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Author: Bennett Rawicki

Legal technology and training advertise to us litigators that legal research is easy: “Receive immediate answers to legal questions”; “Quickly search for on-point cases that address your exact point of law”; “[R]esearch in seconds”; “Legal Research Made Easy.”[1] If only legal research were so easy.

Finding what courts and legislatures and agencies have written about the law is one thing (databases and AI no doubt help with that). But understanding the law is often complicated, because the law is often complicated. It’s like when a friend answers, “I’m fine.” True, that’s what was said, but discerning the truth takes more digging.

To truly understand a legal issue requires following it down to a healthy root of binding law. Just because something’s written in an AI search result, or in a treatise, or even in a non-binding court opinion, it is not necessarily correct.

A stark lesson in legal complexity comes from this nuanced issue: Is a petition for pre-lawsuit discovery under Texas Rule of Civil Procedure 202 a “civil action” under federal law such that it could be removed to federal court? Texas Rule 202 “authorizes the broadest form of presuit discovery for private parties” of any state.[2] Recipients of a Rule 202 petition often want to remove the proceeding to federal court, especially if there is a federal-law issue involved or they believe a federal judge would limit the discovery more than in state court. But the results of quick research would state a Rule 202 proceeding is not a removable “civil action.”

“The vast majority of the reported case law dealing with motions to remand Rule 202 petitions holds that removal of these petitions to federal courts is not proper and, thus, remand is required.”[3] “[T]he majority of courts hold” that a Rule 202 proceeding is not a “civil action” and thus cannot be removed under the primary statute governing removal, 28 U.S.C. § 1441.[4] These federal courts reason that, under Texas law, a Rule 202 proceeding is “ancillary” to another lawsuit and therefore not a standalone “civil action.”[5] The first court to hold this, Mayfield-George v. Texas Rehabilitation Commission, 197 F.R.D. 280 (N.D. Tex. 2000), believed that the Texas Supreme Court interpreted Rule 202 “as an ancillary proceeding” to an anticipated suit. Id. at 283 (citing Office Emps. Int’l Union v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965)). Many federal courts since have relied on Mayfield-George.[6] Relying on this majority position is the easy path. It is the answer in AI search results.[7] But following this legal issue to its roots reveals a complication.

Texas Rule 202 is actually a combination of two former Texas rules: Rule 187 (replaced by Rule 202.1(a)) and Rule 737 (replaced by Rule 202.1(b)).[8] Rule 187 had authorized presuit depositions “to perpetuate the testimony of a witness” for an anticipated suit. This is the rule that the Texas Supreme Court referred to as “ancillary” in Office Employees Int’l Union.[9] Rule 737, in contrast, was a broader discovery rule that authorized “a bill of discovery” to investigate potential causes of action before a lawsuit was anticipated.[10] The Texas Supreme Court did not consider Rule 737 proceedings to be “ancillary.”[11] Rule 737 proceedings were “ends in themselves, resolving all discovery issues between the bill of discovery plaintiff and the discovery defendant.”[12]

Following Rule 202 to its legal roots shows that federal courts have overlooked a critical nuance when referring to all Rule 202 proceedings as ancillary. In actuality, whether the proceeding is ancillary depends on whether it is a petition for an anticipated suit under Rule 202.1(a)—ancillary—or to investigate a potential suit under Rule 202.1(b)—not ancillary. Texas state courts recognize this distinction between different types of Rule 202 proceedings, and explain that they “use previous interpretations of former rules 187 and 737 to aid their interpretation of rule 202.”[13]

Most federal courts, however, continue to hold that all 202 proceedings are ancillary to another proceeding, and therefore cannot be a “civil action.” The problem sprouted when one opinion, Mayfield-George, accidentally overlooked that the description of presuit discovery as “ancillary” in Office Employees Int’l Union was referring only to Rule 187, not Rule 737.[14] That mistaken branch sprouted from the wrong root, and then grew stronger and produced more caselaw fruit as lawyers and other judges simply followed Mayfield-George rather than checking if the root was healthy.[15] Now there is a tree of precedent that seems full of vibrant caselaw fruit. But because of the wrong legal root, the caselaw is weak fruit.

About the Author

Bennett Rawicki,
Partner

Bennett specializes in creative solutions for complex business litigation, using his successful experience on the nation’s most complicated cases to conceive legal arguments and discovery strategies that resolve cases before trial. Follow him on LinkedIn here.

