Tex. R. Civ. P. 199

DEPOSITIONS UPON ORAL EXAMINATION

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RULE 199. DEPOSITIONS UPON ORAL EXAMINATION
199.1 Oral Examination; Alternative Methods of Conducting or Recording.
(a) Generally. A party may take the testimony of any person or entity by deposition on oral
examination before any officer authorized by law to take depositions. The testimony,
objections, and any other statements during the deposition must be recorded at the time
they are given or made.
(b) Depositions by telephone or other remote electronic means. A party may take an oral
deposition by telephone or other remote electronic means if the party gives reasonable prior
written notice of intent to do so. For the purposes of these rules, an oral deposition taken
by telephone or other remote electronic means is considered as having been taken in the
district and at the place where the witness is located when answering the questions.
(c) Non-stenographic recording. Any party may cause a deposition upon oral examination
to be recorded by other than stenographic means, including videotape recording. The party
requesting the non-stenographic recording will be responsible for obtaining a person
authorized by law to administer the oath and for assuring that the recording will be
intelligible, accurate, and trustworthy. At least five days prior to the deposition, the party
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must serve on the witness and all parties a notice, either in the notice of deposition or
separately, that the deposition will be recorded by other than stenographic means. This
notice must state the method of non-stenographic recording to be used and whether the
deposition will also be recorded stenographically. Any other party may then serve written
notice designating another method of recording in addition to the method specified, at the
expense of such other party unless the court orders otherwise.
199.2 Procedure for Noticing Oral Depositions.
(a) Time to notice deposition. A notice of intent to take an oral deposition must be served
on the witness and all parties a reasonable time before the deposition is taken. An oral
deposition may be taken outside the discovery period only by agreement of the parties or
with leave of court.
(b) Content of notice.
(1) Identity of witness; organizations. The notice must state the name of the
witness, which may be either an individual or a public or private corporation,
partnership, association, governmental agency, or other organization. If an
organization is named as the witness, the notice must describe with reasonable
particularity the matters on which examination is requested. In response, the
organization named in the notice must - a reasonable time before the deposition -
designate one or more individuals to testify on its behalf and set forth, for each
individual designated, the matters on which the individual will testify. Each
individual designated must testify as to matters that are known or reasonably
available to the organization. This subdivision does not preclude taking a deposition
by any other procedure authorized by these rules.
(2) Time and place. The notice must state a reasonable time and place for the oral
deposition. The place may be in:
(A) the county of the witness's residence;
(B) the county where the witness is employed or regularly transacts business in
person;
(C) the county of suit, if the witness is a party or a person designated by a party
under Rule 199.2(b)(1);
(D) the county where the witness was served with the subpoena, or within 150
miles of the place of service, if the witness is not a resident of Texas or is a
transient person; or
(E) subject to the foregoing, at any other convenient place directed by the court
in which the cause is pending.
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(3) Alternative means of conducting and recording. The notice must state whether
the deposition is to be taken by telephone or other remote electronic means and
identify the means. If the deposition is to be recorded by nonstenographic means,
the notice may include the notice required by Rule 199.1(c).
(4) Additional attendees. The notice may include the notice concerning additional
attendees required by Rule 199.5(a)(3).
(5) Request for production of documents. A notice may include a request that the
witness produce at the deposition documents or tangible things within the scope of
discovery and within the witness's possession, custody, or control. If the witness is
a nonparty, the request must comply with Rule 205 and the designation of materials
required to be identified in the subpoena must be attached to, or included in, the
notice. The nonparty's response to the request is governed by Rules 176 and 205.
When the witness is a party or subject to the control of a party, document requests
under this subdivision are governed by Rules 193 and 196.
199.3 Compelling Witness to Attend.
A party may compel the witness to attend the oral deposition by serving the witness with a
subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise
subject to the control of a party, however, service of the notice of oral deposition upon the party's
attorney has the same effect as a subpoena served on the witness.
199.4 Objections to Time and Place of Oral Deposition.
A party or witness may object to the time and place designated for an oral deposition by motion
for protective order or by motion to quash the notice of deposition. If the motion is filed by the
third business day after service of the notice of deposition, an objection to the time and place of a
deposition stays the oral deposition until the motion can be determined.
199.5 Examination, Objection, and Conduct During Oral Depositions.
(a) Attendance.
(1) Witness. The witness must remain in attendance from day to day until the
deposition is begun and completed.
(2) Attendance by party. A party may attend an oral deposition in person, even if
the deposition is taken by telephone or other remote electronic means. If a
deposition is taken by telephone or other remote electronic means, the party
noticing the deposition must make arrangements for all persons to attend by the
same means. If the party noticing the deposition appears in person, any other party
may appear by telephone or other remote electronic means if that party makes the
necessary arrangements with the deposition officer and the party noticing the
deposition.
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(3) Other attendees. If any party intends to have in attendance any persons other than
the witness, parties, spouses of parties, counsel, employees of counsel, and the
