Texas law allows a party to take a deposition without filing suit, under limited conditions and with a judge’s permission. In recent years, this procedure has become widely used to let a party obtain specific information before filing suit. With the increasing number of laws that allow a defendant to get a case dismissed and recover attorney’s fees even before full discovery has begun, a Rule 202 deposition may be a helpful tool. It can sometimes clarify a situation or lead to settlement without litigation. But, it can also spend a lot of attorney time and client money on matters that do not advance the dispute.
Rule 202 allows a party to petition a court to authorize a deposition on oral examination or written questions for two reasons:
- to perpetuate the petitioner’s own testimony or obtain that of any other person for use in an anticipated lawsuit; or
- to investigate a potential claim or suit. The petition must be verified and specify the desired witnesses.
If the deposition is desired for use in an anticipated lawsuit, it must be filed in a court with venue of the anticipated suit and cannot be barred by limitations. The petition must explain the subject matter of the suit and the petitioner’s interest in it. It must give the name and address of all parties expected to have an adverse interest in the anticipated lawsuit. It must describe the substance of the testimony that petitioner expects to elicit and the reason for desiring that testimony.
If the expressed purpose is to investigate a potential claim, the petitioner does not have to state who the potential adverse party is. It must be filed in the county where the proposed deponent resides. This may result in filings in several counties because of the proposed deponents’ residences. The subsequent suit does not have to be filed in the court that heard the Rule 202 petition. That is subject to normal venue considerations.
The petitioner should schedule a hearing before serving the petition and notice of the deposition, because the petitioner must obtain personal service on each party at least 20 days before the noticed deposition for persons not anticipated as parties to a later suit and 30 days before for persons who are anticipated as parties in a later suit. Notice of the hearing on whether the petition will be granted must be served on each party who is expected to have an adverse interest in the anticipated litigation at least 15 days before the hearing. Rule 202 deposition notices often trigger a number of objections and pleas to the jurisdiction, so get an appropriate time slot for the hearing. The deposition notices must comply with the Texas Rules of Civil Procedure’s requirements for such notices in litigation.
The trial court must have personal jurisdiction over the potential defendant to permit pre-suit discovery. This requirement has thwarted attempts to determine the identity of parties posting on the internet from the website. The trial court must also have subject matter jurisdiction over the anticipated suit, because the process would be pointless if the court ordered the depositions, but no suit could be filed. If the party that one proposes to sue is a governmental entity, expect a plea to the jurisdiction, claiming governmental immunity from suit. Recent Texas Supreme Court case law has narrowed the conduct that automatically qualifies as a governmental function (immunity applies) versus a proprietary function (immunity does not apply), so many more disputes about this are expected to take place early, in a Rule 202 petition context.
In language that is somewhat unusual, Rule 202 states that the trial court “must order a deposition to be taken if, but only if,” the court finds that allowing the requested deposition “may prevent a failure or delay of justice in an anticipated suit” or the likely benefit of allowing the deposition “to investigate a potential claim outweighs the burden or expense of the procedure.” That language generally results in the trial court imposing certain time, place, and length restrictions if it grants the request. The court may also limit the time for depositions in a later-filed lawsuit by including the time spent with a deponent in a pre-suit deposition in the six-hour time limit under Rule 199.
The court has discretion in imposing these restrictions “to protect the witness or any person who may be affected by the procedure.” Although Rule 202 testimony requested in anticipation of suit may be used for impeachment in the subsequent suit, the court may restrict or prohibit such use to protect a person who was not served with notice of the deposition from any unfair prejudice or abuse of the rule.
The options for seeking review of a ruling on a Rule 202 petition differ, depending on whether the deposition was sought from a party against whom suit was anticipated. If that is the case, the order is not final, so it is not appealable. Mandamus is the appropriate vehicle. However, if the ruling was on a petition requested for investigation of a potential claim, it is final and appealable. The issue of whether a trial court’s legal determination made in connection with a Rule 202 petition, such as granting a plea to the jurisdiction based on governmental immunity, can be the basis for collateral estoppel in the future-filed case is an open question at this point.
Rule 202 petitions may be a strategic tool. For example, a plaintiff who wants to sue an ex-employer for wrongful termination may file a petition to depose current and former supervisors and co-employees. This may lead to mediation or other non-litigation solutions. Be careful though, because it could do the opposite – entrench the potential defendant in an unreasonable and expensive-to-litigate position.
The Rule 202 process can get complicated. When you are representing someone with a possible cause of action, think through the pros and cons before filing a petition. If you generally represent defendants, be prepared to see Rule 202 strategically used to get testimony on the record and tee up a dispute sooner, rather than later.
