Litigation Note – Out-of-State Subpoenas in Texas

Package deliveryWhen acting as local counsel on interstate litigation matters, we are often asked about serving discovery subpoenas in Texas. Texas is one of the few states that has not yet adopted or enacted the Uniform Interstate Depositions and Discovery Act (“UIDDA”). The UIDDA, initially recommended in 2007, is a model statute enabled by many states to create more uniform procedure for conducting depositions and discovery in other states. (Florida, Massachusetts, and Missouri are other notable states that have not adopted the UIDDA.)

Since Texas has not adopted the more streamlined approach provided by the UIDDA, out-of-state attorneys must play close attention to several Texas rules when serving Texas non-parties with discovery. With this note, I am highlighting a couple rules that seem to draw the most questions.

Texas Courts will not enforce a foreign subpoena against a Texas citizen. The out-of-state party that is requesting the subpoena against a Texas citizen must first seek permission from the out-of-state court by obtaining a “mandate, writ, or commission”. Tex. R. Civ. P. 201.2. In seeking the mandate, writ, or commission, the requesting party can attempt to compel: (1) an oral deposition; (2) a deposition on written questions; or (3) document requests without a deposition. A Texas subpoena may only be issued by: (1) an attorney authorized to practice in the Texas; (2) a Texas court clerk; or (3) an officer authorized to take deposition in Texas. Tex. R. Civ. P. 176.4.

This discovery subpoena in Texas is comprised of two parts: (1) the notice, and (2) the subpoena. The subpoena is the instrument that compels a nonparty to comply with a notice for discovery. See St. Luke’s Episcopal Hospital v. Garcia, 928 S.W.2d 307, 312 (Tex.App—Houston 1996, orig. proceeding).

When seeking the production of documents from a nonparty without a deposition, the Notice and the Subpoena must be served a “reasonable time” before the response is due. Tex. R. Civ. P. 205.3(a). However, it is important to note that the Notice to produce documents must be served at least ten (10) days before the service of the Subpoena. Tex. R. Civ. P. 205.2. It is also crucial to note that the Notice and Subpoena cannot be served within thirty (30) days of the end of any applicable discovery period. These rules have tripped up more than one practitioner.

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 or after the notice is served (205.2).

The Notice of an oral deposition must be served a “reasonable time” before the deposition. Tex. R. Civ. P. 199.2(a). The Subpoena may be served along with or after the notice is served. Tex. R. Civ. P. 205.2.

Carefully observing these rules, and working with experienced local counsel, should help out-of-state counsel navigate the Texas discovery landscape.

 


 

George B. Ward and the attorneys at De Leon & Washburn, P.C. are available to assist clients with commercial litigation, employment agreements, comprehensive arbitration, separation advice, and employment litigation. For more information regarding the firm’s practice areas, please visit our Commercial Litigation page, and please feel free to contact the attorneys at any time.

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