Earlier this year this blog reported that Texas was on the verge of adopting the Uniform Interstate Depositions and Discovery Act, a uniform law that streamlines the process for obtaining discovery from witnesses outside the state where the litigation is being conducted.
With UIDDA in place, Texas lawyers will have a new, more efficient process for compelling out-of-state parties to produce documents and sit for depositions during pretrial discovery. And Texas residents, including corporations, will be more readily subject to discovery requests in litigation occurring outside Texas borders.
Texas would, we noted, become the 48th state to adopt UIDDA in whole or in part.
And while all of that is true, it’s also the case that our use of the phrase “on the verge of adopting” suggested an immediacy that does not, in fact, exist.
No Rush to Adopt UIDDA in Texas
Yes, Texas is getting UIDDA. Legislation “adopting” UIDDA, H.B. 3929, passed the Texas Senate and House on May 26. The governor signed H.B. 3929 on June 11. And the legislation takes effect on Sept. 1, 2023.
But the text of H.B. 3929 contains not a single word found in the Uniform Interstate Depositions and Discovery Act, as written by the Uniform Law Commission way back in 2007.
Instead, H.B. 3929 is more like a suggestion from Texas legislators that the Texas Supreme Court consider adopting UIDDA, in some fashion, sometime within the next two years.
Section 1 of the new law provides:
Before September 1, 2025, the Supreme Court of Texas may adopt the Uniform Interstate Depositions and Discovery Act as rules of civil procedure.
That’s it. H.B. 3929 contains no substantive provisions on interstate discovery depositions at all. Elsewhere, H.B. 3929 provides that if the Supreme Court of Texas does not adopt UIDDA, then existing Texas laws on out-of-state discovery depositions (Section 20.002, Texas Civil Practice and Remedies Code) will remain in effect.
The reason why Texas has adopted – actually, might adopt – UIDDA in this fashion lies in the state’s unique approach to writing its rules of practice and procedure. According to the Texas Court Rules: History and Process document, the Texas Constitution gives the Texas legislature a role in making procedural rules for the state’s courts. However, legislative involvement in writing court rules proved unworkable in practice.
In Texas Court Rules: History and Process, the authors noted: “[T]he bench and bar became dissatisfied with the Legislature’s piecemeal approach to rulemaking and with the difficulty in achieving any improvement in court procedure through the legislative process.”
The solution to the problem of legislative meddling in court rules was the 1938 Rules of Practice Act, which gave the Texas Supreme Court “full rulemaking power in the practice and procedure in civil actions.” The Rules of Practice Act authorizes the Texas high court to adopt rules that repeal all conflicting laws on procedure in civil cases, including statutes enacted by the state legislature.
In 1985, the state legislature passed additional legislation that became Texas Government Code Section 74.024, which authorized the Texas Supreme Court to “adopt rules of administration setting policies and guidelines necessary or desirable for the operation and management of the court system and for the efficient administration of justice.”
Today, the Texas legislature retains some authority to insert itself into the court rulemaking process, though it rarely exercises this power.
Texas High Court Will Consider UIDDA
Returning to the subject of UIDDA adoption in Texas, where do things now stand? Well, the Texas Supreme Court exercises its rulemaking authority with the assistance of the Supreme Court Advisory Committee, a group of several dozen court-appointed lawyers and judges. Last month, the Texas Supreme Court formally asked the advisory committee to begin work on UIDDA.
According to a June 3 letter to the advisory committee from Texas Supreme Court Chief Justice Nathan L. Hecht, the state’s high court would like the committee to “consider whether the discovery rules should be changed and draft any recommended amendments.” Chief Justice Hecht asked the committee to complete its work by fall 2024.
The advisory committee meets several times each year. Meeting transcripts and supporting documents relating to the advisory committee’s activities are published here.
The committee’s next public meeting is Aug. 18-19 at the State Bar of Texas’ offices in Austin, Texas.
It would have been more accurate to say that Texas is “on the verge of” considering the Uniform Interstate Depositions and Discovery Act. But adopting? No, that’s not going to happen – if at all – until 2025.
Activity in Other States
Legislation adopting UIDDA is still in play this year in Massachusetts and Missouri. In Massachusetts, a joint committee from the House and Senate held a brief hearing on its UIDDA bills (S. 939, H. 1450) on June 27. Two versions of UIDDA legislation passed in Missouri (S. 72, H. 994) and are now before a House-Senate reconciliation committee.