¶ 32; Dkt. 21 at 9; Dkt. No. 21-2 at 54:3-21; see also Dkt. No. 23 at 5 n.7.
Mr. Gesten first sued Burger King for a FACTA violation in July 2017. Dkt. No. 1 at 3. This first action, Gesten v. Burger King Corp., No. 17-22541-Civ-Scola (S.D. Fla.) was dismissed for lack of standing, because Mr. Gesten alleged that he maintained possession of his receipt the whole time and failed to show that any disclosure of his private information actually occurred. Gesten v. Burger King Corp. (Gesten I), No. 17-22541-Civ-Scola, 2017 WL 4326101, at *5 (S.D. Fla. Sept. 27, 2017). Consequently, that court ruled that Mr. Gesten suffered no concrete injury—a prerequisite to Article III standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016) (Congress's role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. . . . A violation of one of the [Fair Credit Reporting Act]'s procedural requirements may result in no harm."); Gesten I, 2017 WL 4326101, at *3-5. Mr. Gesten then re-filed his complaint in Florida state court. Dkt. No. 1 at 4. For some reason, Burger King chose to remove that case to federal court, creating what is now the underlying action (Case No. 18-20450-Civ-Altonaga). Id.
On February 5, 2018, before Verifone's motion to quash was filed in this Court, Burger King filed a motion in the underlying action seeking a stay of all proceedings pending the Eleventh Circuit's review of another case concerning FACTA plaintiffs' standing to bring suit and involving substantially similar facts, Tarr v. Burger King, No. 17-23776-CIV-Moreno, 2018 WL 318477 (S.D. Fla. Jan. 5, 2018). Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 1-5 (S.D. Fla. Feb. 5, 2018). Judge Altonaga, the presiding judge in the underlying action,
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agreed that the Tarr decision would resolve Mr. Gesten's standing issue, but found that the Tarr appeal only presented a question of venue for Burger King—for if Mr. Gesten lacked Article III standing, then the appropriate remedy would be remand to state court, not dismissal of the action. Gesten v. Burger King Corp. (Gesten II), No. 18-20450-Civ-Altonaga, 2018 WL 1111061, at *2 (S.D. Fla. Feb. 22, 2018). Burger King did not file a motion to dismiss the underlying action, and the parties thereafter engaged in discovery.
While Mr. Gesten and Verifone's motions before this Court were pending, Mr. Gesten filed a motion for class certification in the underlying action. Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 56 (S.D. Fla. June 18, 2018). In opposing class certification, Burger King argued that Mr. Gesten lacked Article III standing because his claim was collaterally estopped by the Gesten I dismissal, and because he alleged only a statutory violation and suffered no actual harm. Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 64, at 5-9 (S.D. Fla. June 18, 2018). Counsel for the parties in this matter advised the Court during the July 17, 2018 hearing that briefing on the class certification motion, and in particular the question of standing, is now complete. Thus, the issue of Mr. Gesten's standing is now squarely before the district court in the Southern District of Florida.
A. Rule 45
Rule 45 of the Federal Rules of Civil Procedure governs non-party subpoenas. Under Rule 45(d)(3), the court where compliance is required must quash or modify the subpoena if the subpoena: (i) fails to allow reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. In addition, Rule 45(f) permits the court where compliance is required to transfer a motion to quash to the issuing court if the person subject to the subpoena consents or if the court of compliance finds exceptional circumstances would warrant transfer. The proponent of transfer bears the burden of showing that exceptional circumstances exist. Fed. R. Civ. P. 45(f) advisory committee's note to 2013 amendment.
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Rule 45(f) does not further describe the circumstances that may qualify as "exceptional." However, the Advisory Committee notes reflect the Committee's view that "[i]n some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion." Fed. R. Civ. P. 45 advisory committee's note to 2013 amendments.
B. FACTA Standing
Central to Verifone's and Mr. Gesten's motions is the issue of Mr. Gesten's Article III standing to sue under FACTA. If a litigant lacks standing, a federal court lacks authority to adjudicate the case, including issuing deposition subpoenas or other process. See, e.g., Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) ("[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction). Without jurisdiction the court cannot proceed at all in any cause . . . .") (internal citations and quotation omitted); U.S. Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) ("[I]f a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void . . . ."). Because subject matter jurisdiction is fundamental to a federal court's ability to act, a court generally should consider and resolve the question of its jurisdiction at the outset before proceeding with a case on the merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.") (discussing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)); see also U.S. Catholic Conf., 487 U.S. at 79-80 ("It is a recognized and appropriate procedure for a court to limit discovery proceedings at the outset to a determination of jurisdiction matters.").
