Most are familiar with the warning that must be given by law enforcement before interrogating a suspect or at time of arrest: “You have the right to remain silent ….”
One may assume that is true for all legal matters. To the contrary, remaining silent, whether based on the Fifth Amendment or otherwise, can (and will) be held against you in determining liability for a civil suit. Refusing to testify when there is no real concern of criminal prosecution in fact may, ironically enough, expose one to a contempt ruling that lands them in jail for that reason.
The general inability to remain silent in a civil lawsuit can be extended even further in Texas due to the effect of Rule 202 of the Texas Rules of Civil Procedure, which is an equitable right with a history that extends back to at least 1879, see In re Doe, 444 S.W.3d 603, 608 (Tex. 2014) (orig. proceeding)), that allows one to compel the pre-suit sworn testimony of others for all sorts of civil disputes.
WHAT IS A RULE 202 PETITION FOR PRE-SUIT DISCOVERY IN TEXAS?
Some say a Rule 202 petition is tantamount to “forced interrogation.” The reason for that characterization is the rule allows anyone—not just citizens of this State—to petition a court in Texas for an order compelling oral or written deposition testimony (with or without production of documents) from anyone subject to the court’s jurisdiction, to:
- “Perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit”; or
- “Investigate a potential claim or suit … by or against the petitioner.”
Most states and the federal court system allow pre-suit depositions for the first reason listed above — i.e., to preserve testimony when there is a threat it may be forever lost, such as a witness on their deathbed. See Fed. R. Civ. P. 27. But Texas stands alone in allowing pre-suit discovery simply to investigate potential claims. That is the aspect which has drawn the most criticism as well.
WHAT ARE THE ARGUMENTS FOR AND AGAINST RULE 202 DISCOVERY?
The justification typically offered in support of a pre-suit deposition to investigate potential claims derives from the requirements of Chapters 9 and 10 of the Texas Civil Practice & Remedies Code, which state that, in signing a motion or pleading, the attorney and/or party thereby certifies “to the best of their knowledge, information, and belief formed after reasonable inquiry [that] the instrument is not groundless and brought in bad faith or … for the purpose of harassment.” An attorney filing a petition under Rule 202 will invariably argue they are simply fulfilling their statutory duty to ensure there is a legitimate basis for the claim prior to bringing suit.
Yet, one would be hard-pressed to find a Texas litigator who has not seen full-blown cases filed in state court where it is rather clear little to no prior inquiry was done by the other side, with no real consequences for failing to fully investigate the facts prior to suit being brought. That is due in large part to the very liberal “notice pleading” standard applicable in Texas. There is now a procedural method for dismissing a baseless cause of action, see Tex. R. Civ. P. 91a, but it has not developed as of yet to result in greater pleading detail since the notice standard remains the law in Texas and is far from requiring “plausibility” as in federal courts.
The result is that those attempting to use Rule 202 do not always have a legitimate purpose in mind. Certainly there can be a need to investigate first to determine who to even bring suit against when a plaintiff has been injured but does not know the identity of the culprit (and those with the information are not willing to voluntarily cooperate). Others, however, regularly seek to use Rule 202 as a license to engage in a general “fishing expedition” for evidence of claims in the first place, to impose costs as leverage for settlement purposes, or even to try and secure key evidence without the pesky requirement of having an adverse party present to cross-examine the witness. Even worse, it appears some have used Rule 202 as a means to forum shop the random assignment process within a judicial district. See, e.g., Rodriguez v. Cantu, 581 S.W.3d 859, 869 (Tex. App.—Corpus Christi 2019, no pet.) (denying, on other grounds, an attempted intervention to bring claims in a preferred court after multiple Rule 202 petitions were filed evidently to establish a jurisdictional hook in multiple courts).
Given there is no clear penalty—in the form of attorney’s fees or otherwise—for anything but perhaps the most frivolous Rule 202 petition, it is an area subject to exploitation that has to be countered by an experienced litigator.
WHAT ARE THE LIMITATIONS ON RULE 202 PRE-SUIT DISCOVERY IN TEXAS?
Fortunately, there are some constraints built into the rule and otherwise established by case law that attempt to respond directly to the criticisms, see In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (“Rule 202 is not a license for forced interrogations. Courts must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule”), but not all those limitations are readily apparent to the untrained eye.
- First, the petition for a pre-suit deposition must be verified under oath while also stating the substance of testimony a petitioner expects to elicit from the witness, as well as the reasons for needing to obtain testimony prior to suit. See Tex. R. Civ. P. 202(a), (g). A petition merely tracking the language of Rule 202 in conclusory fashion is not sufficient.
- Second, when suit is anticipated, the pleading must identify all persons expected to have “interests adverse” to the petitioner and serve them with notice (or do it by publication for unknown parties) at least 15 days’ prior to a hearing on the Rule 202 request so those persons can choose to appear and oppose if so inclined, or otherwise seek limitations on the discovery sought. See Tex. R. Civ. P. 202.2(f), 202.3.
