Klein vs Bloggers - Relators

NO. .

IN RE JOHN DOES 1 AND 2,

RELATORS

APPENDIX TO PETITION FOR WRIT OF MANDAMUS

Relators John Does 1 and 2 submit these documents in support of their petition for

writ of mandamus.

LIST OF DOCUMENTS 1. Order complained of, dated January 29, 2010. Tab A

2. Opinion of the court of appeals, dated April 29, 2010. Tab B

3. Kleins Original Petition.. Tab C

4. Kleins First Amended Original Petition. Tab D

5. Rule 11 Agreement Between Klein and Google, Inc... Tab E

6. Kleins Subpoena Duces Tecum.. Tab F

7. Defendant www.operationkleinwatch.blogspot.coms Motion to Quash Subpoena DucesTecum.

Tab G

8. Defendant www.samtheeagleusa.blogspot.coms Motion to Quash

Subpoena Duces Tecum

Tab H

9. Kleins Response to Motion to Quash Subpoena Duces Tecum.. Tab I

10.

Reporters Record from the January 15, 2010, hearing on the motion to quash ...

Tab J

11.

E-file Inventory Sheet of all Documents Filed in the Trial Court... Tab K

12.

Verification of Jeffrey L. Dorrell Tab L

13 Rules Relied Upon .. Tab M

In re John Does 1 and 2 1

EXHIBIT A

Jefferson County District Court ***EIFIlED***

LexisNexis Transaction ID: 29299597 Date: Jan 29 2010 2:54PM

Lolita Ramos, District Clerk No. 184,784

PRK ENTERPRISES, INC. AND KLEIN INVESTMENTS, INC.

VS.

GOOGLE, INC., BLOGGER.COM, WWW.OPEHATIONKLEINWATCH.BLOGSPOT. COM AND WWW.SAMTHEEAGLEUSA. BLOGSPOT.COM

IN 'I'I-IE DISTRICT COURT OF

JEFFERSON COUNTY, TEXAS

172ND JUDICIAL DISTRICT

AMENDED ORDER DENYING RESPONDENTS' MOTION TO QUASI-I SUBPOENA

CAlvffi ON TO BE CONSIDERED Respondent's Motion to Quash Subpoena, and

Petitioner's response thereto, as well as the arguments of counsel, and the Court finds that said

motions are unmeritorious; therefore

IT IS ORDERED that Respondent, Sam the Eagle Webblog's Motion to Quash Subpoena

is hereby DENIED. It is further,

ORDERED that Respondents, Operation Kleinwatch,

http:// samtheeagleusa.blogspot.com/, http://operationkleinwatch.blogspot.com/, and

http://notthisonetoojacques.blogspot.com/s'MotiontoQuashSubpoenaisherebyDENIED. It is

further,

ORDERED that Petitioner's Motion to Compel is GRANTED. It is further,

ORDERED that the objections to the subpoena of Sam the Eagle Webb log, Operation

I

THE STATE OF TEXAS

COUNTY OF JEFFERSON

I, Lolita Ramos, Clerk of the 172nd District Court of Jefferson County, Texas do hereby certify

that the documents contained ill this record to which this Certification is attached are all of the I

Documents specified by Texas jRules of Appellate Procedure 34.5(A) and all other documents

timely requested by a party to *is proceeding under Texas Rule of Appellate Procedure 34.5(A) I

i and all other Documents till1el~ requested by a party to this proceeding under Texas Rule of

Appellate Procedure 34.5(B).

Given under my Hand and Sea\ at my office in Jefferson County, Texas this 31 st day of !

March 2010.

