IN RE: COSTCO WHOLESALE CORPORATION (2026)

OPINION

This original proceeding arises from a petition for writ of mandamus challenging a trial court's order granting a Texas Rule of Civil Procedure 202 request for pre-suit deposition and document discovery. The real party in interest, in anticipation of a lawsuit for injuries she sustained at stored owned by Relator filed a verified Rule 202 petition seeking a deposition of a corporate representative and production of documents. The trial court granted the petition permitting pre-suit discovery. However, the record shows no evidentiary basis for pre-suit discovery and no showing that such discovery would prevent a failure or delay of justice or that its benefit outweighs its burden. Because the order compels broad, merits-style discovery before suit, relief is warranted. We conditionally grant mandamus and direct the trial court to vacate its Rule 202 order.

I. BACKGROUND

Real party in interest Thi Hai Huynh alleges that she was injured in a Costco store in Fort Bend County when a large box fell on her on May 15, 2025. Six weeks later, on June 26, 2025, Huynh filed a Rule 202 Petition to Take Deposition Before Suit. The 202 petition was verified only by Huynh's counsel who merely stated that he has “personal knowledge or a good faith basis for the facts set forth” in the Rule 202 petition. Huynh sought the deposition of a general manager, corporate representative, or the person with the most knowledge of the events giving rise to the accident. Additionally, Huynh sought the production of numerous documents.

The Rule 202 petition was initially set for hearing on August 11, 2025, but passed so that counsel for both sides could exchange information. During a zoom meeting on July 30, 2025, Costco showed counsel for Huynh a video of the incident. On October 3, 2025, Costco filed its response to the Rule 202 petition and Huynh filed her reply four days later, attaching various photos and documents and another verification signed by Huynh's counsel this time stating that “the facts contained in the ․ Rule 202 Petition are true and correct and within his personal knowledge.” The hearing on the Rule 202 motion was heard on October 8, 2025. The trial judge orally granted the 202 petition at the hearing and signed an order granting the petition the next day. Costco filed its petition for writ of mandamus on October 30, 2025.

II. DISCUSSION

A. Standard for Mandamus Relief

We may issue a writ of mandamus to correct a trial court's clear abuse of discretion or violation of duty imposed by law when no adequate remedy by appeal exists. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). A clear abuse of discretion exists when the trial court's decision is so arbitrary and capricious that it amounts to clear error. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

B. Standards for Rule 202 Petitions

Rule 202 authorizes pre-suit depositions (1) “to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit” or (2) “to investigate a potential claim or suit.” Tex. R. Civ. P. 202.1; In re Kaddatz, No. 02-23-00336-CV, 2023 WL 7210337, at *3 (Tex. App.—Ft. Worth Nov. 2, 2023, no pet.)(mem. op.). But, as the Texas Supreme Court has pointed out, “[t]he intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly.” In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding). “Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.” In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008). The supreme court has further cautioned that courts must “strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding).

A Rule 202 petition that “merely tracks the language of Rule 202 in averring the necessity of a pre-suit deposition, without including any explanatory facts,” will not suffice to meet the petitioner's burden. Kaddatz, 2023 WL 7210337, at *4. see Does, 337 S.W.3d at 865 (concluding that petitioner's “sketchy” allegations mostly concerning a third party “made no effort to present the trial court with a basis for the [Rule 202] findings”).

In addition, a Rule 202 petitioner must provide more than mere allegations to obtain a Rule 202 deposition; petitioner must present evidence establishing the facts necessary to obtain such discovery. See, e.g., In re Pickrell, No. 10-17-00091-CV, 2017 WL 1452851, at *4 (Tex. App.—Waco Apr. 19, 2017, orig. proceeding) (mem. op.) (collecting cases); In re Hochheim Prairie Farm Mut. Ins. Ass'n, 115 S.W.3d 793, 796 (Tex. App.—Beaumont 2003, orig. proceeding) (“Given that the real parties in interest adduced no evidence of imminent loss of the witnesses' testimony, the prejudice to the insurance company in having to submit its employees for deposition far outweighs any benefit to the real parties in interest.”). And because pleadings—even if sworn or verified—are not generally considered competent evidence, Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), a Rule 202 petitioner usually cannot rely upon a verified pleading to prove the facts asserted in its petition. Kaddatz, 2023 WL 7210337, at *4; see, e.g., Pickrell, 2017 WL 1452851, at *4–5.

