The Texas Rules of Civil Procedure provide potential plaintiffs in Texas courts with the broadest power to conduct pre-suit discovery in the country. Under Rule 202, a Texas court can authorize a pre-suit deposition to investigate a potential claim before an actual lawsuit is filed. Rule 202 has been used in numerous contexts, but plaintiffs increasingly have found Rule 202 to be the preferred path for investigating claims involving on-line activities, as it allows them to notice a deposition of an on-line service provider, hosting company or web site operator in order to gather info on users who are the actual targets of the investigation. In many cases, Rule 202 has been invoked as a weapon by plaintiffs seeking to unmask the identity of anonymous users.

Recently, the tide turned. In In re John Doe a/k/a “Trooper”, the Texas Supreme Court limited the reach of Rule 202 pre-suit depositions by holding that the trial court in a Rule 202 proceeding must have personal jurisdiction over not only the respondent (the party whose deposition is sought), but, if applicable, also over the subject(s) of the pre-suit investigation about whom the respondent is expected to be deposed. This important ruling significantly narrows the scope of Rule 202 and substantially decreases the ability for an aggressive plaintiff to use Rule 202 to route around discovery limitations and other procedural safeguards that might protect the target of their investigation in Texas or in the target’s home state.

Read original article


Tags: