No fooling – sovereign immunity can protect against Rule 202 pre-suit discovery says Dallas Court of Appeals.

In Re: Dallas County Hospital District d/b/a Parkland Health & Hospital System, 05-14-00249-CV (Tex. App. – Dallas, April 1, 2014)

Texas Rule of Civil Procedure 202 allows a party to take pre-suit depositions in order to determine if a case exists or if traditional discovery would be thwarted due to some external factors. A potential plaintiff, Mergen, attempted to take pre-suit discovery of a Parkland Hospital corporate representative in anticipation of an employment lawsuit. The trial court granted the discovery and Parkland filed this mandamus action to quash the deposition.

The Dallas Court of Appeals first held that Rule 202 discovery should not be the norm and the requesting party must offer evidence and obtain a holding from the trial court that the information being sought would essentially not be possible in traditional discovery or the likely benefit of allowing the deposition outweighs the burden. Mergen did not provide any evidence to support the need for a corporate representative deposition before suit.

Additionally, the court noted Parkland is a governmental entity entitled to governmental immunity. In determining whether a court has jurisdiction in a Rule 202 proceeding, the Court must look to the substantive law governing the anticipated suit. Rule 202 petitions must be sufficiently specific to demonstrate a basis for overcoming governmental immunity, and often must plead more than the minimum needed for other suits.  Here, Merger did not allege facts demonstrating he could overcome immunity.  As a result, it was error to order the discovery. Mandamus was granted.

If you would like to read this opinion click here. Panel: Justices O’Neill, Lang, and Brown. Opinion by Justice O’Neill.  The attorneys listed for Parkland are Sheria D. Smith, J. Robert Arnett II, and Courtney Barksdale Perez.  The attorney listed for Real Party in Interest Daniel Mergen is Michael Edward Coles.