Pre-Suit Discovery in Texas Under Rule 202

by Christopher S. Dodrill

Texas is one of several states that allow some form of pre-suit discovery. These rules run counter to the common-law tradition of requiring fact pleading to be complete before discovery commences. Texas Rule of Civil Procedure 202, specifically, allows a would-be litigant to obtain a deposition of a person in two different circumstances: (a) “to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit” or (b) “to investigate a potential claim or suit.”[1]

Recognizing that pre-suit discovery is unique to traditional litigation, the Texas Supreme Court has cautioned, “Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.”[2] Since no lawsuit has been filed, Texas courts require close adherence to the procedure set forth in the rule. The person seeking the deposition, as well as a person on the receiving end of a Rule 202 petition, should ensure that all procedural steps have been followed.

Pre-suit discovery presents a double-edged sword. For would-be plaintiffs, it permits a sneak peek. While a budding litigant “cannot obtain by Rule 202 what it would be denied in the anticipated action,” it can use the discovery to determine whether there is sufficient evidence to bring a lawsuit and identify who, if anyone, is the proper defendant. But it also imposes a substantial burden on the person subject to the discovery. A respondent on the receiving end of a pre-suit discovery request must react quickly and often without much information. Having counsel experienced in pre-suit discovery and aware of lurking hazards is critical. The following identifies key considerations in assessing how to file or respond to a Rule 202 petition in Texas.

Location, location, location. A Rule 202 proceeding is initiated by the filing of a petition in the jurisdiction in which “venue of the anticipated suit may lie, if suit is anticipated,” or if no suit is anticipated, where the witness resides.[3]

“I”s and “T”s. The Rule and Texas courts mandate that the petition satisfy several requirements:

  • It must be verified;
  • It must state the purpose for which the deposition is sought (e., to preserve testimony or to investigate a potential claim or suit);
  • While pleading a specific cause of action is not required, it must “state the subject matter of the anticipated action, if any, and the petitioner’s interest therein”;
  • If a suit is anticipated, it must identify persons expected to have adverse interests to the petitioner’s in a potential suit, as well as their addresses and telephone numbers (or state that the names, addresses, and phone numbers cannot be ascertained);
  • It must state the name, address, and telephone number of each person to be deposed, the substance of the expected testimony, and the petitioner’s reasons for desiring the testimony; and
  • It must request a court order authorizing each deposition sought.[4]

This is not a subpoena. In contrast to a subpoena, which is a command from the court upon issuance, the petitioner must obtain a court order authorizing the deposition before a Rule 202 deposition can take place. To that end, the petitioner must schedule a hearing and personally serve the petition on the respondent with at least 15 days’ notice of that hearing in writing.[5] The respondent can then file its objections. The court’s local rules should be consulted to determine the deadline for filing an opposition.

What’s the point? The Rule 202 petition need not plead a specific cause of action.[6] But Rule 202 is not a license to engage in a fishing expedition, either. “A petition that merely tracks the language of Rule 202 in averring the necessity of a pre-suit deposition, without including any explanatory facts regarding the anticipated suit or the potential claim, is insufficient to meet the petitioner’s burden.”[7] This is particularly true when the deposition is sought to investigate an anticipated claim or suit. In that instance, there must be some “claim or suit” that the evidence can inform.

It’s all about the evidence. The petitioner’s burden continues at the hearing. The petitioner carries an evidentiary burden of convincing the court that (i) “allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit” or (ii) “the likely benefit of allow the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.”[8]  Texas courts require evidence to carry this burden.[9] The facts may not be implied from the record.[10] Some go as far to say that neither the verified petition nor the argument of counsel is enough.[11] If the petitioner carries this burden, then the court “must” order the deposition to take place.[12]

Findings a must. A generic order granting a Rule 202 deposition will not satisfy the Rule’s requirements. The court must find facts; it must state whether the deposition will be taken orally or on written questions; it must specify the time and date for the deposition (or else a notice of deposition will also be required); and it must identify any protections that the court deems necessary.

Documents? It depends. Texas courts are split over whether documents can be obtained through a Rule 202 petition. On one hand, the Rule does not mention documents specifically, and construing the Rule strictly, it only covers a “deposition.”[13] On the other hand, the Rule states, “The scope of discovery in depositions authorized by this Rule is the same as if the anticipated suit or potential claim had been filed.”[14] Since documents would be discoverable if a suit had been filed, then they are discoverable under Rule 202. Petitioners and respondents alike should be familiar with the controlling precedent to determine whether documents are in fact discoverable under Rule 202. Courts that prohibit document discovery limit the usefulness of the pre-suit discovery. But this curtailment of the discovery also reduces the burden that the discovery device places on the respondent.