Signature of Clerk rnUQJ\f Name of Clerk Maritza Vargas '

Title ____ ...;D=ept

EXHIBIT B

Page 1 2010 Tex. App. LEXIS 3190, *

IN RE JOHN DOES 1 AND 2

NO. 09-10-00189-CV

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

2010 Tex. App. LEXIS 3190

April 29, 2010, Opinion Delivered DISPOSITION: PETITION DENIED. COUNSEL: For relator: Jeffrey L. Dorrell, Escamilla, Poneck & Cruz, LLP, Houston. For real parties in interest: John S. Morgan, Harris, Duesler & Hatfield, LLP, Beaumont; Dennis M. Lynch, Figari & Davenport, LLP, Dallas. JUDGES: Before McKeithen, C.J., Gaultney and Hor-ton, JJ. OPINION Original Proceeding MEMORANDUM OPINION

Relators John Does 1 and 2 filed a petition for writ of mandamus, in which they contend the trial court

abused its discretion by denying their motion to quash the subpoena duces tecum that PRK Enterprises, Inc. and Klein Investments, Inc. served on Google, Inc.

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. In re Pruden-tial Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Af-ter reviewing the mandamus record and petition, we con-clude that the relators have not demonstrated a clear abuse of discretion by the trial court. Accordingly, we deny relators' motion for emergency stay, and we deny the petition for writ of mandamus.

PETITION DENIED.

PER CURIAM

Opinion Delivered April 29, 2010

EXHIBIT C

.,' , .

P'RK ENTERPRISES, INC. ANn! KLEIN INVESTMENTS, INC. i

1

No.

IN THE DISTRICT COURT OF

VS. I ~ JEFFERSON COUNTY, TEXAS GOOGLE, INC., BLOGGEJR.CO, WWW.OPERATIONKLEINWAnrr.BlLOGSPOT. COM AND VVWW.SAMTHEEAGUEUSA. 112~DlCIAL DISTRICT BLOGSPOT.COM

PETITJONER1S ORIiGINAL PETITION UNDER RULE 202 I I

To THE HONORABLE JUDGE OFisAID COURT:

CO~..1ES NOW, PRK EN~ERPRISES, INC. AND KLEIN INVESTMENTS, INC., Plaintiffs in the above-entitled and numberJd cause and files Petitioners' Original Petition, complaining

I . of GOOGLE, INC., BLOGGER.;COM, WWW.OPERATIONKLEINWATCH.BLOGSPOT.COM. AND

i

WWW.SAMTHEEAGLEUSA.BLOGSPOT.COM. Defendants, and for a cause of action would show I,

the following: .

1.

PARTIES

! Plaintiffs, PRK Enterprises, Inc. and Klein Investments, Inc., are corporations doing

I i

business in Jefferson County, ITexas and are appearing in court through their attorney of

I ! record. i

2. Defendant, Google, Ihc., is a website and can be served through Google Legal I I I

i Support, located at 1600 Ampa Theater Parkway, Mountain View, Califomia 94843. I ,"

3. Defendant, Blogger.corp, is a website. No service is request.ta at thi~me.~,~ I ' }'.\ '1" "1'1';;,,' I, 0 m~ 26 ~... :D ::CX~

f>,- L " = VI'''-

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4. Defendant, www.operaLonkleinwatch.blogSpot.com. is a website. I .

I

No service is

requested at this time.

5. Defendant, www.samthJeagleusa.blogspot.comis a website. No service is requested i .

at this time. I !JUIUSDICTION AND VENUE I I

6. The issues in controversy are within the jurisdictional purview of this Court. Venue I

is proper in this Court, betCaus~ any potential suit will be filed in this venue. ! .

FACTS AND CAUSES OF ACTION

7. Pursuant to Rule 202.2, ,~he Petitioners anticipate the institution of the suit in which I

the Petitioners may be parties against Respondents identified above, and/or potentially other

Respondents. The Petitioners leek to investigate potential claims against theRespondents !

identified above. The subjectlmatter of the anticipated lawsuit are claims for breach of

copyright law, defamation per ie, libel per se, and invasion of privacy. Petitioners may be t

making a claim under the DigitJI Millennium Copyright Act ofl998, 17 U.S.C. Section 512, .1

because the Respondents idntified below are currently using, without permission, I . copyrighted! material and copyri~hted intellectual property, for the purposes of accomp lishing

