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Schlumberger Fights Use Of Anti-SLAPP To Ax Secrets Claims
By Paul DeBenedetto
Law360, Houston (March 17, 2015, 6:28 PM ET) -- Schlumberger Ltd. told a Texas appeals court Friday
that the state anti-SLAPP statute does not apply to the company's trade secrets suit against its former
chief intellectual property lawyer, who won a $600,000 award, arguing the law does not cover private
communications for commercial gain.
The oil field services company fired the latest salvo in the case Friday, rejecting former Schlumberger
attorney Charlotte Rutherford's January argument that the trade secrets claims were properly dismissed
under the Texas Citizens Participation Act. Rutherford, a cross-appellant in the suit, is also seeking a final
claim's dismissal under that anti-SLAPP statute.
Friday’s brief, which was made available online Tuesday, argued that Rutherford’s definition of the TCPA
was too broad because its language makes clear that the law was only meant to cover public
communication related to government participation.
“The TCPA’s language, context and legislative history confirm that it protects communications made
publicly and with a nexus to participation in government, and not private communications for
commercial gain,” the brief said. “As decisions from both this court and the 14th Court of Appeals have
noted, because the stated purpose of the TCPA includes the phrase ‘otherwise participate in
government,’ it is apparent that the Legislature intended to protect only communications that are
analogous to participating in government.”
But in her cross-appellant reply filed Friday, Rutherford said Schlumberger’s definition improperly
limited the statute.
“To find support for this position, Schlumberger relies heavily on legislative history, dicta, and a
concurring opinion — essentially, everything but the words actually used in the TCPA,” Rutherford’s
brief said. “This is not surprising because, under the plain meaning of the terms defining the TCPA’s
scope, Rutherford prevails.”
Neither party immediately responded to requests for comment Tuesday.
The oil field services company in November appealed the $600,000 award entered against it, after a
Harris County judge two months earlier threw out the majority of its lawsuit accusing Rutherford of
sharing trade secrets.
Harris County District Judge R.K. Sandill in September dismissed four out of five claims against
Rutherford, awarded her $350,000 in attorneys’ fees and levied $250,000 in sanctions against
Schlumberger under the TCPA.
Schlumberger argued in its November appeal that the trial court’s interpretation of the act would have
the result of subjecting to dismissal claims completely unrelated to participation in government or public
communications, even before discovery ends, unless a plaintiff provides a “smoking gun.” That would be
an “absurd” result, Schlumberger argued, because plaintiffs would otherwise be able to rely on
circumstantial evidence in front of a jury.
Rutherford filed a cross-appeal in November, arguing that the court should also throw out the
company’s final contract claim. Schlumberger asserted that the TCPA did not apply to that claim.
Schlumberger originally sued Rutherford in March 2014 for allegedly misappropriating intellectual
property before leaving to take a senior vice president job at Acacia Research Corp.
Schlumberger said it had forensic data showing Rutherford had, in her last days with the company,
copied confidential trade secrets and other private data onto USB hard drives before deleting it from her
Schlumberger-issued laptop.
Rutherford also hired a third party to access that laptop to copy information from the computer, and
took confidential hard-copy documents from her office before leaving, according to Schlumberger.
In August, the company filed an amended petition suggesting Rutherford was behind a patent
infringement suit Acacia had launched against Schlumberger. The oil field services company claimed she
had advised her new employer to acquire the patent for a three-dimensional geological modeling
method that she allegedly knew her former employer could be sued for infringing.
Attorneys for Rutherford argued that Schlumberger was using the trade secrets suit as an improper
discovery tool and that the company was looking for an edge to defeat Acacia in the patent suit.
Judge Sandill seemed to agree, going as far as to suggest in court that Schlumberger overpled its case.
Schlumberger asked the appeals court to reverse the order dismissing its four claims, to deny
Rutherford’s dismissal motion and to remand the trade secrets case for further proceedings.
Schlumberger is represented by Craig Smyser, Justin M. Waggoner and Garland D. Murphy IV of Smyser
Kaplan & Veselka LLP, Andrew Fossum of Latham & Watkins LLP and Sean D. Jordan of Sutherland Asbill
& Brennan LLP.
Rutherford is represented by Joseph Y. Ahmad, Timothy C. Shelby and Adam Milasincic of Ahmad
Zavitsanos Anaipakos Alavi & Mensing PC and Thomas C. Wright and Shelley J. White of Wright & Close
LLP.
The case is Schlumberger Ltd. et al. v. Rutherford, case number 01-14-00776-CV, in the First Court of
Appeals of the State of Texas.
--Editing by Edrienne Su. All Content © 2003-2015, Portfolio Media, Inc.