Everything is bigger in Texas. Even pretrial discovery rules, which permit depositions to be taken merely for the purpose of investigating whether a lawsuit should be filed. No state is more permissive when it comes to pre-suit depositions and, not surprisingly, pre-suit depositions are a popular investigative tool for plaintiffs’ attorneys in Texas.
Recently Texas’ permissive attitude toward pre-suit depositions collided with another important Texas public policy – namely, the Texas Citizens Participation Act, a 2019 law that seeks to protect free speech rights by authorizing early dismissal of meritless legal actions filed merely to burden free speech rights.
The specific issue raised by the collision of these two policy preferences is this: Is a petition for a per-suit deposition a “legal action” within the meaning of the TCPA?
In other words, does the TCPA authorize courts to dismiss not only meritless lawsuits but also pre-suit depositions taken for the purpose of investigating possibly meritorious lawsuits targeting free speech rights?
Recently Texas’ permissive attitude toward pre-suit depositions collided with another important Texas public policy – namely, the Texas Citizens Participation Act, a 2019 law that seeks to protect free speech rights by authorizing early dismissal of meritless legal actions filed merely to burden free speech rights.
On Feb. 13, the Texas Court of Appeals in Fort Worth ruled, in Frazier v. Maxwell, No. 02-23-00103 (Texas Ct. App., 2d Dist., Feb. 13, 2025), that a petition seeking a pre-suit deposition, authorized by Rule 202 of the Texas Rules of Civil Procedure, was not a “legal action” contemplated by the TCPA. “Because a Rule 202 petition is a procedural step that does not seek a merits-based adjudication and that does not amend or add a claim for legal, equitable, or declaratory relief,” it falls outside of the protections provided by the TCPA, the court ruled.
The Maxwell case was decided by an en banc panel of all seven justices in the Fort Worth-based Second District. Other appellate courts in Texas have reached a different conclusion regarding the interplay between Rule 202 and the TCPA, so the matter will have to be resolved by the Texas Supreme Court at some point.
Pre-Suit Depositions Are Popular in Texas
Pre-lawsuit depositions, taken for the purpose of preserving testimony, are permitted in the federal system and in every state in the country. The purpose for the rule permitting pre-suit depositions is, generally speaking, to prevent a miscarriage of justice, which might occur if valuable evidence is lost before a lawsuit can be filed.
All but a dozen or so states follow the federal rule on pre-suit depositions. Under Rule 27 of the Federal Rules of Civil Procedure, a party seeking to conduct a pre-suit deposition must file a request with the court asserting that the purpose of the deposition is “to perpetuate testimony about any matter cognizable in a United States court.” Even in states that do not explicitly follow the federal rules, pre-suit depositions are available only for the purpose of preserving testimony. Alabama may be an exception, however. See Ex Parte Anderson, 644 So.2d 961 (Ala. 1994) (“Rule 27 provides a limited means by which potential plaintiffs (and their attorneys), within the discretion of the trial court, can examine evidence before actually deciding whether they have a reasonable basis for filing an action.”)
Texas stands alone in its willingness to permit investigatory pre-suit depositions. In Texas, Rule 202 of the Texas Rules of Civil Procedure (PDF) provides in part:
Rule 202 – Depositions before Suit or to Investigate Claims
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.
The Texas Supreme Court has called Rule 202 “the broadest pre-suit discovery authority in the country.” See In re Doe (Trooper), 444 S.W.3d 603, 610 (Tex. 2014).
Attempting to curb abuse of Rule 202’s invitation to conduct pre-suit depositions, Texas courts have warned that, due to “practical as well as due process problems,” Rule 202 petitions should not be routine. Nor can Rule 202 be used to conduct discovery beyond what would be available had the petitioner filed the anticipated legal action. Also, because Rule 202 is an equitable remedy, equitable principles must guide a court’s decision whether or not to permit the deposition.
However the Maxwell case ultimately turns out, the pitched battle over Rule 202 illustrates that potential litigation targets recognize the power of deposition testimony in civil litigation. It may also demonstrate, on the other hand, that Rule 202 pre-suit depositions can, in some cases, be more trouble than they’re worth for parties seeking to take them. If requesting a pre-suit deposition means litigating a case all the way to the Texas Supreme Court – before the lawsuit has even been filed – is that really the most efficient way to conduct discovery?
