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Pre-Lawsuit Discovery Rule 202

Wednesday, January 24th, 2024
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With the Federal Rules of Civil Procedure (FRCP) and related laws in most states, most attorneys can take pre-lawsuit discovery. Texas affords attorneys such an opportunity under Rule 202. This rule is vital because it allows for discovery before a lawsuit is filed.

The history of Rule 202

Rule 202 was partially developed using Rule 187 and Rule 737, both repealed. Rule 187 allowed for the acquisition of testimony that was at immediate risk of being lost due to a death or the departure of of a witness, for example. Rule 737, simply put, allowed for the creation of a bill of discovery and was derived from a 1923 Texas statute, as well as English common law.

Rule 202 used the same idea from Rule 737 for using discovery pre-lawsuit and the need for pre-trial testimony from Rule 187. The Rule passed because the nature of the information gathered is just as broad as that gathered after a suit has already been filed. However, there are stipulations involved in using Rule 202 to help prevent “interrogations” and trial courts must take care to prevent inappropriate discovery.

Though the Texas Supreme Court does not agree with the routine use of this rule, it has become somewhat common practice to request Rule 202 for discovery pre-suit.

How to use Rule 202

There are some steps attorneys must take to use this rule correctly. These are non-negotiable and remember, not every request made using Rule 202 will be accepted.

  • First, the attorney must submit a verified petition to the court, whether they plan to use the rule for testimony or to investigate a potential lawsuit. They don’t have to formally make the claim at that time but will need to state what the subject matter is for the action.
  • Second, the attorney will need to state who the parties of the potential suit will be, as well as any related parties that will be a part of the proceedings.
  • Third, the petition to use Rule 202 must be requested either in the county where the witness in question lives, or where the potential suit will be filed.

Rule 202 is often used to find potential labor & employment violations, trade secret infractions, defamation, breach of fiduciary duty, and more. In Texas, Rule 202 cannot be used to investigate information for a healthcare liability claim.

Using Rule 202 as an investigative tool

The use of Rule 202 allows attorneys to gather information in a more efficient and timely manner. This is especially helpful for cases where the statute of limitations is approaching or a key witness may become unavailable before the lawsuit is filed. Additionally, Rule 202 allows attorneys to assess the strength of their case, identify defendants and red flags sooner, and make informed decisions about whether or not to proceed with a lawsuit.

The real power of Rule 202 comes when it provides a means for alternative dispute resolution. This is especially true for plaintiffs who want to settle claims faster than otherwise would be possible in court systems, which can become bogged down. As the legal world continues to evolve and move towards more collaborative and efficient methods, Rule 202 is a valuable tool that attorneys should consider utilizing in their practice. It can not only save time and money but also lead to more successful outcomes for clients.

Potential issues with using Rule 202

Like any legal tool, there are potential issues that may arise when using Rule 202. For example, the information gathered during pre-lawsuit discovery through this rule may not be admissible in court if it does not meet certain criteria. Additionally, some courts may be hesitant to grant a petition for Rule 202 as it could potentially infringe on an individual’s rights.

While some may argue that Rule 202 goes against traditional due process principles, it has become a fundamental aspect of courts around the country, especially in Texas. Whether you need to initiate litigation or would like the best defense, contact the Litigation Team at Brown & Fortunato, P.C. We’ll be happy to assist you and ensure that you can take the proper steps moving forward. You can call us at (833) 228-6300 or contact us by Email to learn more about our Practice Areas.