There are many litigators who go through life believing the only way to obtain testimony from party and non-party witnesses is through party discovery and oral depositions of witnesses who have anything to say about the case, whether they are a party or not. If you need non-party testimony and/or productions, there is a way that is much more economical than noticing an oral deposition. It is time to pull out the rule book and read Tex. R. Civ. P. 200. If you also need a production from the non-party witness, also read
Tex. R. Civ. P. 205.
You can use one or the other rule, not together or combined. In other words, you can issue only a Deposition Upon Written Question (“DWQ”) and never ask for any documents, or you can issue a Non-Party Request for Production and never ask for any testimony. What confuses so many is when you need a legal DWQ/testimony and production. What then? You can combine Rules 200 and 205 to obtain both needs.
When you issue a Rule 200 DWQ, you must prepare and serve a Notice of DWQ and the form DWQ you intend to serve upon the witness. If you serve only the Notice without the DWQs, the service is invalid and can be challenged. You must file the Notice, DWQ and Subpoena with the Court, pursuant to Tex. R. Civ. P. 191.4(b). The Notice must give the witness at least twenty (20) days to complete their responses. When preparing your DWQs, take care to ensure your questions include admissible questions, otherwise, your DWQs and any production obtained with same, will be considered inadmissible. Use your standard subpoena form, pursuant to Tex. R. Civ. P. 176. Serve the witness with the Notice, DWQ, and Subpoena immediately as there is no waiting time between the service of a Rule 200 Notice and the issuance of the Subpoena. This rule often confuses most litigators as they are so accustomed to discovery having a 30-day notice period.
Note DWQ testimony in Texas can be taken before a licensed Texas Notary Public, and does not need to be before a Certified Shorthand Court Reporter. Many get confused by this simple concept and the easiest way to think about it is that once the DWQs are noticed to the other parties, you cannot change the DWQ format. Only those questions noticed can be asked and answered. If an opposing counsel wants to ask Cross-Questions, they must submit those by serving the Cross-Questions pursuant to Tex. R. Civ. P 200.3 within ten (10) days after the DWQs are noticed. If not done within the ten days, the Cross-Questions should not be included in the written testimony.
Production only from a non-party under Tex. R. Civ. P. 205 has its own set of timelines. When issuing without a legal DWQ, you must give the opposing parties and the witness ten (10) days’ notice of intent to subpoena production from the non-party. Once the ten days expire, you can then have the Subpoena served upon the witness. It can be very confusing to everyone as you get a notice packet with the form subpoena contained therein, then ten days later a subpoena packet with the same notice contained therein. The ten day period allows for any objections prior to the issuance of the subpoena. Both the notice and the subpoena packets must be filed with the court pursuant to Tex. R. Civ. P 191.4(b).
The part that confuses so many is when we use both Rule 200 and 205 to obtain testimony and production in one request. There is a sentence buried in 205 that says, “A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served”, which allows the ten day notice period to vanish so that both the Notice and Subpoena in a Production with a DWQ only requires a total of 20 days’ Notice to the DWQ event. It helps keep consistent the rule that any time you serve a DWQ upon a non-party, whether as a legal DWQ only or one with a production request, the notice period is 20 days’ to the DWQ event.
Because of the details involved in the rules related to written depositions and production requests of non-parties, vendors have created businesses to assist with these services. Do not hesitate to pick up the phone to call with any questions. We have many forms to cover your particular requests and have no problem including your specific questions in your DWQ requests when you have a particularly unusual case.
Good luck with your non-party discovery and your case! Check out how we can assist you with your case here.