At the pleading stage, a plaintiff must adequately allege facts demonstrating that he or she
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has standing to bring the claim, including, among other things, that he or she has suffered a concrete injury in fact. Spokeo, 136 S. Ct. at 1548; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A "concrete" injury is one that actually exists, and is not abstract or merely prospective. Spokeo, 136 S. Ct. at 1548. In lawsuits where plaintiffs may recover statutory damages for violations of federal statutes—such as FACTA—the U.S. Supreme Court has held that "a bare procedural violation, divorced from any concrete harm" cannot satisfy the injury-in-fact requirement for standing, but a "risk of real harm" can. Id. at 1549. In such a situation, "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact," and the plaintiff "need not allege any additional harm beyond the one Congress has identified." Id. (emphasis original).
The Ninth, Second, and Seventh Circuits have held that FACTA claims must be dismissed for lack of standing in circumstances where plaintiffs alleged only a procedural violation of FACTA without risk of real harm. See, e.g., Bassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018) (affirming dismissal of complaint alleging only non-compliant receipt and risk of prospective harm of identity theft); Katz v. Donna Karan Co., LLC, 872 F.3d 114 (2d Cir. 2017) (same); Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016) (vacating and remanding with instructions to dismiss for lack of jurisdiction and finding no harm where no one else saw the non-compliant receipt).
As of the date of this order, the Eleventh Circuit has not yet considered and decided the issue. At least two FACTA standing cases are pending before the Eleventh Circuit: Muransky v. Godiva Chocolatier Inc., et al., No. 0:15-cv-60716-WPD (S.D. Fla.), appeal filed and argued sub nom. Price v. Godiva Chocolatier Inc., et al., No. 16-16486 (11th Cir.) and Tarr v. Burger King Corp., No. 18-10279-CC (11th Cir.) (stayed pending the decision in Price). Price has been fully briefed, and oral argument was held before the Eleventh Circuit on January 12, 2018.
A. Nature and Scope of this Court's Authority
Verifone argues that this Court must decide whether the issuing court lacks subject matter jurisdiction before it can decide whether exceptional circumstances permit transfer of the motion
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to quash to the Southern District of Florida. Dkt. No. 20 at 5-6. According to Verifone, this Court does not have authority to transfer the motion under Rule 45(f) because the transferee court, which issued the subpoena, lacks jurisdiction, leaving this Court with no alternative but to quash the subpoena. Id. at 5.
There is, however, an important distinction between this Court's authority in this proceeding and the Southern District of Florida's authority in the underlying action. This Court's subject matter jurisdiction is not in question, and the scope of its authority to act to quash or modify a non-party subpoena is informed both by the requirements of Rule 45 and also its inherent power to manage the disposition of matters before the Court in a manner that is conducive to a fair and orderly resolution. See Dietz v. Bouldin, 136 S. Ct. 1885, 1892-93 (2016) ("[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases."); Landis v. N. Am. Co., 299 U.S. 248, 255 (1936) ("[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.").
Verifone is correct that if Mr. Gesten lacks Article III standing, then the Southern District of Florida lacks subject matter jurisdiction, and the subpoena to Verifone is void. U.S. Catholic Conf., 487 U.S. at 76 (lack of subject-matter jurisdiction over the underlying action renders void any process not issued in aid of determining that jurisdiction). But it does not follow that this Court must decide that issue now—particularly when the issue evidently will be decided in short order by the Southern District of Florida itself. Nothing compels this Court to risk disrupting the Southern District of Florida's management of the underlying case by deciding, on a non-party discovery motion, a question of jurisdiction that has been fully briefed by the parties in the issuing court.
Conversely, the circumstances presented in this case, while they might be considered "exceptional" under Rule 45(f), also do not require the Court to transfer the motion to quash to the Southern District of Florida. Rule 45(f) expressly leaves the decision to transfer to the Court's discretion, even if exceptional circumstances exist. Fed. R. Civ. P 45(f) ("When the court where
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compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court . . . if the court finds exceptional circumstances.") (emphasis added).
