In re DePinho, 505 S.W.3d 621

Background

William Bornmann was a researcher at MD Anderson whose lab was closed when his appointment ended in 2014; an invention disclosure report (IDR) credited him for contributions to a discovered antibiotic.
Bornmann petitioned under Texas Rule of Civil Procedure 202 to depose MD Anderson President Ronald DePinho and OTC Director Andrew Dennis to investigate whether DePinho would omit Bornmann from a future patent filing and divert royalties.
The trial court authorized limited Rule 202 depositions (three combined hours) on the IDR, patent planning, and reasons for lab closure/termination; relators DePinho and Dennis sought mandamus relief after the court of appeals denied relief.
Bornmann framed the requested depositions as investigations of potential tortious-interference and related claims tied to a yet-unfiled patent application; relators argued the claims were unripe and some issues exclusively federal.
The Texas Supreme Court considered whether Rule 202 authorizes pre-suit discovery into claims that are not yet ripe or that a Texas court could not adjudicate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 202 permits depositions to investigate unripe or purely speculative claims	Bornmann: Rule 202 is for investigating "potential" claims; pleading can be liberal and plaintiff may lack full facts pre-suit	Relators: Rule 202 may not be used to investigate speculative, unripe claims or to obtain what would be denied in the anticipated action	Held: Rule 202 may not authorize investigation of unripe/speculative claims; depositions here were improper
Whether a court may authorize pre-suit discovery into claims over which it lacks subject-matter jurisdiction (e.g., federal patent claims)	Bornmann: Investigation of the patent-related process is permissible under Rule 202 as a preliminary inquiry	Relators: Texas courts lack jurisdiction over patent suits; Rule 202 cannot be used to investigate claims that could only be brought in federal court	Held: A Texas court cannot authorize discovery for a "potential suit" it lacks jurisdiction to hear (Rule 202 limited by subject-matter jurisdiction)
Whether Rule 202 can be used to circumvent discovery limits applicable to an anticipated suit	Bornmann: Limited depositions are less burdensome and appropriate to avoid filing suit prematurely	Relators: Allowing such discovery would be an end-run around discovery limitations and procedural rules	Held: Rule 202 cannot be used to obtain discovery that would be denied in the anticipated action; preventing end-runs is required
Whether the trial court abused its discretion in ordering the depositions	Bornmann: The limited scope and duration made the order reasonable for investigation	Relators: Because claims are unripe and some exclusively federal, the order was an abuse of discretion	Held: The trial court abused its discretion; mandamus relief conditionally granted

Key Cases Cited

In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (Rule 202 cannot be used to obtain discovery that would be denied in the anticipated action)
In re Doe (Trooper), 444 S.W.3d 603 (Tex. 2014) (pre-suit discovery limited by subject-matter jurisdiction; courts cannot authorize discovery for claims they lack jurisdiction to hear)
Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) (ripeness requires a concrete injury; ripeness implicates subject-matter jurisdiction)
Patterson v. Planned Parenthood of Houston & Se. Tex., 971 S.W.2d 439 (Tex. 1998) (ripeness examines when an action may be brought)
Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149 (Tex. 1988) (courts cannot render advisory opinions on speculative or contingent disputes)
In re Jorden, 249 S.W.3d 416 (Tex. 2008) (Rule 202 depositions are not for routine use; pre-suit intrusion is significant)
Office Emps. Int’l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404 (Tex. 1965) (pre-suit discovery is ancillary to and in aid of an anticipated suit)
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) (ripeness inquiry bars cases dependent on contingent or hypothetical facts)