Discovery BEFORE the Suit Is Filed

Ordinarily, a lawsuit is commenced before the parties begin taking depositions, sending out interrogatories, and so on. Fed. R. Civ. P. 27 allows depositions to "perpetuate" testimony; it's been interpreted to cover only situations where a witness is likely to die or otherwise become unavailable before the action is filed. But in Texas, a civil rule adopted in 1999 explicitly allows presuit depositions (1) to preserve testimony (as in the federal rule) OR (2) to investigate a potential claim.

Prof. Lonny Hoffman (Univ. of Houston) conducted an empirical study of the rule in action. He makes the point that access to information is an important component of access to justice. How can you know whether you have a viable cause if the other party has a lock on all the relevant information?

Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217-280 (2007). Here's the abstract (I broke it into shorter paragraphs to make it easier to skim online):

What is the relationship between access to information and access to justice?

Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another.

The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or by those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits.

This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state’s presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony.

Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state’s presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice.

The journal's website has the abstract only. A version of the paper is available for download from SSRN here (U of Texas Law, Public Law Research Paper No. 88, U of Houston Law Center No. 2006-W-04, Feb. 2006).