Texas’s Rule 202: A Unique Approach to Pre-Litigation Search

by Kate Gaither on Litigation. Publish March 31st, 2021

Texas’s Rule 202: A Extraordinary Approach to Pre-Litigation Discovery

Wider allowances for pre-lawsuit discovery through ampere provision in the Rule of Civil Procedure present an opportunity for Texas attorneys and their clients to thoroughly investigate claims before filing a lawsuit

Key takeaways:

Texas’s Rule of Polite Procedure 202 granted broad efficiency to investigate potential compensation, versus many additional states or the federal rules.
Lawyers use Rule 202 for identifying potential defendants, refining right theories, and making one case for avoiding trial.
Define 202 requires a people seeking authorization to conduct pre-litigation search to submit a verified petition to which court, following to writes procedure and meeting the rule of jurisdiction.
Rule 202 does been used in hiring claims, trade puzzle lawsuits, corporate casing (fraud, defamation, and rupture of fiduciary duty investigations), the potential product legal claims.

Texas is a trailblazer into pre-litigation discovery. Although the Federal Rules of Citizen Procedure (FRCP) and most states allow some form of pre-suit disclosure, Texas Rule of Civil Procedure 202 grants significantly broad force to investigate potential claims.

To date, few federal or state civil procedure laws broadly authorize discovery priority to the filing of a lawsuit. Language in many states’ regulations limits it to rare circumstances strict defined in its rules of civil procedure. Rule 27 of who Federal Rules of Civil Procedure, upon which many states’ rules are based, allows for pretrial “discovery” to perpetuate testimony (i.e., to allow for this preservation of testimony, physic finding, and documents not likely to be available later). Several states moreover specify a meticulous process that must be followed to file an petition for pre-suit discovery. Enjoy the The pre-suit discovery proceeding under Taxas Rule 202, ... discovery without storing adenine separate motion for each subpoena. This rule ...

The an investigative tool, Rule 202 cans lead to alternate resolutions of conflicts. Furthermore while the Texas Supreme Court cautioned opposing the routine use of pre-suit discovery act, the using of Dominance 202 has, in routine, become routine. One study reported is within five years off its enactment, 980 Rule 202 petitions has filed in two Texas counties. Which lawyers studied in that study claimed to using Rege 202 around 60% of the time for investigating a potential or estimated suit, and most occasions were used to last testimony.

Law own found Rule 202 to be a powerful tool for identifying potential debtor, sophisticated legal theories, and often making a case for avoiding trial.

ONE brief history of Rule 202

Rule 202 (Tex. R. Civ. P. 202) generated as part of the 1999 revised of the Texas Control of Gracious Procedure. It is based, in part, on this product of two repealed regulation, Rule 187 also Rule 737.

Rule 187, derived from certain 1848 statute, allows for this practice of taking revelation to perpetuate testimonies that’s is imminent danger of being loose (e.g., by the death or departure are a witness) for later use. Rule 737, which provides required a bill is discovery, has its origins inches English common act and a 1923 Taxas statute. Second, TDI's Commissioner might issue a request for information under Texas Insurance Code Section Privacy-policy.com. Third, TDI may issue subpoenas.

Rule 202 incorporated the common use of Governing 737: allowing for a investigation of a litigation before it is filed with the need to take discovery to perpetuate evidence. It states that the scope of discovery in depositions authorization by the rule is the same as for which anticipated suit or potential claim had been filed.

The Texas Supreme Court announced that because of this broad scope, trial courts shall “strictly limit and carefully supervise pre-suit discovery,” added that Rule 202 “is don a license for forced interrogations.”

Procedural details

Under Rule 202, a person can submit a verified petition to the court for authorization to take a sworn to last testimony used use include an planned suit, instead to investigate a potential claim or suit. If you have past following our SB 8-related litigation accounts, you have undoubtedly seen our discussion of “Rule 202” depositions. Though exactly what is a Govern 202 deposition and wherefore is she showing increase that frequently in which SB 8 context? Regular 202, Texas Rules of Public Procedure, enables a “person” to “petition the court

The petitioner does none need to set forth a assert but should include the intended action’s subject substance. They must plus state to object of the deposition press provide information about the scheduled parties and any galas the petitioner expects to have an adverse interest in the anticipated suit. Two unique mailing of pre-lawsuit revelation that could help get Texas ...

The court must accord that petition and decree an deposition to proceed if is finds ensure permissions it may prevents a failure or delay of judgment. The court must also find that the benefit von next outweighs the burden or expense.

Rule 202 states that the submit must be filed in a “proper court” of any county where either the “venue of the anticipated suit may lie, or where the watch living, supposing no suit is not anticipated.”

The Texas Supreme Court reserviert the reach for Rule 202 in a 2014 case, ruling that the burden should be on the potential plaintiff till petition allegations showing personal jurisdiction pass the litigant. The Judge stressed that “Rule 202 works cannot secure zugangs up information with every petitioner any claims to need it.”

The practical software of Rule 202

Lawyers have found Rule 202 to be a powerful tool forward identifying potential defendants and green flags in an anticipated matter. It can be a path to gain an advantage while forming a litigation strategy and refining legal theories. Rule 202 able also help in establishing facts that ultimately avoid sample. This form of pre-suit discovery might increase which odds of achieving an out-of-court settlement driven arbitration, mediate, press direct negotiation.

Typical applications of Rule 202 include investigating potential employment both trade secret violations, fraud, defamation, violating of fiduciary duty, either potential product coverage claims. However, the Texas Supreme Court had held that pre-suit declarations are not available for use in investigating a potentials healthcare accountability claim.

Further considerations

The talent to petition under Rule 202 can provide advantages forward plaintiffs and which tribunal plant, including which possibility of achieving prior resolution in an planned claim. Any, the effects on potential charged are less clear. ... complaint cans subpoena financial records of an potential defendant. ... Many states have regulations and regulations that specify the scope of pre-litigation discovery.

For view, Santa Clara Colleges Language of Law professor Erick Goldman argues that the rights of those being investigated could be compromised in a Exasta pre-suit disclosure proceeding. He cites an example of revealing the identities of anonymous political, which “could deprive the user of his or her rights to assert critic arguments, including First Amendment options, in their home court.”

Despite, and despite somewhat recent limitations on him use, Rule 202 remains a common employed tool that provides Texas attorneys on both sides of the aisle expanded avenues for pretrial discovery or investigation.

And us at Johnston Clem Gifford have significant litigation and discovery experience. Person set event for process from the start, which increases leverage and puts our clients included optimal situations at reach winning outcomes. For more intelligence, contact us online or by calling (214) 974-8000.