Commercial Litigation and Arbitration

More on Pre-Action Discovery

Yesterday’s Blog discussed pre-action discovery under Rule 27 of the Federal Rules of Civil Procedure and the New York statute, CPLR § 3102(c). Other states have pre-action discovery rules that may permit even more searching discovery prior to the filing of a complaint. Texas, for example, adopted its pre-action discovery rule effective January 1999. Rule 202 of the Texas Rules of Civil Procedure allows a party to petition the court for pre-action discovery (in the form of an oral deposition or deposition by written questions) under two circumstances. The first is to perpetuate or testimony for use in an anticipated suit. See Tex. R. Civ. P. 202.1(a). This is similar to Federal Rule 27. The second is ‛to investigate a potential claim or suit.“ See Tex. R. Civ. P. 202.1(b). Before a pre-action discovery order will issue, the Court must find either that (1) allowing the pre-action discovery ‛may prevent a failure or delay of justice in an anticipated suit“ or (2) that ‛the likely benefit“ of allowing the requesting party to take pre-action discovery to investigate a potential claim ‛outweighs the burden or expense of the procedure.“ See Tex. R. Civ. P. 202.4(a). The lesson here is that the availability of pre-action discovery varies from state to state, and may differ from Federal practice. The procedures available in those states with a connection to an impending dispute, or the parties, may provide a viable option for pre-action discovery that would otherwise be foreclosed under Rule 27.

Doug Pepe

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