Rule 202: Depositions Before Suit or to Investigate Claims
Texas law provides that you may be able to take the deposition of someone before a suit has been filed if certain conditions are met. These depositions were previously called depositions to perpetuate testimony. The requirements for requesting a deposition are set forth in Rule 202.1 which provides:
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.
Requirements of the request are set forth in Rule 202.2. The petition must:
- be verified;
- be filed in a proper court of any county:
- where venue of the anticipated suit may lie, if suit is anticipated, or
- where the witness resides, if no suit is yet anticipated;
- be in the name of the petitioner;
- state either
- that the petitioner anticipates the institution of a suit in which the petitioner may be a party; or
- that the petitioner seeks to investigate a potential claim by or against petitioner;
state the subject matter of the anticipated action, if any, and the petitioner’s interest therein;
- if suit is anticipated, either:
- state the names of the persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit, and the addresses and telephone numbers for such persons; or
- state that the names, addresses, and telephone numbers of persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit cannot be ascertained through diligent inquiry, and describe those persons;
- state the names, addresses and telephone numbers of the persons to be deposed, the substance of the testimony that the petitioner expects to elicit from each, and the petitioner’s reasons for desiring to obtain the testimony of each; and
- request an order authorizing the petitioner to take the depositions of the persons named in the petition.
While a judge always has some discretion Rule 202.4 sets forth that a court must order a deposition under Rule 202 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
Note: the Texas Supreme Court held that Rule 202 depositions are prohibited against a potential health care defendant in order to investigate a potential health care liability claim.