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Obtaining Discovery from Texas Non-Parties for Use in Out-of-State Litigation

Texas has not adopted the Uniform Interstate Depositions and Discovery Act.  As such, out-of-state parties who seek discovery from Texas individuals or entities must deal with a confusing set of rules found in the Texas Rules of Civil Procedure and the Texas Civil Practice and Remedies Code.  The attorneys at Vitek Lange help attorneys from throughout the United States navigate these complex rules and successfully and efficiently obtain the important evidence necessary to advance their cases.  Below are questions we are routinely asked about securing out-of-state discovery. Feel free to reach out to Brian Brisco at [email protected] or (817) 885-5608 if you need assistance in this area.

What types of discovery requests are allowed for non-parties?

Texas Rule of Civil Procedure 201.2 allows a party to an out-of-state proceeding to compel discovery from a Texas resident via an oral deposition or a deposition on written questions.  Both types of depositions can include document requests.

Do I have to get permission from the out-of-state court before seeking discovery from a Texas non-party?

Yes.  Texas requires the party seeking the discovery to obtain a “mandate, writ, or commission” from the out-of-state court requiring the specifically sought discovery (TRCP 201.2).

Do I need a Texas subpoena in order to serve discovery on a Texas non-party?

Under Texas law, the subpoena is the instrument that compels a non-party to comply with discovery requests.  A Texas court will not enforce an out-of-state subpoena against a Texas citizen.

Do I need to open an ancillary proceeding in a Texas court to serve a subpoena?

Not necessarily, but this is the easiest way to ensure compliance.  Opening an ancillary proceeding prior to service of the subpoena will secure a Texas court to hear any objections to the subpoena, settle any potential disputes that arise during a deposition, and hear and rule on any motion to compel or for contempt.

What are the notice requirements for a non-party subpoena?

This depends on the type of discovery sought.  A notice of an oral deposition with or without a request for documents must be served a “reasonable time” before the deposition (TRCP 199.2(a)).  The subpoena accompanying the notice may be served at the same time as the notice (TRCP 205.2).

A notice of a deposition on written questions with or without a request for documents must be served at least 20 days before the deposition is taken. (TRCP 200.1(a)).  The subpoena may be served at the same time as the notice. (TRCP 205.2).

A document request without a deposition must be served “a reasonable time” before the time provided for compliance.  (TRCP 205.3(a)).  The subpoena must be served at least 10 days after notice.  (TRCP 205.2).

Are there fees associated with a Texas subpoena?

In certain circumstances.  For instance, when a subpoena requires a non-party to attend a deposition, the non-party is entitled to receive payment of one day’s witness fee ($10) at the time the subpoena is served. (CPRC § 22.001).  When a discovery subpoena seeking documents is directed to a custodian of records, the custodian is entitled to $1.00 for the production and certification of the documents. (CPRC § 22.004).  If these required fees are not paid, the subpoena is legally defective.

How can I enforce a discovery subpoena?

If a non-party fails to comply with a valid and enforceable subpoena without adequate excuse, a court can hold the non-party in contempt and punish the non-party by fine or imprisonment. (TRCP 176.8).  A Texas court can also compel the non-party to respond to the discovery subpoena.

Should I hire local counsel?

Local counsel can prove helpful in securing discovery from Texas non-parties by (1) filing the required filings in Texas courts and making appearances as necessary; (2) ensuring that a subpoena is issued and served properly in accordance with Texas rules; (3) ensuring that all notice requirements are met; (4) assisting with problems as they arise, including enforcement issues; and (5) providing helpful local knowledge including the identities of reputable process servers and court reporters.