Before you file a lawsuit, Texas law gives you a powerful but underutilized tool: the ability to investigate potential claims under oath – without filing suit first. Texas Rule of Civil Procedure 202 authorizes pre-suit depositions in specific circumstances.
Rule 202 depositions are most valuable when you suspect wrongdoing but need testimony or documents to confirm the scope, identify the right defendants, or preserve evidence before it disappears.
This article draws on real Texas cases to show how companies use this tool to investigate wrongdoing, identify the right defendants, and preserve critical evidence before it disappears.
What Kind of Claims Can a Rule 202 Deposition Help You Investigate?
Texas courts have authorized – and denied (when not properly justified) – pre-suit depositions across a wide range of business disputes.
Trade Secret Misappropriation and Breach of Fiduciary Duty Claims
When a key employee or executive resigns and joins a competitor – especially when others follow in quick succession – you may have grounds to investigate theft of trade secrets and breach of fiduciary duty. The challenge is that the full scope of the theft is often not visible at the outset. A pre-suit deposition can help you build the factual record before you commit to litigation.
Consider what happened when an oilfield services company watched seven employees simultaneously resign just days after the former company president had registered a competing business. When an email surfaced showing that the competitor's employees were using the company's own proprietary expense report format, the company filed a Rule 202 petition to establish whether it had viable legal claims against the former company president before committing to litigation.
A petition for pre-suit deposition was filed to investigate:
- Whether trade secrets, confidential information, and property were misappropriated
- The former company president’s individual role in orchestrating coordinated employee departures while still employed, which would constitute a breach of fiduciary duty
In this case, the petition was initially granted but later withdrawn since the petitioner already had an opportunity to investigate potential claims in a related lawsuit.
Non-Compete and Non-Disclosure Agreement Violations
When a former employee immediately begins working for – or operating – a competing business, a pre-suit deposition can help you determine whether a non-disclosure or non-compete agreement was breached and how far the damage extends.
In In re Hernandez, a healthcare services company sought to depose a former employee who left to work for a direct competitor, believing she had shared confidential information with third parties in violation of signed non-compete and non-disclosure agreements. The company wanted to understand the full scope of those communications before deciding whether and how to file suit.
A pre-suit petition was filed to investigate:
- Whether the employee solicited colleagues or clients in violation of the agreement
- Whether confidential information was passed to the new employer or third parties
- The extent of damages caused by the breach
In this case, the parties were already involved in arbitration proceedings, giving the petitioner the opportunity to investigate claims through that process. As a result, the Rule 202 petition was not allowed.
Defamation and Business Disparagement
When someone spreads false information about you or your company – to clients, investors, or the public – a Rule 202 deposition can help you identify the source, scope, and impact of the damaging statements before you commit to litigation. In defamation cases, the gap between what you suspect and what you can prove is often wide. Pre-suit discovery can close that gap.
Houston Tennis Association, Inc. v. Thibodeaux illustrates this challenge. After the Houston Tennis Association suspended and then expelled Rebecca Thibodeaux based on unspecified "sportsmanship and leadership concerns," Thibodeaux filed a Rule 202 petition to investigate whether she had defamation or other claims – and against whom.
Thibodeaux used Rule 202 to gather the facts needed to make an informed decision before pulling the trigger on litigation, including:
- Who made the potentially defamatory statements and through what channels
- What was actually said
- Whether she had viable claims, and against whom
Tortious Interference with Business Relationships
If a competitor, someone in your professional community, or a former employee or client is actively steering your clients or business partners away from you, a pre-suit deposition can help you gather evidence of a potential tortious interference claim before it is concealed or destroyed.
Tortious interference is notoriously difficult to prove without direct evidence of the interfering conduct. Rule 202 gives you a way to develop that evidence before filing.
GVA Property Management, an Austin-based real estate investment company, faced this challenge after a former investor allegedly began making false public statements when investments underperformed. The harm extended beyond GVA's reputation – it reached the company's existing relationships with clients, partners, and investors.
GVA successfully filed a Rule 202 petition to determine:
- Who the former investor contacted and when
- Whether specific existing contracts or relationships were targeted
- The identity of any third parties who may have facilitated or encouraged the interference
Property Theft and Conversion
When company property – physical equipment, vehicles, tools, or digital files – goes missing around the time an employee departs, a pre-suit deposition can help you document what was taken and by whom. The goal is to establish the factual record before evidence disappears or is destroyed.
In In re Krause Landscape Contractors, a landscaping company used a Rule 202 petition to investigate what happened after two employees quit on the same day. When the company recovered its work truck from one employee's home, it was stripped of tools. Computer forensics revealed the other employee had deleted company files before abandoning her position. The company sought pre-suit depositions to understand the full scope of what was taken and whether other potential claims existed.
