CHAPTER 13 - 13-2 Discovery from Nonparties in General

• Jurisdiction: United States

13-2 Discovery from Nonparties in General

Texas Rule 205 governs discovery from nonparties and sets forth the discovery methods that can be used to obtain materials and information from nonparties.¹ It limits nonparty discovery to seven specified methods that are more formal than party discovery. Three of them require a court order: (1) entry on a nonparty's property under Texas Rule 196.7;² (2) a presuit deposition under Texas Rule 202;³ and (3) a physical or mental examination under Texas Rule 204.⁴ The four other discovery methods require a subpoena's service:⁵ "(a) an oral deposition;"⁶ "(b) a deposition on written questions;"⁷ "(c) a request for production of documents or tangible things [served with an oral- or written-deposition notice under Texas Rules 199.2(b)(5) and 200.1, respectively];"⁸ and "(d) a request for production of documents and tangible things" under Texas Rule 205.3 served without an oral- or written-deposition notice.⁹

The last discovery method—a production request served without a deposition notice—is based on Federal Rule 45, which also allows parties to obtain documents from nonparties without a deposition,¹⁰ and was first introduced into Texas discovery practice by the 1999 amendments to the Texas discovery rules. Before those amendments, a party could obtain documents and other tangible things from a nonparty only with a subpoena duces tecum served in connection with an oral- or written-deposition notice.

As noted above, under Texas Rule 205, a party can obtain documents and other tangible things from a nonparty either with or without a deposition and without filing a motion for production with the trial court.¹¹ The methods of obtaining a nonparty's documents and tangible things and nonparty depositions are discussed below.

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^[1] Tex. R. Civ. P. 205.1; In re Sun City Gun Exch., Inc., 545 S.W.3d 1, 6 (Tex. App.—El Paso 2017, orig. proceeding) ("[Texas] Rule 205.1 limits what the trial court may order in relation to discovery from a non-party. A party may obtain discovery from a non-party only by obtaining a court order under [Texas] Rules 196.7, 202, or 204, or by serving a subpoena compelling an oral deposition, a deposition on written questions, a request for production of documents or tangible things, or a request for production of documents and tangible things.") (citation omitted); In re Univ. of Tex. Health Ctr., 198 S.W.3d 392, 396 (Tex. App.—Texarkana 2006, orig. proceeding) ("Discovery from nonparties is...