Preliminary Approval of Amendments to Texas Rule of Civil Procedure Rule 201

The Texas Supreme Court recently announced preliminary approval of amendments to Texas Rule of Civil Procedure Rule 201. Rule 201, as currently written, governs “depositions in foreign jurisdictions for use in Texas proceedings” and “depositions in Texas for use in foreign proceedings.” The proposed amendments broaden the rule to cover “discovery,” rather than just depositions, and make clear that the rule applies to discovery in “other states and foreign countries,” rather than the potentially unclear “foreign jurisdictions.” Rule 201 currently includes Rules 201.1 and 201.2. The amendments make changes to Rules 201.1 and 201.2 and add a new Rule 201.3. These changes broaden the scope of discovery available to parties from other states, but it remains to be seen how the Rule’s changes will impact the ability to seek testimony in Texas for use in a foreign country.

The amendments to Rule 201.1 contain only a minor change to the title: replacing “Foreign Jurisdictions” with “Other States and Foreign Countries.” The rest of Rule 201.1—which sets out rules and procedures for depositions conducted outside of Texas for use in Texas proceedings—remains unchanged.

Rule 201.2—which is currently entitled “Depositions in Texas for Use in Proceedings in Foreign Jurisdictions”—has more, and more interesting, changes. First, like the other amendments just discussed, the reference to “Foreign Jurisdictions” is removed, and “Foreign Countries” takes its place. The text of the rule has been edited from “[i]f a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission . . .” to “[i]f a court of any foreign country that is a signator to the Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters or another similar treaty issues a letter of request . . . .”^[1] The rest of the rule’s text remains unchanged. These amendments narrow the scope of Rule 201.2. Whereas the rule previously applied to any other state or foreign jurisdiction (presumably any foreign country), after the proposed amendments it would apply only to countries that are “signator[ies] to the Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters or another similar treaty . . . .” At the time of writing, the signatories to the Hague’s 1970 Evidence Convention totaled 68 countries, with notable absences throughout the world.^[2] While it is clear that Rule 201.2’s amendments are not meant to entirely foreclose the possibility of seeking a deposition for use in a foreign country that is not a signatory to the 1970 Evidence Convention due to the Rule’s reference to “another similar treaty,” it is not clear what treaty SCOTX might be envisioning or how similar a treaty must be to be brought within Rule 201.2’s scope. The “another similar treaty” language might be even further cabined/ineffective because Rule 201.2 only contemplates compelling a witness to appear and testify in response to a “letter of request”—the specific mechanism used in the Hague’s 1970 Evidence Convention. Under the plain language of the Rule, a “mandate, writ, or commission” would no longer be sufficient to compel a witness’s attendance. Finally, I want to flag one more change in Rule 201.2’s amendments. By omitting the phrase “of record” following the word “court,” the Rule applies to any court, including one that is not “of record.” So, the Rule’s text no longer precludes honoring a deposition request from a court not of record.

The amendments to Rule 201 finish by creating a new Rule 201.3: “Discovery in Texas for use in Proceedings in Other States.” The new Rule 201.3 sets out procedures to effectuate out-of-state subpoenas for both 1) deposition testimony on oral examination or written questions and 2) documents or tangible things. The out-of-state subpoenas must be submitted to a clerk of court in the county in which discovery is sought. Rules 201.3(c)–(d) also specify that certain other Texas Rules of Civil Procedure related to service (176 and 205) and discovery (190–200 and 205) apply to any out-of-state subpoenas issued under Rule 201.3(b)(2). One of the most potentially important aspects of Rule 201.3 is that a “request for the issuance of a subpoena under this rule does not constitute an appearance in a Texas court.” That addition appears to be aimed at allowing parties from other states to invoke a Texas court’s jurisdiction to obtain discovery in Texas without having to worry that doing so subjects them to personal jurisdiction. The comments to Rule 201.3 indicate that it is based on the Uniform Interstate Depositions and Discovery Act, but they make clear that Rule 201.3 specifically excludes that Act’s provisions permitting premises inspection by subpoena. Rule 201.3 is not intended to modify the existing Texas rule requiring a court order for a premises inspection.

Altogether, the Rule 201.3 amendments expressly broaden the scope of discovery available to parties from other states without subjecting those parties to personal jurisdiction in Texas. It remains to be seen how the Rule 201.2 amendments will affect the availability of discovery in Texas for parties from foreign countries.

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^[1] Rule 201.2’s proposed text amendments omit the word “of” found between “Taking” and “Evidence” in the actual title of “The Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.” The link to the convention can be found here: HCCH | Evidence Section

^[2] Some specific, notable absences include Canada, Egypt, Ireland, Japan, New Zealand, Japan, Saudi Arabia, Singapore, and the U.A.E. A complete list of signatories to the 1970 Evidence Convention can be found on the Hague Convention’s website: HCCH | #20 - Status table