In re Challenge Office Products, Inc. and John Barbosa--Appeal from 270th District Court of Harris County

Opinion issued September 26, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-01101-CV

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IN RE CHALLENGE OFFICE PRODUCTS , INC.

AND JOHN BARBOSA , Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION Relators, Challenge Office Products , Inc. and John Barbosa, filed a petition for a writ of mandamus challenging Judge Gamble's November 15, 2005 order granting a motion to compel a deposition on written questions filed by the real party in interest, 3-D Office Supply, Inc. (1) Relators are nonparties to a lawsuit between the plaintiff/real party in interest and defendant Reuben Howard over a covenant not to compete.

The motion compels production of the following: "documents, receipts, invoices, bills, and other written material as described on the attached Exhibit A (but redacted as to all other information not herein ordered to be disclosed) evidencing the type of goods sold, and the quantity of goods sold by Challenge Office Products, Inc., and/or John Barbosa, if applicable, to each of the companies, persons, or accounts listed on the attached Exhibit A for such goods sold from January 11, 2005, until October 5, 2005." Relators claim this information is a trade secret or proprietary, and submitted as evidence an affidavit of John Barbosa. See Tex. R. Civ. P. 193.4 (party making objection or asserting privilege must present any evidence necessary to support objection or privilege); Tex. R. Evid. 507 (trade secrets). Barbosa's affidavit does not address how the specific documents are trade secrets or proprietary, except to claim that "[p]laintiff is requesting information that deals with the products and pricing of products sold to competitors by [Challenge Office Products] and by necessity it requests the buying requirements of certain customers." It does not appear that an evidentiary hearing was held on the motion to compel, or that anything other than Barbosa's affidavit was offered as evidence to support the privilege. See Tex. R. App. P. 52.7(a)(2) (relator must file with petition properly authenticated transcript of any relevant testimony from underlying proceeding, or statement that no testimony was adduced in connection with matter complained of). Finally, relators concede that the information requested is easily available from other sources.

We deny the petition for a writ of mandamus.

PER CURIAM

Panel consists of Justice Nuchia, Jennings, and Keyes.

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