in Re Brian D. Martel and Gearbox Software Llc

Opinion

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.)

-1- 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.

-2- 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

-3- 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.

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