[

the state law torts identified abbve. I

8. Specifically, the websi}es being hosted by the Defendant Google, Inc., and/or

Blogger.com, identified above,! have been engaged in a pattem of libel and defamation per I

se, invasion of privacy, and use rfCOPYrighted images (both facial and voice image), without I I I

2

I

I permission. The purpose ofthe~e websites are to disparage, harass and cause injury to these

,

I

Petitioners, as well as to Mr. P~ilip Klein personally. These websites host significant, Dllse information, and invade the pr~vacy of petitioJers throughout the website. For example,

! without limitation, the website bperation Klein Watch, contains false information on legal'

I

proceedings that do not involte either Mr~ Klbin individually or the Petitioners, falsely represent that judgments ha~e been taken abainst the Petitioners andlor Mr. Klein individually, falsely identify aibankruPley pro1eeding, also identifY lawsuits that do not

i I involve Petitioners and/or Mr. ~1ein individuaifY. Additionally, this website jdentifies all

!

members of Mr. Klein's famil~, for no apparent purpose other than to invade their privacy. I

A review ofthe websites make ~t clear that they are not expressing any "opinions" protected

by the First Amendment but initead are solely ~ehic1es for defamation. , I

9. Petitioners have sent correspondence to doogle, Inc. to determine the identity of who . ii,

i I owns or hosts these websites, to no avail. ACGordingly, Petitioners seek under Rule 202

I I . petition to take the deposition bf the designated corporate representatives of Go ogle, Inc.,

andlor its subsidiary BIOgger.etm, for the fOllO"'11 'ing purposes:

1. To identifY all parties, persons'l or entities responsible for the website I I

w w w . 0 per J. t ion k lei n Iw a t c h . b log s pot. com i I www.samtheeag~eusa.blogspot.com. I I

Identify all perso~s, parties or enti~ies who provide contributions of money or r b I h b . I lterary su stanc9 to t ese we Slty.

I ' i 3 I I I i I

I

and

2.

I

..... 1.

i . 3. Identity all perso~k parties or entities who posted comments on these websites

!

and/or have prov~ded financial support to these websites. i

4. IdentifY all pers9ns, parties or entities who are in anyway affiliated with, or

connected with i~ any capacity, these websites.

10. As part ofthis petition, Petitioners attach a copy ofthe opinion of the Supreme Court I

of the State of New York, Li~kulula:, Petitioner, v. Go ogle, Inc. and/or its subsidiary i

Blogger.coTn, in. which the Srpreme Court of the State of New York ruled that the I

i respondents must divulge the s;ame type of infonnation that Petitioners are seeking in this

Rule 202 petition. I

11. At this time, Petitionerr cannQt identifY the name of the person(s) who would be

Google, Inc., to provide the information requested therein. Petitioners believe that an

. I . () ld 'd . 'd 'hl' h . appropnate corporate represeI}tatlve s wou proVl e testImony I enth}mg t e partles, . I

persons or entities enquired abrut in the area of sought after testimony.

12. Petitioners request that tfIis Court enter an order authorizing Petitioners to take these

depositions of the corporate representatives identified herein. I I

PRAYER I

WHEREFORE, PREMISES; CONSIDERED, Plaintiffs, PRK Enterprises, Inc. and Klein

I Investments, Inc., pray j that Defendants, GOOGLE, INC., BLOGGER.COM,

I WWW.OPERATIONKLEINWATCH.BLOGSPOT.COM, AND WWW.SAMTHEEAGLEUSA.BLOGSPOT.COM

I be cited to appear and answer herein as the law directs, and that upon hearing, Petitioners

I I

4

[]

obtain the relief sought herein the depositions sought herein, and for such other and

further relief, both general special, statutory or common law, at law and in equity, to

which Petitioners may be

01\;:-d' ~.MORGAN Texas Bar No. 14447475 HARRIS, DUESLER & HATFIELD 550 Fannin, Suite 650 Beaumont, Texas 77701 Telephone: (409) 832-8382 Facsimile: (409) 833-4240 ATTORNEY FOR PLAINTIFFS

5

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EXHIBIT D

Jefferson County District Court ***EFIlED***

LexisNexis Transaction ID: 29784266 Date: Feb 26 2010 3:05PM Lolita Ramos, District Clerk

PRK ENTERPIUSES, INC. AND KLEIN INVESTMENTS, INC.