[1]
Callidus, “The Most Advanced Legal AI Platform,” https://callidusai.com (last visited Aug. 19, 2025); Thomson Reuters, “RESEARCH WITH TOTAL CONFIDENCE,” https://legal.thomsonreuters.com/en/c/westlaw/legal-cases (last visited Aug. 19, 2025); LexisNexis, “AI You Can Trust—Start Fast, Finish Stronger with Lexis+ AI™,” https://law.lexisnexis.com/exceptional-legal-research (last visited Aug. 19, 2025); S. Herskowitz Singer & J. Duggan, Legal Research Made Easy (2005) (book with cover advertising “Discover SHORT-CUTS to Solving Your Legal Problem” and “Complete Your Task WITH EASE”).

[2]
L. Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217, 241 (2007); see also J. Liang, Reverse Erie and Texas Rule 202: Federal Implications of Texas Pre-Suit Discovery, 89 Tex. L. Rev. 1491, 1491 (2011) (“Though several other states allow pre-suit discovery for limited purposes, only Texas grants broad pre-suit discovery for the investigation of potential claims.”).

[3]
Dondero v. Alvarez & Marsal CRF Mgmt., LLC (In re Highland Capital Mgmt., L.P.), Nos. 19-34054, 21-03051, 2022 Bankr. LEXIS 5, at *28–29 (Bankr. N.D. Tex. Jan. 4, 2022).

[4]
Id. at *29.

[5]
See, e.g., Mayfield-George v. Tex. Rehab. Comm’n, 197 F.R.D. 280, 283 (N.D. Tex. 2000); Davidson v. S. Farm Bureau Cas. Ins. Co., No. 05-CV-3607, 2006 U.S. Dist. LEXIS 40654, at 5–6, 9 (S.D. Tex. June 19, 2006); Kingman Holdings v. Everbank, No. 14-CV-107, 2014 U.S. Dist. LEXIS 205541, at 5–7 (W.D. Tex. Mar. 31, 2014); Kitto v. Porter, No. 22-CV-1382, 2022 U.S. Dist. LEXIS 138006, at *3–6 (S.D. Tex. July 13, 2022).

[6]
See, e.g., McCrary v. Kan. City S. Ry. Co., 121 F. Supp. 2d 566, 569 (E.D. Tex. 2000); Davidson, 2006 U.S. Dist. LEXIS 40654, at 6; Sawyer v. E.I. du Pont de Nemours & Co., No. 06-CV-1420, 2006 U.S. Dist. LEXIS 44026, at 5–7 (S.D. Tex. June 28, 2006); Price v. Johnson, No. 09-CV-0476, 2009 U.S. Dist. LEXIS 151682, at 2 & n.2 (N.D. Tex. Apr. 10, 2009); Kingman Holdings, 2014 U.S. Dist. LEXIS 205541, at 5–7.

[7]
I searched the following question on Google’s and Lexis’s AI search features: “Is a Texas 202 petition removable to federal court?”

[8]
In re Doe, 444 S.W.3d 603, 605–06 (Tex. 2014) (“Rule 202 covers the subjects of two repealed rules, Rule 187, permitting discovery to perpetuate testimony, and Rule 737, providing for a bill of discovery.”).

[9]
Office Emps. Int’l Union, 391 S.W.2d at 406.

[10]
In re Doe, 444 S.W.3d 603, 606 (Tex. 2014).

[11]
See Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991).

[12]
Id. As this opinion held, a trial court’s decision in a Rule 737 proceeding was final and appealable like a typical legal action. The Texas Supreme Court contrasted Rule 737 from the circumstance, present in a Rule 187 proceeding, where there is a “pending suit . . . to which the present discovery action is ancillary.” Id.

[13]
IFS Sec. Grp., Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex. App.—Dallas 2005, no pet.); see also In re Elliott, 504 S.W.3d 455, 459 & n.1 (Tex. App.—Austin 2016, no pet.) (“When discovery is sought from a potential defendant in a contemplated lawsuit, Rule 202 orders have been considered ancillary to the possible subsequent suit and thus neither final nor appealable.” “In contrast, Rule 202 orders granting discovery from third parties against whom suit is not anticipated are final and appealable because the Rule 202 petitioner does not seek or contemplate further relief from those third parties.”).

[14]
See Mayfield-George, 197 F.R.D. at 283 (citing Office Emps. Int’l Union, 391 S.W.2d at 406).

[15]
Many opinions cite Mayfield-George to agree that a Rule 202 proceeding is merely ancillary, and do not mention that Rule 202 came from two separate Texas procedural rules. See cases cited supra note 9.