Discovery
§ 18.1Form and Scope of Pretrial Discovery
§ 18.1:1Forms and Uses of Pretrial Discovery
Once suit has been filed, but before trial, several discovery vehicles are available. Permissible forms of discovery are—
1.requests for disclosure (see Tex. R. Civ. P. 190.2(b)(6), 194);
2.motions and requests for production, examination, and copying of documents and other tangible things (see Tex. R. Civ. P. 196.1–.6 and part VI. in this chapter);
3.requests and motions for entry and examination of property (see Tex. R. Civ. P. 196.7);
4.written interrogatories to parties (see Tex. R. Civ. P. 197 and part IV. in this chapter);
5.requests of a party for admission of any matter within the scope of discovery, including statements of opinion or fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying (see Tex. R. Civ. P. 198 and part III. in this chapter);
6.oral or written depositions of any party or nonparty (see Tex. R. Civ. P. 199–203 and part II. in this chapter); and
7.motions for physical and mental examination of a party or person under the legal control of a party (see Tex. R. Civ. P. 204).
These devices are used to narrow the issues, to obtain evidence for use at trial, to secure information about the existence of evidence that may be used at trial, and to ascertain how and from whom the evidence may be procured. Great American Insurance Co. v. Murray, 437 S.W.2d 264, 267 (Tex. 1969). The ultimate purpose of discovery is to seek the truth so that disputes may be decided by what the facts reveal, not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984), overruled on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). Consequently, the objective of the Texas discovery rules is to prevent trial by ambush. Gutierrez v. Dallas Independent School District, 729 S.W.2d 691, 693 (Tex. 1987).
Subject to the limitations and protective orders explained below, discovery may be obtained about any relevant and nonprivileged matter of a claim or defense, even though the information sought may be inadmissible at trial, if the information appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a); see also Tex. R. Evid. 401–403; In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003).
Because its purpose is to seek the truth, discovery is not limited to information that will be admissible at trial. This broad grant is limited, however, by the legitimate interests of the opposing party. Discovery may not be used for overly broad requests, harassment, or disclosure of privileged information. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984), overruled on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). So-called “fishing expeditions” have been disapproved of by the supreme court. In re Ford Motor Co., 427 S.W.3d 396, 397 (Tex. 2014) (plaintiff sent deposition notices to two of defendant’s expert witnesses and sought detailed financial and business information for all cases that the expert witnesses’ companies had handled for Ford or any other automobile manufacturer from 2000 to 2011; the supreme court found this to be a fishing expedition and just the type of overbroad discovery the rules are intended to prevent); In re National Lloyds Insurance Co., 449 S.W.3d 486, 489 (Tex. 2014) (orig. proceeding) (per curiam) (requests for production of documents); K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (interrogatories); Dillard Department Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (requests for production of documents); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (requests for production of documents).
A party may obtain discovery of the items listed below.
Generally: Any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party. Tex. R. Civ. P. 192.3(a); see also Tex. R. Evid. 401; In re Ford Motor Co., 427 S.W.3d 396, 397 (Tex. 2014).
Documents and Tangible Things: The existence, description, nature, custody, condition, location, and contents of documents and tangible things that constitute or contain matters relevant to the subject matter of the action. Tex. R. Civ. P. 192.3(b).
Persons with Knowledge of Relevant Facts and Their Statements: The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each person’s connection with the case. “Knowledge of relevant facts” means that the person has or may have knowledge of any discoverable matter. Tex. R. Civ. P. 192.3(c). The person need not have admissible information or personal knowledge of the facts. Also, the statement of any person with knowledge of relevant facts, a “witness statement,” regardless of when the statement was made. Tex. R. Civ. P. 192.3(h).
Trial Witnesses: The name, address, and telephone number of any person who is expected to testify at trial, but not rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial. Tex. R. Civ. P. 192.3(d).
Testifying and Consulting Experts: See Tex. R. Civ. P. 192.7(c) for a definition of “testifying expert” and Tex. R. Civ. P. 192.7(d) for “consulting expert.” Although the following may be discovered as to a testifying expert, they may only be discovered as to a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert. These discoverable materials include—
1.the expert’s name, address, and telephone number;
2.the subject matter on which the expert will testify;
3.the facts known by the expert that relate to or form the basis of his mental impressions or opinions formed or made in connection with the case, regardless of when and how the information was acquired;
4.the expert’s mental impressions and opinions formed or made in connection with the case and any methods used to derive them;
5.any bias of the expert;
6.all documents, tangible things, reports, models, or data compilations provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony; and
7.the expert’s current resume and bibliography.
Indemnity and Insuring Agreements: Except as otherwise provided by law, the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment, although such disclosure does not make information concerning the agreement admissible in evidence at trial. Tex. R. Civ. P. 192.3(f).
Settlement Agreements: The existence and contents of any relevant portions of a settlement agreement, although such disclosure does not make information concerning the agreement admissible in evidence at trial. Tex. R. Civ. P. 192.3(g).
Potential Parties: The name, address, and telephone number of any potential party. Tex. R. Civ. P. 192.3(i).
Contentions: Any other party’s legal contentions and the factual bases for those contentions. Tex. R. Civ. P. 192.3(j).
Net Worth: Under section 41.0115 of the Texas Civil Practice and Remedies Code, a party seeking net worth discovery is required to first demonstrate and obtain a finding from the trial court that there is a substantial likelihood of success on the merits of a claim for exemplary damages. Tex. Civ. Prac. & Rem. Code § 41.0115(a). However, the legislature did not specifically define “substantial likelihood.” Evidence submitted by a party to a court in support of (or opposition to) a motion made under section 41.0115(a) may be made in the form of an affidavit or a response to discovery. (Note that the fact that the statute is silent on live testimony seems to suggest that live testimony is barred.)
The provisions of section 41.0115 did not become effective until September 1, 2015, and apply only to lawsuits filed on or after that date. Whether this statute is to be applied retroactively is still unclear because the Texas Supreme Court has yet to rule on the issue. See In re Michelin North America, Inc., No. 05-15-01480-CV, 2016 WL 890970, at *8 (Tex. App.—Dallas Mar. 9, 2016, orig. proceeding) (mem. op.); In re Robinson Helicopter Co., Inc., No. 01-15-00594-CV, 2015 WL 4623939, at *1 (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, orig. proceeding [mand. denied]) (mem. op.); Pat Long-Weaver, Examining Texas’s Net Worth Discovery Statute, 79 Tex. B.J. 686 (2016).
§ 18.2Discovery Control Plans and Discovery Period
§ 18.2:1Levels of Discovery Control Plans
All civil cases must be governed by a discovery control plan as provided by the Texas Rules of Civil Procedure. Under the expedited actions rules, if a lawsuit seeks only monetary relief aggregating $100,000 or less excluding postjudgment interest (and is not a lawsuit governed by the Family Code, Property Code, Tax Code, or chapter 74 of the Civil Practice and Remedies Code), limitations on discovery are in place. Tex. R. Civ. P. 169.
All suits filed on or after March 1, 2013 (whether the suit is an original petition, counterclaim, cross-claim, or third-party claim), must include a statement specifying the damages sought. Tex. R. Civ. P. 47(c). A party that fails to comply with rule 47(c) may not conduct discovery until the party’s pleading is amended to comply. Tex. R. Civ. P. 47.
Every plaintiff’s original pleading must also allege in its first numbered paragraph whether control plan discovery is intended to be conducted under level 1, 2, or 3. Tex. R. Civ. P. 190.1. The three levels of discovery control plans follow:
1.A level 1 discovery control plan applies to civil cases filed under the expedited action rules process of Tex. R. Civ. P. 169 and divorces not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $50,000. Tex. R. Civ. P. 190.2(a). Plaintiffs seeking to conduct discovery under a level 1 plan should, in the first numbered paragraph of their original pleading, include language such as the following:
This lawsuit seeks only monetary relief aggregating $100,000 or less. Tex. R. Civ. P. 47(c)(1). Discovery is intended to be conducted under Level 1. Tex. R. Civ. P. 190.2.
2.A level 2 discovery control plan applies to civil cases not governed by a level 1 or level 3 plan. Tex. R. Civ. P. 190.3(a). Plaintiffs seeking to conduct discovery under a level 2 plan should, in the first numbered paragraph of their original pleading, include language such as the following:
Plaintiff intends that discovery be conducted under Level 2 and affirmatively pleads that this suit is not governed by the expedited actions process in Tex. R. Civ. P. 169 because [specify]. Tex. R. Civ. P. 190.3.