USA Technologies, Inc. v. Doe, 713 F. Supp. 2d 901 (N.D. Cal. 2010), on which Verifone relies, is informative but distinguishable. In that case, plaintiff USA Technologies ("USAT") brought an action in the Eastern District of Pennsylvania against a Doe defendant for a violation of the federal Securities Exchange Act of 1934 and defamation under Pennsylvania state law based on anonymous Internet postings the Doe defendant made about USAT on a Yahoo! message board. Id. at 904-05. USAT asked the Pennsylvania district court to issue a subpoena to Yahoo! directing it to disclose the anonymous poster's IP address so he or she could be identified. The Pennsylvania court granted the motion without prejudice to the Doe defendant's right to file a timely motion to quash.
Once the subpoena issued, the Doe defendant filed a motion to quash in the Northern District of California. Because the subpoena implicated important First Amendment protections for anonymous speech, the California district court required USAT to meet certain requirements, including an evidentiary showing of facts necessary to support a prima facie case for its securities and defamation claims. Id. at 906-07 (applying test from Highfields Capital Mgmt. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), requiring plaintiff seeking to compel identification of an anonymous online speaker to first adduce, without discovery, competent evidence addressing all factual inferences required to support a prima facie case on all elements of the claim). The California district court found that USAT could not make this showing for either claim and quashed the subpoena. In so doing, the court observed that, while the case remained pending before the Pennsylvania court and that court would ultimately have to decide the question of federal jurisdiction, "the apparent deficiency of the [securities] claim, which is the sole basis for federal jurisdiction in this case, is an appropriate basis to grant the Motion to Quash." Id. at 907-08.
In USA Technologies, the Eastern District of Pennsylvania did not have before it the question of federal question jurisdiction at the same time the Northern District of California was considering whether USAT could demonstrate a prima facie case in support of its federal
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securities claim. Indeed, the underlying action in the Eastern District of Pennsylvania could not proceed unless and until USAT first obtained information via subpoena to Yahoo! identifying the Doe defendant. By contrast, in this case the question of subject matter jurisdiction that Verifone ask this Court to decide on a motion to quash is also currently before the Southern District of Florida.
B. Stay of Compliance with Subpoena
In this case, the Court determines that a stay of Verifone's compliance with the subpoena pending best serves the competing interests presented by the parties' motions. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (summarizing considerations informing an order to stay). A stay necessarily delays Mr. Gesten's ability to obtain deposition discovery from Verifone, but this delay (assuming it is brief, as the Court expects it will be) will not unduly prejudice Mr. Gesten's ability to prosecute his claims. Conversely, if Verifone is required to proceed with the deposition or re-litigate the motion to quash before the Southern District of Florida before that Court decides the question of subject matter jurisdiction, it runs the risk of incurring unnecessary expense. Finally, the decisions that have already issued from the Ninth, Second, and Seventh Circuits in FACTA cases with facts similar to those Mr. Gesten alleged suggest the Eleventh Circuit likely will reach the same conclusion regarding the requirements for standing in such cases. The Southern District of Florida will then decide the question of standing on the particular facts of the case before it. It is in the best position to do so.
Accordingly, the Court exercises its inherent power to manage the disposition of pending matters and stays Verifone's compliance with the deposition subpoena pending a decision on the question of subject matter jurisdiction in the underlying action and further order of this Court. If the Southern District of Florida determines that Mr. Gesten has standing, the deposition of Verifone will proceed according to the subpoena, as Verifone makes no other objections beyond undue burden due to lack of subject matter jurisdiction. If, instead, it determines that Mr. Gesten lacks standing, the subpoena to Verifone will be invalid and the deposition will not proceed.
For the foregoing reasons, the Court (1) DENIES Verifone's motion to quash the subpoena
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without prejudice, (2) DENIES Mr. Gesten's motion to transfer the motion to quash, and (3) STAYS Verifone's compliance with the subpoena pending further order of this Court. The parties shall notify the Court of the Southern District of Florida's decision on the question of subject matter jurisdiction promptly after it issues.
Dated: July 23, 2018
United States Magistrate Judge


1. At the July 17, 2018 hearing, Verifone acknowledged that the date originally set for its deposition has passed. Verifone now focuses its argument on the undue burden of having to respond to discovery in a proceeding that it argues should be dismissed for lack of jurisdiction.

