Revisiting Pre-suit Discovery under TRCP 202

March 22 2023| News| | By JT Oldham

The Eleventh District Court of Appeals recently vacated an order authorizing pre-suit discovery sought by an aggrieved mother in a purported school bullying investigation. Gordon Indep. Sch. Dist. v. Hinkson, Nos. 11-22-00323-CV, 11-22-00324-CV, 2023 Tex. App. LEXIS 1391 (Tex. App.—Eastland Mar. 2, 2023, no pet. h.). Kayci Hinkson, individually and on behalf of her minor son, sought discovery from six Gordon Independent School District (“Gordon ISD”) employees as part of an investigation of potential claims relating to events that occurred before and after the family left Gordon ISD and moved to a nearby town in the Strawn Independent School District (“Strawn ISD”). After moving from Gordon ISD to Strawn ISD, Hinkson’s son was ruled ineligible to participate in varsity athletics by the University Interscholastic League District Executive Committee, precipitating Hinkson’s petition for pre-suit discovery pursuant to Texas Rule of Civil Procedure 202. Hinkson’s verified petition sought document production and depositions of six Gordon ISD staff members relating to five issues:

(1) [Whether] any Gordon ISD staff conspired or acted to prohibit [Hinkson’s son] from playing sports for the school district [Strawn ISD] his family moved to; (2) whether the Gordon ISD staff violated FERPA [the Family Educational Rights and Privacy Act] and/or “pay to play” UIL [University Interscholastic League] rules; (3) whether students of Gordon High school committed any offenses against [Hickson’s son] including, but not limited to, threat of bodily injury, intentional infliction of emotional distress, invasion of privacy, libel, and slander; (4) whether staff members intentionally interfered with [Hinkson’s son]’s ability to play sports, his rights to privacy under FERPA, his right not to be offered money to play for a team, his right to be protected from bullying at school and demand any of his bullies be removed from her [sic] school under “David’s Law,” Texas Education Code § 37.0832; and/or (5) whether Gordon ISD staff engaged in criminal activity and violated [Hinkson’s son]’s right to privacy by placing video cameras in the stalls of the boys’ bathrooms and recording the children while in the bathroom stalls.

Hinkson, 2023 Tex. App. LEXIS 1391, at *3-4.

Gordon ISD intervened and filed a plea to the jurisdiction on behalf of itself and all six named deponents, asserting sovereign immunity, among other defenses and objections. In ruling in favor of Hinkson and authorizing the pre-suit discovery to go forward, the trial court implicitly denied the defendants’ jurisdictional challenges. On appeal, the Eleventh District Court of Appeals noted that although the trial court maintained jurisdiction over some of the potential claims, it did not have jurisdiction over all of them, and thus its pre-suit discovery order was overly broad and an abuse of its discretion. Id. at *18. The Court then conditionally granted the petition for writ of mandamus and instructed the trial court to reconsider Gordon ISD’s plea to the jurisdiction in the first instance and then appropriately narrow the scope and conditions of any discovery order based on the remaining potential claims and parties over which the trial court had jurisdiction.

Notably missing from the Court’s opinion is any comment as to the document production ordered by the trial court in conjunction with the six depositions. Although not yet addressed by the Texas Supreme Court, appellate courts in this state are split as to whether document requests within the context of a Rule 202 proceeding are proper. See In re Anand, No. 01-12-01106, 2013 Tex. App. LEXIS 4157, 2013 WL 1316436, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, orig. proceeding) (“Nothing in the language of Rule 202 prohibits a petitioner from requesting that documents be produced along with the deposition.”); see also In re Akzo Nobel Chem., Inc., 24 S.W.3d 919, 921 (Tex. App.—Beaumont 2000, orig. proceeding) (“Neither by its language nor by implication can we construe Rule 202 to authorize a trial court, before suit is filed, to order any form of discovery but deposition.”). Despite chastising the trial court for its implicit denial of Gordon ISD’s plea to the jurisdiction, the Court could appear to have tacitly approved the trial court’s ordered document production by failing to address the issue altogether.