3.A level 3 discovery control plan should be pleaded when a plan must be tailored to the circumstances of the suit. A level 3 plan can be instituted on motion of one party, by agreement of the parties, or on the court’s own initiative. Tex. R. Civ. P. 190.4(a). Note that a case can be conducted under a level 3 plan only by court order. Tex. R. Civ. P. 190, cmt. 1. Plaintiffs seeking to conduct discovery under a level 3 plan should, in the first numbered paragraph of their original pleading, include language such as the following:
Plaintiff intends that discovery be conducted under Level 3. Tex. R. Civ. P. 190.4.
§ 18.2:2Level 1 Discovery Control Plan
Discovery in a level 1 suit must be conducted within the discovery period, which begins when suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on the party. Tex. R. Civ. P. 190.2(b)(1). Limitations on discovery in level 1 lawsuits are discussed in section 18.22 (depositions), section 18.43:2 (requests for admissions), section 18.53:3 (interrogatories), and section 18.73:3 (requests for production) below. Rules for requests for disclosure in level 1 lawsuits are discussed in section 18.63 below.
If a suit is removed from the expedited actions process in rule 169, the discovery period reopens, and discovery must be completed within the limitations provided in Tex. R. Civ. P. 190.3 or Tex. R. Civ. P. 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery. Tex. R. Civ. P. 190.2(c).
§ 18.2:3Level 2 Discovery Control Plan
Discovery in a level 2 suit must be conducted within the discovery period, which begins when suit is filed and continues until the earlier of thirty days before the date set for trial or nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. Tex. R. Civ. P. 190.3(b). Limitations on depositions in level 2 suits are discussed in section 18.22 below. Limitations on interrogatories in level 2 suits are discussed in section 18.53:3.
§ 18.2:4Level 3 Discovery Control Plan
A level 3 discovery control plan may address any issue concerning discovery or the matters listed in Tex. R. Civ. P. 166 and may change any limitation on the time for or amount of discovery otherwise called for under the Texas Rules of Civil Procedure. If the matter is not covered in the plan, the applicable of Tex. R. Civ. P. 190.2 or 190.3 applies. Tex. R. Civ. P. 190.4(b).
The plan must include not only a discovery period and appropriate limits on the amount of discovery, but also a date either for trial or for a conference to determine a trial setting and deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses. Tex. R. Civ. P. 190.4(b).
§ 18.2:5Modification of Discovery Control Plans
The court may modify a discovery control plan at any time and must do so when the interest of justice requires. Tex. R. Civ. P. 190.5. Unless a suit is governed by the expedited actions process in rule 169, the court must allow additional discovery related to new, amended, or supplemental pleadings or new information disclosed in a response or an amended or supplemental response if the pleadings or responses were made after the discovery deadline or so nearly before the deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters and the adverse party would be unfairly prejudiced without the additional discovery. The court must allow additional discovery regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends. Tex. R. Civ. P. 190.5.
Also, except where specifically prohibited, discovery procedures and limitations may be modified by court order for good cause or by agreement of the parties. Such an agreement is enforceable if it complies with rule 11 or, as it affects an oral deposition, if it is made part of the deposition record. Tex. R. Civ. P. 191.1.
§ 18.2:6Discovery Not Subject to Discovery Control Plans
Depositions before suit or to investigate claims, as provided under rule 202, and discovery to enforce judgment under rule 621a, as discussed in chapter 26 of this manual, are not covered by discovery control plans. Tex. R. Civ. P. 190.6.
§ 18.3Exemptions from Discovery
The work product of an attorney or the attorney’s representative that contains that person’s mental impressions, opinions, conclusions, or legal theories (the “core work product”) is not discoverable. Tex. R. Civ. P. 192.5(b)(1); National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458, 461 (Tex. 1993); see also In re State ex rel. Skurka, 512 S.W.3d. 444, 453 (Tex. App.—Corpus Christi–Edinburg 2016, no pet., orig. proceeding) (applying the work product doctrine in the context of Tex. Code Crim. Proc. art. 39.14). The work product exemption is of continuing duration. Owens-Corning Fiberglass Co. v. Caldwell, 818 S.W.2d 749, 751–52 (Tex. 1991); In re Baptist Hospitals of Southeast Texas, 172 S.W.3d 136, 144 (Tex. App.—Beaumont 2005, orig. proceeding). See Tex. R. Civ. P. 192.5(a) for the definition of “work product.”
There is no presumption that documents are privileged. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 225 (Tex. 2004) (privilege log alleged that withheld documents were covered by the attorney-client and/or work product privileges). Therefore, the party who seeks to limit discovery by asserting a privilege has the burden of proof. To meet its burden, the party seeking to assert the privilege must make a prima facie showing of the applicability of the privilege and produce evidence to support the privilege. In re USA Waste Management Resources, L.L.C., 387 S.W.3d 92, 96 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding [mand. denied]) (affidavit about facts of litigation established that consultation with attorney was protected by attorney-client privilege). The prima facie standard requires showing only the minimum evidence necessary to support a rational inference that the allegation of fact is true. See In re Kristensen, No. 14-14-00448-CV, 2014 WL 3778903, at *2, 5 (Tex. App.—Houston [14th Dist.] July 13, 2014, no pet.) (per curiam) (mem. op.) (interpreting a trial judge’s handwritten comment on a typed order that assertions of privilege “must be established by evidence” to be a correct application of the law regarding the invocation of a privilege). This standard can be satisfied by filing an affidavit in support of the assertion of the privilege. A prima facie showing can also be made by testimony or, if deemed necessary, production of the documents to the court for in camera inspection. In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (numerous documents reviewed in camera by trial court to determine applicability of attorney-client privilege).
Work product other than “core work product” is discoverable only on a showing that the party seeking discovery has substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent of the material by other means. Tex. R. Civ. P. 192.5(b)(2) In re Larkin, No. 01-15-00392-CV, 2016 WL 1054729, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2016, no pet.) (mem. op.) (overturning trial court’s order to produce core work product when requesting party made no showing of a substantial need of the materials); see also Occidental Chemical Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995) (distinguishing between protection of core work product and noncore work product, before promulgation of Tex. R. Civ. P. 192.5); National Tank Co. v. Brotherton, 851 S.W.2d 193, 200–202 (Tex. 1993) (discussing the definition of “work product”).
§ 18.3:2“Consulting-Only” Experts
The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. But if his mental impressions or opinions have been reviewed by a testifying expert, all the information discoverable regarding testifying experts is also discoverable regarding that consulting expert. Tex. R. Civ. P. 192.3(e). See Tex. R. Civ. P. 192.7(d) for the definition of “consulting expert.”
§ 18.3:3Limitations on Scope of Discovery
The court may limit otherwise allowable discovery if either (1) the discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive, or (2) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the proposed discovery in resolving the issues. Tex. R. Civ. P. 192.4.
§ 18.4Ethical Considerations in Pretrial Discovery
§ 18.4:1Legal Advice to Adverse Party
In dealing with an unrepresented party, a lawyer cannot indicate that the lawyer is a disinterested party. Tex. Disciplinary Rules Prof’l Conduct R. 4.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9). Generally, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel. Tex. Disciplinary Rules Prof’l Conduct R. 4.03 cmt.
§ 18.4:2Permissible Communication
Any statement contained in the notice that discusses the legal effect of answering or not answering interrogatories or requests for admissions may constitute the giving of legal advice. See Tex. Disciplinary Rules Prof’l Conduct R. 4.03 & cmt. The notice may—
1.give instructions on answering the interrogatories or requests for admissions;
2.state the time periods within which the answers or admissions must be received; and
3.contain a statement to the effect that, if the requests are not to be admitted, the recipient either must specifically deny the requests or must state in detail the reasons for his inability to admit or deny them.
These statements are merely aids to help the party answer the interrogatories or requests and to get answers to the requesting party or his attorney within the relevant period; they are not statements of legal consequences.
§ 18.4:3Impermissible Communication
The attorney must avoid including in notices to an unrepresented person statements going beyond mere instructions and purporting to give legal advice, such as that—
1.a party may be ordered to pay costs of proof, including attorney’s fees, if he denies a requested admission that is later proved to be true;
2.an admission applies only to the subject proceeding and may not be used against the party in any other proceeding; and
3.failure to respond may result in the entry of judgment or the imposition of other sanctions.