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Cyber Defamation Lawsuit and Journalistic Privilege - Abraham v. Greer

This case illustrates the competing interests involved when journalism is used as a claimed privilege during a cyber defamation lawsuit.  How is actual malice proven during the case?  The opinion follows:

509 S.W.3d 609
Salem ABRAHAM, Appellant
Daniel GREER and Fix the Facts Foundation d/b/a AgendaWise, Appellee
No. 07–12–00494–CV
Court of Appeals of Texas, Amarillo.
November 30, 2016
Rehearing Overruled December 27, 2016
Discretionary Review Denied April 21, 2017

Journalism privilege can be asserted as a defense to an Internet defamation lawsuit, but who exactly is a journalist? - Domingo J Rivera

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Brian Quinn, Chief Justice
Upon reversing and rendering a decision on the first issue we addressed via our prior opinion in this cause, the Texas Supreme Court directed us to consider the remaining issues raised by Salem Abraham. Greer v. Abraham , 489 S.W.3d 440, 448 (Tex. 2016). It should be recalled that he appealed from an order dismissing his libel suit against appellees Daniel Greer and Fix the Facts Foundation d/b/a AgendaWise. That dismissal occurred under the framework of Chapter 27 of the Texas Civil Practice and Remedies Code. The remaining issues before us involve 1) the claim of journalist privilege urged by a deponent during his deposition, 2) the status of Greer and AgendaWise as journalists, and 3) the constitutionality of Chapters 22 and 27 of the Civil Practice and Remedies Code. We overrule each and affirm the order.
The dispute arose from the publication of Greer and AgendaWise of an article in their internet column. It falsely accused Abraham of engaging in certain conduct at a political event. The initial falsehoods were retracted, though the writer uttered another falsehood against Abraham in the retraction. This sequence of events resulted in Abraham suing Greer and AgendaWise for libel. Greer and AgendaWise moved to dismiss the suit under Chapter 27 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001, et. seq.1 After permitting abbreviated discovery and conducting a hearing on it, the trial court granted the motion.
In our initial opinion, we dealt with whether Abraham was obligated to prove actual malice, given his status as an elected member to the local school board in rural Texas. Our decision that he did not was reversed by the Supreme Court. It then remanded the cause to us for consideration of the remaining issues raised by Abraham in his initial appeal.
[509 S.W.3d 612]
In response to the Supreme Court's decision, we afforded all parties opportunity to file supplemental briefing. Each accepted the chance.
Issue One—Failure to Rule
The first issue we address concerns Abraham's complaint about the trial court failing to "... rule[ ] upon [his] Motion to Overrule Privilege Objections and Order Disclosure Pursuant to Texas Civil Practice and Remedies Code Section 22.024 and ordering Daniel Greer to fully testify." The motion was filed on the day the trial court was statutorily required to rule upon the motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a) (stating that "[t]he court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion."). The motion was not ruled upon, as reflected in the trial court's findings of fact and conclusions of law. More importantly, Abraham did not object to the omission before the order of dismissal was signed or via a motion for new trial. Such is fatal to his complaint on appeal. TEX. R. APP. P. 33.1(2)(B) (specifying the requirements for preserving a complaint for review, one of which mandates that the record show that the complaining party objected to the trial court's refusal to rule on a motion, objection, or request); Phillips v. Bramlett , 258 S.W.3d 158, 170 (Tex. App.—Amarillo 2007), reversed on other grounds , 288 S.W.3d 876 (Tex. 2009) (holding that "[t]o preserve a complaint for appeal, the complaining party is required to obtain an adverse ruling from the court or object to the trial court's refusal to rule."). Having failed to object at the earliest opportunity available (i.e. the motion for new trial), Abraham did not preserve his complaint, which, in turn, bars us from considering it. FDIC v. Lenk , 361 S.W.3d 602, 604 (Tex. 2012) (directing that "[w]hen a party fails to preserve error in the trial court or waives an argument on appeal, an appellate court may not consider the unpreserved or waived issue."). The issue is overruled.
Issue Two—Journalist
Next, Abraham contends that the trial court erred in ruling that Greer and AgendaWise were journalists. We overrule this issue for several reasons.
