Rule 202 Pre-Suit Depositions

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Rule 202 Pre-Suit Depositions

September 11, 2015

A couple of years ago, a client came to me for assistance.  He suspected that his financial advisor was not being honest with him.  After looking through his documents, I had a lot of questions that needed to be answered, but I did not have enough to justify a lawsuit.  We made every effort to gain the opposing party’s cooperation, but to no avail.  I discussed my concerns with the client and proposed that we seek a Rule 202 deposition.

Texas Rule of Civil Procedure 202 is a pre-suit investigative tool often overlooked by many litigators.  Rule 202 allows a potential plaintiff to take an oral deposition or deposition on written questions prior to suit in order to 1) perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or 2) to investigate a potential claim or suit.  This tool is not to be used routinely[1], nor would many people wish to incur the expense associated with obtaining a pre-suit deposition, but there are certainly situations where it should be considered.

After deciding that the Rule 202 deposition could be helpful, I discussed with the client the procedure and costs involved.  The client approved the strategy and we proceeded.  In this case, the procedure went very smoothly.  We were able to effectuate service pursuant to the Rule, we were able to obtain the court’s order approving the application, and the deposition took place without any procedural difficulties.  While we were able to determine that the client’s suspicions were correct, we also determined that we were drilling a dry hole; the defendant was essentially judgment proof.  The client was able to gain a margin of satisfaction from learning the truth, and he was able to avoid the costs associated with litigating a case that would likely have resulted in little more than a paper judgment.

Despite the benefits of the Rule 202 deposition in my case, I have yet to have another case that I felt warranted its use.  In addition to the financial considerations, there are a number of statutory and common law limitations on the procedure.  Rule 202 cannot be used to investigate a health-care claim.[2]  In addition, Rule 202 cannot be used to circumvent procedural requirements, such as in certain Labor Code claims that must be exhausted before suit can be filed in state courts.[3]  Based upon the foregoing, I believe that Rule 202 investigative depositions would not be available to a litigant when one of the potential defendants is a licensed or registered professional under Chapter 150 of the Texas Civil Practice & Remedies Code.  Furthermore, the courts will not allow a Rule 202 deposition that is intended to discover trade secrets.[4]  For these reasons, even if I were inclined to use this tool more often, its usefulness is limited.

When researching Rule 202 for my prior case and for preparing this blog post, I was surprised to find quite a bit of case law interpreting the rule.  Apparently, this pre-suit investigative tool is used more often than I originally suspected.  If you have any experience with this procedure, or any thoughts on what I have written, please share in the comment section below.

[1] In re Bailey-Newell, 439 S.W.3d 428, 431-32 (Tex.App. – Houston [1st Dist.] 2014, no pet.).

[2] In re Jorden, 249 S.W.3d 416, 418 (Tex. 2008); see Tex. Civ. Prac. & Rem. Code §74.351(s).

[3] In re Bailey-Newell, 439 S.W.3d at 431-32.

[4] In re Cauley, 437 S.W.3d 650 (Tex.App. – Tyler 2014, no pet.).

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