See Tex. Comm. on Prof’l Ethics, Op. 380 (1975) (collection letter that stated in extensive detail the legal results of nonpayment was improper), Op. 355 (1971) (attorney should not advise opposing party represented by counsel about the law through guise of deposition).
Discovery requests should not contain legal advice or threats about possible consequences of not replying. See Tex. Disciplinary Rules Prof’l Conduct R. 4.02, 4.04 (regarding communication with parties represented by another attorney and prohibiting use of threats of criminal or disciplinary charges to gain an advantage in a civil matter).
§ 18.5Attorney’s Fees for Pretrial Discovery
Although there is no provision for the pretrial recovery of attorney’s fees for the mere undertaking of discovery, fees may be recovered if the other party does not cooperate when required to do so by the Texas Rules of Civil Procedure. See part VII. in this chapter.
§ 18.6Separate or Combined Submission of Interrogatories and Requests for Admissions
§ 18.6:1Combined Submission Generally
Some attorneys combine interrogatories with requests for admissions in the hope of obtaining a tactical opportunity not available through separate use of these diverse methods of discovery. This practice is expressly allowed by Tex. R. Civ. P. 192.2. In theory, this hybrid type of discovery combines the automatic admissibility of evidence when facts are admitted with the probative effect of consequent answers to interrogatories requested in the same document for admissions that are denied. Although this combined discovery tactic appears to possess all the advantages available under both procedures, some factors should be considered before attempting to combine the two, and in this manual the two procedures are presented separately.
Interrogatories are intended to be used in discovering admissible evidence, whereas requests for admissions are used to isolate and refine those matters of fact that need to be tried. Logically, requests for admissions are useful after (not during) discovery by interrogatories or depositions. By separating the two kinds of procedures, one is able to use answers obtained from interrogatories or depositions to frame more meaningful requests for admissions, thereby improving the quality and quantity of information admissible for trial of the issues.
§ 18.6:3Difference as Evidence
Answers to interrogatories are subject to the general rules of evidence and must be properly offered at trial or at an appropriate pretrial hearing to have probative value. Richards v. Boettcher, 518 S.W.2d 286, 288 (Tex. App.—Texarkana 1974, writ ref’d n.r.e.). Matters admitted under a request for admissions, however, are “conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.” Tex. R. Civ. P. 198.3. They need not be introduced into evidence to be properly before the trial or appellate court. See Red Ball Motor Freight, Inc. v. Dean, 549 S.W.2d 41, 43 (Tex. App.—Tyler 1977, writ dism’d w.o.j.). See also section 18.46 below. The practitioner should be aware, however, that admissions made pursuant to Tex. R. Civ. P. 198 may be introduced and read into evidence against the party making the admission. See Welch v. Gammage, 545 S.W.2d 223, 226 (Tex. App.—Austin 1976, writ ref’d n.r.e.) (“The better practice is to introduce the requests for admissions and the responses into evidence. Nevertheless, requests for admissions and responses may be considered as a part of the record if they were filed with the clerk of the court at trial time.”).
At trial, the party relying on admissions must protect the record by objecting to the controverting evidence and to the submission of any issue bearing on the facts admitted. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); USAA County Mutual Insurance Co. v. Cook, 241 S.W.3d 93, 102 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Compare Beasley v. Burns, 7 S.W.3d 768, 770 (Tex. App.—Texarkana 1999, pet. denied) (declining to extend the rule in Marshall to summary judgment proceedings on the basis that such proceedings are not trials), with Acevedo v. Commission for Lawyer Discipline, 131 S.W.3d 99, 105 n.3 (Tex. App.—San Antonio 2004, pet. denied) (questioning Beasley’s characterization of a summary judgment proceeding as not a “trial”). Failure to promptly protect the record waives the right to rely on the controverted admissions. Marshall, 767 S.W.2d at 700. See also Acevedo, 131 S.W.3d at 104 (discussing waiver of right to rely on deemed admissions in the summary judgment and trial contexts).
§ 18.7Supplementation of Discovery
§ 18.7:1Supplementation Generally
If a party learns that his response to written discovery was incomplete or incorrect when made or has become incomplete or incorrect, he must generally amend or supplement his response unless the additional or corrective information has been made known to the other parties either in writing, on the record at a deposition, or through other discovery responses. Tex. R. Civ. P. 193.5(a)(2). If the written discovery sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, the party must amend or supplement the response. Tex. R. Civ. P. 193.5(a)(1).
The supplementation requirement applies, whether or not the evidence is to be used in a party’s case in chief or during rebuttal, if the party offering the evidence knows of the evidence before trial. See Alvarado v. Farah Manufacturing Co., 830 S.W.2d 911, 913–14 (Tex. 1992).
A party who fails to amend or supplement a discovery response in a timely manner may not introduce into evidence the discovery that was not timely disclosed or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that either there was good cause for the lack of timeliness or the failure to amend or supplement timely will not unfairly surprise or prejudice the other parties. Tex. R. Civ. P. 193.6(a); Montie v. Bastrop County, No. 03-16-00123-CV, 2016 WL 6156232, at *3 (Tex. App.—Austin Oct. 19, 2016, no pet.); Alvarado, 830 S.W.2d at 913–14. See also section 18.15 below. The burden of showing good cause or the absence of unfair surprise or prejudice is on the party seeking to introduce the witness or evidence. Tex. R. Civ. P. 193.6(b); Alvarado, 830 S.W.2d at 914.
§ 18.7:2Time of Amended or Supplemental Response
The amended or supplemental response must be made reasonably promptly after the party discovers the need for it. An amended or supplemental response made less than thirty days before trial is presumed not to have been made reasonably promptly. Tex. R. Civ. P. 193.5(b).
See section 18.15 below regarding the consequences of failure to timely respond.
§ 18.7:3Form of Amended or Supplemental Response
The amended or supplemental response must be in the same form as the initial response and must be verified if the original response had to be verified. Failure to comply with this form requirement will not make the response untimely unless the party making the response refuses to correct the form defect within a reasonable time after it is pointed out. Tex. R. Civ. P. 193.5(b).
See section 18.15 below regarding the consequences of failure to timely respond.
§ 18.7:4Supplementation and Experts
A party’s duty to amend and supplement written discovery regarding a testifying expert is governed by rule 193.5. If an expert is retained by, employed by, or otherwise under the control of a party, that party must also amend or supplement any deposition testimony or written report by the expert but only with regard to the expert’s mental impressions or opinions and the basis for them. Tex. R. Civ. P. 195.6.
A protective order is available to any person from whom discovery is sought and any other person affected by the discovery request. Tex. R. Civ. P. 192.6(a).
A party may also obtain a protective order if discovery is sought not from him personally but from an individual who is not a party. See Mahan v. Stover, 679 S.W.2d 707, 709–10 (Tex. App.—Beaumont 1984, writ dism’d w.o.j.) (court of appeals upheld protective order requiring defendant to pay plaintiff’s experts for depositions in advance by depositing $600 in court registry and additional $600 for each day depositions were to be taken).
Protective orders are intended to protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights. Tex. R. Civ. P. 192.6(b). A party seeking a protective order must specifically plead a particular privilege or immunity from discovery and produce evidence supporting the applicability of the privilege or immunity; otherwise the privilege or immunity is waived. Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex. 1985); Taylor v. Taylor, 747 S.W.2d 940, 945 (Tex. App.—Amarillo 1988, writ denied). The burden of requesting a hearing is now on the party seeking production. McKinney v. National Union Fire Insurance Co., 772 S.W.2d 72, 75 (Tex. 1989). If protection is sought regarding the time or place of discovery, the movant must state a reasonable time or place for discovery with which he will comply. Tex. R. Civ. P. 192.6(a).
A motion for a protective order should not be made when an objection to written discovery is appropriate. However, the filing of a motion for protective order does not waive an objection. A party must comply with the discovery request to the extent a protective order is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion. Tex. R. Civ. P. 192.6(a). The party that seeks a protective order must show particular, specific, and demonstrable injury by facts sufficient to justify the protective order. In re Wal-Mart Stores, Inc., No. 08-15-00126-CV, 2016 WL 7230399, at *7 (Tex. App.—El Paso Dec. 14, 2016, orig. proceeding [mand. pending]) (citing In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding)).