First, Abraham raised the matter of Greer and AgendaWise not being journalists in both a response to their motion to dismiss and in his "Motion to Overrule Privilege Objections ..." to which we alluded above. And, as discussed above, the trial court did not rule on the latter, which inaction drew no timely or contemporaneous complaint from Abraham to the trial court. Given these circumstances, the issue of whether Greer and AgendaWise were journalists was not preserved for review. Phillips v. Bramlett, supra .
Second, in perusing the trial court's findings of fact and conclusions of law, we found none holding Greer or AgendaWise to be "journalists."2 Nor did it hold, via its factual findings and conclusions of law, that Greer or AgendaWise were "journalists." Indeed, the possibility of Greer invoking
[509 S.W.3d 613]
the journalist's privilege was broached in a telephonic hearing conducted on October 11, 2012, or twenty-nine days after the trial court held its initial hearing on the motion to dismiss. At that October 11th proceeding, the trial court granted Abraham's request for limited discovery, that is, his request to depose Greer. Greer's counsel then informed the court that Greer would most likely invoke the journalist's privilege. This lead the trial court to observe that: 1) "the journalist part comes in after he asserts his privilege," and 2) "... if he asserts the privilege then [Abraham] can question him on whether or not he qualifies for the privilege ... I think the threshold issue is he's going to have to ask him something to—that would be—allow him to assert the privilege." We construe these observations as revealing that the trial court did not rule upon whether Greer was a "journalist" before the deposition occurred. Nor did it convene a subsequent hearing to address the matter or resolve the dispute in its findings of fact and conclusions of law, order of dismissal, or letter rulings.
Nonetheless, we encountered a conclusion of law wherein the trial court described both Greer and "Fix the Facts Foundation" (i.e. AgendaWise) "as print media." What the trial court intended by that term is something no one addressed in their respective appellate brief. Nor do we find it within the definition of "journalist" provided in § 22.021 of the Civil Practice and Remedies Code. However, if we were to assume arguendo that the term somehow alluded to the phrase "news medium" under § 22.021(3) of that same Code and, therefore, meant Greer and AgendaWise were "journalists," we would remain obligated to overrule the issue.3
Abraham argued in his initial brief that "AgendaWise did not meet any of the earmarks of being a ‘news medium.’ " This was so because it did "not disseminate news or information to the public" but rather "... simply posts the opinions of the Empower Texans PAC, and attacks opponents of its favored political candidates." If, as suggested by Abraham, the lack of bias were the true barometer for whether an entity or individual was a "news medium" or "journalist," then few businesses historically deemed to be part of the news media would qualify as journalists or news media. Indeed, newspapers commonly endorse particular candidates running for elected office. That certainly shows a bias. Yet it cannot be denied that they nonetheless engage in journalistic activities.
Bias and selectivity in reporting is not the test. Rather, an entity or person gains the status of "news medium" by falling within the definition of the phrase. And, the legislature provided us with the applicable definition. In chapter 22 of the Civil Practice and Remedies Code, we are told that a "news medium" is "... a newspaper, magazine or periodical, book publisher, news agency, wire service, radio or television station or network, cable, satellite, or other transmission system or carrier or channel, or a channel or programming service for a station, network, system, or carrier, or an audio or audiovisual production company or Internet company
[509 S.W.3d 614]
or provider, or the parent, subsidiary, division, or affiliate of that entity, that disseminates news or information to the public by any means, including ... print ... [and] other means, known or unknown, that are accessible to the public." TEX. CIV. PRAC. & REM. CODE ANN. § 22.021(3). It is the part of the definition alluding to the dissemination of "news and information to the public" that Abraham apparently believes AgendaWise and Greer failed to meet.4 Yet, what is the published article underlying Abraham's claim of defamation? It purported to describe various political races and the identity of donors to the candidates running in those races. That is the dissemination of "information." See "information" MERRIAM–WEBSTER ,, (last visited November 4, 2016) (defining "information" as "knowledge you can get about someone or something" and "facts or details about a subject"); Information Definition , DICTIONARY.COM , (last visited November 4, 2016) (defining "information" as knowledge communicated or received concerning a particular fact or circumstance," "news," "knowledge gained through study, communication, research, instruction, etc.," and "factual data"). It also solicited and secured "press credentials" from and reported on other political events throughout Texas. That too is the dissemination of "information." Other evidence of record indicates that it gathered and reported on "proceedings" occurring in the State Capitol. That such is the dissemination of "information" cannot be reasonably disputed either. Nor can it be reasonably disputed that placing articles written by the few AgendaWise staff on the internet is anything short of dissemination of the article's content to the public by a "means ... accessible to the public." See Kaufman v. Islamic Society of Arlington , 291 S.W.3d 130, 141 (Tex. App.—Fort Worth 2009, pet. denied) (observing that courts have recognized the internet as a type of nontraditional electronic media).
