CROSSOVER: Rule 202 Mandamus: Verified Petition Is Not Evidence, and Pre-Suit Discovery Must Be Proven—Not Pleaded

In re Costco Wholesale Corporation, 14-25-00955-CV, April 28, 2026.

On appeal from 458th District Court of Fort Bend County, Texas

Synopsis

A trial court cannot grant Rule 202 pre-suit discovery on pleadings alone. In In re Costco Wholesale Corporation, the Fourteenth Court of Appeals conditionally granted mandamus because the petitioner offered no competent evidence and failed to prove the Rule 202 predicates that the discovery would prevent a failure or delay of justice or that its likely benefit outweighed its burden.

Relevance to Family Law

This opinion matters in family law because Rule 202 is occasionally invoked at the edges of divorce, SAPCR, parentage, fiduciary-duty, and property-tracing disputes when a party wants information before filing or before naming additional parties. Costco reinforces that Texas courts must strictly police pre-suit discovery requests, particularly where the request is really merits discovery in disguise. For family-law litigators, the case is a strong appellate tool against fishing-expedition Rule 202 petitions aimed at bank records, business records, electronically stored information, third-party financial documents, or pre-filing corporate representative testimony, and it is equally a warning that if you seek Rule 202 relief, you must prove up the request with actual evidence—not verified allegations, not lawyer say-so, and not speculation about future procedural disadvantage.

Case Summary

Fact Summary

The real party in interest alleged she was injured at a Costco store when a box fell on her. Before filing suit, she filed a Rule 202 petition seeking a deposition of a general manager, corporate representative, or other person with knowledge, along with broad document production. The petition was verified by counsel rather than the petitioner, first with the equivocal statement that counsel had “personal knowledge or a good faith basis” for the pleaded facts, and later with a more direct assertion that the facts were true and within counsel’s personal knowledge.

Costco opposed the petition. Although the parties exchanged some information informally, including Costco’s presentation of incident video during a Zoom meeting, no live testimony or documentary evidence was formally offered and admitted at the Rule 202 hearing. The petitioner argued primarily that she needed pre-suit discovery to identify additional potentially responsible parties and to avoid delay because Costco would likely remove any later-filed suit to federal court, where discovery and remand practice would consume months.

The trial court granted the Rule 202 petition. Costco then sought mandamus relief, challenging both the absence of competent proof and the breadth of the pre-suit discovery order.

Issues Decided

• Whether a Rule 202 petitioner must present competent evidence, rather than rely on verified pleadings or attorney declarations, to obtain pre-suit deposition and document discovery.
• Whether the record established the findings required by Rule 202 that the requested discovery would prevent a failure or delay of justice or that the likely benefit of the discovery outweighed its burden or expense.
• Whether speculation that a future case may be removed to federal court can justify pre-suit merits-style discovery under Rule 202.
• Whether mandamus was the proper remedy to correct the trial court’s order granting unsupported Rule 202 discovery.

Rules Applied

Rule 202 permits pre-suit depositions either to perpetuate testimony for an anticipated suit or to investigate a potential claim, but the rule is not intended for routine use. The court emphasized the Texas Supreme Court’s repeated warnings that Rule 202 authorizes intrusion into private matters outside ordinary litigation and therefore must be strictly limited and carefully supervised. The opinion relied on In re Does, In re Jorden, and In re Wolfe for that general framework.

The court also reiterated that a petitioner must do more than track the language of Rule 202. It cited authority holding that a Rule 202 applicant must both plead and prove the facts supporting the rule’s required findings. In particular, the petitioner must establish that the likely benefit of the requested discovery either may prevent a failure or delay of justice in an anticipated suit or outweighs the burden or expense of the procedure under Texas Rules of Civil Procedure 202.1 and 202.4.

On the evidentiary point, the court relied on the settled proposition that pleadings, even when sworn or verified, are generally not competent evidence. It cited Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer and several Rule 202 cases from sister courts, including In re Josefsberg, In re East, In re Contractor’s Supplies, Inc., In re Rockafellow, and In re Pickrell. The court also cited In re Hochheim Prairie Farm Mutual Insurance Ass’n on the balancing of burden versus benefit in the absence of proof of necessity.

For mandamus standards, the court applied In re Prudential Insurance Co. of America and Walker v. Packer, recognizing that improper Rule 202 orders are reviewable by mandamus because the harm from compelled pre-suit discovery cannot be adequately remedied on appeal.

