Notice of Deposition on Written Questions in Texas

What Is a Notice of Deposition on Written Questions?

Background

Under Tex. R. Civ. P, 202.1, a person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:

to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or
to investigate a potential claim or suit.

(Tex. R. Civ. P. 202)

How to Structure the Motion

The petition requesting such a deposition must satisfy certain procedural requirements, including that it “state the subject matter of the anticipated action, if any, and the petitioner's interest therein.” (Tex. R. Civ. P. 202.2(e).)

The petition must also state “the substance of the testimony that the petitioner expects to elicit from each [deponent], and the petitioner's reasons for desiring to obtain the testimony of each.” (Tex. R. Civ. P. 202.2(g).)

Further, "[t]he court must order a deposition to be taken if, but only if, it finds that:

allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.”

(Tex. R. Civ. P. 202.4(a); see also, In re Bull (2014) No. 14-14-00148-CV, at *4.)

Liberal Pleading Requirements

A Rule 202 petition “asserts no substantive claim or cause of action upon which relief can be granted.” (Hughes v. Giammanco (2019) 579 S.W.3d 672, 678 citing Combs v. Tex. Civil Rights Project (2013) 410 S.W.3d 529, 534.) “[A] successful Rule 202 petitioner ‘simply acquires the right to obtain discovery—discovery that may or may not lead to a claim or cause of action upon which relief can be granted.’” (Id.) For this reason, ‘a Rule 202 petition need not plead a specific cause of action’; instead, the petitioner need only ‘state the subject matter of the anticipated action, if any, and the petitioner's interest therein.’” (Int'l Assoc. of Drilling Contractors v. Orion Drilling Co., LLC (2016) 512 S.W.3d 483, 491 [quoting Tex. R. Civ. P. 202.2(e), and City of Hous. v. U.S. Filter Wastewater Grp., Inc. (2006) 190 S.W.3d 242, 245 n.2; see also, In re Emergency Consultants, Inc. (2007) 292 S.W.3d 78, 79 [noting that Rule 202 does not require potential litigant to “expressly state a viable claim before being permitted to take a pre-suit deposition.”)

The Court’s Decision

Generally, a party “cannot obtain by Rule 202 what it would be denied in the anticipated action.” (In re Depinho (2016) 505 S.W.3d 621, 623 quoting In re Wolfe (2011) 341 S.W.3d 932, 933.) In other words, the rule cannot be used as “an end-run around discovery limitations that would govern the anticipated suit.” (Id.) This is because “pre-suit discovery ‘is not an end within itself’; rather, it ‘is in aid of a suit which is anticipated’ and ‘ancillary to the anticipated suit.’” (Id., quoting Office Emps. Int'l Union Local 277 v. Sw. Drug (1965) Corp.,391 S.W.2d 404, 406.)

“A trial or appellate court has no discretion in determining what the law is or in applying the law to the facts, even if the law is somewhat unsettled. Accordingly, the court of appeals abused its discretion in concluding that section 74.351(s) does not bar taking Rule 202 depositions regarding health-care claims.” (In re Jorden (2008) 249 S.W.3d 416, 424.)

Documents for Notice of Deposition on Written Questions in Texas

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Noemi Salas-De Leon VS. Ana Maria Vidaurri document preview

Original Petition (OCA) - Plaintiff's Original Petition

4 pages

Electronically Submitted 4/5/2024 10:00 AM Hidalgo County Clerk Accepted by: Nancy Flores …