Rule 202: Taking a Deposition Before a Lawsuit in Texas

What Rule 202 allows

Ordinarily, discovery begins after a lawsuit is filed. Rule 202 of the Texas Rules of Civil Procedure is the exception: it lets a person petition a court for an order authorizing a deposition, on oral examination or written questions, before any suit exists. The rule replaced the older procedures for depositions to perpetuate testimony and bills of discovery, and it is the only general tool Texas law gives a potential plaintiff to compel testimony before filing.

It is not a tool for gathering documents from the other side at large. The order authorizes a deposition, and while a deposition notice can request documents the witness brings, the rule does not open the door to the full written discovery available in a filed case. Pre-suit evidence that is within your own control is a different subject, covered in what evidence to save before suing.

The two purposes

Under Rule 202.1 a petition may seek a deposition for either of two reasons:

1. To perpetuate or obtain testimony for use in an anticipated suit, the petitioner's own or anyone else's. The classic case is a witness who is ill, elderly or about to leave the country, whose account would otherwise be lost.
2. To investigate a potential claim or suit. The petitioner does not yet know whether it has a claim, or against whom, and needs testimony to find out.

The two purposes carry different findings at the hearing, discussed below, and a petition should say clearly which one it relies on.

What the petition must contain

Rule 202.2 is specific. The petition must be verified, meaning sworn, and must be filed in a proper court of a county where venue of the anticipated suit may lie, if a suit is anticipated, or where the witness resides, if no suit is yet anticipated. It must be in the petitioner's name and must state either that the petitioner anticipates a suit in which it may be a party, or that it seeks to investigate a potential claim by or against it. It must state the subject matter of the anticipated action and the petitioner's interest in it.

If suit is anticipated, the petition must name the persons the petitioner expects to have adverse interests, with addresses and telephone numbers, or explain that they cannot be identified through diligent inquiry and describe them. For every person to be deposed, it must give the name, address and telephone number, the substance of the testimony expected, and the reasons for wanting it. It closes with a request for an order authorizing the depositions.

The requirement to state the substance of the expected testimony is where many petitions fail. A petitioner who cannot say what the witness is expected to know is asking for a fishing trip, and the rule is written to refuse one.

Notice and the hearing

Under Rule 202.3, at least 15 days before the hearing on the petition, the petitioner must serve the petition and notice of the hearing on every person it seeks to depose and, if suit is anticipated, on every person expected to have adverse interests. Unnamed expected adverse parties may be served by publication. The court may shorten or lengthen the notice periods as justice or necessity requires. The hearing is the recipient's opportunity to oppose the petition, and a recipient who does nothing will usually find the deposition ordered.

What the court must find

Rule 202.4(a) says the court must order the deposition if, but only if, it finds one of two things. For a deposition to perpetuate testimony, that allowing it may prevent a failure or delay of justice in an anticipated suit. For a deposition to investigate a potential claim, that the likely benefit of allowing it outweighs the burden or expense of the procedure.

Those findings are the heart of every contested Rule 202 hearing. The petitioner must show a concrete reason the testimony is needed now and cannot wait for a filed suit, or a concrete benefit from the investigation that exceeds what it will cost the witness. The order must say whether the deposition is on oral examination or written questions, may set the time and place, and must include any protections the court finds necessary for the witness or anyone affected.

How the deposition is taken and used

Under Rule 202.5, a deposition ordered under the rule is governed by the rules that apply to depositions of non-parties in a pending suit, and the scope of discovery is the same as if the anticipated suit or potential claim had been filed. The witness is sworn, counsel may object, and the transcript is a deposition for purposes of the later case, subject to the rules of evidence. The court may restrict or prohibit use of the deposition in a later suit to protect a person who was not served with notice, or to prevent abuse of the rule. What a deposition is like for the person giving it is covered in what business owners should expect at a deposition.

When businesses use Rule 202

• To find the right defendant. Money left a company and the owner knows the payee but not who directed the payment, or whether an affiliated entity received it. A short deposition of a bookkeeper or a counterparty can identify the parties before a petition names the wrong ones.
• To test whether a claim exists. A business suspects a former employee took data but has only circumstantial signs. Deposing the employee or the new employer's IT contact, with the court's protections in place, can confirm or dispel the suspicion before a trade secret suit is filed.
• To preserve a witness. A retired project manager who approved the change orders is moving abroad; a key witness is seriously ill.
• To decide whether to sue at all. When the four questions in how a litigator evaluates a case before filing turn on one fact only one person knows.

The limits, and how to oppose a petition

Rule 202 is not a substitute for filing suit, and courts are expected to apply its findings strictly. A recipient served with a petition has several lines of response:

• The findings are not met. The petitioner has not shown a risk of losing the testimony, or has not shown that the benefit of investigating outweighs the burden. This is the most common and often the most effective objection.
• The petition is defective. It is not verified, is filed in the wrong county, does not state the substance of the expected testimony, or does not name the expected adverse parties.
• The court could not hear the anticipated suit. Because the claim is subject to an arbitration agreement, belongs exclusively in federal court, or is otherwise outside the court's jurisdiction.
• Privilege and protection. Trade secrets, attorney-client communications and confidential business information can be protected by the order's terms, by limits on the topics, or by sealing.
• The petition is being used for another purpose. To pressure a settlement, to identify a critic, or to obtain discovery that a filed case would not allow at that stage. Where the anticipated claim is based on speech, the Texas Citizens Participation Act may also be raised.

A recipient who cannot defeat the petition can still narrow it: fewer topics, a shorter deposition, a protective order on documents, and restrictions on later use.

Example

Suppose a Dallas commercial landlord discovers that its former property manager approved $210,000 in payments to a maintenance vendor over two years for work the landlord cannot find. The manager has left and the vendor's owner will not return calls. The landlord does not know whether the manager had an interest in the vendor, whether the work was done, or whether the vendor's owner is the right defendant. Its litigator files a verified Rule 202 petition in Dallas County, where venue of the anticipated suit would lie, seeking to depose the vendor's owner to investigate a potential claim. The petition states the substance of the expected testimony: who owns the vendor, what work was invoiced, who approved it, and what was paid to whom. It names the former manager as an expected adverse party. At the hearing the court finds that the benefit of a two-hour deposition outweighs the burden on the vendor and orders it, with a provision limiting the topics to the landlord's property. The deposition shows that the manager's spouse owns half the vendor. The landlord's petition, when filed, names the right defendants and pleads the right claims.

When a litigator should be involved

On the petitioning side, from the start: a petition that fails the rule's requirements is denied, and a denied petition tells the other side what you suspect. On the receiving side, as soon as the petition is served, because the 15-day window to the hearing is the only chance to oppose or narrow it. Tina Wysk files and opposes Rule 202 petitions for Dallas businesses as part of her pre-litigation practice, and uses them where the facts justify the cost.