by Sean McCaffity and Jody Rodenberg
Rule 202 of the Texas Rules of Civil Procedure allows a person to ask a court for oral depositions or depositions on written questions to obtain testimony for use in anticipated suit or to investigate a potential claim.
The ability to perform pre-suit discovery is not absolute. Nuances have developed in certain practice areas when utilizing this tool. Accordingly, thorough legal research prior to filing a Rule 202 Petition is required. Always start with reading Rule 202 in its entirety. The scope of discovery is the same as if the anticipated suit had been filed. However, the depositions are governed by the rules applicable to non-parties.
The first step in obtaining pre-suit discovery is filing a pre-suit petition with the court. Rule 202 identifies eight requirements. It must (1) be verified, (2) filed in the proper county, (3) be in the name of the petitioner, (4) state either that the petitioner anticipates suit in which he or she may be a party or that the petitioner is investigating a claim, (5) state the subject matter of the anticipated action, (6) contain either the names of the persons expected to have interests adverse to the petitioner, including their address and telephone number, or state such information cannot be ascertained through diligent inquiry, (7) include the name, address and telephone number of the persons to be deposed, the substance of their expected testimony, and the reason for obtaining the testimony, and (8) request an order authorizing the depositions.
Service and Notice
After the petition is filed, it must be served on all persons sought to be deposed and, if suit is anticipated, on all persons expected to have interests adverse to the petitioner in the anticipated suit. Again, this is information that should be included in the pre-suit petition. The pre-suit petition and notice of the hearing must be served at least fifteen (15) days before the hearing.
Interestingly, Rule 202.3 allows for service by publication on persons not named, and contains specific rules on the contents of the publications and the length of time it must run. There are also unique requirements for service in probate cases, which should be considered if the petitioner seeks to take a deposition in anticipation of an application for probate of a will. It is worth noting courts can shorten or lengthen the notice periods, if appropriate.
Obtaining an Order
After the pre-suit petition has been filed and all parties have been given proper notice, a hearing will be held. A court must order the deposition be taken if it finds that (1) allowing the petitioner to take the deposition may prevent a failure of delay of justice or (2) the likely benefit outweighs the burden or expense.
In deciding whether the likely benefit outweighs the burden or expense, courts may treat issues related to the revelation of trade secrets differently than other types of information. At least one court of appeals incorporated the burden-shifting analysis typically used in litigation when determining whether a trade secret should be disclosed in pre-suit discovery. In litigation, the party resisting discovery first establishes certain information is, in fact, a trade secret. The party seeking discovery must then establish the requested information is necessary for a fair adjudication of its claims. This is typically accomplished by identifying exactly how the lack of the information will impair the ability to present the case on the merits. Regardless of the area of law, litigants should keep this in mind when preparing for the hearing.
When drafting the order granting the depositions, you must state whether the deposition will be taken on oral examination or on written questions. If the order does not state the time and place of the deposition, the petitioner must notice the deposition as required by Rule 199 or 200 of the Texas Rules of Civil Procedure. If the court finds any protections are necessary or appropriate, such protections must be contained in the order.
Sean McCaffity is a partner at Sommerman, McCaffity and Quesada, LLP and can be reached at firstname.lastname@example.org. Jody Rodenberg is an associate at the firm and can be reached at email@example.com.