VS.

No. 184,784

GOOGLE, INC., BLOGGER.COM, WWW.OPI8:RATIONKLEINWATCH.BLOGSPOT. COM AND WWW.SAMTHEEAGLEUSA. BLOGSPOT.COM

IN THE DISTRICT COURT OF

JEFFERSON COUNTY, TEXAS

172NIJ JUDICIAL DISTRICT

PETITIONERS' FIRST AMENDED PETITION

To THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, PRK ENTERPRISES, INC. and KLEIN INVESTMENTS, INC.,

Plaintiffs in the above-entitled and numbered cause and files Petitioners' First Amended

Petition, complaining of Go ogle, Inc., Blogger.com, www.operationkleinwatch.blogspot.com

and wvvw.sametheeagleusa.blogspot.com, Defendants, and for a cause of action would who

lmto the Court the following:

PARTIES

1. Plaintiffs, PRI( Enterprises, Inc. and Klein Investments, Inc., are corporations doing

business in Jefferson County, Texas and are appearing in COUlt through their attomey of

record.

2. Defendant, Google, Inc., is a website and can be served tllTough Google Legal

Support, located at 1600 Ampa Theater Parkway, Mountain View, California 94843.

3. Defendant, Blogger.com, is a website. No service is requested at this time.

4. Defendant, vvww.operationkleinwatch.blogspot.com, is a website. No service is

l~~ rOol .J i

requested at this time.

5. Defendant, www.samtheeagleusa.blogs]Jot.c0111 is a website. No service is requested

at this time.

JUUJ[SDICTlON AND VENUE

6. The issues in contToversy are within the jurisdictional purview of this Court. Venue

is proper in this COUli, because any potential suit will be filed in this venue.

FACTS AND CAUSES OF ACTION

7. The Petitioners anticipate the institution of the suit in which the Petitioners may be

parties against Respondents identified above, and/or potentially other Respondents. The

Petitioners seek to investigate potential clainIs against the Respondents identified above. The

subject matter of the anticipated lawsuit are claims for breach of copYlight law, defamation

per se, libel per se, and invasion of privacy. Petitioners may be making a claim lUIder the

Digital Millennium CopYlight Act of1998, 17 U. S. C. S ection512, because the Respondents

identified below are cUlTentiy using, without permission, copyrighted material and

copyrighted intellectual property, for the purposes of accomplishing the state law tOlis

identified above.

8. Specifically, the websites being hosted by tile Defendant Google, Inc., and/or

Blogger.com, identified above, have been engaged in a pattem oflibel and defamation per

se, invasion of privacy, and use of copyrighted images (both facial and voice inIage), Witilout

permission. The purpose of these websites me to disparage, harass and cause injlUyto these

Petitioners, as well as to Mr. Philip Klein personally. These websites host significant, false

information, and invade the privacy of Petitioners throughout the website. For example,

without limitation, the website Operation Klein Watch, contains false information on legal

proceedings that do not involve either Mr. Klein individually or the Petitioners, falsely

represent that judgments have been taken against the Petitioners and/or Mr. Klein

individuaHy, falsely identify a bankruptcy proceeding, also identify lawsuits that do not

involve Petitioners and/or Mr. Klein individually. Additionally, this website identifies all

members ofMr. Klein's family, for no apparent pmpose other than to invade their privacy.

A review of the websites make it clear that they are not expressing any "opinions" protected

by the First Amendment but instead are solely vehicles for defamation.

