law-presuit-discovery | investigation of claims prior to bringing lawsuit | TRCP 202 | Tex. R. Civ. P. 202
TEXAS SUPREME COURT CASE LAW ON PRESUIT DISCOVERY
In re Kiberu, No. 07-0959 (Tex. Aug. 29, 2008)(per curiam)(presuit discovery mandamus)
IN RE SIMON KIBERU AND HARRIS METHODIST H-E-B HOSPITAL; from Tarrant County; 2nd district
(02-07-00312-CV, 237 SW3d 445, 11-01-07)
stay order issued November 30, 2007, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.
Per Curiam Opinion
This case may involve potential healthcare liability claims. See Tex. Civ. Prac. & Rem. Code ch. 74. The trial
court authorized presuit depositions pursuant to Texas Rule of Civil Procedure 202. The court of appeals
denied mandamus relief. 237 S.W.3d 445. Without hearing oral argument, see Texas Rule of Appellate
Procedure 52.8(c), we conditionally grant the writ of mandamus, and direct the court of appeals to withdraw its
previous opinion and reconsider relators’ petition in light of In re Jorden, 249 S.W.3d 416 (Tex. 2008). We are
confident the court will comply with our directive, and the writ will issue only if the court fails to do so.
In Re Jorden, MD, 249 S.W.3d 416, No. 06-0369 (Tex. Mar. 28, 2008)(Brister) (HCLC, MedMal, permissibility of
presuit discovery, Rule 202 deposition)
A Texas statute limits discovery in health-care lawsuits until the plaintiff serves an expert report summarizing how
each defendant violated standards of care and caused the plaintiff injury. The issue here is whether that statute
applies to presuit depositions authorized by Rule 202 of the Texas Rules of Civil Procedure. Because the statute
prohibits “all discovery” other than three exceptions — and Rule 202 depositions are not listed among them — we
hold the statute prohibits such depositions until after an expert report is served.
PETITION DENIED BY TEXAS SUPREME COURT
06-0798
ULANDA MCGRUDER, INDIVIDUALLY AND AS NEXT FRIEND OF LACASHA LUCAS, A MINOR v. IN RE PILL
RAJA, M.D.; from Ector County; 11th district (11-06-00137-CV, 216 SW3d 404, 07-27-06, pet. denied March
2008) petitioner's motion to accelerate appeal denied (mandamus granted by CoA)(presuit discovery)
This is an original mandamus proceeding seeking to set aside the trial court's order allowing Ulanda McGruder,
individually and as next friend of Lacasha Lucas, a minor, to take the oral deposition of Pill Raja, M.D in Trial
Court Cause No. A-12,654 pending in the 70th District Court. We conditionally grant the petition for writ of
mandamus. .... McGruder filed a request to take the deposition of Dr. Raja under Tex. R. Civ. P. 202 to
investigate a potential health care liability claim. Dr. Raja filed a motion to quash the deposition.
TEXT OF TEX. R. CIV. P. 202
RULE 202. - DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS
RULE 202. DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS
202.1 Generally.
A person may petition the court for an order authorizing the taking of a deposition on oral
examination or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any other person for use
in an anticipated suit; or
(b) to investigate a potential claim or suit.
202.2 Petition
The petition must:
(a) be verified;
(b) be filed in a proper court of any county:
(1) where venue of the anticipated suit may lie, if suit is anticipated; or
(2) where the witness resides, if no suit is yet anticipated;
(c) be in the name of the petitioner;
(d) state either:
(1) that the petitioner anticipates the institution of a suit in which the petitioner
may be a party; or
(2) that the petitioner seeks to investigate a potential claim by or against
petitioner;
(e) state the subject matter of the anticipated action, if any, and the petitioner's interest
therein;
(f) if suit is anticipated, either:
(1) 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
(2) 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;
(g) 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
(h) request an order authorizing the petitioner to take the depositions of the persons
named in the petition.
202.3 Notice and Service.
(a) Personal service on witnesses and persons named. At least 15 days before the date of the
hearing on the petition, the petitioner must serve the petition and a notice of the hearing - in
accordance with Rule 21a - on all persons petitioner seeks to depose and, if suit is
anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the
anticipated suit.
(b) Service by publication on persons not named.
(1) Manner. Unnamed persons described in the petition whom the petitioner expects
to have interests adverse to petitioner's in the anticipated suit, if any, may be served
by publication with the petition and notice of the hearing. The notice must state the
place for the hearing and the time it will be held, which must be more than 14 days
after the first publication of the notice. The petition and notice must be published
once each week for two consecutive weeks in the newspaper of broadest circulation
in the county in which the petition is filed, or if no such newspaper exists, in the
newspaper of broadest circulation in the nearest county where a newspaper is
published.
(2) Objection to depositions taken on notice by publication. Any interested party may
move, in the proceeding or by bill of review, to suppress any deposition, in whole or
in part, taken on notice by publication, and may also attack or oppose the deposition
by any other means available.
(c) Service in probate cases. A petition to take a deposition in anticipation of an application
for probate of a will, and notice of the hearing on the petition, may be served by posting as
prescribed by Section 33(f)(2) of the Probate Code. The notice and petition must be directed
to all parties interested in the testator's estate and must comply with the requirements of
Section 33(c) of the Probate Code insofar as they may be applicable.
(d) Modification by order. As justice or necessity may require, the court may shorten or
lengthen the notice periods under this rule and may extend the notice period to permit service
on any expected adverse party.
202.4 Order.
(a) Required findings. The court must order a deposition to be taken if, but only if, it finds that:
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay
of justice in an anticipated suit; or
(2) 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.
(b) Contents. The order must state whether a deposition will be taken on oral examination or
written questions. The order may also state the time and place at which a deposition will be
taken. If the order does not state the time and place at which a deposition will be taken, the
petitioner must notice the deposition as required by Rules 199 or 200. The order must contain
any protections the court finds necessary or appropriate to protect the witness or any person
who may be affected by the procedure.
202.5 Manner of Taking and Use.
Except as otherwise provided in this rule, depositions authorized by this rule are governed by the
rules applicable to depositions of non-parties in a pending suit. The scope of discovery in depositions
authorized by this rule is the same as if the anticipated suit or potential claim had been filed. A court
may restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect
a person who was not served with notice of the deposition from any unfair prejudice or to prevent
abuse of this rule.
SOURCE: Complete TRCP (pdf) on Texas Judiciary website (277 pages)
http://www.supreme.courts.state.tx.us/rules/TRCP/RCP_all.pdf