While most states’ rules and the federal rules allow some form of pre-suit discovery, Rule 202 of the Texas Rules of Civil Procedure grants courts significantly broad power to investigate potential claims. Rule 202 allows the petitioner to obtain deposition testimony and documents for use in an anticipated suit or to investigate a potential claim or suit.
What are some of the requirements of a Rule 202 Petition?
The petition must be filed where venue of the anticipated suit may lie (if suit is anticipated) or where the witness resides (if no suit is anticipated). It must also state the substance of testimony a petitioner expects to elicit from the witness and the reasons for needing to obtain testimony prior to suit. And if the petitioner anticipates suit, the petition must also identify (or affirmatively state it cannot identify) all persons expected to have “interests adverse” to the petitioner and serve them with notice at least 15 days before a hearing on the Rule 202 request so those persons can choose to appear and oppose.
What must the Court find to order discovery under Rule 202?
Before ordering discovery under Rule 202, a trial must find (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.
The order must also state whether the deposition will be on oral exam or via written questions and must contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure. This can include entry of a protective order, time restraints, or restrictions on the scope of the discovery.
While the Texas Supreme Court has stated Rule 202 was never intended for routine use, the Rule is routinely used. If you believe you could benefit from Rule 202 or have received a Rule 202 petition, contact us today.
