Background
Zach Maxwell petitioned under Texas Rule of Civil Procedure 202 to depose Makayla Montoya-Frazier, a founder and member of Buckle Bunnies Fund, before filing suit. He sought information concerning possible claims against people and organizations that allegedly performed, aided, or abetted abortions in violation of Texas Senate Bill 8. His requested subpoena also sought 21 categories of documents, including information about the fund’s donors, volunteers, personnel, and funding streams.
Montoya-Frazier and the fund objected, arguing that Maxwell had not presented admissible evidence supporting the findings Rule 202 requires and that the requested discovery was burdensome and overbroad. Montoya-Frazier submitted an unopposed declaration stating that the fund had not financed abortion services by Texas-licensed physicians since September 2021 and explaining the financial, operational, and safety burdens disclosure could impose. The trial court nevertheless authorized the deposition and document production. After an earlier interlocutory appeal concerning the Texas Citizens Participation Act concluded, Montoya-Frazier and the fund sought both mandamus relief and a direct appeal.
The Court’s Holding
The Second Court of Appeals conditionally granted mandamus relief. It held that Maxwell failed to present evidence supporting either permissible basis for Rule 202 discovery: that the deposition might prevent a failure or delay of justice in an anticipated suit, or that its likely benefit in investigating a potential claim outweighed its burden or expense. The attached news articles did not establish why presuit discovery was necessary or outweigh Montoya-Frazier’s evidence concerning the burdens on the fund, its donors, and its volunteers.
The court also held that Rule 202 does not authorize requests for production of documents, so the trial court abused its discretion by ordering production under that rule. Because Montoya-Frazier and the fund were targets of Maxwell’s anticipated or potential litigation, the Rule 202 order was not directly appealable, and an improper deposition could not be adequately remedied after it occurred. The court ordered the trial court to vacate its Rule 202 order and deny Maxwell’s petition, with the writ to issue only if the trial court failed to comply, and dismissed the companion appeal for want of jurisdiction. It did not decide the constitutional challenge to Senate Bill 8.
Key Takeaways
- A Rule 202 petitioner must present evidence—not merely allegations or counsel’s arguments—supporting the findings required for presuit discovery.
- Routine discovery that can be obtained after suit is filed does not by itself show that a presuit deposition may prevent a failure or delay of justice.
- Texas Rule 202 authorizes presuit depositions, not requests for production of documents.
Why It Matters
The decision reinforces the limited nature of Texas presuit discovery. A party seeking a Rule 202 deposition must demonstrate why discovery is needed before litigation begins and, when investigating a potential claim, must prove that the likely benefit outweighs the procedure’s burden or expense.
The opinion also clarifies the proper route for review when the proposed deponent is a potential defendant: the Rule 202 order is not directly appealable, but mandamus may be available because a deposition cannot be “untaken” after the fact.