Rule 202 Pre-Suit Depositions in Texas

Procedural rules are generally complex and confusing to non-lawyers, but Rule 202 of the Texas Rules of Civil Procedure must certainly befuddle them:  "So I'm being sued to find out if I can be sued?"  As such, a potential defendant could arguably be justified in viewing Rule 202 as a costly excuse to grant permissible fishing expeditions for frivolous lawsuits.  Texas is certainly the "Wild West" when it comes to the availability of pre-suit depositions.  In fact, Rule 202 in Texas is understood to be the broadest state grant of investigatory discovery to private parties in the United States.  However, the Rule serves an important function, and contains some procedural protections that should be utilized by a recipient of such a petition.

Rule 202 Pre-Suit Depositions

Rule 202 states:

“A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either (1) 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]

Federal courts and other states typically give potential plaintiffs the opportunity to take depositions to preserve witness testimony when there is a credible risk that the testimony may be lost if it is not recorded immediately, but the Texas Rule is much more broad.  It specifically allows potential plaintiffs to "investigate" potential claims.

However, before ordering discovery under Rule 202, a trial “must” find that either “(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.”[2]    Trial judges must expressly make the required findings—“[t]he rule does not permit the findings to be implied from support in the record.”[3]

Rule 202 also requires mandatory notice and service on potential parties, and "[a]ny interested party may move, in the proceeding or by bill of review, to suppress any deposition, in whole or in part . . . and may also attack or oppose the deposition by any other means."[4]

The Texas Supreme Court has attempted to narrow the construction of Rule 202 in stating that “Rule 202 depositions . . . never have been intended for routine use.”[5] The Court has further observed: “[t]he intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly” and “judges should maintain an active oversight role to ensure that [such discovery is] not misused.”[6]  The Court has further stated: “Rule 202 is not a license for forced interrogations. Courts must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule.”[7]

Despite the Supreme Court’s opinion that Rule 202 was not intended for "routine use," in fact the Rule is routinely being used.  One study found that a total of 980 Rule 202 petitions were filed in two of Texas’s largest counties within five years of Rule 202’s enactment.[8]  The author of the study found that surveyed lawyers reported using Rule 202 about 40% of the time for the purpose of perpetuating a witness’s testimony and around 60% of the time for investigating a potential or anticipated suit.

Practical Considerations Related to Rule 202 Depositions

In practice, many of the advantages to plaintiffs gained by pursuing a Rule 202 deposition are obvious.  With increased scrutiny on frivolous filings, pre-suit discovery may ensure that the case considered for filing would be valid under the rules and avoid frivolous filings.  Also, obtaining valuable admissions in a Rule 202 deposition could greatly further the goal of early and favorable resolution of the dispute.  Evaluating a case's potential value is an additional benefit of obtaining a pre-suit deposition.  Lawsuits are much easier to get into than to get out of, so a potential plaintiff may use a Rule 202 deposition to assess the scope of liability and damages, and to determine the financial solvency of potential defendants.

Because potential defendants can be put in a difficult position with Rule 202 depositions, vigilance is a constant necessity.  Potential defendants must ensure that trial courts are aware of the protections afforded by Rule 202 and seek specific orders from the trial court or appellate review to avoid discovery abuses.

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

[2] Id. at 202.4(a).

[3] In re Does I and 2, 337 S.W.3d 862, 865 (Tex. 2011).

[4] Tex. R. Civ. P. 202.3.

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

[6] In re Does I and 2, 337 S.W.3d at 865.

[7] In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011).

[8] Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform, 217, 253 (2007).

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