Out-of-State Deposition and Discovery in Texas

Most states have enacted the Interstate Depositions and Discovery Act, which simplifies procedures for issuing subpoenas for out-of-state discovery, including document requests and depositions. Texas has not adopted the Act. Generally, a party seeking discovery from a non-party Texas resident files a motion for entry of a mandate, writ or commission in the underlying matter with the presiding court.

If the non-party is a corporate entity, the topics upon which the representative is to be deposed should also be included as an exhibit. If the Requesting Party seeks the production of documents, it should attach the discovery requests to its motion. The court with jurisdiction over the underlying lawsuit retains jurisdiction over any objections the other parties to the case might wish to make. While most issues regarding the scope of discovery must be resolved in the originating court, Texas courts retain an interest in protecting the rights of any Texas resident to whom the discovery is directed.

The best means available to the Requesting Party to secure the necessary discovery in admissible form is to retain Texas counsel to handle all matters subsequent to issuance of the mandate, writ or commission. This can greatly increase the odds of successfully obtaining the necessary discovery, particularly when, as is often the case, the deponent and opposing counsel avail themselves of every means of resisting the discovery requests and are generally uncooperative. This will likely save time and money.