- Third, a court must make specific findings supported by evidence in the record that justifies the type of pre-suit discovery sought. For an anticipated suit, there must be a finding that the discovery “may prevent a failure or delay of justice,” and, if pre-suit discovery is sought to investigate, there must be competent evidence of some sort (typically an affidavit) that the “likely benefit … outweighs the burden or expense of the procedure.” Tex. R. Civ. P. 202.4(a).
Much of the dispute in a Rule 202 petition founded on the purpose of investigating claims can be expected to come down to the benefit-burden analysis. Yet, the types of burdens that outweigh the benefits of pre-suit discovery used to investigate potential claims has not been catalogued by any court and naturally are subject to substantial discretion. Nonetheless, one can expect the types of burdens to include, at a minimum, those that routinely arise with discovery requests in an ordinary lawsuit—such as, for example, the privacy interests of others, proportionality, accessibility of electronic data, costs, etc.—if not a much broader scope of what may be overly burdensome given the Texas Supreme Court’s view that there are constitutional implications inherent with Rule 202. See In re Jorden, 249 S.W.3d 416, 51 (Tex. 2008) (“Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.”).
Case law has not provided much guidance except to note the benefit-burden analysis is not as simple as comparing the costs of pre-suit depositions to the costs of prosecuting a full lawsuit. There is at least one area where pre-suit discovery is viewed with particular disfavor though: trade secrets and competitively sensitive information. The threatened harm and increased burden in such cases would likely prevent granting pre-suit discovery in all but the most unusual circumstances.
Otherwise, the reported cases on Rule 202 tend to focus on procedural deficiencies as opposed to a proper balancing of burden and benefit – such as courts being quick to highlight when a petitioner does not provide detail for the reasons pre-suit discovery is needed or fails to submit competent evidence in support.
There are a host of other limitations arising from interpretations of the rule that interplay with other jurisprudential doctrines as well, such as:
- An order for pre-suit discovery cannot be based on an agreement between the witness and petitioner.
- Rule 202 may not be used to circumvent discovery limitations applicable in a regular suit otherwise.
- There must be personal jurisdiction over not only the witness, but also the potential defendant.
- The court must have subject matter jurisdiction no different than if the potential claim was alleged in a suit.
Consistent with the last principle, Texas courts have found numerous rights and limitations existing in other substantive laws applicable to a Rule 202 petition. Two that come up fairly often are claims for health care liability and anti-SLAPP suits under the Texas Citizens Participation Act (“TCPA”).
Section 74.351 of the Texas Civil Practice & Remedies Code, pertaining to health care claims, requires filing an expert report before discovery may be sought concerning certain types of medical malpractice and other suits, with no exception stated in the statute for Rule 202 petitions. That effectively eliminates the use of Rule 202 to “investigate” health care liability since the information needed (and costs associated) to procure an expert opinion are incompatible with its presumed purpose. The same is likely true for claims that require filing a certificate of merit against architects, engineers, and surveyors under Section 150.002 of the Texas Civil Practice & Remedies Code.
The anti-SLAPP law in Texas, the TCPA (Chapter 27 of the Texas Civil Practice & Remedies Code), applies to certain legal actions involving speech, association, and other activities, which, although currently there is a minority split of opinion in the appellate courts, is defined in a way interpreted to include its application to a Rule 202 petition. Unless the split is ultimately resolved in favor of the minority view, the TCPA then inherently makes a Rule 202 petition more costly for defamation and related claims.
Likewise, Texas courts have found that persons entitled to claim immunity from suit can do so to the same extent with a Rule 202 petition for pre-suit discovery. That applies to claims of governmental and judicial immunity, and should also then apply to things like medical privilege and those matters potentially covered by an arbitration agreement. It has been ruled in similar vein that claims of a prisoner to discover information related to a criminal matter must be brought instead by a habeas corpus petition and not under Rule 202.
WHAT ARE THE RIGHTS TO APPEAL A RULE 202 ORDER?
The right to appeal an order granting or denying a Rule 202 petition depends on whether the discovery is sought from a third party against whom no suit is contemplated or instead against a potential party to a future suit. In the former situation, the trial court’s order is immediately appealable since no further relief is realistically sought against the nonparty beyond the discovery sought, whereas the latter scenario (i.e., seeking deposition of a person against whom suit is contemplated) is considered merely an ancillary proceeding not yet final enough to appeal since a lawsuit is expected to follow. See Rodriguez v. Cantu, 581 S.W.3d 859, 866 (Tex. App.—Corpus Christi 2019, no pet.). One can, however, still appeal the grant or denial of Rule 202 discovery against a person against whom suit is contemplated by means of a mandamus proceeding, which is quite common. See, e.g., In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016). The only real difference between the two for appeals then is the form in which it is brought.
Contact Wright Commercial Litigation if you need assistance with pre-suit discovery in Texas. The firm has experience with many different issues involving Rule 202 petitions in Texas and can help you seek or oppose pre-suit discovery.
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