Are Discovery Orders Appealable In Texas ?
The supreme court has held that a bill of discovery order for discovery from a third party against whom no suit is contemplated is an end in itself and appealable. See Ross Stores, Inc v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991).
In Redken, Redken sought discovery to find out which of its distributors was violating a distributorship agreement and selling Redken products to Ross.
The supreme court reasoned that because there was no pending suit and none was specifically contemplated that the discovery order was an end to itself and the summary judgment order granting it was final and appealable. Id.
The Houston fourteenth court has held that when the bill of discovery is brought against a party against whom suit is pending or contemplated, the order for discovery is not final and appealable until the pending or contemplated suit is final. See Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex. App.-Houston [14th Dist.] 1999, no pet.).
Rule 202 became effective January 1, 1999. See TEX. R. CIV. P. 202.
The comment to rule 202 states that rule 202 incorporates the equitable bill of discovery procedure previously found in rule 737. See TEX. R. CIV. P. 202 cmt. 2.
Thus, we can look to interpretations of rule 737 as aids in interpreting rule 202. Rule 202 provides that a potential party may file a petition for presuit deposition. See TEX. R. CIV. P. 202.
The deposition is authorized to perpetuate testimony for use in an anticipated suit or to investigate a potential claim or suit. See TEX. R. CIV. P. 202.1.
This type of proceeding has been held to be ancillary to the contemplated suit, not a wholly separate action. See Office Employees Int'l. Union v. Southwestern Drug Co., 391 S.W.2d 404, 406 (Tex. 1965).
Rule 202 sets forth the requirements for pleadings and findings by the trial court.
The trial court must find that:
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure. TEX. R. CIV. P. 202.4(a).