If you have been following our SB 8-related litigation reports, you have undoubtedly seen our discussion of “Rule 202” depositions. But exactly what is a Rule 202 deposition and why is it showing up so frequently in the SB 8 context?
Rule 202, Texas Rules of Civil Procedure, enables a “person” to “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) investigate a potential claim or suit.” A petition must be verified, filed in a county of proper venue for the anticipated suit (or, if suit is not yet anticipated, in the county where the witness resides), state the purpose and subject matter, include the names and contact information of persons with potentially adverse interests to the petitioner in an anticipated suit, and identify the person or persons sought to be deposed. Finally, the petition must request a court order authorizing the petitioner to take the depositions.
To order a Rule 202 pre-suit deposition, the court must find that: (1) allowing the petitioner to take the deposition may prevent a failure or delay of justice in the 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.
Thus far, we are aware of at least five Rule 202 deposition proceedings in different counties. These have been requested on behalf of nominal petitioners by the same attorney who represents Texas Right to Life. Some of these petitions seek depositions from persons who work for abortion support organizations, and we believe at least one has been served on the managing partner of a major law firm. It is unclear at this point whether these pre-suit depositions will in fact be followed by an SB 8 lawsuit. One possibility is that Rule 202 may be used to threaten litigation in an effort to compel the targets to change their behavior. It does appear, however, that the petitioners are requesting Rule 202 depositions in courts located in counties that they believe will be friendly to the requests. This makes sense under SB 8, since the law allows a person to sue anywhere in the state without regard to where the alleged unlawful conduct occurred.
If the use of Rule 202 pre-suit depositions expands, as seems logical, we would advise our members to be aware that they could be served with such an order at any time and from anywhere. We should expect that the prospective deponents would be personnel familiar with a business’s employee policies and health care benefits. But they may also be individual employees concerning whom a third party has obtained information that may bring the employee’s conduct within the purview of SB 8. Remember that SB 8 is a bounty hunter law and relies on informants to generate the litigation. And if in fact SB 8 is aimed more toward intimidating individuals and businesses into changing their policies, we can anticipate an ever-expanding universe of potential defendants who may be served with Rule 202 pre-suit depositions.