9. Petitioners have sent conespondence to Google, Inc. to determine the identity of who

owns or hosts these websites, to no avail. Accordingly, Petitioners seek to take the

deposition of the designated corporate representatives of Google, Inc., and/or its subsidiary

Blogger.com, for the following purposes:

1. To identify all parties, persons, or entities responsible for the website

www.operationkleinwatch.blogspot.com and

www.sarntheeagleusa.blogspot.com.

2. Identify all persons, parties or entities who provide contributions of money or

literary substarrce to these websites.

3. Identify all persons, parties or entities who posted conunents on these websites

and/or have provided fmancial SUppOlt to these websites.

4. Identify a.ll persons, parties or entities who a.re in anyway affiliated with, or

connected with in any capacity, these websites.

10. As part of this petition, Petitioners attach a copy oHhe opinion of the Supreme Court

of the State of New York, Liskulula:, Petitioner, v. Google, Inc. and/or its subsidiw:y

Blogger.com, in which the Supreme Court of the State of New York ruled that the

respondents must divulge the same type of information that Petitioners are seeking in this

Rule 202 petition.

11. At this time, Petitioners cannot identify the name of the person(s) who would be

Google, Inc., to provide the infonnation requested therein. Petitioners believe that an

appropriate corporate representative( s) would provide testimony identifying the parties,

persons or entities enquired about in the area of sought after testimony.

12. Petitioners request that this Comi enter an order authorizing Petitioners to take these

depositions of the corporate representatives identified herein.

13. Plaintiff now sues Google, Inc., on the doctrine of the civil conspiracy, slander, and

libel, and Plaintiff would show that Google, Inc., is now an active co-conspirator with the

web sites and the bloggers at issue. In this regard, Google, Inc., has entered into a Rule 11

agreement for the production of records, but now it adamantly refuses to do so, because it is

a civil conspjmtor with the other Defendants. Plallltiff, therefore, seeks to recover from

Google, Inc., all actual damages caused by the tmis perpetrated by the Defendant, Google,

Inc., for which the Plaintiffllow sues.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, PRK Enterprises, Inc. and Klelll

Investments, Inc., pray that Defendants, GOOGLE, INC., BLOGGER.COM,

w w W . 0 PER A T ION K LEI N W A T C I-I . B LOG S POT. COM, AND

60

WWW.SAMTHEEAGLEUSA.BLOGSPOT.COM be cited to appear and answer herein as the law

directs, and that upon heaTing, Petitioners obtain the relief sought herein through the

depositions sought herein, and for such other and further relief, both general and special,

statutory or common law, at law and in equity, to which Petitioners may be justly entitled.

Respectfully submitted,

/s/ John S. Morgan JOHN S. MORGAN Texas Bar No. 14447475 HARRIS, DUESLER & HATFIELD 550 Fannin, Suite 650 Beaumont, Texas 77701 Telephone: (409) 832-8382 Facsimile: (409) 833-4240

CERTIFICATE OF SERVICE

I hereby eertify that a true and correct copy of the foregoing document was served on the following counsel ofrecorcl via facsimile, on this 26th clay of February, 2010.

Demus Lynch Figari & Davenport 901 Main StTeet, Suite 3400 Dallas, Texas 75202

Sam the Eagle Webblog Google Blogspot Operation Kleinwatch Blog 1600 Amphitheatre Parkway Mountain View, CA 94043

l!ifIfacsimile (214) 939-2090

Via ClIllRRR

/s/ John S. Morgan JOHN S. MORGAN

EXHIBIT E

FIGARI & I)AVENPC)RI' \ HH ']'}ILFJ-I j 1.1,\,111 J \) i i'\'IlJJ !! Y P,\J{! !'.) H')JII!' J,,

,j()O Hank "I' illlJl'lil~a Plaia '1()1 Mail! StIce!

