Employer seeking depositions without filing charges

Myself and my partner recently left the same employer to set ourselves up in the same line of business of our previous employer. Neither of us had an employment contract or a non-compete in place. The employer filed a petition to conduct dispositions to investigate potential claims of "misappropriation of trade secrets and breach of loylaty" and a hearing is set for less than one month from now. She's hired Littler Mendelson to represent her.

Without a non-compete or employment contract in place, and with no evidence that any misappropriation took place, the former employer is looking for a court order to go on a fishing expedition.

(1) How common is this practice of deposing individuals without charges being filed against them?

(2) Is there a precedent for this kind of filing?

(3) How will such a request be viewed in a state like Texas, where non-competes (even when in place) are very hard to enforce?

2 answers  |  asked Jun 4, 2004 5:15 PM [EST]  |  applies to Texas

Answers (2)

Christopher McKinney
Pre-Suit Depositions

From your description, it appears that your former employer's attorney is utilizing a rule in the Texas Rules of Civil Procedure that allows for the taking of depositions without filing suit for the purposes of investigating a potential claim. Many lawyers are not aware of this provision but such depositions are allowed under the rules as long as a requisite showing of facts is made.

You should immediately hire counsel to assist you in this situation and to represent you at the upcoming hearing. It is entirely possible that a judge will allow this deposition to go forward in any event but without a lawyer, you can be sure of it. A lawyer may be able to narrow the scope of inquiry that your former employer may use at the deposition and may be able to block it altogether, give that it may be nothing more than an unlawful attempt to harasser a business competitor (namely you).

I suggest you obtain counsel that is Board Certified in Labor and Employment Law as such issues will predominate your situation.

If you wish, you may visit our website for more information about such issues: http://www.mckinneylaw.net

posted by Christopher McKinney  |  Jun 6, 2004 2:23 PM [EST]
Trey Henderson
non compete

I advise you to get an attorney immediately. Your former employer has hired a very good firm to pursue this matter, and you need to be properly represented. It sounds as though they did file suit against you and are now seeking to depose you. DO NOT ATTEND THE DEPOSITIONS WITHOUT AN ATTORNEY. These matters are very complex and I cannot give you a detailed analysis in a short space. You need to sit down with an experienced attorney to get your answers.

posted by Trey Henderson  |  Jun 4, 2004 5:21 PM [EST]

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