Texas on the Verge of Adopting Interstate Depositions Law
Ever since the Uniform Law Commission published the Uniform Interstate Discovery and Depositions Act in 2007, the disinterest among Texas lawmakers to adopt the law has been both a curiosity and, to a small extent, a failure of the uniform law process.
Curious, because UIDDA offers clear benefits to any state that adopts it. UIDDA streamlines the process of taking depositions and document-related discovery across state lines by eliminating the need for obtaining a court order in the jurisdiction where the discovery target resides. In states where UIDDA is in place, it is possible for an attorney-drafted deposition or discovery subpoena to pass from a court clerk to a process server to the discovery target without the need for a court order.
The resulting out-of-state discovery process is both more efficient and less expensive than pre-UIDDA practice.
A failure because … well, because Texas matters. An economic powerhouse, the Texas economy is second only to California in terms of gross domestic product. By that same measure, Texas is more economically significant than all but eight countries in the world, ahead of Canada, Australia, and Russia.
The American Bar Association’s 2022 Profile of the Legal Profession report estimates that Texas has over 95,000 lawyers, the third-most in the United States. The number of lawyers in Texas grew by 18% during the past decade, more than another other state except North Carolina (21%).
And Texas has more companies (53) than any other state in the Fortune 500 – Fortune magazine’s list of the top U.S. public and private companies by annual revenue. Texas companies, Texas lawyers, and Texas economic muscle all have an outsized impact in courthouses across the United States.
If and when Texas adopts the UIDDA, litigators everywhere will be affected.
It now appears that that time is rapidly approaching. On April 10, the Texas House Committee on Judiciary & Civil Jurisprudence favorably reported HB 3929, a measure that would authorize the Texas Supreme Court to amend current civil procedure rules to include UIDDA. Clearing a committee hearing is a reliable indicator that legislation is heading toward eventual passage, particularly when the legislation deals with routine matters of civil procedure.
Texas is one of the last three states yet to adopt UIDDA, though UIDDA bills have been introduced in all of the holdout jurisdictions this year.
Today in Texas, out-of-state deposition subpoenas for Texas-based witnesses are governed by Texas Rule of Civil Procedure 201.2, which requires the attorney seeking evidence in Texas for an out-of-state proceeding to obtain a “mandate, writ, or commission” from the court where the lawsuit is pending. Only when presented with one of these documents will Texas courts compel the witness to appear and testify in a deposition seeking discovery in an out-of-state lawsuit. Because Texas is not a UIDDA jurisdiction, its attorneys cannot take advantage of the UIDDA process for interstate discovery in states where UIDDA has already been adopted.
Missouri Legislation Advances As Well
Legislation to adopt UIDDA is picking up steam in Missouri, where legislators in the House unanimously passed HB994 on Feb. 27. The measure was transmitted to the Senate and received a public hearing in the Judiciary and Civil and Criminal Jurisprudence Committee on April 17.
The Texas and Missouri legislatures conclude their regular sessions at the end of May.
In Massachusetts no action has yet been taken on either House Docket 4050 or Senate Docket 1875), both UIDDA adoptions that were introduced earlier this year.
Texas’s neighbor to the north, Oklahoma, adopted UIDDA in 2021. The total number of adopting UIDDA is now 46, plus the District of Columbia.