One may not agree with the article's content. One may also find the article's slant to be objectionable. But, finding the content acceptable to one's senses is not determinative here. Nor does it matter if the writer or entity publishing the missive fits some historic concept of journalism. What controls here is the definition provided by the legislature in § 22.021(3) of the Civil Practice and Remedies Code. More importantly, the trial court had before it sufficient data on which to conclude that AgendaWise and Greer disseminated information to the public via a medium accessible to the public as contemplated by that statute. So, to the extent that the trial court intended the phrase "print media" to mean "news medium," we cannot say its decision constituted an abuse of discretion. See In re Living Ctrs. of Tex., Inc. , 175 S.W.3d 253, 261 (Tex. 2005) (holding that decisions regarding whether a person is entitled to an evidentiary privilege are reviewed under the standard of abused discretion).
Issue Three—Constitutionality of Statutes
Finally, Abraham raises constitutional issues implicating the open courts provision of our Texas Constitution5 and the due process clauses found in both the
[509 S.W.3d 615]
Texas6 and United States7 Constitutions. Specifically, he contends that Chapters 22 and 27 of the Civil Practice and Remedies Code are unconstitutional when read independently and together. However, his discussion only encompasses 1) the impact of those statutes when read together and 2) the application of the open courts provision. Thus, our comments will be limited to scope of his discussion.8 See Thomas v. State , No. 02–14–00441–CR, 2016 WL 4538556, 2016 Tex. App. LEXIS 9811 (Tex. App.—Fort Worth August 31, 2016, no pet.) (mem. op., not designated for publication). And, the substance of Abraham's argument is:
... § 27.003(c) handcuffs a plaintiff from obtaining discovery of necessary elements of proof, proof which almost certainly is in the sole control of the defendant, while § 22.023 makes the disclosure of evidence of the necessary element of proof of malice undiscoverable, even if any discovery is allowed or permitted. When a privilege under § 22.023 is asserted in defense of a defamation claim, §§ 27.001, et seq, creates an impossible condition for a violated plaintiff to obtain access to the courts for a remedy ... These statutes constitute an unconstitutional ‘Catch 22.’
It is beyond dispute that the open courts provision of the Texas Constitution guarantees litigants the right to their day in court. Offenbach v. Stockton, 285 S.W.3d 517, 522 (Tex. App.—Dallas 2009), aff'd, 336 S.W.3d 610 (Tex. 2011). But, it is not absolute. Rather, " ‘it guarantees that a common law remedy will not be unreasonably abridged.’ " Tenet Hosp. Ltd. v. Rivera , 445 S.W.3d 698, 703 (Tex. 2014) ; quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995). That is, while a statute that totally forecloses judicial review may violate the provision, one that merely presents hurdles to judicial review may withstand scrutiny. Offenbach v. Stockton , 285 S.W.3d at 522–23. And, as previously mentioned, "... an open courts challenge is a due process complaint" which also "requires the party to use due diligence." Id. Indeed, a complainant may not obtain relief from the provision if he does not exercise due diligence in pursuing his claim. Stockton v. Offenbach , 336 S.W.3d 610, 618 (Tex. 2011). With this in mind, we turn to the dispute at bar.
