Potential litigants in Texas can always consider the pre-suit deposition under Texas Rules of Civil Procedure 202 as a precursor to the filing of a lawsuit. The 202 petition, which is available in Texas state court, permits a party to take a deposition to investigate either potential claims or in anticipation of a potential lawsuit. The benefit is the party does not have to prepare a formal lawsuit with causes of action and generally gets the deposition in a short amount of time.
The mechanics of the rule require that the party seeking the deposition verify the basis for the deposition (swear under oath as to the facts) and identify any adverse party if suit is anticipated. The petition is filed, the deponent is then served, and the court conducts a hearing on the issue. Provided the party seeking the deposition has met all requirements under the rule, the Court will enter an order specifying the time and place for the deposition and make certain findings as required by the rule.
What is the purpose of such a procedure? There are many. In the non-compete or non-solicit situation, a former employer can use this 202 to explore whether or not the former employee is in fact competing or soliciting customers. The deposition could target the new employer or the former employee. When obtaining information about a potential lawsuit, it also provides for a dialogue between the former employer and the former employee/new employer meaning there is a chance of early resolution. A 202 petition allows you to skip the steps of filing a lawsuit and get testimony right away. Generally, it is a good way to try and resolve disputes early on and avoid the costs of discovery and litigation.