§ 18.8:3Burden of Proof under Rule 192.6(b)
Rule 192.6(b) permits a trial court to “make any order in the interest of justice,” including limiting the depositions in a manner designed to “protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights.” Tex. R. Civ. P. 192.6(b). However, a party resisting discovery cannot prevail simply by making conclusory allegations that the requested discovery is unduly burdensome or unnecessarily harassing. The resisting party must produce some evidence that supports the request for a protective order. See Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987). In the case of depositions, for instance, although “[m]any deponents consider any deposition harassing and burdensome and perhaps annoying, . . . unless the purpose of the deposition can be shown to be only for an improper purpose, or unless it is an undue burden, the trial court cannot limit the deposition on these bases.” In re Amaya, 34 S.W.3d 354, 358 (Tex. App.—Waco 2001, orig. proceeding). See also In re Issuance of Subpoenas of Bennett, 502 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding).
The court may order that—
1.the requested discovery not be sought in whole or in part;
2.the extent or subject matter of discovery be limited;
3.the discovery not be undertaken at the time or place specified;
4.the discovery be undertaken only by the method or on the terms and conditions or at the time and place directed by the court; or
5.the results of discovery be sealed or otherwise protected, subject to the provisions of rule 76a.
§ 18.9Objections to Written Discovery
§ 18.9:1Written Discovery Defined
“Written discovery” means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admissions. Tex. R. Civ. P. 192.7(a).
§ 18.9:2Time and Form for Objection
The responding party must make his objection to written discovery in writing (either in the response or in a separate document) within the time for response. The objection must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request. Tex. R. Civ. P. 193.2(a). An objection that is not made within the time required is waived unless the court excuses the waiver for good cause shown. Tex. R. Civ. P. 193.2(e). See form 18-25 in this chapter.
If the responding party is objecting to part of the discovery request, he must comply with the unobjectionable part unless it is unreasonable under the circumstances to do so. Tex. R. Civ. P. 193.2(b). An example of such a situation would be if the requesting party asks for “all documents relevant to the lawsuit.” In that case, the responding party may object to the request as overly broad and refuse to comply with it entirely. Tex. R. Civ. P. 193 cmt. 2.
§ 18.9:4Objection to Time or Place for Production
If the objection is to the requested time or place for production, the responding party must state a reasonable time or place for complying with the request and must comply at that time and place without further request or order. Tex. R. Civ. P. 193.2(b). See section 18.75:3 below for further discussion of objections to requests for production.
The responding party must have a good-faith factual and legal basis for his objection that exists at the time the objection is made. Tex. R. Civ. P. 193.2(c). Furthermore, an objection obscured by numerous unfounded objections is waived unless the court excuses the waiver for good cause shown. Tex. R. Civ. P. 193.2(e).
§ 18.9:6Hearing and Ruling on Objections
Any party may at any reasonable time request a hearing on an objection. The party making the objection must present any evidence necessary to support his objection. The evidence may be either live testimony or affidavits served at least seven days before the hearing or at such other reasonable time as the court permits. Tex. R. Civ. P. 193.4(a).
To the extent the court sustains the objection, the responding party has no further duty to respond to the discovery request. If the court overrules the objection, the responding party must produce the requested material or information within thirty days after the court’s ruling or at such time as the court orders. Tex. R. Civ. P. 193.4(b).
A party need not request a ruling on his own objection to preserve it. Tex. R. Civ. P. 193.4(b).
§ 18.10Assertions of Privilege
§ 18.10:1Only Written Discovery Governed
The rules set out in this section regarding privileges apply only to written discovery. See Tex. R. Civ. P. 193.3. See section 18.9:1 above for a definition of written discovery.
§ 18.10:2How Privilege Is Asserted
The party claiming that information responsive to written discovery is privileged must state, either in the response or in a separate document—
1.that information or material responsive to the request is being withheld;
2.the request to which the information or material relates; and
3.the privilege(s) asserted.
Tex. R. Civ. P. 193.3(a). An exception to this requirement exists for privileged communications to or from a lawyer or lawyer’s representative or a privileged document of the lawyer or lawyer’s representative created or made from the point at which the party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which the discovery is requested and concerning the litigation in which the discovery is requested. Tex. R. Civ. P. 193.3(c). See also section 18.3:1 above. A privilege or exemption sought must be specifically pleaded and supported by evidence (by either affidavit or testimony), and if necessary, the party asserting the privilege must submit the allegedly privileged items for an in camera inspection. See In re Insurance Placement Services, No. 03-11-00374-CV, 2011 WL 2768825, at *2 (Tex. App.—Austin July 14, 2011, no pet.) (mem. op.); Loftin v. Martin, 776 S.W.2d 145, 147 (Tex. 1989) (assertion of investigative privilege), disapproved on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).
§ 18.10:3Requesting Party’s Response to Assertion of Privilege
After receiving a response indicating that material or information is being withheld on grounds of privilege, the requesting party may serve a written request that the withholding party identify the information and material withheld. Within fifteen days of service of that request, the withholding party must both—
1.describe the information or materials withheld, without revealing the privileged information itself or otherwise waiving the privilege, in a way that would enable another party to determine the applicability of the privilege; and
2.assert the applicable specific privilege for each item or group of items withheld.
Tex. R. Civ. P. 193.3(b). The same exception regarding specific communications to or from an attorney or attorney’s representative set out in section 18.10:2 above applies to the withholding party’s obligations set out in the paragraph above. Tex. R. Civ. P. 193.3(c).
§ 18.10:4Hearing and Ruling on Assertion of Privilege
As with objections, any party may at any reasonable time request a hearing on a claim of privilege asserted under Tex. R. Civ. P. 193. The party making the claim of privilege must present any evidence necessary to support his claim; that evidence may be either live testimony or affidavits served at least seven days before the hearing or at such other reasonable time as the court permits. Tex. R. Civ. P. 193.4(a). Affidavits asserting a privilege must contain more than global reiterations of facts ascertainable from the face of the documents (or other evidence) themselves. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); In re Insurance Placement Services, No. 03-11-00374-CV, 2011 WL 2768825, at *2–3 (Tex. App.—Austin July 14, 2011, no pet., orig. proceeding) (mem. op.).
To the extent the court sustains the claim of privilege, the responding party has no further duty to respond to the discovery request. To the extent the court overrules the claim of privilege, the withholding party must produce the information or material within thirty days of the court’s ruling or at such time as the court orders. Tex. R. Civ. P. 193.4(b).
If the court determines that in camera review is necessary, the material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing. Tex. R. Civ. P. 193.4(a).
§ 18.10:6Use of Material or Information Withheld under Claim of Privilege
A party may not use, at any hearing or trial, material or information withheld from discovery under a claim of privilege, including a claim sustained by the court, without timely amending or supplementing the party’s response to the discovery. Tex. R. Civ. P. 193.4(c).
§ 18.11Cooperation in Discovery and Certification of Conference
Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the cause. All discovery motions or requests for hearings related to discovery must contain a certificate by the movant that reasonable efforts to resolve the discovery dispute without the necessity of court intervention have been made and have failed. Tex. R. Civ. P. 191.2.
§ 18.12Signatures on Discovery Documents
§ 18.12:1Requirement of Signature
Every disclosure, discovery request, notice, response, and objection must be signed by either the party’s attorney or the party, if he is proceeding pro se. The signature must be accompanied by the signatory’s address, telephone number, fax number, if any, and State Bar identification number if the signatory is an attorney. Tex. R. Civ. P. 191.3(a).
§ 18.12:2Effect of Signature on Discovery Request, Notice, Response, or Objection
The signature on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after reasonable inquiry, the request, notice, response, or objection—
1.is consistent with the rules of civil procedure and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law;
2.has a good-faith factual basis;
3.is not interposed for any improper purpose, such as to harass or annoy or to cause unnecessary delay or needless increase in the cost of litigation; and
4.is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
Tex. R. Civ. P. 191.3(c). If a request, notice, response, or objection is not signed, it must be struck unless it is signed promptly after the omission is called to the attention of the party proffering it. A party is not obligated to take any action with respect to a request or notice that is not signed. Tex. R. Civ. P. 191.3(d).
§ 18.12:3Effect of Signature on Disclosure
The signature on a disclosure constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after reasonable inquiry, the disclosure is complete and correct when it is made. Tex. R. Civ. P. 191.3(b).
§ 18.12:4Sanctions for False Certification
If the certification is false without substantial justification, the court may, on motion or its own initiative, impose on the person making the certification or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under chapter 10 of the Texas Civil Practice and Remedies Code. Tex. R. Civ. P. 191.3(e).