officer taking the oral deposition, that party must give reasonable notice to all
parties, either in the notice of deposition or separately, of the identity of the other
persons.
(b) Oath; examination. Every person whose deposition is taken by oral examination must
first be placed under oath. The parties may examine and cross-examine the witness. Any
party, in lieu of participating in the examination, may serve written questions in a sealed
envelope on the party noticing the oral deposition, who must deliver them to the deposition
officer, who must open the envelope and propound them to the witness.
(c) Time limitation. No side may examine or cross-examine an individual witness for more
than six hours. Breaks during depositions do not count against this limitation.
(d) Conduct during the oral deposition; conferences. The oral deposition must be
conducted in the same manner as if the testimony were being obtained in court during trial.
Counsel should cooperate with and be courteous to each other and to the witness. The
witness should not be evasive and should not unduly delay the examination. Private
conferences between the witness and the witness's attorney during the actual taking of the
deposition are improper except for the purpose of determining whether a privilege should
be asserted. Private conferences may be held, however, during agreed recesses and
adjournments. If the lawyers and witnesses do not comply with this rule, the court may
allow in evidence at trial statements, objections, discussions, and other occurrences during
the oral deposition that reflect upon the credibility of the witness or the testimony.
(e) Objections. Objections to questions during the oral deposition are limited to "Objection,
leading" and "Objection, form." Objections to testimony during the oral deposition are
limited to "Objection, non-responsive." These objections are waived if not stated as
phrased during the oral deposition. All other objections need not be made or recorded
during the oral deposition to be later raised with the court. The objecting party must give a
clear and concise explanation of an objection if requested by the party taking the oral
deposition, or the objection is waived. Argumentative or suggestive objections or
explanations waive objection and may be grounds for terminating the oral deposition or
assessing costs or other sanctions. The officer taking the oral deposition will not rule on
objections but must record them for ruling by the court. The officer taking the oral
deposition must not fail to record testimony because an objection has been made.
(f) Instructions not to answer. An attorney may instruct a witness not to answer a question
during an oral deposition only if necessary to preserve a privilege, comply with a court
order or these rules, protect a witness from an abusive question or one for which any answer
would be misleading, or secure a ruling pursuant to paragraph (g). The attorney instructing
the witness not to answer must give a concise, non-argumentative, non-suggestive
explanation of the grounds for the instruction if requested by the party who asked the
question.
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(g) Suspending the deposition. If the time limitations for the deposition have expired or the
deposition is being conducted or defended in violation of these rules, a party or witness
may suspend the oral deposition for the time necessary to obtain a ruling.
(h) Good faith required. An attorney must not ask a question at an oral deposition solely to
harass or mislead the witness, for any other improper purpose, or without a good faith legal
basis at the time. An attorney must not object to a question at an oral deposition, instruct
the witness not to answer a question, or suspend the deposition unless there is a good faith
factual and legal basis for doing so at the time.
199.6 Hearing on Objections.
Any party may, at any reasonable time, request a hearing on an objection or privilege asserted by
an instruction not to answer or suspension of the deposition; provided the failure of a party to
obtain a ruling prior to trial does not waive any objection or privilege. The party seeking to avoid
discovery must present any evidence necessary to support the objection or privilege either by
testimony at the hearing or by affidavits served on opposing parties at least seven days before the
hearing. If the court determines that an in camera review of some or all of the requested discovery
is necessary to rule, answers to the deposition questions may be made in camera, to be transcribed
and sealed in the event the privilege is sustained, or made in an affidavit produced to the court in
a sealed wrapper.
Notes and Comments
Comments to 1999 change:
1. Rule 199.2(b)(5) incorporates the procedures and limitations applicable to requests
for production or inspection under Rule 196, including the 30-day deadline for responses, as well
as the procedures and duties imposed by Rule 193.
2. For purposes of Rule 199.5(c), each person designated by an organization under
Rule 199.2(b)(1) is a separate witness.
3. The requirement of Rule 199.5(d) that depositions be conducted in the same manner
as if the testimony were being obtained in court is a limit on the conduct of the lawyers and
witnesses in the deposition, not on the scope of the interrogation permitted by Rule 192.
4. An objection to the form of a question includes objections that the question calls
for speculation, calls for a narrative answer, is vague, is confusing, or is ambiguous. Ordinarily, a
witness must answer a question at a deposition subject to the objection. An objection may therefore
be inadequate if a question incorporates such unfair assumptions or is worded so that any answer
would necessarily be misleading. A witness should not be required to answer whether he has yet
ceased conduct he denies ever doing, subject to an objection to form (i.e., that the question is
confusing or assumes facts not in evidence) because any answer would necessarily be misleading
on account of the way in which the question is put. The witness may be instructed not to answer.
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Abusive questions include questions that inquire into matters clearly beyond the scope of discovery
or that are argumentative, repetitious, or harassing.
Comment to 2021 change: Rule 199.1(b) is amended in response to changes to section 154.105 of
the Texas Government Code governing the administration of oaths by court reporters.
[RULE 200. Repealed effective January 1, 1999; see, Rule 199.1 et seq.]

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