Thus, a Rule 202 petitioner must “both plead and prove” that the “likely benefit” of the requested pre-suit deposition may prevent a “failure or delay of justice in an anticipated suit” or “outweighs the burden or expense” of it. Tex. R. Civ. P. 202.1(b), 202.4(a)(2); MCR Oil Tools, LLC v. Dillard, 02-25-00055-CV, 2025 WL 2884207 (Tex. App.—Fort Worth Oct. 9, 2025, orig. proceeding) (mem. op.).

C. Analysis

Huynh principally relies on two justifications for needing the 202 pre-suit deposition: (1) that she needs the deposition to discover additional parties; and (2) that Costco will remove the case to federal court and thereby slow down the case. As will be explained, Huynh has failed to prove that a pre-suit deposition will prevent a failure or delay in justice or that the likely benefit of allowing the pre-suit deposition outweighs the burden or expense of the procedure.

1. The record contains no competent evidence upon which the trial court could have granted Rule 202 relief.

As a threshold matter, Costco complains that Huynh fails to provide evidence to support the 202 Petition. We agree.

Here, no evidence was offered or admitted at the October 8, 2025 hearing. The only “evidence” consisted of two declarations signed by Huynh's attorney. As previously noted, Huynh's counsel first merely stated that he has “personal knowledge or a good faith basis for the facts set forth” in the Rule 202 petition. Notwithstanding his first declaration that his facts may be based on a good faith basis, his second declaration stated that “the facts contained in the ․ Rule 202 Petition are true and correct and within his personal knowledge.” Putting aside the inconsistency in the declarations and putting aside the unlikelihood that Huynh's counsel would have personal knowledge of the facts surrounding Huynh's accident and injuries, the verification would still be insufficient even if verified by Huynh herself. We hold, like our sister courts, that verified petitions do not constitute “competent evidence in support of a presuit deposition.” In re Josefsberg, 01-22-00604-CV, 2022 WL 17981852, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022), citing In re East, 476 S.W.3d 61, 69 (Tex. App.—Corpus Christi-Edinburg 2014, no pet.); In re Contractor's Supplies, Inc., No. 12–09–00231–CV, 2009 WL 2488374, at *5 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.); In re Rockafellow, No. 07–11–00066–CV, 2011 WL 2848638, at *4 (Tex. App.—Amarillo July 19, 2011, orig. proceeding) (mem. op.); Cf. Horizon 2003, LLC v. JKC & Associates, Inc., No. 14-08-00691-CV, 2011 WL 1744192, at *2 (Tex. App.—Houston [14th Dist.] May 5, 2011, no pet.)(reversing order granting summary judgment where only purported evidence establishing sworn account were movant's verified pleadings; holding that “the pleadings do not constitute competent evidence, even if sworn or verified”).

2. A likelihood of removal does not justify a Rule 202 pre-suit deposition.

Huynh's principal argument in her reply and at the October 8 Rule 202 hearing was that Costco would almost certainly remove the case to federal court when suit is filed. Huynh attached to her reply to Costco's response to the 202 petition five different removals to federal court that Costco had filed in the past three years. At the October 8 hearing, counsel for Huynh argued:

• “this is to fight an inherit [sic] delay that will occur. If we file suit, the suit would immediately be ․ removed and discovery would be underway in federal court; and then we would start finding out all of these contractors, manufacturers, vendors and the potential consulting company that packaged the product․”

• “What we are trying to do is figure all of this out, figure out the right parties and put ourselves in the same position that we would be in eight, nine or ten months down the road in federal court.”

• “The removal and then ultimate remand back to state court will take months and months and months.”

• “But the important thing is that we are trying to identify at this stage who all of the proper parties are because if we file against Costco - - and it has been more than 15 years that they have been removing cases to federal court - - we get to federal court; and then we are then on a very tight leash and discovery occurs, then we identify other appropriate parties; and then we will have to redo all of that discovery again even once it's remanded.”

There are multiple problems with Huynh's “removal to federal court” argument. First, it's mere speculation that Costco will remove the case to federal court. That Costco has removed other cases in the past does not prove that it will do so in this case.

Second, the possibility that Costco will remove the case does not justify Huynh being allowed to jump to the head of the line and conduct merits discovery prior to suit being filed. Costco should not be penalized for availing itself of its right to be in federal court if diversity of citizenship and amount in controversy are satisfied pursuant to 28 U.S.C. § 1332.

Third, Huynh concedes that, even if the case is removed, she will obtain the information she desires pursuant to normal discovery in federal court.