§ 18.13Filing and Service of Discovery Materials
§ 18.13:1Materials That Must Be Filed
Discovery materials that must be filed are—
1.discovery requests, deposition notices, and subpoenas required to be served on nonparties;
2.motions and responses to motions pertaining to discovery matters; and
3.agreements concerning discovery matters, to the extent required to comply with rule 11.
§ 18.13:2Materials Not to Be Filed
Discovery materials that are not filed are—
1.discovery requests, deposition notices, and subpoenas required to be served only on parties;
2.responses and objections to discovery requests and deposition notices, regardless of on whom the requests or notices were served;
3.documents and tangible things produced in discovery; and
4.certain statements prepared in connection with the assertion of privileges (under rule 193.3(b) or (d)).
Tex. R. Civ. P. 191.4(a). Certain exceptions exist. For example, the court may order these discovery materials to be filed, a person may file discovery materials in support of or in opposition to a motion or for other use in a court proceeding, and a person may file discovery materials necessary for a proceeding in an appellate court. Tex. R. Civ. P. 191.4(c).
For materials not required to be filed, the person required to serve them must keep the originals or exact copies during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court. Tex. R. Civ. P. 191.4(d).
Discovery requests may be served on any party at any time from after the commencement of the action until thirty days before the end of the discovery period. See Tex. R. Civ. P. 196.1(a) (requests for production), 197.1 (interrogatories), and 198.1 (requests for admissions). See section 18.2 above regarding the discovery period. If the party is represented by an attorney, the requests must be served on the attorney unless service on the party himself is ordered by the court. Copies of the requests must be served on all parties but not filed with the court clerk. Tex. R. Civ. P. 191.4(a)(1), 191.5.
Service of requests for discovery can be done either by serving through the electronic service system, in person, by mail (certified mail, return receipt requested is often best to prove delivery), by commercial delivery service, by fax, by
e-mail, or by such other manner as a court instructs. Tex. R. Civ. P. 21a(a)(1)–(2).
Service of documents by e-mail is a 2013 amendment to rule 21a with at least one court enforcing service via this means. See University of Texas Medical Branch at Galveston v. Callas, 497 S.W.3d 58, 66 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
For service of requests for disclosure, see section 18.62 below.
§ 18.13:4Presumption of Service
Sending notice or documents pursuant to rule 21a raises a rebuttable presumption that service was done properly. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). Under rule 21a, service is complete when (1) properly addressed and postpaid documents are deposited in the mail or with a commercial delivery service, (2) sent by fax with proof of receipt, or (3) done by electronic service and the documents are transmitted to the serving party’s electronic filing service provider. Tex. R. Civ. P. 21a(b)(1)–(3). The rule does not address when service by
e-mail is complete.
Practice Note: Because the rule does not address when e-mail service is complete, consider using an additional method of service.
A certificate of service (or affidavit) is also prima facie evidence that service took place. Mocega v. Urquhart, 79 S.W.3d 61, 65 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). However, the presumption can be rebutted when an opposing party offers proof of nonreceipt. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).
§ 18.14Availability of Mandamus
Mandamus is available to correct a clear abuse of discretion in a discovery matter. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). The party seeking mandamus relief must establish that (1) the trial court abused its discretion and (2) no adequate remedy by appeal exists. In re Essex Insurance Co., 450 S.W.3d 524, 526 (Tex. 2014). See Dillard Department Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); General Motors Corp. v. Lawrence, 651 S.W.2d 732, 733 (Tex. 1983) (discovery order was overly broad in scope, sought production of nonrelevant information, and would have caused undue burden and expense); but see Walker, 827 S.W.2d at 840–42 (Tex. 1992) (party seeking review of discovery order must show that remedy offered by ordinary appeal inadequate; appellate remedy not inadequate merely because it may involve more expense or delay than obtaining extraordinary writ). The court in Walker gave three specific situations in which mandamus is an appropriate remedy:
1.When the appellate court would not be able to cure the trial court’s error, as when the trial court erroneously orders the disclosure of privileged information that would materially affect the rights of the aggrieved party.
2.When the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error.
3.When the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, or the trial court after later request refuses to make it part of the record, and the reviewing court is unable to evaluate the effect of the trial court’s error on the record before it.
Walker, 827 S.W.2d at 843–44.
§ 18.15Failure to Timely Respond
A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that either there was good cause for the lack of timeliness or the failure to make, amend, or supplement timely will not unfairly surprise or prejudice the other parties. Tex. R. Civ. P. 193.6(a). The burden to establish good cause or lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of unfair surprise or unfair prejudice must be supported by the record. Tex. R. Civ. P. 193.6(b).
§ 18.16Discovery from Financial Institutions
A party seeking discovery (such as a third-party request for production pursuant to Tex. R. Civ. P. 176 and 205) from a bank, savings and loan, credit union, or trust company must comply with the provisions described in the Texas Finance Code, even if the financial institution is chartered under the laws of another state. Tex. Fin. Code §§ 59.001(5), 59.006(a). However, certain record requests or inquiries, mainly from a state or federal government agency, are not subject to the special rules described in the Code. Tex. Fin. Code § 59.006(a)(1)–(8).
If the financial information being requested concerns a customer who is a party to the lawsuit, the requesting party must serve the financial institution with a record request that provides a minimum of twenty-four days to comply and must pay the institution’s reasonable costs of reproduction, postage, research, delivery, and attorney’s fees or agree to post a bond in an amount estimated by the institution to cover such costs before the institution is required to comply with the request. Tex. Fin. Code § 59.006(b). The customer who is a party bears the burden of preventing or limiting the institution’s compliance with the record request by seeking an appropriate remedy, such as a motion to quash or motion for protective order. Tex. Fin. Code § 59.006(e). The customer must serve the motion on the financial institution and the requesting party not later than the date on which the institution’s compliance with the record request is required. Tex. Fin. Code § 59.006(e). Otherwise, once the requirements of section 59.006(b) are met, the institution must comply with the request. Tex. Fin. Code § 59.006(c).
If the financial information being requested concerns a customer who is not a party to the lawsuit, the requesting party must—
1.provide notice (by certified mail or personal service) to the nonparty stating the rights of the customer under section 59.006(e) and a copy of the request to each affected nonparty;
2.file a certificate of service of that notice both with the court and the institution; and
3.request the nonparty’s written consent authorizing the institution to comply with the request.
If the nonparty customer consents, the institution need not produce the record before the later of (1) the twenty-fourth day after the date that compliance with the record request is required or (2) the fifteenth day after the date of receipt of its customer’s consent. Tex. Fin. Code § 59.006(f).
If the nonparty customer does not execute the written consent or fails to respond to the requesting party’s request for compliance, the requesting party must file a written motion seeking an in camera inspection of the requested information with the court. Tex. Fin. Code § 59.006(d). In response to the motion for in camera inspection, the court may review the documents to determine their relevance to the underlying matter and can order that any part of the records be redacted and, furthermore, that a protective order be signed prohibiting disclosure to any nonparty as well as ordering that the documents be used only in the underlying lawsuit. Tex. Fin. Code § 59.006(d). The financial institution need not produce the record before the fifteenth day after the date a court orders production of the record after an in camera inspection. Tex. Fin. Code § 59.006(f)(3).
For a notice to a nonparty customer of request for financial records, see form 18-1 in this chapter. For a motion to inspect nonparty financial records, see form 18-2.
[Sections 18.17 through 18.20 are reserved for expansion.]
§ 18.21Source of Rule and Purpose of Deposition
§ 18.21:1Source and Purpose Generally
Depositions are used for discovery and to perpetuate the testimony of any party or witness as evidence for later use at trial by means of a written transcript of oral or written questions and answers. Oral depositions are governed by Tex. R. Civ. P. 199, depositions on written questions are governed by Tex. R. Civ. P. 200, depositions outside Texas for use in Texas proceedings and depositions taken in Texas for use outside the state are governed by Tex. R. Civ. P. 201, and depositions before suit or to investigate a claim are governed by Tex. R. Civ. P. 202. Signing, certification, and use of depositions is governed by Tex. R. Civ. P. 203.
A party may take the deposition of any person or entity before any officer authorized by law to take depositions. Tex. R. Civ. P. 199.1(a). Individuals, public or private corporations, partnerships, associations, governmental agencies, or other organizations may be deposed. Tex. R. Civ. P. 199.2(b)(1).