Application

The court began with the threshold defect: there was no competent evidence in the record. Nothing was offered or admitted at the hearing except attorney-signed declarations attached to the papers. That was fatal. The court treated the verified petition and the lawyer’s declarations as legally insufficient to prove the facts necessary for Rule 202 relief. It noted not only the general rule that verified pleadings are not evidence, but also the practical implausibility that counsel would have personal knowledge of the operative facts surrounding the client’s accident and injuries. Even had the petition been verified by the petitioner herself, the court indicated that the verified pleading still would not have constituted competent evidentiary support for a Rule 202 order.

From there, the court addressed the petitioner’s theory that pre-suit discovery was needed to identify additional parties and to avoid delay associated with likely federal-court removal. The court found that argument speculative and analytically insufficient. Costco’s prior removals in other cases did not prove that removal would occur here. More fundamentally, the court refused to allow Rule 202 to become a mechanism for obtaining merits discovery ahead of ordinary litigation simply because a defendant may exercise a lawful right to remove a case to federal court. In the court’s view, the possibility of removal did not amount to a “failure or delay of justice” under Rule 202.

The court also found it significant that the petitioner effectively conceded the same information would be available through ordinary discovery once suit was filed. That concession undermined any claim that pre-suit discovery was necessary to prevent injustice. The court further noted the absence of a limitations problem. Because the accident had occurred only months earlier and the personal-injury limitations period was two years, the petitioner had ample time to sue Costco, conduct discovery, and identify any additional responsible parties through normal procedures. In short, the request looked like broad merits-style discovery before suit, unsupported by proof and unjustified by any genuine urgency.

Holding

The Fourteenth Court of Appeals held that the trial court abused its discretion by granting the Rule 202 petition without competent evidence. Verified pleadings and attorney declarations did not satisfy the petitioner’s evidentiary burden, and Rule 202 requires proof, not merely allegations.

The court further held that the record did not establish either of Rule 202’s required substantive predicates for this kind of pre-suit investigative discovery. The petitioner failed to prove that the requested discovery would prevent a failure or delay of justice, and she likewise failed to prove that the likely benefit of the requested deposition and document production outweighed the burden or expense imposed on Costco.

Finally, because the order compelled broad pre-suit merits discovery and the resulting harm could not be adequately cured by ordinary appeal, the court conditionally granted mandamus and directed the trial court to vacate its Rule 202 order.

Practical Application

For family-law litigators, Costco should immediately be added to the Rule 202 file for both offensive and defensive use. In divorce cases, parties sometimes seek pre-filing discovery to identify hidden entities, trace community funds, locate cryptocurrency, or investigate suspected transfers to relatives or business affiliates. In custody and SAPCR matters, lawyers may be tempted to use Rule 202 to obtain pre-suit social-media records, counseling records, employment records, or third-party testimony before pleading a modification or emergency relief. Costco is a reminder that if the real objective is standard merits discovery, the petition is vulnerable unless the movant can present admissible evidence establishing a genuine Rule 202 need.

The decision is especially useful when opposing overbroad requests for corporate representative depositions, business records, metadata, phone records, or financial production from nonparties before suit. In family-law practice, those requests are often framed as necessary to “identify proper parties,” “confirm fraud,” or “avoid delay.” Costco undercuts all three refrains when they are unsupported by evidence. Speculation that the opposing side will stonewall, remove a related case, invoke arbitration, seek bankruptcy protection, or otherwise complicate the litigation process is not the same as proof that pre-suit discovery is necessary to prevent a failure or delay of justice.

At the same time, if you are the movant, this case tells you exactly how to build a survivable Rule 202 record. You need admissible evidence from a witness with actual personal knowledge. You need facts showing why ordinary post-filing discovery is inadequate, why the information may be lost or become unavailable, why the discovery is narrowly tailored, and how the likely benefit outweighs the burden. In family-law contexts, that might include evidence of imminent deletion of electronic records, impending transfer or dissipation of assets, a witness’s likely unavailability, or specific third-party conduct that cannot be responsibly pleaded without limited pre-suit discovery. The lesson is not that Rule 202 is unavailable; it is that Rule 202 must be proved with rigor.

