FILED
15-0836
11/2/2015 10:46:28 AM
tex-7633687
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
15-0836
No. _____________________
In the Supreme Court of Texas
In re Gearbox Software LLC,
Relator.
Relator’s Emergency Motion for
Stay of Discovery Deadline
(Deadline: Tuesday, November 3, 2015)
Michael E. Schonberg
State Bar No. 00784927
J. Michael Heinlen
State Bar No. 24032287
Richard B. Phillips, Jr.
State Bar No. 24032833
Thompson & Knight llp
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Phone: (214) 969-1700
Counsel for Relator
Gearbox Software LLC
To The Honorable Supreme Court of Texas:
1. Under Texas Rule of Appellate Procedure 52.10, Relator Gearbox
Software, LLC respectfully requests that this Court stay the discovery order
document production deadline set by the trial court in the underlying case,
pending resolution of Gearbox’s Petition for a Writ of Mandamus, which
was filed on November 2, 2015.
2. In its mandamus petition, non-party Gearbox seeks mandamus review
of an order entered by the trial court in the underlying case requiring
Gearbox to produce all documents sought in a third-party subpoena served
by Real Party in Interest Meghan Martel. The order requires non-party
Gearbox to produce confidential trade secret financial documents and
records. (See App. Tabs B, J.) The uncontroverted evidence in the trial court
establishes that the documents sought by Mrs. Martel are trade secrets. (See
Mandamus Petition at 6-8.)
3. Gearbox argues that it should not have to produce the documents
because they are trade secrets and because Mrs. Martel has not carried her
burden to show that the documents are necessary for a fair adjudication of
her case. (See id. at 9-17.)
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4. The trial court’s order requires Gearbox to produce the documents by
November 3, 2015 (seven days after the order was signed). (App. Tab J.)
5. Because of the short time between the entry of the order and the
deadline for production and the imminent harm faced by Gearbox, Gearbox
has not sought a stay of the deadline from the trial court.
6. Gearbox seeks a stay because if Gearbox is required to produce the
disputed documents while its mandamus proceeding is pending, the status
quo will be altered and this Court’s ability to grant effective relief will be
hampered. If the documents are produced to Mrs. Martel, Gearbox will lose
the protections of the trade-secret privilege that it seeks to preserve through
its mandamus petition.
7. There is currently no trial setting or scheduling order in place in the
underlying action so there is no prejudice to Mrs. Martel resulting from a
short stay of the production order.
8. Therefore, the trial court’s order should be stayed until this Court
disposes of the mandamus petition.
9. Counsel for Gearbox has discussed this motion with counsel for Mrs.
Martel by phone. See Tex. R. App. P. 51.10(a). Counsel for Mrs. Martel
indicated that Mrs. Martel is opposed to the requested stay.
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10. No bond is necessary if the Court grants the requested stay. The only
effect will be to stay production of documents during the pendency of this
mandamus proceeding.
Wherefore, Relator Gearbox Software LLC respectfully requests that
this Court stay enforcement of the trial court’s October 27, 2015 order until
this Court disposes of Gearbox’s mandamus petition. Gearbox further
requests general relief.
Respectfully submitted,
By: /s/Richard B. Phillips, Jr.
Michael E. Schonberg
State Bar No. 00784927
J. Michael Heinlen
State Bar No. 24032287
Richard B. Phillips, Jr.
State Bar No. 2403833
THOMPSON & KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Phone: (214) 969-1700
Fax: (214) 969-1751
michael.schonberg@tklaw.com
michael.heinlen@tklaw.com
rich.phillips@tklaw.com
Counsel for Relator
Gearbox Software LLC
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Certificate of Conference
On November 2, 2015, I discussed this motion with Clint Westhoff,
counsel for Real Party in Interest Meghan Martel. Mr. Westhoff indicated
that Mrs. Martel will oppose the request for a stay.
/s/ Richard B. Phillips, Jr.
Richard B. Phillips, Jr.
Certificate of Service
On November 2, 2015, this emergency motion for stay was served on
counsel for the Real Parties in Interest by electronic service.
/s/ Richard B. Phillips, Jr.
Richard B. Phillips, Jr.
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