Removal is not an option. Texas federal courts have ruled that a Rule 202 proceeding is not an “action” under Texas law. Efforts to remove Rule 202 proceedings have thus been unsuccessful.[15]

Appellate review is available (but limited). A court’s ruling on a Rule 202 petition is not directly appealable, but a respondent ordered to sit for a pre-suit deposition is not without recourse. Although an appeal is not available, Texas appellate courts have recognized that an order granting a Rule 202 petition is subject to mandamus review.[16]

Rule 202 has the potential to be a valuable litigation tool. But it lays traps for the unwary.  Lawyers on both sides of the deposition should be mindful of those traps and aware of the important procedures that must be followed to obtain a pre-suit deposition.

[1] Tex. R. Civ. P. 202.1.

[2] In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008).

[3] Tex. R. Civ. P. 202.2(b).

[4] Tex. R. Civ. P. 202(a) – (h).

[5] Tex. R. Civ. P. 202.3(a).

[6] In re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding) (explaining that requiring a specific cause of action “would eviscerate the investigatory purpose of Rule 202 and essentially require one to file suit before determining whether a claim exists” and would place “counsel in a quandary, considering counsel’s ethical duty of candor to the court and the requirements of [Rule 13]”); City of Houston v. U.S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Rule 202 does not require a petitioner to plead a specific cause of action.”).

[7] In re Reassure Am. Life Ins. Co., 421 S.W.3d 165 (Tex. App.—Corpus Christi 2013, orig. proceeding).

[8] Tex. R. Civ. P. 202.4(a); In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi 2014) (orig. proceeding).

[9] In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi 2014) (orig. proceeding) (“The law is clear that a petitioner seeking a presuit deposition must present evidence to meet its burden to establish the facts necessary to obtain the deposition.”); In re Hochheim Prairie Farm Mut. Ins. Ass’n, 115 S.W.3d 793, 796 (Tex. App.—Beaumont 2003, orig. proceeding); In re Dallas County Hosp. Dist., No. 10-14-00249-CV, 2014 Tex. App. LEXIS 3542, at *5-6 (Tex. App.—Dallas Apr. 1, 2014, orig. proceeding) (mem. op.); Love v. Moreland, 280 S.W.3d 334, 336 n.3 (Tex. App.—Amarillo 2008, no pet.); see also In re Rockafellow, No. 07-11-00066-CV, 2011 Tex. App. LEXIS 5495, at *13 (Tex. App.—Amarillo July 19, 2011, orig. proceeding) (mem. op.).

[10] In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding).

[11] In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi 2014) (orig. proceeding) (explaining that “sworn, verified pleadings are generally not considered competent evidence to” carry this burden, and “the argument of counsel is not evidence.”); Love v. Moreland, 280 S.W.3d 334, 336 n.3 (Tex. App.—Amarillo 2008, no pet.) (“[A]n attorney’s arguments do not constitute evidence[.]”); In re Pickrell, No. 10-17-00091-CV, 2017 Tex. App. LEXIS 3457, at *10 (Tex. App.—Waco, Apr. 19, 2017) (orig. proceeding) (mem. op.) (“We, too, hold that a petitioner under Rule 202 cannot rely solely on its verified petition and/or the argument of counsel to establish the evidentiary requirements under Rule 202.”).

[12] Tex. R. Civ. P. 202.4(a).

[13] DeAngelis v. Protective Parents Coalition, 556 S.W.3d 836, 858 (Tex. App.—Fort Worth 2018, no pet.) (“[T]he request for the production of documents in the Rule 202 Petition is itself improper.”).

[14] Tex. R. Civ. P. 202.5.

[15] See Mayfield-George v. Tex. Rehab. Comm’n, 197 F.R.D. 280, 283 (N.D. Tex. 2000).

[16] See In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam) (“An improper order under Rule 202 may be set aside by mandamus.” (citing In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding))).

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Chris Dodrill is a senior associate at Greenberg Traurig and practice in their litigation section. He can be reached at dodrillc@gtlaw.com.

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