law-discovery-presuit | TRCP 202 | presuit deposition, investigation of potential claims before suit is filed |
"Texas law has never required that a plaintiff know all the essential facts before a cause of
action exists. To the contrary, a cause of action accrues for limitations purposes when a
claimant learns of an injury, even if the rest of the essential facts are unknown." In re Jorden, 249
S.W.3d 416, 422 (Tex.2008)(mandamus proceeding regarding petition for pre-trial discovery of
potential medical malpractice action).
PRE-SUIT DISCOVERY: RECENT TEXAS SUPREME COURT OPINIONS
In Re John Dows 1 and 2, No. 10-0366 (Tex. Apr. 15, 2011)(per curiam)(orig. proc.)(Rule 202 presuit
discovery, subpoena to obtain blogger's identity)
IN RE JOHN DOES 1 AND 2, Relators.
No. 10-0366.
Supreme Court of Texas.
Opinion delivered: April 15, 2011.
PER CURIAM.
In this mandamus proceeding we hold that a court may not order pre-suit discovery by agreement of the
witness over the objections of other interested parties without making the findings required by Rule 202.4
(a) of the Texas Rules of Civil Procedure.
Philip R. Klein owns PRK Enterprises, Inc. and Klein Investments, Inc. The two corporations (collectively
"PRK") operate or have operated a blog called The Southeast Texas Political Review. Two anonymous
bloggers called Operation Kleinwatch and Sam the Eagle Weblog (collectively "relators") have criticized
Klein extensively. Relators subscribe to Blogger.com, a subsidiary of Google, Inc. (collectively "Google"),
which hosts them on the Internet. PRK petitioned the district court under Rule 202 to order discovery
from Google of relators' identities in anticipation of a lawsuit by Klein and PRK against relators for
copyright law violations, defamation, and invasion of privacy. The alleged bases for such causes of
action are contained in the following five sentences of the petition:
[Relators] have been engaged in a pattern of libel and defamation per se, invasion of privacy, and use
of copyrighted images (both facial and voice image), without permission. The purpose of these websites
are to disparage, harass and cause injury to [PRK], as well as to [Klein] personally. These websites host
significant, false information, and invade the privacy of [PRK] throughout the website. For example,
without limitation, the website Operation Klein Watch, contains false information on legal proceedings
that do not involve either [Klein] individually or [PRK], falsely represent that judgments have been taken
against [PRK] and/or [Klein] individually, falsely identify a bankruptcy proceeding, also identify lawsuits
that do not involve [PRK] and/or [Klein] individually. Additionally, this website identifies all members of
[Klein's] family, for no apparent purpose other than to invade their privacy.
Klein did not join in the petition. The petition named Google and relators as defendants.
After being served, Google agreed with PRK that it would respond to a subpoena duces tecum.[1]
Accordingly, PRK did not ask for a hearing on the petition. Federal law generally prohibits a "cable
operator" like Google from disclosing a subscriber's personally identifiable information without its
consent. 47 U.S.C. § 551(c)(1). But there is an exception if disclosure is ordered by a court with notice
to the subscriber. Id. § 551(c)(2)(B). Google gave relators notice of its receipt of the subpoena.[2]
Relators moved to quash the subpoena, arguing that the petition's allegations were insufficient to show
that PRK had a cause of action against relators, and that their identities are constitutionally protected
from disclosure. PRK responded, arguing that the information sought was not constitutionally protected,
and moved to compel discovery. PRK argued that to obtain the requested discovery, it should not be
required to do more than assert a cause of action. PRK's motion was no more specific than their petition
with respect to the bases for claims against relators. After a brief hearing, at which relators did not
appear, the trial court denied relators' motions and granted PRK's. The court of appeals denied
mandamus relief.
Relators argue that the trial court abused its discretion by failing to comply with Rule 202. Rule 202.4(a),
"Required Findings," states:
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.
TEX. R. CIV. P. 202.4(a). The trial court did not make either of these findings.
PRK argues that compliance with Rule 202 was excused because of its agreement with Google. It is true
that "[e]xcept where specifically prohibited, the procedures and limitations set forth in the rules
pertaining to discovery may be modified in any suit by agreement of the parties . . . ." TEX. R. CIV. P.
191.1. But PRK and Google were not the only parties to the proceeding. Rule 202.3(a) requires that "all
persons petitioner expects to have interests adverse to petitioner's in the anticipated suit" be served
with the petition and given notice of hearing. TEX. R. CIV. P. 202.3(a). PRK asserted that relators would
be defendants in the anticipated lawsuit, and by their motions to quash, relators made an appearance in
the proceeding. PRK and Google could not modify the procedures prescribed by Rule 202 by an
agreement that did not include relators.
Nor can the required findings be implied in support of the trial court's order compelling discovery. For
one thing, PRK made no effort to present the trial court with a basis for the findings. Not only are the
allegations in its petition and motion to compel sketchy, they mostly concern possible causes of action
by Klein, who is not a party to the proceeding. To justify noncompliance with the requirements of Rule
202, PRK relies entirely on its agreement with Google. More importantly, however, Rule 202 expressly
requires that discovery may be ordered "only if" the required findings are made. The rule does not
permit the findings to be implied from support in the record. The intrusion into otherwise private matters
authorized by Rule 202 outside a lawsuit is not to be taken lightly. One noted commentator, Professor
Lonny Hoffman, has observed that there is "cause for concern about insufficient judicial attention to
petitions to take presuit discovery" and that "judges should maintain an active oversight role to ensure
that [such discovery is] not misused". Access to Information, Access to Justice: The Rule of Presuit
Investigatory Discovery, 40 U. MICH. J.L. REFORM 217, 273-74 (2007). We agree.
The trial court clearly abused its discretion in failing to follow Rule 202. Rule 202.5 provides that use of
a deposition may be restricted or prohibited "to prevent abuse of this rule", but that remedy for
noncompliance affords relators no relief from their complaint that their identities not be disclosed. Thus,
relators are entitled to mandamus relief. In re Jorden, 249 S.W.3d 419, 420 (Tex. 2008) (orig.
proceeding) (party to Rule 202 proceeding has no adequate remedy on appeal if court abused its
discretion in ordering discovery that would comprise procedural or substantive rights).
The trial court is directed to vacate its order dated January 29, 2010, and to grant relators' motions to
quash. We are confident that the trial court will promptly comply, and the writ will issue only if it fails to do
so.
[1] The subpoena duces tecum commanded production of documents described as follows:
"1. Any and all identifiers, user account IP addresses, user access Email Addresses, user entry logs, user posting logs,
registered user information, account access IP addresses and/or any identifying descriptors for the following blogspots
for the previous year:
a) http://samtheeagleusa.blogspot.com/
b) http://operationkleinwatch.blogspot.com/
c) http://www.notthisonetoojacques.blogspot.com/
"2. To identify all parties, persons, or entities responsible for the website http://operationkleinwatch.blogspot.com and
http://samtheeagleusa.blogspot.com.
"3. Identify all persons, parties or entities who provide contributions of money or literary substance to these websites.
"4. Identify all persons, parties or entities who posted comments on these websites and/or have provided financial
support to these websites.
"5. Identify all persons, parties or entities who are in any way affiliated with, or connected with in any capacity, these
websites."
[2] We do not address whether Google complied with the federal statute.
In re Kiberu, No. 07-0959 (Tex. Aug. 29, 2008)(per curiam) (presuit discovery, HCLC)
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, No. 06-0369 249 S.W.3d 419 (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 TEXAS RULE CIVIL PROCEDURE 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.