Conducting Out-of-State Discovery in Texas

Texas does not follow the pack when it comes to many things, including out-of-state discovery.

Like any other exercise of interstate authority, discovery subpoenas issued by the courts of one state are not automatically enforceable in another. Absent an agreement of the discovery target to voluntarily comply with an out-of-state subpoena, the person seeking information must first obtain the assistance of a proper authority in the state where the target resides or can be located. 

To simplify this process, most states have enacted the Uniform Interstate Depositions and Discovery Act (UIDDA), a model law promulgated in 2007 by the Uniform Law Commission. The UIDDA allows a subpoena from the originating state’s court–including a subpoena which may be issued by an attorney alone–to be sent directly to an appropriate court in another state where the discovery is sought to be conducted and, by simple ministerial act of the clerk of court, have it transformed into a locally enforceable subpoena that can be served like any other issued in that state. There is no need to involve a judge on either end of the process unless enforcement becomes necessary or the witness seeks protection.

Texas, however, is one of the few states not to enact a version of the UIDDA. Other states in that dwindling category as of this writing include: Connecticut, Massachusetts, Missouri (with legislation under consideration), New Hampshire, and Wyoming. Although such legislation has been introduced in Texas before, it does not appear the standard will be changing anytime soon. 

Out-of-state (or foreign) requests to conduct discovery in Texas are governed instead by Texas Rule of Civil Procedure (“TRCP”) 201.2, which implements Texas Civil Practice & Remedies Code § 20.002. 

Under TRCP 201.2, a person seeking evidence in Texas for an out-of-state proceeding must first obtain a “mandate, writ, or commission” from the court where the suit is pending. Some states like California have a specific procedure allowing a commission for discovery in other states to be issued. See Cal. Code of Civ. Proc. § 2026.010(f)see also cf. TRCP 201.1 (governing the procedure in Texas to obtain issuance of a letter rogatory, letter of request, or other device for discovery in another state). In states where there is no specific court rule, procedure, or statute governing how to seek discovery in another state, it is often simple as obtaining an order from the originating court authorizing the discovery to occur in Texas and requesting assistance from an appropriate authority in Texas. The courts in Texas will then lend assistance under the principles of comity.

Once an out-of-state “mandate, writ, or commission” is issued, then Texas law allows the witness to “be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in [Texas].” TRCP 201.2. At that point, TRCPs 176 and 205 govern a non-party discovery request or other need for testimony no differently than for any case pending in Texas. That allows for either an oral deposition or deposition on written questions, with or without an additional requirement to produce documents (i.e., a “duces tecum”), by means of following the processes for a standard discovery notice and subpoena in Texas. It is likely possible as well to obtain remote testimony from Texas for an out-of-state trial or arbitration hearing under TRCP 176, although the remedial process should a witness not appear as and when directed may not be sufficient at that point.

TRCP 176 allows a Texas subpoena to be issued by any of the following persons: (i) a clerk of court; (ii) an attorney licensed in Texas; or (iii) an officer authorized to take depositions in Texas (such as, among others, a court reporter or notary public). Such a subpoena must be personally served on the witness by a sheriff, constable, or private process server. See TRCP 176.4, 176.5.

The language of the applicable rules and history of the statute arguably allow a subpoena to be issued and served without the need to file a miscellaneous proceeding in Texas, similar to how the UIDDA works, since a subpoena can be enforced by either the court from which it was issued “or a district court in the county in which the subpoena is served.”  TRCP 176.8(a) (emphasis added); see also Tex. Rev. Civ. Stat. art. 3769a-b (1984). Nonetheless, it is often advisable to first file such a proceeding in Texas in order to have a forum ready to quickly compel compliance (and possibly award fees or costs as a sanction for noncompliance) or resolve any disputes that arise during a deposition or other testimony. Take note, however, Texas courts will not hear issues concerning the “relevance” or “materiality” of a discovery request related to an out-of-state proceeding. That is reserved for the out-of-state court with jurisdiction over the underlying cause. The Texas court simply lends its jurisdictional assistance by requiring a witness to appear for testimony and/or produce documents, although it will still protect a non-party in Texas from overly burdensome or harassing requests. In other words, disputes between parties in the original case concerning substantive topics are for the originating court to decide; a Texas court will not weigh in on those issues.

In sum, while the process in Texas does require the extra step of first getting the out-of-state (or foreign) court to issue a “mandate, writ, or commission” rather than an attorney simply being able to issue a subpoena in their own state which can easily be converted under the UIDDA into the subpoena of another state, the process of obtaining discovery from a person or business in Texas for purposes of a lawsuit or other out-of-state proceeding is not all that different in practice. It just requires the assistance of an appropriate authority in Texas, which does however increase the costs for an out-of-state party seeking discovery or testimony. 

Nothing is easy as a federal court subpoena, which is not subject to the rules above.

Federal Rule of Civil Procedure 45 expressly permits nationwide service of a subpoena without need to convert it to a local court’s format or have it issued by an in-state authority. Service is uniform as well and can be done even in foreign countries when directed at a U.S. national.

On the flip side, nothing is quite arduous as trying to obtain discovery from a foreign national in a foreign country—especially European countries—which involves complex treaties, conventions, and the disdain foreign jurisdictions have for the broad scope of discovery allowed by courts in the United States. That is a topic which requires its own article as it usually involves a months-long process to make any headway.

Contact Wright Commercial Litigation if you need help with conducting or resisting out-of-state discovery in Texas. The firm is well acquainted with all procedures and regularly assists out-of-state lawyers and others through the process.

****Please note the information above is a brief summary that may not reflect all current legal developments and does not constitute legal advice.  Legal advice can be given only with knowledge of all the specific facts and circumstances applicable to your situation and a current review of all legal standards. The statements on this website are thus for general informational use only and should not be relied upon in any way as legal advice or taken as an indication of future results.  By putting information on this website, Wright Commercial Litigation does not intend to warrant the accuracy of any statements or create an attorney-client relationship with anyone. ****