The landscaping contractor filed a Rule 202 petition to help it investigate:
- Whether the employees retained company equipment or deleted company records before leaving
- Whether client relationships were solicited before or after departure
- The value of property taken or data destroyed
In this case, the pre-suit deposition was not authorized. An appeals court ruled that the landscaping company did not present enough evidence to justify the burden and expense of pre-suit discovery (more on how to justify a pre-suit deposition below).
Trademark Infringement
When a competitor adopts a confusingly similar business name, logo, or brand in your market, you may need to investigate the full extent of the overlap before committing to litigation. Rule 202 can help you establish the facts before you decide whether a trademark infringement lawsuit is warranted – and who the right defendants are.
In Florez v. Olibas, a bail bond business owner filed a Rule 202 petition to investigate whether two competitors were deliberately operating under a business name designed to cause marketplace confusion. The petitioner sought to depose the competitors to understand the nature of their business relationship and how they had chosen the name for their company.
In this case, a pre-suit deposition was granted to allow the business owner to investigate:
- The relationship between competing parties
- The intent behind the chosen name or branding
- The extent of marketplace confusion and resulting damages
What Do Texas Courts Require Before Granting a Rule 202 Deposition?
Rule 202 is not to be used as a fishing expedition. Texas courts have made clear that pre-suit depositions must be justified.
Courts will only grant a Rule 202 deposition if you can:
- Back your petition with real evidence. Conclusory statements that track the language of Rule 202 are not enough. Courts require facts, documentation, and a specific explanation of why the deposition is necessary – not just a general assertion that it would be useful. In Krause, the company's failure to show how the benefit of the depositions outweighed the burden was fatal to its petition.
- Show why you need the deposition now. Courts will ask whether you already have enough information to file suit, or could get the same information through other means. If related litigation or arbitration is already pending, courts will look hard at whether you could obtain the same evidence through that proceeding instead – as the petitioners in Hernandez learned.
- Address the burden on the other side. Requiring someone to sit for a deposition before any lawsuit is filed – especially on sensitive matters like trade secrets or a new employment relationship – is a real burden. Your petition needs to show, specifically, that the benefit justifies it.
Be Aware of the Texas Citizens Participation Act (TCPA)
If your petition involves allegations of defamation, business disparagement, or other claims based on communications made by the respondent, the respondent may move to dismiss the Rule 202 petition under the Texas Citizens Participation Act – Texas's anti-SLAPP law. SLAPP is an acronym for “strategic lawsuit against public participation” and is designed to quickly dismiss meritless lawsuits intended to silence the exercise of free speech, association, or petition.
This does not mean a Rule 202 petition is unavailable in defamation or business interference cases – Texas courts are divided on when and where the TCPA applies – but it does mean that where you file, and how you structure your petition, can impact whether the deposition is allowed or not.
Talk to a Texas Business Litigation Attorney
If you believe your business has been harmed – but you need more information before you can pursue legal action – a Rule 202 pre-suit deposition may give you the factual foundation to move forward with confidence. The attorneys at Hendershot Cowart P.C. can evaluate your situation, help you determine whether a pre-suit deposition is the right first move, and build the evidentiary record courts require to grant one.
Contact us online or call (713) 783-3110 to schedule a consultation with our Houston business litigation team.
Frequently Asked Questions
Can I file a Rule 202 petition if I have already filed a lawsuit?
Rule 202 is intended for pre-suit use. If litigation is pending, evidence should be obtained through the normal discovery process.
Does a Rule 202 petition work for investigating claims against former employees?
Yes – and it is one of the most common uses. Courts have authorized pre-suit depositions in trade secret theft, noncompete violation, and breach of fiduciary duty investigations involving former employees. However, courts also recognize that deposing a former employee regarding these matters is inherently burdensome, and you will need to show that the benefit of the deposition justifies that burden.
Can I use Rule 202 to obtain documents, not just testimony?
Texas courts are divided on this question. Some have permitted document requests in connection with a Rule 202 deposition; others have found this exceeds what the rule allows. An attorney can advise you on the approach most likely to succeed in the court where you plan to file.
How is a Rule 202 pre-suit deposition different from a demand letter?
A demand letter puts the other side on notice and may resolve a dispute without litigation – but it does not give you sworn testimony or access to documents. A Rule 202 deposition is appropriate when you need to develop facts under oath before deciding how to proceed. The two tools serve different purposes and can be used in sequence.
Contact us online or call (713) 783-3110 to schedule a consultation with our Houston business litigation team.