CHAPTER 13 - 13-5 Nonparty Production Requests with a Deposition

• Jurisdiction: United States

13-5 Nonparty Production Requests with a Deposition

The discussion in Chapter 13, section 13-4, relates to Texas Rule 205's most useful method of securing a nonparty's documents—production without an oral or written deposition. As pointed out in Chapter 13, section 13-2, Texas Rule 205 also authorizes the use of subpoenas to obtain documents in another way: a production request served in connection with an oral or written deposition notice.⁷² As with a nonparty production request without a deposition, to obtain a nonparty's documents and other tangible things with a deposition, a party must serve: (1) the nonparty and all other parties with a notice⁷³ and (2) the nonparty with a subpoena.⁷⁴

13-5:1 Service of the Notice and Subpoena

Unlike the notice for a nonparty production request without a deposition, which must be served at least ten days before the subpoena,⁷⁵ the notice for an oral or written deposition can be served "before or at the same time that a subpoena compelling attendance or production under the notice is served."⁷⁶

The timing of the subpoena's service depends on the type of deposition. A subpoena for an oral deposition "must be served on the witness and all parties a reasonable time before the deposition is taken."⁷⁷ In contrast, a subpoena for a deposition on written questions "must be served on the witness and all parties at least 20 days before the deposition is taken."⁷⁸ Moreover, both types of depositions must be noticed and completed before the discovery period closes absent agreement of the parties or leave of court.⁷⁹

Texas Rule 205.2 does not indicate how the notice must be served on the nonparty. Because Texas Rule 21a applies to "[e]very notice required by" the civil procedure rules,⁸⁰ compliance with one of Texas Rule 21a's service methods should suffice.⁸¹ Moreover, because Texas Rule 205.2 allows the notice to be served with the subpoena, the best practice is to serve both documents simultaneously. Finally, the notice must be filed with the trial court.⁸²

13-5:2 The Notice's and Subpoena's Contents

Texas Rule 199.2(b) governs the contents of both the oral- or written-deposition notice and any production request contained in it.⁸³ That Rule provides that "the request must comply with [Texas] Rule 205 and the designation of materials required to be identified in the subpoena must be attached to, or included in, the notice."⁸⁴

13-5:3 The Subpoena

The subpoena must comply with Texas Rule 176, which governs subpoenas...