Unreported / Non-Citable
Background
Coltin Lummus sought pre-suit discovery because he believed that he and his former fiancée had conceived a child and that she and an unknown person or persons had decided to “kill the unborn child.” According to the concurring opinion, Lummus did not know who was responsible or where the abortion occurred. He sought to depose the child’s mother and grandmother to learn the circumstances and identify people he could sue. The appeal came from the 122nd District Court in Galveston County, Texas, in trial court case number 23-CV-1461.
Texas Rule of Civil Procedure 202 permits a prospective litigant to seek depositions or written questions either to perpetuate or obtain testimony for use in an anticipated suit or to investigate a potential claim or suit. Justice Clint Morgan wrote that Lummus’s pleadings and briefing placed his request in the first category: obtaining testimony for an anticipated suit. Such a petition must be filed in a “proper court” in a county where venue for the anticipated suit may lie. The Texas Supreme Court construed “proper court” in In re Doe, 444 S.W.3d 603, 608–09 (Tex. 2014), to require, at minimum, a court with personal jurisdiction over the prospective defendant.
The Court’s Holding
The supplied document is a concurring memorandum opinion, not the majority opinion or a complete statement of the appellate disposition. Justice Morgan, joined by Justice Gunn, wrote that he joined the court’s opinion because it faithfully followed Doe. The concurrence therefore supports application of Doe’s personal-jurisdiction requirement to Lummus’s Rule 202 request, but the supplied pages do not independently establish the majority’s precise judgment or any separate relief ordered.
Justice Morgan explained that Lummus had fewer jurisdictional facts than the petitioner in Doe. There, Reynolds & Reynolds sought information from Google to identify an anonymous blogger who had allegedly defamed the company. Although Reynolds did not know the blogger’s identity or location and had not pleaded that the blogger was subject to personal jurisdiction in Texas, it alleged that the defamation reached Texas. Lummus, by contrast, knew neither the prospective defendants’ identities nor whether any of their actions occurred in Texas.
Taking the allegations in Lummus’s pleading as true, Justice Morgan wrote that it remained possible the mother traveled to a state where abortion was legal and obtained an abortion in a manner not actionable in Texas. In his view, permitting discovery based on a claim that someone somewhere did something actionable only if it occurred in Texas would move Texas toward becoming what Chief Justice Hecht called “the world’s inspector general” in Doe. The concurrence did not announce a different rule for abortion-related petitions; it applied the jurisdictional limitation derived from Doe to the facts alleged.
Key Takeaways
- Justice Morgan, joined by Justice Gunn, concurred because he concluded that the court’s opinion faithfully adhered to In re Doe.
- For a Rule 202 petition seeking testimony for an anticipated suit, Doe requires a “proper court” that would, at minimum, have personal jurisdiction over the prospective defendant.
- The concurrence emphasized that Lummus alleged neither the prospective defendants’ identities nor facts showing that their conduct occurred in Texas.
- The supplied concurrence does not disclose the majority’s complete reasoning or precise appellate disposition.
Why It Matters
The opinion highlights the practical tension created by requiring jurisdictional information before authorizing discovery intended to identify potential defendants. Justice Morgan acknowledged Justice Lehrmann’s Doe dissent, joined by three colleagues, which warned that the restrictive interpretation could demand an “impossible showing” and end discovery of anonymous parties. He also recognized that the inability to obtain discovery without knowing a defendant’s identity can leave wronged individuals without a remedy.
At the same time, the concurrence accepted the Texas Supreme Court’s concern that broader use of Rule 202 could expose people to abusive or harassing discovery concerning events outside Texas or conduct not actionable there. Justice Morgan characterized that balance as a policy choice for the Texas Supreme Court and described the intermediate appellate court’s role as following that court’s decisions. The opinion is thus significant chiefly for its fact-specific application of existing Rule 202 precedent, rather than for creating a new categorical rule.