1),"I"s. Texas 7520237

'MI. 101m S. Morgan January 6, 2010 Page 2

any questions, or if we need to discuss anything furtb.er at this time, please do not hesitate to contact me.

DML/rll

EXHIBIT F

Subpoena / Subpoena Duces Tecum

Cause No: 184,784

PRK Enterprises, et.al.

v.

Google USA, Inc. et. al.

YOU ARE HEREBY COMMANDED TO SUMMON;

Google, Inc. Through It's Lawyer of Record - Dennis Lynch 901 Main Street Dallas, Texas 75202-3796

In The District Court

172nd Judicial District

Jefferson County, Texas

To Return Said Documents: Stephen Hartman Process Server / Records, P.O. Box 1212, Nederland, Texas 77627 (409) 729-8798 x 6 as further described herein:

Please See Attacbed Exbibit "A"

As Requested By :

Jobn Morgan 550 Fannin Street Suite 650 Beaumont, Texas 77701 (409) 832-8382

TRCP 176. a (a) Contempt: Failure be any person without adequate excuse to obey a subpoena service upon that person may be deemed a contempt of the courtfrom which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.

RETURN OF SERVICE

Came to hand this 0?1t1- day of S"'\P~ ,2007 ,at 10 o'clock ~M. and executed on this ,;ljt!= day of_5_~ _______ , 2fP'1, at

'3 : 00 eo' clock, in the following manner: by delivering to the within named witness m\.& p' at the location known as 3L/CG ~ Ie... 01; ~e..c}

SUBSCRIBED AND SWORN TO BY , on this the ___ day

seal of office :

__________ /20 __ , to attest witness my hand and

SEAL

ATTORNEY REQUESTING :

NOTARY In and for the State of Texas

John S. Morgan Attorney at Law 550 Fannin, Suite 650 Beaumont, Texas 77701 Tx 14447575, LA 19968 Bar Cards

ATTORNEY'S FOR THE: PLANTIFF

IInl\l\ I \J L I'LL I lIULvLLI\

PRKENTE:RPRISES, INc. AND KLEIN INVEsTMENTS, INC.

VS.

No. 184,784

GooGLE, INc., BLoGGER..COM, WWW,OPEMTIONKLEINWAEH..BLOGSPOT- gm AND WWW.SAMTBJj:EAGLIYSA. BLQGSPOLCOM

EXHIBIT &SA"

r I\A NO. 4U::Ilhhl414U

IN THE DISTlUCf COURT OF

JEFFERSON COlJNTY, TEXAS

171l'fD JUDICIAL DISTRICT

1. Any and all identifiers, user account lP addresses, user access Email Addresses, user entry logs, user posting logs, registered user information, account access IP addresses andlor any identi(ying descriptors for the following blogspots for the previous year:

a) h!U>:l/samtheeaaJ,eusa.blo8Potcoml b) http://operationkleinwatch.bloPJ)ot.coml c) hup://www.nottbisonetoojacques.blogs.pot.coml

2. To identify all parties, persons, or entities responsible for the website www.QPerationkleinwatch.blolWJ

111'11\1\1" LI Y['LI UUL0LLI\ 11'1)\ nU. '1UJUIJIJ'H.'IU r UU'II UV'I

CEBUFICAIE OF SUVICI(

Undersigned counsel hereby certifies that a 1rue and COlTect copy of the foregoing document has been provided to all counsel of record, via facsimile on this ~ day of ____ -".2009.

Dennis M. Lynch 901 Maht Street Dallas, Texas 75202-3796

V"14CM/RRR

lsi John S. Morgan JOHN S. MORGAN

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT J

EXHIBIT K

EXHIBIT L

EXHIBIT M

STATE RULES TEXAS RULES OF CIVIL PROCEDURE

PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS

TEX. R. CIV. P. 202 (2010) Rule 202 Depositions Before Suit or to Investigate Claims 202.1. Generally. A person may petition the court for an order authorizing the taking of

a deposition on oral examination or written questions either:

(a) to perpetuate or obtain the persons own testimony or that of any other person for use in an anticipated suit; or

(b) to investigate a potential claim or suit.

