THE LOOK BEFORE THE LEAP

Pre-suit Depositions in Texas

INTRODUCTION Tex. R. Civ. P. 183 Tex. R. Civ. P. 737

Tex. R. Civ. P. 202.5 “The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed.”

Very unique discovery device. No other jurisdiction offers such a device.

LIMITATIONS The Texas Supreme Court in In re Jorden, 249 S. W LIMITATIONS The Texas Supreme Court in In re Jorden, 249 S.W. 3d 416 (Tex. 2008), warned “Rule 202 depositions are not now and never have been intended for routine use.” The Texas Supreme Court has admonished trial courts to “strictly limit and carefully supervise pre-suit discovery...” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam).

VERY IMPORTANT BUT SUBTLE DISTINCTION Rule 202 does not require a potential litigant to expressly state a viable claim before being permitted to take a pre-suit deposition. In re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App. – Houston [14th Dist.] 2007, orig. proceeding). However, the discovery sought must still be relevant to the subject matter of the anticipated claim. As the Court in In re Reassure America Life Insurance Company, 421 S.W.3d 165 (Tex. App. – Corpus Christi 2013, orig. proceeding) noted:   In this regard, we note that the scope of discovery is delineated by the subject matter of the anticipated action. See Tex. R. Civ. P. 192.3(a); see also In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). 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.

RULE 202 CANNOT BE USED TO CIRCUMVENT OTHER PROCEDURES For instance, if the labor code requires that all administrative remedies must be exhausted before filing a civil action, Rule 202 cannot be used as an end around. In re Bailey–Newell, 439 S.W. 3d 428 (Tex. App. – Houston [1st Dist.] 2014, orig. proceeding),

THE SAME CONCEPT APPLIES TO PRIVILEGES A 202 petition does not allow the petitioner to ignore claims of privilege. The same procedures and burdens apply as if case were in suit. In re PrairieSmarts LLC, 421 S.W. 3d 296 (Tex. App. – Ft. Worth 2014, orig. proceeding) (Trade Secrets)

JURISDICTION: THE “PROPER COURT” The Court must have subject matter jurisdiction over the proposed deponent. Special appearance procedure is applicable. In re Doe, 444 S.W.3d 603 (Tex. 2014) Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011) (assertion of sovereign immunity)

ANTICIPATED CLAIM MUST BE RIPE In re Depinho, 505 S. W. 621 (Tex ANTICIPATED CLAIM MUST BE RIPE In re Depinho, 505 S.W. 621 (Tex. 2016) (Cannot investigate wrongful termination before termination occurs)

JURISDICTIONAL LIMITS OF COURT Anticipated claim must be within the jurisdictional limits of the court in which the Rule 202 petition is filed. In re City of Dallas, 501 S.W.3d 71 (Tex. 2016)

RULE 202 PETITION CANNOT END RUN AN ARBITRATION AGREEMENT In re Amarillo II Enterprises, LLC, 2017 WL 491938 (Tex. App. – Amarillo 2017, orig. proceeding)

VENUE Tricky! Depends on what is being sought, aid anticipated lawsuit (venue then proper in county of anticipated suit) or investigation (venue proper in county of witness’s residence).

STANDING In re Wolfe, 341 S. W. 3d 932, 932-33 (Tex. 2011) (orig STANDING In re Wolfe, 341 S.W. 3d 932, 932-33 (Tex. 2011) (orig. proceeding) (holding that when parties did not have standing on their own to bring a suit for removal of a county official, they could not obtain pre-suit discovery under Rule 202 to investigate the potential removal suit)

REMOVAL AND REMAND The majority of Texas Courts that have considered whether a Rule 202 proceeding is removable have held that it is not. In re Enable Commerce, Inc., 526 F.R.D. 527, 530 (N.D. Tex. Dallas Div. 2009). (citations omitted)

PROCEDURAL REQUIREMENTS

COURT MAY NOT MAKE UP PROCEDURE In re Does 1-10, 242 S. W. 3d 805 (Tex COURT MAY NOT MAKE UP PROCEDURE In re Does 1-10, 242 S.W.3d 805 (Tex. App. – Texarkana 2007, orig. proceeding).

AID IN AN ANTICIPATED SUIT v AID IN AN ANTICIPATED SUIT v. INVESTIGATE A POTENTIAL CLAIM If to aid in anticipated suit: 1. All potential parties must be provided notice, 2. Venue proper in the county of the anticipated suit; 3. Burden: must demonstrate that allowing the Petitioner to take the requested deposition may prevent a failure or delay of justice. Tex. R. Civ. P. 202.4(a)(1).

If to investigate a potential claim: 1 If to investigate a potential claim: 1. No notice to potential parties necessary; 2. Venue in county of witness’s residence; 3. Burden: Trial Court must find that 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. Tex. R. Civ. P. 202.4(a)(2).

The petition must be verified.

No claim must be pled, but the pleading must plead a sufficient factual basis for the requested relief.

Petitioner must produce evidence Petitioner must produce evidence. Verified petition may not be sufficient or legal evidence. In re East, 476 S.W.3d 61 (Tex. App.- Corpus Christi 2014, orig. proceeding).

PRODUCTION OF DOCUMENTS AND THINGS In re Pickrell, Not Reported in S.W.3d, 2017 WL 1452851 (Tex. App. – Waco 2017) (production of documents not allowed) I disagree.

FINDINGS IN THE ORDER ARE IMPERATIVE Failure of an order to contain one of these findings [allowing the Petitioner to take the requested deposition may prevent a failure or delay of justice OR 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] could be fatal and result in a finding that the Trial Court abused its discretion in granting the petition. In re Cauley, 437 S.W.3d 650 (Tex. App. – Tyler 2014, orig. proceeding) and In re Denton, Not Reported in S.W.3d, 2009 WL 471524 (Tex. App. – Waco 2009).

DEFAMATION, BUSINESS DISPARAGEMENT CLAIMS AND THE ANTI-SLAPP STATUTE In re Elliott, 504 S.W.3d 455 (Tex. App. – Austin 2016, orig. proceeding).