For suits filed on or after March 1, 2013, the time limits imposed by Tex. R. Civ. P. 190 apply. Unless modified by the court, level 1 suits allow each party up to six hours to depose all witnesses. The parties may agree to expand this limit up to ten hours total, but not more except by court order. Tex. R. Civ. P. 190.2(b)(2). Unless modified by the court, level 2 suits allow each side up to fifty hours to depose parties on the opposing side, experts designated by those parties, and persons subject to those parties’ control. However, if one side designates more than two experts, the opposing side has an additional six hours of deposition time for each additional expert designated. In level 2 suits, “side” refers to all litigants with generally common interests in the litigation. Tex. R. Civ. P. 190.3(b)(2). For level 3 suits, the discovery control plan must include appropriate limits on the amount of discovery. If no limit is placed on length of depositions, the appropriate limit according to Tex. R. Civ. P. 190.2 or 190.3 will be imposed. Tex. R. Civ. P. 190.4(b). See section 18.2 above regarding discovery control plans generally.
No side may examine or cross-examine a witness for more than six hours. Breaks taken during the deposition do not count toward this time limit. Tex. R. Civ. P. 199.5(c).
§ 18.23:1Methods of Examination
Oral depositions may be taken in person or by telephone or “other remote electronic means.” Tex. R. Civ. P. 199.1(a), (b). These “remote” depositions are discussed in section 18.27 below. Depositions may also be taken by written questions, as discussed at section 18.29.
Whatever deposition method is used, questions should elicit information about material evidence and witnesses within the witness’s knowledge. Written questions should be phrased to seek specific factual answers to each question. For sample written deposition questions to the client to establish certain favorable facts, see form 18-6 in this chapter; see also the interrogatories in forms 18-15 through 18-20.
§ 18.23:3Production of Documents by Witness
One of the more valuable benefits of a deposition is the ability to require the witness to produce documents or tangible things within the scope of discovery and within the witness’s possession, custody, or control, and then elicit testimony regarding the items produced. Both oral depositions and depositions on written questions allow a party to demand that the witness bring these items with him to the deposition. See Tex. R. Civ. P. 199.2(b)(5), 200.1(b), 205.3. Such a demand is contained within a subpoena duces tecum. See section 18.30 below regarding subpoenas generally.
§ 18.24Deposition before Suit Is Filed or to Investigate Claims
A person may petition the court for an order authorizing taking an oral or written deposition, either to perpetuate or obtain the person’s own testimony or that of any other person in an anticipated suit or to investigate a potential claim or suit. Tex. R. Civ. P. 202.1.
The person seeking the deposition must file a verified petition in the proper court of any county in which venue of the anticipated action may lie or in which the witness resides if no suit is yet anticipated. The petition must—
1.be in the name of the petitioner;
2.state that the petitioner either anticipates litigation in which he may be a party or seeks to investigate a potential claim by or against him;
3.state the subject matter of the anticipated litigation and the petitioner’s interest in it;
4.if suit is anticipated, either state the names, addresses, and telephone numbers of persons expected to have interests adverse to the petitioner or state that those names, addresses, and telephone numbers cannot be ascertained through diligent inquiry and describe those persons;
5.state the names, addresses, and telephone numbers of the persons to be deposed, the substance of the testimony expected, and the petitioner’s reason for desiring to obtain the testimony; and
6.request a court order authorizing the petitioner to take the depositions of the persons named in the petition.
At least fifteen days before the date of the hearing, the petitioner must serve, in accordance with Tex. R. Civ. P. 21a, a copy of the petition and notice of the hearing on the witnesses and, if suit is anticipated, on each anticipated adverse party named in the petition. Tex. R. Civ. P. 202.3(a).
Unnamed persons described in the petition whom the petitioner expects to have interests adverse to the petitioner may be served by publication with the petition and notice of hearing. This notice must be first published at least fourteen days before the date of the hearing and state its time and place. The petition and notice must be published once each week for two consecutive weeks in the newspaper of broadest circulation in the county in which the petition is filed or, if no such newspaper exists, in the newspaper of broadest circulation in the nearest county in which a newspaper is published. Tex. R. Civ. P. 202.3(b).
The court may modify the notice periods and may extend the notice period to permit service on any expected adverse party. Tex. R. Civ. P. 202.3(d).
§ 18.24:4Suppression of Deposition to Perpetuate Testimony
After the filing of a deposition taken after notice by publication, an interested party may, in the proceeding or by bill of review, move to suppress all or part of the deposition and may also oppose the deposition by any other means available. Tex. R. Civ. P. 202.3(b)(2). The right to move to suppress is cumulative of all other rights to oppose the deposition.
The court must order a deposition to be taken if, but only if, it finds that allowing the requested deposition may prevent a failure or delay of justice in an anticipated suit or that the likely benefit of allowing the petitioner to take the deposition to investigate the potential claim outweighs the burden and expense of the procedure. Tex. R. Civ. P. 202.4(a). The court order must state whether a deposition will be oral or written and may also state the time and place at which a deposition will be taken. The order must also contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure. Tex. R. Civ. P. 202.4(b).
§ 18.25Depositions in Foreign Jurisdictions
A written or oral deposition of a person or entity that is to be taken in another state, a foreign country, or any other foreign or domestic jurisdiction for use in Texas may be taken by—
1.notice;
2.letter rogatory, letter of request, or other such device;
3.agreement of the parties; or
4.court order.
Tex. R. Civ. P. 201.1(a). A deposition in another jurisdiction may be taken by telephone, videoconference, teleconference, or other electronic means under the provisions of rule 199. Tex. R. Civ. P. 201.1(g).
§ 18.25:2Deposition of Party by Notice
A party may take a deposition by notice as if the deposition were being taken in Texas, except that the deposition officer may be a person authorized to administer oaths where the deposition is being taken. Tex. R. Civ. P. 201.1(b).
A letter rogatory is a document addressed to a foreign court requesting that a witness be examined under that court’s jurisdiction. Letters rogatory are typically used to take a deposition in a country that is not a party to the Hague Evidence Convention. See section 18.25:4 below regarding letters of request. On motion by a party, the court in which an action is pending must issue a letter rogatory on just and appropriate terms, regardless of whether any other manner of obtaining the deposition is impractical or inconvenient. The letter must be addressed to the appropriate authority in the jurisdiction in which the deposition is to be taken, request and authorize that authority to summon the witness at a time and place stated in the letter for examination on oral or written questions, and request and authorize that authority to cause the witness’s testimony to be reduced to writing and returned, along with any items marked as exhibits, to the party requesting the letter rogatory. Tex. R. Civ. P. 201.1(c).
§ 18.25:4Letter of Request, Applicable Treaty, or Convention
A letter of request is essentially the same as a letter rogatory (see section 18.25:3 above), except that it is addressed to a court in a country subscribing to the Hague Evidence Convention and is in the form prescribed by the Convention. See Convention on the Taking of Evidence Abroad in Civil and Criminal Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444. On motion by a party, the court or clerk of court must issue a letter of request or other such device in accordance with an applicable treaty or international convention on terms that are just and appropriate. The letter or other device must be issued regardless of whether any other manner of obtaining the deposition is impractical or inconvenient. The letter or other device must be in the form prescribed by the treaty or convention under which it is issued, as presented by the movant to the court or clerk, and must state the time, place, and manner of the examination of the witness. Tex. R. Civ. P. 201.1(d).
§ 18.25:5Objections to Form of Letter
A party must make any objection to the form of the device in writing and serve it on all other parties by the time set by the court or the objection is waived. Tex. R. Civ. P. 201.1(e).
§ 18.25:6Departures from Requirements of Deposition Taken in Texas
Evidence obtained in response to a letter rogatory, letter of request, or other device need not be excluded merely because it is not a verbatim transcript, or the testimony was not taken under oath, or for any similar departure from the requirements of depositions taken within Texas under the Texas Rules of Civil Procedure. Tex. R. Civ. P. 201.1(f).
§ 18.26Deposition by Nonstenographic Recording
§ 18.26:1Nonstenographic Recording Generally
Any party may take an oral deposition by nonstenographic means, including videotape recording. Tex. R. Civ. P. 199.1(c).
An audiotaped deposition taken without a court reporter is typically much less expensive than a stenographic one. Many attorneys use audiotaped depositions as a postjudgment discovery tool. See section 26.2:2 in this manual.
