The Prequel (Pre-Suit Discovery):
Let’s Back Up for a Bit
We previously discussed answering a lawsuit. To digress a little, I want to talk about pre-suit discovery under Texas Rule of Civil Procedure 202.
The Pre-Suit Deposition
You can obtain an order authorizing the taking of a pre-suit deposition, written or oral, to either (1) perpetuate or obtain a person’s own testimony, or that of any other person, for use in an anticipated suit, or (2) investigate a potential suit. Tex. R. Civ. P. 202.1. This requires a court order expressly finding (1) that allowing the requested deposition will prevent a failure or delay of justice in an anticipated suit, or (2) the benefit of allowing investigation of the potential suit outweighs the burden or expense of the deposition. Id. at 202.4(a).
Why This Matters
New Texas Rule of Civil Procedure 91a allows the dismissal of a case because it has no basis in law or fact. Tex. R. Civ. P. 91a(1). Because Texas Rule of Civil Procedure 202 allows you to engage in pre-suit discovery to investigate a potential claim, you can attempt to utilize this Rule to provide needed ammunition to knockout a case early under new Rule 91a.
The Response You Can Expect
The Texas Supreme Court has stated that Rule 202 depositions are not intended for routine use. In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008). The Court has also stated procedural barriers are not an excuse to use pre-suit discovery. Id. The same response should be anticipated by any defendant attempting to conduct discovery on an upcoming, marginal case.
What You Can Do
Make sure you specifically explain the need for pre-suit discovery. If you know there will be an allegation that your defendant was driving, but you also know that all witnesses point to the future plaintiff as the driver, make sure the order allowing pre-suit discovery reflects: (1) the future plaintiff’s allegation that your defendant was driving, (2) the fact that all witnesses point to the future plaintiff as the driver, (3) allowing the pre-suit discovery will prevent a delay of justice for your defendant, and (4) the benefit of efficiently resolving the claim outweighs the burden of the pre-suit discovery.