Reverse Erie and Texas Rule 202: The Federal Implications of Texas Pre-suit Discovery

Jeffrey Liang

89 Texas L. Rev. 1491

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Under current federal pleading standards for civil actions, Mr. Liang writes that “plaintiffs face a catch-22: they need information to reach discovery, but they need discovery to access information.”  He argues that Texas Rule of Civil Procedure 202 (Rule 202) may offer a solution.  Rule 202 allows plaintiffs to conduct pre-suit depositions in order to investigate potential claims.  Subsequently, the plaintiff could file suit in federal or state court, better positioned to meet pleading standards.

Only Texas grants broad pre-suit discovery for the investigation of potential claims, notes Liang.  This encourages forum shopping, which undermines the uniformity of federal pleading standards. But plaintiffs face two hurdles when using Rule 202 to investigate potential federal claims.  On the one hand, they must keep proceedings out of federal court, where such a proceeding will likely be dismissed.  On the other, they must prevent preemption in state court.

In discussing Rule 202 and its federal implications, Liang first provides an overview of its scope and role in Texas courts.  He discusses the goals of Rule 202, the mechanics of Rule 202 proceedings, and the role of pre-suit depositions in the federal system.  Next, Liang examines the obstacles presented by federal courts and the removability of Rule 202 proceedings.

He then assesses whether Rule 202 will be preempted in state court.  Even though generally not removable, a Rule 202 proceeding might be preempted through the Reverse Erie Doctrine.  This is a federal common law doctrine that applies when state courts adjudicate federal claims, and determines whether federal or state procedure applies in such instances.  Liang argues that this Doctrine will generally not preempt Rule 202, but preemption may result when Rule 202 petitions explicitly rely on federal claims to justify the burdens of pre-suit depositions.  Even though it is a state procedure, Rule 202 can have an outcome-determinative effect on cases in federal court.  Rule 202, concludes Liang, offers plaintiffs a powerful tool, and it presents courts with interesting questions of federalism, jurisdiction, and preemption.