A videotaped deposition adds an obvious visual element to the deposition process. In a closely contested case, letting the jury see the witness’s behavior and reaction during the deposition could prove crucial—and favorable—to the case.
§ 18.26:2Mechanics of Nonstenographic Deposition
A nonstenographic deposition may be recorded by a certified shorthand reporter, a party, the party’s attorney, or a full-time employee of the party or his attorney. Tex. Gov’t Code §§ 52.021(f), 52.033. See also Burr v. Shannon, 593 S.W.2d 677, 678 (Tex. 1980) (discussing predecessor statutes with similar language); Tex. Att’y Gen. Op. No. GA-928 (2012) (discussing the statutory exception to section 52.021(f)’s requirement that all depositions conducted in this state must be recorded by a certified shorthand reporter; the exception is found at section 52.033, which states that the requirement does not apply to (1) a party to the litigation involved, (2) the attorney of the party, or (3) a full-time employee of a party or a party’s attorney). The oath may be administered by a notary public. Tex. Gov’t Code § 602.002(4).
The party requesting the nonstenographic recording is responsible for obtaining a person authorized to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. Tex. R. Civ. P. 199.1(c).
§ 18.26:3Notice of Deposition by Nonstenographic Recording
At least five days’ notice must be given to the witness and all other parties. The notice must specify the type of nonstenographic recording that will be used and whether the deposition will also be recorded stenographically. Any other party may then serve written notice designating another method for recording in addition to the method specified, at the expense of that other party unless the court orders otherwise. Tex. R. Civ. P. 199.1(c).
§ 18.26:4Use of Nonstenographic Deposition and Court Reporter’s Transcription
A nonstenographic deposition or a written transcription of such a recording may be used to the same extent as a stenographic deposition. But the court may, for good cause shown, require that the party seeking to use the nonstenographic deposition or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. The court reporter’s transcription must be made from the original or a certified copy of the deposition recording. Tex. R. Civ. P. 203.6(a).
The court reporter must deliver the original transcript to the attorney requesting the transcript, and the court reporter’s certificate must include a statement that it is a true record of the nonstenographic recording. The party to whom the court reporter delivered the transcript must make the transcript available for inspection and copying by the witness or any party. Tex. R. Civ. P. 203.6(a).
§ 18.27Deposition by Telephone or Other Remote Electronic Means
A party may take an oral deposition by telephone or other remote electronic means (for example, videoconference) after giving reasonable prior written notice of his intent to do so. A deposition taken by telephone is considered as having been taken in the district and at the place where the deponent is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person present with the witness and authorized to administer oaths in that jurisdiction. Tex. R. Civ. P. 199.1(b).
A party may attend an oral deposition in person, even if it is being taken by telephone or other remote electronic means. The party taking a deposition by telephone or other remote electronic means 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 remote electronic means if that party makes necessary arrangements with the deposition officer and the party noticing the deposition. Tex. R. Civ. P. 199.5(a)(2).
§ 18.28:1When Deposition May Be Taken
After commencement of the action, a party may take the testimony of any person or entity by deposition on oral examination. Tex. R. Civ. P. 199.1(a). Leave of court to take an oral deposition is required only if a party seeks to take a deposition outside the discovery period. Tex. R. Civ. P. 199.2(a). See section 18.2 above regarding the discovery period.
The time and place for an oral deposition must be reasonable. Depositions may be taken—
1.in the county of the witness’s residence;
2.in the county where the witness is employed or regularly transacts business in person;
3.in the county of suit, if the witness is a party or a person designated by a party that is an organization;
4.in the county in which the witness was served with a subpoena or within 150 miles of service, if the witness either is not a Texas resident or is a transient person; or
5.at another convenient place directed by the court in which the cause is pending.
Tex. R. Civ. P. 199.2(b)(2). It can be an abuse of discretion to order a deposition taken in a place contrary to that stated in the Rules of Civil Procedure. See Wal-Mart Stores v. Street, 754 S.W.2d 153, 155 (Tex. 1988). But see First State Bank, Bishop v. Chappell & Handy, P.C., 729 S.W.2d 917, 922 (Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.) (no abuse of discretion in ordering chairman of defendant bank to appear at deposition in place not designated by applicable rule).
If the potential for discovery abuse is very great, the trial judge must be especially sensitive to the actual need for the depositions as well as alternative means of taking them. Dresser Industries v. Solito, 668 S.W.2d 893, 895 (Tex. App.—Houston [14th Dist.] 1984, no writ) (order that corporate defendant produce for deposition in United States, at own expense, seven overseas witnesses whose testimony of dubious importance held to be abuse of discretion).
For a discussion of depositions in foreign jurisdictions, see section 18.25 above.
§ 18.28:3Modification of Deposition Rules or Procedures
An agreement affecting an oral deposition is enforceable if the agreement is recorded in the deposition transcript or has been agreed to in writing as a rule 11 agreement. Tex. R. Civ. P. 191.1. See generally section 18.2:5 above regarding modification of discovery control plans.
§ 18.28:4Time for Notice of Deposition
Reasonable notice must be given by a party proposing to take an oral deposition. Tex. R. Civ. P. 199.2(a). Whether notice is reasonable is within the court’s discretion and determined on a case-by-case basis. See Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 111 (Tex. App.—Houston [14th Dist.] 1996, no writ); Hogan v. Beckel, 783 S.W.2d 307, 308–09 (Tex. App.—San Antonio 1989, writ denied); Gutierrez v. Walsh, 748 S.W.2d 27, 28 (Tex. App.—Corpus Christi–Edinburg 1988, no writ); Bohmfalk v. Linwood, 742 S.W.2d 518, 520 (Tex. App.—Dallas 1987, no writ).
§ 18.28:5Contents and Service of Notice
A notice for oral deposition must state—
1.the name of the witness (see section 18.28:8 below if the witness is an organization);
2.the time and place of the deposition; and
3.whether the deposition is to be taken by telephone or other remote means and, if so, must identify the means.
Tex. R. Civ. P. 199.2(b)(1)–(3). If persons other than the witness, parties, spouses of parties, counsel, and the deposition officer are to be present, their identities must be disclosed unless separate notice is given. Tex. R. Civ. P. 199.2(b)(4), 199.5(a)(3). A notice may include a request that the witness bring documents or other tangible things with him. Tex. R. Civ. P. 199.2(b)(5); see section 18.28:7 below. The notice must be served on the witness and all parties. Tex. R. Civ. P. 199.2(a). For a notice, see form 18-3 in this chapter.
The witness may be compelled to attend by being served with a subpoena under Tex. R. Civ. P. 176. If the witness is not a party but is not a hostile witness, it is good practice to notify the witness in writing that he will be receiving a subpoena and (if appropriate) to inform him of the nature of the questions to be asked at the deposition. If, however, the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, service of the notice of deposition on the party’s attorney has the same effect as a subpoena served on the witness. Tex. R. Civ. P. 199.3. See section 18.30 below regarding subpoenas.
§ 18.28:7Request for Production (Subpoena Duces Tecum); Subpoena to Compel Attendance
The notice of deposition may include a request that the witness produce documents or other tangible things within the scope of discovery and within his possession, custody, or control. If the witness is not a party, this request must comply with Tex. R. Civ. P. 205, and the designation of materials required to be identified in the subpoena must be attached to or included in the notice. Tex. R. Civ. P. 199.2(b)(5). If a subpoena duces tecum or subpoena to compel attendance on a nonparty is required, it can be issued by an officer authorized to take depositions, the clerk of the appropriate court, or an attorney authorized to practice law in Texas. Tex. R. Civ. P. 176.4. If the witness is a party or subject to the control of a party, document requests are governed by Tex. R. Civ. P. 193 and 196. Tex. R. Civ. P. 199.2(b)(5).
§ 18.28:8If Witness Is Organization
If an organization is named as the witness, the notice must state with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must, within 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 such individual must testify as to matters that are known or are reasonably available to the organization. Tex. R. Civ. P. 199.2(b)(1).
Every person whose deposition is taken by oral examination must first be placed under oath. Tex. R. Civ. P. 199.5(b).