Abraham is correct in arguing that upon a defendant moving to dismiss a suit encompassed by §§ 27.001 et. seq. of the Civil Practice and Remedies Code, the continuation of discovery is impeded. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(c) (stating that "[e]xcept as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss."). Impeded though does not mean prohibited. As discussed by the language of both § 27.003(c) and § 27.006(b), some discovery is permissible. That is, the trial court "may allow specified and limited discovery relevant to the motion" to dismiss, upon a showing of
[509 S.W.3d 616]
"good cause." Id. § 27.006(b). Such discovery may also encompass effort to depose witnesses having relevant information, including "journalists." And, that the latter may invoke the journalist privilege encompassed in § 22.023 of the Civil Practice and Remedies Code does not necessarily mean the plaintiff's ability to pursue his libel claim is thwarted. This is so because a trial court retains the authority to compel such witnesses "to testify regarding or to produce or disclose any information, document, or item or the source of any information, document, or item obtained while acting as a journalist" upon the satisfaction of certain prerequisites. Id. § 22.024 (describing those prerequisites as proof that 1) all reasonable efforts have been exhausted to obtain the information from alternative sources; 2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information; 3) reasonable and timely notice was given of the demand for the information, document, or item; 4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; 5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and 6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure). So, the contention that "... § 22.023 makes the disclosure of evidence of the necessary element of proof of malice undiscoverable, even if any discovery is allowed or permitted" is inaccurate. Discovery could occur even though the target of discovery invoked a privilege.
Admittedly, though, the time frame in which one may pursue such discovery was somewhat abbreviated. According to statute, the trial court had to rule on the motion to dismiss within thirty days of the date on which it heard the motion. Id. § 27.005(a). If it did not do so, then the motion was deemed denied by operation of law, and the movant was then entitled to appeal. Id. § 27.008(a). Yet, the statute did not denote a time certain by which the hearing had to be held. Rather, its directive that a "hearing ... must be set not later than the 30th day after the date of service of the motion unless the docket conditions of the court require a later hearing," Id. § 27.004, was construed as referring to the act of setting a hearing, not to the act of holding a hearing. In re Lipsky , 411 S.W.3d 530, 540–41 (Tex. App.—Fort Worth 2014, pet. denied). This meant that the trial court had some flexibility in extending the time for a hearing, despite the need for a relatively quick decision. Id. (wherein the trial court granted a motion to continue the hearing and ultimately heard the motion over four months after it was filed).
When read together, sections 22.023, 22.024, 27.003(c), 27.004, 27.005(a) and 27.006(b) of the Texas Civil Practice and Remedies Code reflected a limitation upon the ability to freely prosecute a defamation suit. When read together they evince legislative desire to have jurists quickly address motions to dismiss filed under § 27.003(a) of that same Code. Yet, that desire did not foreclose the prosecution of a defamation suit. Measures were included within both Chapters 22 and 27 of the Texas Civil Practice and Remedies Code to assure that the defamed person had opportunity to garner necessary evidence.
[509 S.W.3d 617]
We further note that Abraham did not complain before us of the time periods involved or of some legal impediment to satisfying the requirements of § 22.024 and, thus, overcoming a journalist's claim of privilege. Nor did he complain before us of the trial court's decision to hold a hearing within a month of the date on which Greer and AgendaWise moved to dismiss the suit. Indeed, missing from the record is any written motion on his part to continue the hearing date for any reason, including one founded upon the need to conduct limited discovery. Moreover, Abraham received opportunity to not only conduct limited discovery but also present that discovery and supplemental briefing to the trial court before it actually ruled on the motion to dismiss. The record is silent on why the discovery was afforded to Abraham only days before the trial court was statutorily obligated to rule on the motion to dismiss. What is known, though, is that twenty-nine days lapsed between the date on which the trial court heard the motion to dismiss and the date on which Abraham was granted leave to depose various individuals. Given that twenty-nine day period, the statutory need for timely action, and the trial court's apparent recognition of that need, it is conceivable that such discovery could have occurred in ample time to address potential claims of journalist privilege. Yet, we are left to guess at what, if anything, happened during that period and why discovery was not vigorously pursued earlier. So, the circumstances at bar do not permit us to conclude that the interplay between Chapters 22 and 27 of the Civil Practice and Remedies Code "unreasonably abridged" Abraham's common law remedy for defamation. The interplay did not contravene the open courts provision of the Texas Constitution under the particular facts before us.
Accordingly, the remaining issues which the Texas Supreme Court directed this court to consider are overruled, and the order of dismissal is affirmed.


1 The statute was amended in part in 2013. See Act of June 14, 2013, 83rd Leg., R.S., ch. 1042, § 1, 2013 Tex. Gen. Laws 1042. The suit before us was filed in 2012. Thus, we apply those provisions of Chapter 27 of the Civil Practice and Remedies Code in effect when suit was filed and before the 2013 amendments. See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Gen. Laws 961 (stating that "[t]he change in law made by this Act applies only to a legal action filed on or after the effective date of this Act [June 17, 2011].").

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