Checklists

Opposing a Rule 202 Petition in Family Law

• Challenge whether the petition is truly investigative or merely pre-suit merits discovery.
• Object that verified pleadings are not evidence.
• Object that attorney declarations are not competent proof of operative facts outside counsel’s personal knowledge.
• Require the petitioner to identify actual evidence admitted at the hearing.
• Argue the petitioner failed to prove either Rule 202 predicate under Rules 202.1 and 202.4.
• Emphasize the availability of ordinary discovery after filing suit.
• Show there is no limitations crisis, no imminent loss of evidence, and no witness-unavailability problem.
• Attack overbreadth, especially requests for broad categories of financial records, ESI, or corporate-representative testimony.
• Preserve mandamus points clearly in the response and at the hearing.

Building a Rule 202 Record That Can Survive Mandamus

• Present live testimony, affidavits, declarations, or authenticated exhibits that are actually admissible.
• Use a witness with genuine personal knowledge, not just counsel.
• Prove specific facts showing why pre-suit discovery is necessary now.
• Tie the requested discovery to one of Rule 202’s permitted purposes.
• Prove how the discovery will prevent a failure or delay of justice, or why its benefit outweighs burden and expense.
• Narrow the requested topics and documents with precision.
• Demonstrate why ordinary post-filing discovery will not adequately protect the client.
• Show any imminent risk of evidence destruction, dissipation, deletion, transfer, or witness unavailability.
• Offer a proposed order with express findings supported by the evidentiary record.

Using Costco in Divorce and Property-Tracing Disputes

• Oppose pre-suit requests for broad bank, payroll, LLC, trust, or accounting records where no evidence supports urgency.
• Argue that a desire to identify additional entities or transferees does not by itself justify Rule 202.
• Emphasize that normal discovery tools after filing can uncover transfers and tracing information.
• Distinguish cases involving actual proof of imminent asset dissipation or data destruction.
• Resist attempts to take a spouse’s or business manager’s pre-suit deposition on the merits without a developed record.
• Use the case to narrow requests to a truly essential subset, if outright denial is unlikely.

Using Costco in Custody or Modification Litigation

• Challenge Rule 202 requests for pre-filing mental-health, school, employment, CPS, or third-party records absent competent evidence.
• Argue that generalized concerns about delay, concealment, or tactical disadvantage are insufficient.
• Force the movant to prove why emergency temporary relief after filing would not address the concern.
• Oppose fishing expeditions directed at social-media accounts, devices, and communications.
• Highlight privacy and burden concerns, especially where children’s records or third-party information are implicated.

Preserving Error and Positioning a Mandamus

• Make a clear evidentiary objection that pleadings are not proof.
• Obtain a reporter’s record of the Rule 202 hearing.
• Clarify on the record whether any exhibits were offered and admitted.
• Request findings or note the absence of record support for any Rule 202 findings.
• Identify the order’s overbreadth and merits-discovery character.
• File mandamus promptly if the petition is granted.
• Frame the harm as irreparable pre-suit intrusion not remediable by appeal.

Citation

In re Costco Wholesale Corporation, No. 14-25-00955-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [14th Dist.] Apr. 28, 2026, orig. proceeding).

Full Opinion

Read the full opinion here

Family Law Crossover

This is a highly usable crossover opinion because Rule 202 is an attractive tactical device in emotionally charged family cases, and that is exactly why appellate courts distrust it when it becomes a substitute for ordinary discovery. In a divorce, the ruling can be weaponized to block pre-filing attempts to depose a spouse’s business manager, accountant, paramour, trustee, or LLC representative where the petition is supported only by suspicions of concealment or lawyer verification. In a custody case, it can be used to defeat efforts to obtain pre-suit discovery from counselors, schools, employers, or third-party caregivers based on generalized allegations that the information is needed to “investigate” whether modification grounds exist.

Conversely, if you represent the party seeking Rule 202 relief, Costco shows the level of discipline required to avoid reversal. You need to make the petition small, specific, and evidentiary. In family law, that means proving an actual risk: imminent deletion of texts, imminent liquidation or transfer of assets, a witness about to leave the jurisdiction, a vulnerable electronic account likely to be wiped, or a third party whose identity cannot otherwise be responsibly pleaded before limitations or irreparable prejudice materializes. Without that proof, the petition is likely to look like what the Fourteenth Court condemned here: a broad, merits-style discovery request before suit, unsupported by competent evidence and therefore mandamus bait.

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