202.2. Petition. The petition must: (a) be verified;

(b) be filed in a proper court of any county:

(1) where venue of the anticipated suit may lie, if suit is anticipated; or

(2) where the witness resides, if no suit is yet anticipated;

(c) be in the name of the petitioner;

(d) state either:

(1) that the petitioner anticipates the institution of a suit in which the peti-tioner may be a party; or

(2) that the petitioner seeks to investigate a potential claim by or against peti-tioner;

(e) state the subject matter of the anticipated action, if any, and the petitioner's in-terest therein;

(f) if suit is anticipated, either:

(1) state the names of the persons petitioner expects to have interests adverse to petitioners in the anticipated suit, and the addresses and telephone numbers for such persons; or

(2) state that the names, addresses, and telephone numbers of persons peti-tioner expects to have interests adverse to petitioner's in the anticipated suit cannot be ascertained through diligent inquiry, and describe those per-sons;

(g) state the names, addresses and telephone numbers of the persons to be deposed, the substance of the testimony that the petitioner expects to elicit from each, and the petitioner's reasons for desiring to obtain the testimony of each; and

(h) request an order authorizing the petitioner to take the depositions of the persons named in the petition.

202.3. Notice and Service. (a) Personal Service on Witnesses and Persons Named. At least 15 days before the

date of the hearing on the petition, the petitioner must serve the petition and a notice of the hearingin accordance with Rule 21aon all persons petitioner seeks to depose and, if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the anticipated suit.

(b) Service by Publication on Persons Not Named. (1) Manner. Unnamed persons described in the petition whom the petitioner

expects to have interests adverse to petitioners in the anticipated suit, if any, may be served by publication with the petition and notice of the hear-ing. The notice must state the place for the hearing and the time it will be held, which must be more than 14 days after the first publication of the no-tice. The petition and notice must be published once each week for two consecutive weeks in the newspaper of broadest circulation in the county in which the petition is filed, or if no such newspaper exists, in the news-paper of broadest circulation in the nearest county where a newspaper is published.

(2) Objection to Depositions Taken on Notice by Publication. Any interested party may move, in the proceeding or by bill of review, to suppress any deposition, in whole or in part, taken on notice by publication, and may also attack or oppose the deposition by any other means available.

(c) Service in Probate Cases. A petition to take a deposition in anticipation of an application for probate of a will, and notice of the hearing on the petition, may be served by posting as prescribed by Section 33(f)(2) of the Probate Code. The notice and petition must be directed to all parties interested in the testator's es-tate and must comply with the requirements of Section 33(c) of the Probate Code insofar as they may be applicable.

(d) Modification by Order. As justice or necessity may require, the court may shorten or lengthen the notice periods under this rule and may extend the notice period to permit service on any expected adverse party.

202.4. Order. (a) Required Findings. The court must order a deposition to be taken if, but only if,

it finds that:

(1) allowing the petitioner to take the requested deposition may prevent a fail-ure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposi-tion to investigate a potential claim outweighs the burden or expense of the procedure.

(b) Contents. The order must state whether a deposition will be taken on oral ex-amination or written questions. The order may also state the time and place at which a deposition will be taken. If the order does not state the time and place at which a deposition will be taken, the petitioner must notice the deposition as re-quired by Rules 199 or 200. The order must contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure.

202.5. Manner of Taking and Use. Except as otherwise provided in this rule, deposi-tions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit. The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed. A court may restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect a person who was not served with notice of the deposition from any unfair prejudice or to prevent abuse of this rule.

Appendix--Petition for Writ of Mandamus.pdfAExhibit ABExhibit BCExhibit CDExhibit DEExhibit EFExhibit FGExhibit GHExhibit HIExhibit IJExhibit JKExhibit KLExhibit LMExhibit M