A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. Rule 205.2 is titled “Notice” and provides as follows:Ī party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. For a simple request for documents or a deposition (oral or by written questions), only a notice and subpoena under Rule 205 are required. But when you review Rules 196.7, 202 and 204, it is clear that generally, no motion/court order is necessary to obtain typical discovery from a nonparty during ongoing litigation.Ī court order is only required if a party seeks a presuit deposition of a nonparty, a physical or mental examination of a nonparty, or entry on a nonparty’s land. If a practitioner fails to cross-reference Rules 196.7, 202 and 204, it appears a party may be required to file a motion in order to obtain discovery from nonparties. (d) a request for production of documents and tangible things under this rule. (c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions and Rule 205.1 is titled “Forms of Discovery Subpoena Requirement.” It provides as follows:Ī party may compel discovery from a nonparty - that is, a person who is not a party or subject to a party’s control - only by obtaining a court order under Rules 196.7, 202 or 204, or by serving a subpoena compelling: It is broken down into three sections, each warranting its own discussion: Texas Rule of Civil Procedure 205 governs discovery from nonparties in state court. And, because the rules are not clear cut, it is not always as simple as it should be. Use of a nonparty subpoena requires knowledge of nonparty discovery rules and/or methodology. Nonparty subpoenas are a frequently overlooked and underutilized avenue to obtain information. Nonparty discovery allows parties to go straight to the source - requesting the same information from someone with no skin in the game. If the insured delays in providing it or contends that they don’t have it, one option might be to request the information via nonparty subpoenas directed at a previous insurer or the roofers who submitted bids to estimate or repair prior damage. Often other paths exist to obtain some of the needed information - paths outside the party lines.įor example, suppose a party to an insurance dispute needs information regarding preexisting roof damage and/or prior claims regarding that damage. However, the adversarial process can make this task difficult and more expensive than it needs to be. Most often, the focus of discovery is obtaining information directly from an opposing party. With parties refusing to disclose information they claim is privileged or simply “irrelevant,” e-discovery, motions to quash, motions to compel, and motions for sanctions, half the battle can be simply obtaining the information needed to prosecute or defend your case. Because of this, some of the largest battles an attorney faces in litigation involve discovery. Discovery of information is one of the most important aspects of litigation - it allows both parties to identify the facts that support their claims or defenses.
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