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Texas’s Rule 202: A Unique Approach to Pre-Litigation Discovery

by on Litigation. Published March 31st, 2021
Texas’s Rule 202: A Unique Approach to Pre-Litigation Discovery

Broad allowances for pre-lawsuit discovery through a provision in the Rules of Civil Procedure present an opportunity for Texas attorneys and their clients to thoroughly investigate claims before filing a lawsuit

Key takeaways:

  • Texas’s Rule of Civil Procedure 202 grants broad power to investigate potential claims, unlike many other states or the federal rules.
  • Lawyers use Rule 202 for identifying potential defendants, refining legal theories, and making a case for avoiding trial. 
  • Rule 202 requires a person seeking authorization to conduct pre-litigation discovery to submit a verified petition to the court, following the written procedure and meeting the rules of jurisdiction. 
  • Rule 202 has been used in employment claims, trade secrets lawsuits, corporate cases (fraud, defamation, and breach of fiduciary duty investigations), and potential product liability claims. 

Texas is a trailblazer in pre-litigation discovery. Although the Federal Rules of Civil Procedure (FRCP) and most states allow some form of pre-suit discovery, Texas Rule of Civil Procedure 202 grants significantly broad power to investigate potential claims.

To date, few federal or state civil procedure laws broadly authorize discovery prior to the filing of a lawsuit. Language in many states’ regulations limits it to rare circumstances explicitly defined in their rules of civil procedure. Rule 27 of the Federal Rules of Civil Procedure, upon which many states’ rules are based, allows for pretrial “discovery” to perpetuate testimony (i.e., to allow for the preservation of testimony, physical evidence, and documents not likely to be available later). Various states also specify a rigorous process that must be followed to file a petition for pre-suit discovery. 

As an investigative tool, Rule 202 can lead to alternate resolutions of conflicts. And while the Texas Supreme Court cautioned against the routine use of pre-suit discovery measures, the use of Rule 202 has, in practice, become routine. One study reported that within five years of its enactment, 980 Rule 202 petitions were filed in two Texas counties. The lawyers surveyed in that study claimed to use Rule 202 around 60% of the time for investigating a potential or anticipated suit, and most occurrences were used to perpetuate testimony. 

Attorneys have found Rule 202 to be a powerful tool for identifying potential defendants, refining legal theories, and often making a case for avoiding trial. 

A brief history of Rule 202

Rule 202 (Tex. R. Civ. P. 202) originated as part of the 1999 revision of the Texas Rules of Civil Procedure. It is based, in part, on the contents of two repealed rules, Rule 187 and Rule 737. 

Rule 187, derived from an 1848 statute, allows for the practice of taking discovery to perpetuate testimony that’s in imminent danger of being lost (e.g., by the death or departure of a witness) for later use. Rule 737, which provides for a bill of discovery, has its origins in English common law and a 1923 Texas statute. 

Rule 202 incorporated the common use of Rule 737: allowing for an investigation of a lawsuit before it is filed with the need to take discovery to perpetuate testimony. It states that the scope of discovery in depositions authorized by the rule is the same as if the anticipated suit or potential claim had been filed. 

The Texas Supreme Court declared that because of this broad scope, trial courts must “strictly limit and carefully supervise pre-suit discovery,” adding that Rule 202 “is not a license for forced interrogations.”

Procedural details

Under Rule 202, a person can submit a verified petition to the court for authorization to take a deposition to perpetuate testimony for use in an anticipated suit, or to investigate a potential claim or suit. 

The petitioner does not need to set forth a claim but must include the intended action’s subject matter. They must also state the purpose of the deposition and provide information about the intended parties and any parties the petitioner expects to have an adverse interest in the anticipated suit.

The court must grant the petition and order the deposition to proceed if it finds that allowing it may prevent a failure or delay of justice. The court must also find that the benefit of proceeding outweighs the burden or expense.

Rule 202 states that the petition must be filed in a “proper court” of any county where either the “venue of the anticipated suit may lie, or where the witness resides, if no suit is yet anticipated.” 

The Texas Supreme Court restricted the reach of Rule 202 in a 2014 case, ruling that the burden should be on the potential plaintiff to plead allegations showing personal jurisdiction over the defendant. The Court stressed that “Rule 202 does not guarantee access to information for every petitioner who claims to need it.”

The practical applications of Rule 202

Attorneys have found Rule 202 to be a powerful tool for identifying potential defendants and red flags in an anticipated case. It can be a way to gain an advantage while forming a litigation strategy and refining legal theories. Rule 202 can also help in establishing facts that ultimately avoid trial. This form of pre-suit discovery may increase the odds of achieving an out-of-court settlement through arbitration, mediation, or direct negotiation. 

Typical applications of Rule 202 include investigating potential employment and trade secret violations, fraud, defamation, breach of fiduciary duty, or potential product liability claims. However, the Texas Supreme Court has held that pre-suit depositions are not available for use in investigating a potential healthcare liability claim.

Additional considerations

The ability to petition under Rule 202 can provide advantages for plaintiffs and the court system, including the possibility of achieving earlier resolution of an anticipated claim. However, the effects on potential defendants are less clear. 

For example, Santa Clara University School of Law professor Eric Goldman argues that the rights of those being investigated could be compromised in a Texas pre-suit discovery proceeding. He cites an example of revealing the identities of anonymous parties, which “could deprive the user of his or her rights to assert critical arguments, including First Amendment rights, in their home court.”

Nevertheless, and despite somewhat recent limitations on its use, Rule 202 remains a commonly employed tool that provides Texas attorneys on both sides of the aisle expanded avenues for pretrial discovery and investigation. 

The attorneys at Johnston Clem Gifford have significant litigation and discovery experience. We prepare cases for trial from the start, which increases leverage and puts our clients in optimal positions to reach successful outcomes. For more information, contact us online or by calling (214) 974-8000.