Motion to compel discovery texas example7/26/2023 It states that the scope of discovery in depositions authorized by the rule is the same as if the anticipated suit or potential claim had been filed. Rule 202 incorporated the common use of Rule 737: allowing for an investigation of a lawsuit before it is filed with the need to take discovery to perpetuate testimony. Rule 737, which provides for a bill of discovery, has its origins in English common law and a 1923 Texas statute. Rule 187, derived from an 1848 statute, allows for the practice of taking discovery to perpetuate testimony that’s in imminent danger of being lost (e.g., by the death or departure of a witness) for later use. It is based, in part, on the contents of two repealed rules, Rule 187 and Rule 737. 202) originated as part of the 1999 revision of the Texas Rules of Civil Procedure. ![]() The lawyers surveyed in that study claimed to use Rule 202 around 60% of the time for investigating a potential or anticipated suit, and most occurrences were used to perpetuate testimony.Īttorneys have found Rule 202 to be a powerful tool for identifying potential defendants, refining legal theories, and often making a case for avoiding trial. One study reported that within five years of its enactment, 980 Rule 202 petitions were filed in two Texas counties. ![]() And while the Texas Supreme Court cautioned against the routine use of pre-suit discovery measures, the use of Rule 202 has, in practice, become routine. Various states also specify a rigorous process that must be followed to file a petition for pre-suit discovery.Īs an investigative tool, Rule 202 can lead to alternate resolutions of conflicts. Rule 27 of the Federal Rules of Civil Procedure, upon which many states’ rules are based, allows for pretrial “discovery” to perpetuate testimony (i.e., to allow for the preservation of testimony, physical evidence, and documents not likely to be available later). Language in many states’ regulations limits it to rare circumstances explicitly defined in their rules of civil procedure. To date, few federal or state civil procedure laws broadly authorize discovery prior to the filing of a lawsuit. Although the Federal Rules of Civil Procedure (FRCP) and most states allow some form of pre-suit discovery, Texas Rule of Civil Procedure 202 grants significantly broad power to investigate potential claims. Texas is a trailblazer in pre-litigation discovery. ![]()
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