Fourth, Huynh argues that she needs information to identify potential third parties to sue. However, there is no statute of limitations issue. The accident occurred on May 15, 2025. Huynh has made it abundantly clear that she will sue Costco whether or not the Rule 202 petition is allowed to go forth. Huynh still has over a year to conduct discovery and learn the identity of third parties, if any, to bring into the suit before there is a statute of limitations issue. See Tex. Civ. Prac. & Rem. Code § 16.003 (two year statute of limitations for personal injury claims). In In re Hanover Ins. Co., our sister court conditionally granted mandamus ordering the trial court to vacate a Rule 202 deposition when there was no suggestion in the record “that there is a threat that the relevant evidence will disappear, or that the statute of limitations ․ is looming.” No. 01-13-01066-CV, 2014 WL 7474203, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, orig. proceeding) (mem. op.).

Fifth, Huynh argues, with no support whatsoever, that the cases will be remanded and discovery will have to be redone. This argument makes no sense. How do we know that the cases will be remanded? What proof did Huynh introduce that, should Costco remove, the removal would be improper and the case remanded to Fort Bend County? Were any of the five cases attached to Huynh's reply remanded? We have no idea. Finally, even if the cases were ultimately remanded to Fort Bend District Court, why would any information obtained in discovery have to be repeated? In Fee v. Herndon, this court held that interrogatory answers in federal court identifying persons with knowledge could be used in state court following remand. 837 S.W.2d 834 (Tex. App.—Houston [14th Dist.] 1992, no writ).

In short, the mere possibility that Costco will remove a suit to federal court does not justify a Rule 202 pre-suit deposition.

3. The need to identify potential parties does not justify a Rule 202 pre-suit deposition.

Huynh argues that she needs Rule 202 pre-suit discovery to learn the identity of other potentially responsible parties. Again, there are several reasons why the Rule 202 Petition should be vacated.

First, Huynh can obtain this information in discovery once suit is filed.¹ As noted above, there is no statute of limitations issue. Moreover, Huynh's counsel conceded at the October 8 hearing that even if the case is removed to federal court, “discovery would be underway in federal court; and then we would start finding out all of these contractors, manufacturers, vendors and the potential consulting company that packaged the product․”

Rule 202 “requires the petitioner to show that there is a reason that the deposition must occur before the anticipated lawsuit is filed, and not after.” In re Hanover, at *2. Here, while Huynh argues that she needs discovery to identify potential parties, Huynh nowhere explains why she needs the information now, or “why the information might become unavailable over time.” Garner Environmental Serv., Inc. First in Rescue, Safety and Training, LLC, No. 01-16-00388-CV, 2016 WL 7671377, at *5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016) (mem. op.).

Merely stating that a pre-suit deposition is needed to identify potential parties is insufficient to justify a 202 deposition absent extenuating circumstances such as a looming statute of limitations. In MCR Oil Tools, the Fort Worth Court of Appeals held: “Nor can a petitioner justify the pre-suit deposition on the ground that it is ‘necessary to identify’ potential defendants. MCR, at *3, quoting East, 476 S.W.3d at 69. Merely stating that the discovery is necessary to identify ‘the required and correct parties without further explanation and evidence,’ is also insufficient to support a request for pre-suit discovery.” MCR, at *3, quoting DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 856 (Tex. App.—Ft. Worth 2018, no pet.).

Huynh concedes that she will learn what she needs through traditional discovery. There is a difference between mere delay in obtaining discovery and delay in justice. Rule 202.4(a) requires that the trial court must order a [202] deposition to be taken if, but only if, it finds that: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit.” Tex. R. Civ. Proc. 202.2(a)(1). However, “[m]erely showing that the [Rule 202] deposition will prevent delay generally is likewise insufficient to meet the burden to show failure or delay of justice.” Hanover, at *2; In re Legate, No. 04-10-00874-CV, 2011 WL 4828192, at *2 (Tex. App.—San Antonio Oct., 12, 2011, orig. proceeding) (mem. op.) (petitioner “offered no evidence or otherwise made a showing that the trial court ordering the presuit depositions would prevent a failure or delay of justice in his anticipated suit. He merely argued that not ordering the depositions would result in delay. He did not show how such a delay would prevent or delay justice.”).

At bottom, the requested pre-suit discovery is nothing more than routine merits discovery that can be obtained once suit is filed. Petitioner Huynh did not prove to the trial court that the failure to obtain the requested pre-suit deposition might prevent a failure or delay of justice.

