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We are going to assume that Texans know a few things about horses, carts, barn doors, leading to water, and whatever other horse adages we can come up with.  But when it comes to litigation, the Texas Court of Appeals took a firm line with a plaintiff who was looking to get deposition and document discovery before filing suit.  Platitudes about not wanting to bring a products liability suit without good cause were far from enough to demonstrate entitlement to invasive pre-suit discovery.  In re Acclarent, Inc., 2024 Tex. App. LEXIS 3994 (Tx. Ct. App. Jun. 7, 2024).

Texas Rule of Civil Procedure 202 authorizes pre-suit discovery to investigate potential claims.  But the Texas Supreme Court, interpreting that rule, has held that pre-suit discovery is “an intrusion into otherwise private matters” and therefore “is not to be taken lightly” and pre-suit depositions “are not now and never have been intended for routine use.”  Id. at *5-6.  Because of the clear due process concerns, courts should “strictly limit” pre-suit discovery. 

Against this backdrop, the petitioner (not a plaintiff yet) sought to conduct pre-suit discovery of the manufacturer of a medical device used in her sinus surgery.  Id. at *1-2.  Disregarding that backdrop, the trial court granted the request for both a deposition and document production.  Because there is no right of appeal from such an order, the manufacturer sought mandamus relief arguing that the trial court abused its discretion.  The appellate court agreed. 

Petitioner argued that the deposition was necessary to determine whether a products liability lawsuit should be pursued and the document discovery was needed to determine if the medical device was defective.  Petitioner claimed that she did not want to bring a products liability suit if she did not have to “because they are expensive and time consuming.”  Id. at *3.  Oh, we know.  But money and time do not eclipse burden, privacy, and due process. 

A pre-suit discovery petition has to contain “explanatory facts” demonstrating the need for the discovery and “evidence establishing” those facts.  Id. at *6-7.  Petitioner here included no factual allegations in her petition at all.  Her petition only made conclusory assertions that tracked the language of Rule 202.  Id. at *9.   Which she then tried to supplement at the hearing with “testimony” from her counsel regarding their concerns about removal, preemption, and statute of limitations.  Petitioner also offered up that she had taken discovery of her surgeon and the company responsible for neuromonitoring during the surgery which was “inconclusive” as to the cause of petitioner’s injury.  Regardless of whether counsel’s testimony was “evidence,” it still was not enough to authorize pre-suit discovery. Id. at *11-12.

Perhaps more importantly, petitioner admitted that she already had evidence of an alleged defect related to the artificial intelligence component of the system.  And the manufacturer offered to provide an affidavit identifying the AI suppler and whether the inclusion of the AI component was FDA approved—but petitioner inextricably would only accept that information from a deposition.  Id. at *13.  Given the lack of any alleged factual support combined with the information petitioner alleged to already have, she could not demonstrate that the benefit of taking a pre-suit deposition outweighed the burden to the manufacturer.  Id.  Nor was the court convinced that “burden and cost” of discovery should be discounted because modern electronic discovery is less expensive—that is not per se true.  Id.  Therefore, the appellate court concluded the trial court abused its discretion and ordered it to vacate the prior order and deny the original petition—returning the cart to its proper place behind the horse. 

Since we doubt petitioner would have considered pre-suit discovery a two-way street, this really would have been all burden to one side and all benefit to the other.  To that we say (moving away from horses), you’ve got to put some skin in the game.  Plaintiffs have to be committed enough to file a lawsuit before they get to peak behind the curtain.