Texas is unique in allowing depositions before suit to investigate a potential claim.

As the Texas Supreme Court has stated, “[N]o other American jurisdiction allows pre-suit discovery as broadly as Texas does.”

Texas Rule of Civil Procedure 202 authorizes a person to file a petition in a court for an order to take a deposition to investigate a potential claim or to perpetuate testimony for use in an anticipated suit.

Several recent Texas cases have clarified the substantive requirements for a pre-suit deposition sought for the purpose of investigating a potential claim.

• The court in which the petition is filed must have subject-matter jurisdiction over the anticipated claim. If the pleadings aren’t specific enough to demonstrate the court’s jurisdiction, the court should require more specificity.[1]
• The court must also have personal jurisdiction over the potential defendant.
• As for venue, the petition should be filed in the county where the witness resides.
• The claim must involve the assertion of an existing right—i.e., the claim must be ripe. It cannot be a future or speculative right.[2]
• The petition does not need to plead a specific cause of action, but it must state the subject matter of the anticipated action and the petitioner’s interest in it.

In addition to ensuring that these substantive requirements (and the technical requirements of Rule 202) are met, the defending party can challenge the viability of the anticipated claim.

• If the anticipated claim is time-barred or unsupportable by any valid legal theory, the petition should be denied.
• If the claim infringes a person’s right to petition, speak, or associate freely, the defending party may challenge the petition under the Texas Citizens Participation Act.[3]
• If the potential suit is subject to arbitration, court-ordered discovery under Rule 202 is not available.[4]

What to do if your client is the subject of a wrongfully-granted Rule 202 petition? Texas courts of appeals differ regarding the appealability of pre-suit deposition orders, but mandamus may be available if the order constitutes a clear abuse of discretion.

[1] See In re City of Dallas, 501 S.W.3d 71, 74 (Tex. 2016) (orig. proceeding).
[2] See In re Depinho, 505 S.W.3d 621, 624 (Tex. 2016) (orig. proceeding).
[3] See, e.g., Glassdoor, Inc. v. Andra Grp., LP, No. 05-16-00189-CV, 2017 Tex. App. LEXIS 2577, at *21-26 (Tex. App.—Dallas Mar. 24, 2017, no pet. h.).
[4] See In re Amarillo II Enters., LLC, No. 07-17-00005-CV, 2017 Tex. App. LEXIS 1000, at *5-7 (Tex. App.—Amarillo Feb. 3, 2017) (orig. proceeding).