One of the most misunderstood tools in Texas civil litigation is pre-suit discovery. Many people assume they must file a lawsuit before they can compel testimony or documents. In limited circumstances, Texas law allows the opposite.
Under Texas Rule of Civil Procedure 202, a court may authorize depositions before a lawsuit is filed — but only under strict conditions.
This article explains when Rule 202 applies, how courts analyze these requests, and why misuse of the rule often backfires.
What Is Rule 202 Pre-Suit Discovery?
Texas Rule of Civil Procedure 202 allows a person to petition a court for authorization to take depositions before filing suitfor one of two purposes:
- To perpetuate or preserve testimony for an anticipated lawsuit; or
- To investigate a potential claim or suit
Tex. R. Civ. P. 202.1.
This is not ordinary discovery. Courts consistently describe Rule 202 as an extraordinary remedy, not a fishing license.
The Legal Standard Courts Apply
To obtain pre-suit discovery, the petitioner must plead and prove one of the following:
1. Preservation of Testimony
The court must find that allowing the deposition “may prevent a failure or delay of justice” in an anticipated suit.
Tex. R. Civ. P. 202.4(a)(1).
This typically applies where:
- A witness is elderly, ill, or leaving the jurisdiction
- Evidence risks being lost or destroyed
- Delay would materially impair later litigation
2. Investigating a Potential Claim
If the request is for investigation rather than preservation, the court must find that:
“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)(2).
This balancing test is where most Rule 202 petitions fail.
Rule 202 Is Not a Substitute for a Lawsuit
Texas appellate courts have repeatedly emphasized that Rule 202 cannot be used to avoid filing suit or to conduct discovery that would otherwise be unavailable.
Courts routinely deny petitions where:
- The petitioner already knows the essential facts
- The real goal is harassment or leverage
- The discovery request is broad or speculative
- The petitioner could simply file suit instead
Rule 202 is designed to clarify uncertainty, not manufacture claims.
Due Process Concerns and Appellate Scrutiny
Because Rule 202 allows compelled discovery without a pending lawsuit, Texas courts apply heightened scrutiny to protect due process rights.
Orders granting pre-suit discovery are frequently challenged by:
- Mandamus
- Interlocutory appeal
- Protective orders
An improperly granted Rule 202 order can delay litigation, increase costs, and expose the petitioner to sanctions or attorneys’ fees.
Venue and Jurisdiction Requirements
A Rule 202 petition must be filed in:
- The county where a respondent resides; or
- The county where the deposition will be taken
Tex. R. Civ. P. 202.2.
The petition must also:
- Be verified
- Identify the expected adverse parties
- State the substance of the testimony sought
Failure to strictly comply is fatal.
When Rule 202 Makes Sense — and When It Doesn’t
Rule 202 may be appropriate when:
- A key witness is about to become unavailable
- Ownership, identity, or control of assets is genuinely unknown
- Evidence preservation is urgent
Rule 202 is usually a bad idea when:
- You already know who to sue
- You’re trying to force settlement leverage
- You want early discovery without risk
- The dispute is inevitable anyway
Courts notice the difference.
Practical Takeaway
Pre-suit discovery under Rule 202 is powerful — but dangerous when misused. Texas courts do not tolerate attempts to weaponize the rule or bypass ordinary litigation safeguards.
Used correctly, it can preserve justice. Used incorrectly, it can derail a case before it starts.
If you are considering pre-suit discovery, the threshold question is simple:
Are you trying to protect evidence — or avoid filing a lawsuit?
Texas courts will ask the same thing.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.
