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Defending Against a Rule 202 Petition for a Pre-Suit Deposition
By: Billy Marsh (as also published in the December 2016 issue of The Dicta, a publication of the Dallas Association of Young Lawyers)

Rule 202 of the Texas Rules of Civil Procedure allows a plaintiff to take a deposition to investigate a potential claim prior to filing a lawsuit. Many consider this to be the broadest form of pre-suit discovery allowed in any U.S. jurisdiction. Savvy plaintiff’s counsel often use Rule 202 to gain the strategic high ground by taking the pre-suit deposition of a potential defendant. 

The thought of defending a deposition without knowing the exact nature of the plaintiff’s potential claims against your client can be frightening. As the Texas Supreme Court has recognized, “[t]here are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.” In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008). Accordingly, Texas courts have significantly narrowed the scope of Rule 202 to protect potential defendants. 

Rule 202 Depositions Are Not Intended for Routine Use

To grant a Rule 202 petition, the court must find that “the likely benefit” of the proposed deposition “outweighs the burden or expense.” Tex. R. Civ. P. 202.4(a)(2). Invariably, plaintiffs argue that the proposed pre-suit deposition will allow them to determine if they have a viable claim, and if not, the time and expense of a lawsuit can be avoided. Trial courts often find this argument to be persuasive. 

However, the Texas Supreme Court has stressed that “Rule 202 depositions are not now and never have been intended for routine use.” Jorden, 249 S.W.3d at 423. If a plaintiff could take a Rule 202 deposition by simply asserting the deposition may avoid the need for a lawsuit, Rule 202 petitions would be granted as a matter of course. In order to avoid the “routine use” of Rule 202 depositions, the party seeking the deposition must articulate to the court some benefit beyond potentially avoiding the need for a lawsuit. See, e.g., In re Hewlett Packard, 212 S.W.3d 356, 362 (Tex. App.—Austin 2006, no pet.) (“The benefit articulated by Dell is that Dell may be able to determine whether it has legitimate claims against relators. ... However, this benefit, alone, does not outweigh the burden imposed on the potential deponents[.]”).

Rule 202 Cannot Be Used as a Procedural Workaround

Plaintiffs often ask for Rule 202 depositions where they might not otherwise be entitled to a deposition. For instance, in Jorden, the Texas Supreme Court resolved a split between various Texas appellate courts on whether a plaintiff could take a pre-suit deposition to investigate potential health care liability claims. Section 74.351 of the Texas Civil Practice and Remedies Code does not allow a plaintiff asserting health care liability claims to depose an adverse party until the plaintiff has served an expert report. The Court held that limitations on discovery that apply to health care liability claims also applied to Rule 202 depositions purporting to investigate health care liability claims.  Jorden, 249 S.W.3d at 424.

Similarly, plaintiffs have attempted to obtain Rule 202 depositions when the underlying claim is subject to binding arbitration where discovery might otherwise be limited. As a matter of procedure, courts have struggled with how to treat these requests, but appellate courts have uniformly reversed trial court orders granting Rule 202 depositions when the underlying claims would be subject to binding arbitration. See, e.g., In re Valerus Compression Services, LP, 2015 WL 2169656, at *4 (Tex. App.—Houston [14th Dist.] May 7, 2015, no pet.).

Scope of the Deposition Should Be Narrow

The Texas Supreme Court has admonished courts to “strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011). Additionally, Rule 202 allows the trial court to provide “any protections the court finds necessary or appropriate to protect the witness.” Tex. R. Civ. P. 202.4(b). If the trial court finds that a plaintiff has a legitimate need to take a pre-suit deposition to investigate a particular aspect of a potential claim, the court should limit the scope of the deposition to that particular aspect of the claim in the order. 

While the prospect of a Rule 202 deposition can be scary, there are protections in place to ensure defendants are not unfairly prejudiced. It is important to educate the trial court of these protections so that your client is not exposed to an unwarranted “fishing expedition” in which the plaintiff is able to develop a theory of liability to support a lawsuit.

Billy Marsh is an associate in the Government Investigations and Securities Litigation group at Haynes and Boone LLP. He can be reached at william.marsh@haynesboone.com.