CHAPTER 11 - 11-3 Depositions on Written Questions—Texas Rule 200
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11-3 Depositions on Written Questions—Texas Rule 200
200.1. Procedure for Noticing Deposition Upon Written Questions
(a) Who may be noticed; when. A party may take the testimony of any person or entity by deposition on written questions before any person authorized by law to take depositions on written questions. A notice of intent to take the deposition must be served on the witness and all parties at least 20 days before the deposition is taken. A deposition on written questions may be taken outside the discovery period only by agreement of the parties or with leave of court. The party noticing the deposition must also deliver to the deposition officer a copy of the notice and of all written questions to be asked during the deposition.
(b) Content of notice. The notice must comply with Rules 199.1(b), 199.2(b), and 199.5(a)(3). If the witness is an organization, the organization must comply with the requirements of that provision. The notice also may include a request for production of documents as permitted by Rule 199.2(b)(5), the provisions of which will govern the request, service, and response.
200.2. Compelling Witness to Attend
A party may compel the witness to attend the deposition on written questions by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the deposition notice upon the party's attorney has the same effect as a subpoena served on the witness.
200.3. Questions and Objections
(a) Direct questions. The direct questions to be propounded to the witness must be attached to the notice.
(b) Objections and additional questions. Within ten days after the notice and direct questions are served, any party may object to the direct questions and serve cross-questions on all other parties. Within five days after cross-questions are served, any party may object to the cross-questions and serve redirect questions on all other parties. Within three days after redirect questions are served, any party may object to the redirect questions and serve recross questions on all other parties. Objections to recross questions must be served within five days after the earlier of when recross questions are served or the time of the deposition on written questions.
(c) Objections to form of questions. Objections to the form of a question are waived unless asserted in accordance with this subdivision.
200.4. Conducting the Deposition Upon Written Questions
The deposition officer must: take the deposition on written questions at the time and place designated; record the testimony of the witness under oath in response to the questions; and prepare, certify, and deliver the deposition transcript in accordance with Rule 203. The deposition officer has authority when necessary to summon and swear an interpreter to facilitate the taking of the deposition.
Comments to 1999 change:
1. The procedures for asserting objections during oral depositions under Rule 199.5(e) do not apply to depositions on written questions.
2. Section 20.001 of the Civil Practice and Remedies Code provides that a deposition on written questions of a witness who is alleged to reside or to be in this state may be taken by a clerk of a district court, a judge or clerk of a county court, or a notary public of this state.
11-3:1 2021 Amendments to the Texas Rules of Civil Procedure
The 2021 amendments to the Texas Rules of Civil Procedure did not modify Texas Rule 200 regarding depositions on written questions in any respect.
11-3:2 In General
Depositions on written questions are an alternative to oral depositions. Although similar to interrogatories because the witness responds to written questions under oath, unlike interrogatories, depositions on written questions are not "written discovery" under Texas Rule 192.7(a).341 Accordingly, Texas Rules 193 and 197, as well as other discovery rules regarding written discovery, including those relating to supplementation and asserting privilege, do not apply to depositions on written questions. In addition, unlike interrogatories, there is no limit on the number of questions that can be asked in a deposition on written questions. Comment 5 to Texas Rule 190, however, provides that "depositions on written questions cannot be used to circumvent the limits on interrogatories."342
Depositions on written questions are an affordable, alternative means of discovery for parties when they need to conduct discovery from a nonparty, but do not want to incur the high cost of an oral deposition. The fundamental difference between an oral deposition under Texas Rule 199 and one on written questions under Texas Rule 200 is that, under Texas Rule 200, the questions are prepared in advance and sent to the deposition officer (i.e., the person recording the deposition, usually a court reporter), who asks the questions at the deposition.
Depositions on written questions are used less frequently than oral depositions because there are no follow-up questions and because questions are provided in advance, enabling the witness's attorney to craft answers to them.343 Accordingly, the procedure is much more cumbersome than oral examination and unsuited for pursuing complicated inquiries or for interrogating a hostile or reluctant witness. Rather, depositions on written question are best suited for securing testimony from a witness with limited relevant information, such as information from a business-records custodian.
As with oral depositions, "any person or entity" can be deposed on written questions.344
11-3:3 Notice of a Deposition on Written Questions
To take a deposition on written questions, a party must serve "[a] notice of intent to take the deposition . . . on the witness and all parties at least 20 days before the deposition is taken."345 Because a deposition on written questions, like an oral deposition, must be completed within the discovery period, the party noticing the deposition must complete the deposition within that period absent agreement of the parties or leave of court.346 Twenty days' notice, however, may be insufficient if the witness is a party or subject to a party's control and the deposition notice contains a production request. In such a case, the noticing party must give at least thirty days' notice because document requests served with such a notice are governed by Texas Rule 196.2(a)'s thirty-day response period.347
In addition to serving the deposition notice on the witness and all other parties, the noticing party "must also deliver to the deposition officer a copy of the notice and of all written questions to be asked during the deposition."348 The deposition officer can be a district court clerk, a county court judge or clerk, a certified shorthand reporter, or a notary public.349 The deposition's officer's duties in a deposition on written questions are virtually the same as those in an oral deposition—the officer must swear in the witness, "take the deposition . . .; record the testimony of the witness under oath in response to the questions; and prepare, certify, and deliver the deposition transcript in accordance with [Texas] Rule 203. The deposition officer has authority when necessary to summon and swear an interpreter to facilitate the taking of the deposition."350
Texas Rule 200.1(b) incorporates by reference three of Texas Rule 199's provisions regarding the deposition notice's content: (1) Texas Rule 199.1(b), which authorizes oral depositions by telephone or remote electronic means; (2) Texas Rule 199.2(b), which specifies the oral deposition notice's content; and (3) Texas Rule 199.5(a)(3), which governs who may attend an oral deposition. Texas Rule 200.1(b) allows for the deposition of an organization and production requests, providing: "If the witness is an organization, the organization must comply with the requirements of [Texas Rule 199.2(b)(1)]. The notice also may include a request for production of documents as permitted by [Texas] Rule 199.2(b)(5), the provisions of which will govern the request, service, and response."351 Accordingly, the notice for a deposition on written questions must: (1) state the name of the witness, which can be either an individual or an organization;352 (2) state a reasonable time and place for the deposition that, absent agreement by the parties or court order, must be within the discovery period and (a) at least twenty days after the notice's service or (b) at least thirty days after the notice's service, if the notice is for a deposition of...
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