4. Petitioner failed to prove that the benefit of pre-suit discovery outweighs the burden or expense of the procedure.

Rule 202.4(a) sets up a distinction between an anticipated suit and a potential claim. Specifically, the rule states:

202.4 Order

(a) Required Findings. The court must order a deposition to be taken if, but only if, it finds that:

(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Tex. R. Civ. P. 202.4. While Huynh argues on appeal that the benefit of a pre-suit Costco deposition outweighs the burden or expense of the procedure, nowhere did Huynh argue below that the 202 deposition was to investigate a potential claim. She solely relied on 202.4(a)(1) that there was an anticipated suit. Huynh pled in her 202 Petition:

• “Rule 202 proceedings begin with a petition, which must state that the petitioner either anticipates a suit or seeks to investigate a potential claim. See TEX. R. CIV. P. 202.2. Here, Petitioner anticipates a suit.”

• “Petitioner files this verified Petition to take a deposition on oral examination for use in an anticipated suit.”

Notwithstanding this waiver of the need for a pre-suit deposition to investigate a potential claim, Huynh argues on appeal that the benefit of such a deposition outweighs the burden or expense of the procedure. Petitioner has waived this argument on appeal. Nevertheless, even if we were to consider it, Huynh has wholly failed to present evidence in support of the burden.

Initially, as noted above, the only verifications are the two somewhat conflicting verifications by Huynh's attorney verifying the pleading. For the reasons stated above, this is insufficient.

However, Huynh did attach some “evidence” in her reply filed the day before the October 8 hearing. Huynh attached:

• A Costco incident report;

• Three photographs of the scene;

• A photograph of the crates, one of which allegedly fell on Huynh;

• Costco's Structural Packaging Specifications; and

• Five Notices of Removal filed by Costco in other lawsuits.

None of this evidence in any way deals with the issue of the potential benefit of a 202 deposition versus the burden or expense of the procedure. Rather, Huynh relies on arguments of counsel, which, of course, are not evidence. However, what Huynh fails to address is that the trial court's order compelling the 202 deposition also included extensive documents to be produced. The order required Costco to produce the following documents seven days in advance of the deposition (which must be no later than 45 days after the trial court's order):

• Videotapes or surveillance footage from inside and outside the premises for May 15, 2025 from all cameras;

• Time records, work schedules, section charts, for all employees on May 15, 2025;

• The incident report;

• All witness statements;

• Identification of the employees or agents who:

1. Assisted Huynh following the incident;

2. Created the incident report;

3. Were working at or near the area of the incident;

4. Were supervising the area of the incident;

5. Had stocked or restocked the box which fell on Huynh for the month prior to May 15, 2025;

6. Selected, installed, assembled, provided, maintained, modified, purchased, and otherwise acquired the product in the box;

7. Were present at or near the area;

8. Who restocked the boxes in a different manner following the incident.

• Internal and external investigations, reports, citations, and communications regarding investigations or reports following the incident on May 15, 2025.

In other words, under the terms of the order, Costco had 38 days to gather all of these documents, locate the witness or witnesses best able to provide the requested information, and then produce the witness for deposition, all before suit was filed. All of these documents and desired information can be produced in the ordinary and usual course of litigation once suit is filed. Huynh has failed to plead and prove that the benefit of the deposition outweighs the burden or expense of the procedure. See In re City of Tatum, 567 S.W.3d 800, 806 (Tex. App.—Tyler 2018, no pet.) (holding that because petitioner failed to satisfy burden of showing “either that (1) allowing [petitioner] to take the requested depositions may prevent a failure or delay of justice in an anticipated suit, or (2) the likely benefit of allowing her to take the requested depositions to investigate a potential claim outweighs the burden or expense of the procedure,” the trial court abused its discretion by granting the Rule 202 petition.”)

III. CONCLUSION

Because the record shows Huynh failed to both plead and prove the predicates required by Rule 202, the trial court's order authorizing the deposition and extensive document production constitutes a clear abuse of discretion. We therefore conditionally grant the petition for writ of mandamus and direct the trial court to vacate its Rule 202 order. The writ will issue only if the trial court fails to comply.

FOOTNOTES

1.   In her Rule 202 Petition, Huynh acknowledges that she is going to file suit whether or not the 202 pre-suit discovery is permitted. She stated “Petitioner anticipates a suit.”

Randy Wilson Justice