§ 18.28:10Examination, Cross-Examination, and Written Cross-Questions of Witness
The oral deposition generally must be conducted in the same manner as if the testimony were being obtained in court during trial. Tex. R. Civ. P. 199.5(d). This requirement is a limit on the conduct of the attorneys and the witnesses in the deposition, not on the scope of the interrogation. Tex. R. Civ. P. 199 cmt. 3. An attorney may not ask a question solely to harass or mislead the witness, for any improper purpose, or without a good-faith legal basis for asking it. Tex. R. Civ. P. 199.5(h). Written cross-questions on oral examination will be propounded to the witness by the officer authorized to take the deposition. Tex. R. Civ. P. 199.5(b).
§ 18.28:11Court Reporter’s Fee
The attorney taking the deposition of the witness is responsible (as is his firm) for paying the court reporter and will receive the original deposition from the reporter. Tex. Gov’t Code § 52.059(a).
Objections to questions during deposition are limited to “objection, leading” and “objection, form.” Objections to testimony are limited to “objection, nonresponsive.” These objections are waived if not stated as phrased above during the deposition. All other objections need not be made or recorded during the deposition to be later raised with the court. The objecting party must, on request by the party taking the deposition, give a clear and concise explanation of his objection, or the objection is waived. Argumentative or suggestive objections or explanations waive the objection and may be grounds for either terminating the deposition or assessing costs or other sanctions. The officer taking the deposition may not rule on objections but must record them for ruling by the court and may not fail to record testimony because an objection has been made. Tex. R. Civ. P. 199.5(e).
§ 18.28:13Instructions Not to Answer
An attorney may instruct the witness not to answer only if necessary to preserve a privilege, comply with a court order or the rules of civil procedure, protect the witness from an abusive question or one for which an answer would be misleading, or secure a ruling on an alleged violation of the rules of civil procedure. The attorney so instructing must give a concise, nonargumentative, nonsuggestive explanation of the grounds for the instruction, if requested by the party asking the question. Tex. R. Civ. P. 199.5(f).
§ 18.28:14Conferences between Witness and Attorney
Private conferences between the witness and his attorney during the actual taking of the deposition are improper except to determine whether a privilege should be asserted. These conferences may, however, be taken during recesses and adjournments. Failure to comply may result in the court’s allowing in evidence at trial statements, objections, discussions, and other occurrences during the deposition that reflect on the credibility of the witness or the testimony. Tex. R. Civ. P. 199.5(d).
§ 18.28:15Hearings on Objections and Assertions of Privilege
Any party may, at any reasonable time, request a hearing on an objection or assertion of privilege by an instruction not to answer or by suspension of the deposition. The party seeking to avoid discovery must present any evidence necessary to support his objection or assertion of privilege, either by testimony 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 if the privilege is sustained, or made in an affidavit produced to the court in a sealed wrapper. Tex. R. Civ. P. 199.6.
§ 18.29Deposition on Written Questions
§ 18.29:1When and Where Deposition May Be Taken
Depositions on written questions may be taken outside the discovery period only by leave of court or by agreement of the parties. Tex. R. Civ. P. 200.1(a). See section 18.2 above regarding the discovery period. The rules governing location of oral depositions also govern depositions on written questions. Tex. R. Civ. P. 199.2(b), 200.1(b). See section 18.28:2 above.
A notice of intent to take a deposition on written questions must be served on the witness and all parties at least twenty days before the deposition is taken. Tex. R. Civ. P. 200.1(a). The content of the notice must comply generally with Tex. R. Civ. P. 199.2(b). See section 18.28:5 above. The direct questions to be propounded to the witness must also be attached to the notice. Tex. R. Civ. P. 200.3(a). If additional persons besides the witness, parties, spouses of parties, counsel, employees of counsel, and the deposition officer will be present at the deposition, their identities must also be included in the notice unless separate notice is given. Tex. R. Civ. P. 199.5(a)(3). The notice may also include a request for production of documents as permitted by Tex. R. Civ. P. 199.2(b)(5), which governs the request, service, and response. Tex. R. Civ. P. 200.1(b).
If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, service of the notice on the party’s attorney has the effect of a subpoena served on the witness. Tex. R. Civ. P. 200.2. Nonparties may be compelled to testify by being served with a subpoena. Tex. R. Civ. P. 205. See section 18.30 below regarding subpoenas generally.
§ 18.29:4Objections and Additional Questions
Within ten days after the notice and direct questions are served, any party may object to the direct questions and also serve cross-questions on all other parties. Tex. R. Civ. P. 200.3(b). Rule 200.3(b) has additional deadlines regarding objections to the cross-questions and service of redirect questions. Objections to the form of a question are waived unless asserted in accordance with rule 200.3(b). Tex. R. Civ. P. 200.3(c).
§ 18.29:5Officers Who May Take Deposition
A deposition on written questions may be taken in Texas by a clerk of a district court, a judge or clerk of a county court, or a Texas notary public. Tex. Civ. Prac. & Rem. Code § 20.001(a). See Tex. Civ. Prac. & Rem. Code § 20.001(b)–(d) regarding persons who can take a deposition outside Texas.
§ 18.29:6Conducting Deposition
The deposition officer must—
1.take the deposition on written questions at the time and place set out in the notice;
2.record the testimony of the witness under oath in response to the questions; and
3.prepare, certify, and deliver the deposition transcript in accordance with rule 203.
Tex. R. Civ. P. 200.4. See section 18.31 below regarding preparation, certification, and delivery of the deposition transcript.
§ 18.29:7Use of Deposition on Written Questions
Because depositions on written questions do not allow the examining attorney to follow up on the deponent’s responses or on documents the deponent has brought under a subpoena duces tecum, they are best used in situations in which the information sought is already known but needs to be proved for summary judgment or trial purposes. In collections litigation, a good use would be to prove up business records without having to bring the custodian of the records to court. A set of deposition questions for this purpose is found at form 18-6 in this chapter. Alternatively, an affidavit can be used for proving up a business record. See form 19-3 in this manual.
Subpoenas are used to compel the witness’s attendance at either oral or written depositions. A subpoena is not necessary to compel the attendance of a party-witness or an agent or employee subject to control of the party. For such a witness, notice of the deposition has the same effect as a subpoena. Tex. R. Civ. P. 199.3, 200.2.
Every subpoena must be issued in the name of “the State of Texas” and must—
1.state the style of the suit and its cause number;
2.state the court in which the suit is pending;
3.state the date it is issued;
4.identify the person to whom it is directed;
5.state the time, place, and nature of the action required by the person to whom it is directed, as provided in rule 176.2;
6.identify the party who requested the subpoena and the party’s attorney, if any;
7.state the text of rule 176.8(a); and
8.be signed by the person issuing the subpoena.
A subpoena duces tecum orders the nonparty witness to bring documents or other tangible items under the witness’s control to the deposition. The subpoena must designate with reasonable particularity the items or categories of items to be brought. Tex. R. Civ. P. 205. See form 18-4 in this chapter for a subpoena with duces tecum language. If the witness is not a party but is not a hostile witness, it is good practice to notify the witness in writing that he will be receiving a subpoena.
§ 18.30:4Who May Issue Subpoena
The clerk of the appropriate district, county, or justice court, an attorney authorized to practice law in Texas, or an officer authorized to take depositions in Texas may issue a subpoena. Tex. R. Civ. P. 176.4.
§ 18.30:5Subpoena to Organization
If the subpoena is directed to a corporation, partnership, association, government agency, or other organization and the matters on which examination is sought are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization. Tex. R. Civ. P. 176.6(b).
§ 18.30:6Limitations of Subpoena Power and Protection of Person Served
A person is not required to appear in a county that is more than 150 miles from where he resides or is served. This limitation does not apply to witnesses (such as a party or a party’s representative) whose appearance may be compelled by notice alone under Tex. R. Civ. P. 199.3 or 200.2. Tex. R. Civ. P. 176.3(a). If the 150-mile limit impedes the taking of a necessary deposition, the attorney should arrange to conduct the deposition sufficiently close to the witness to satisfy this rule. Also, a subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules of discovery. Tex. R. Civ. P. 176.3(b). The issuing party must take reasonable steps to avoid imposing undue burden or expense on the person served. Tex. R. Civ. P. 176.7. A court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for any undue hardship. Tex. R. Civ. P. 176.7; see, e.g., BASF FINA Petrochemicals L.P. v. H.B. Zachry Co., 168 S.W.3d 867, 875 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
§ 18.30:7Service and Return of Service
A subpoena may be served at any place within the state of Texas by any sheriff or constable of Texas or any person who is not a party and is eighteen years of age or older. It must be served by delivering a copy to the witness and tendering to him any fees required by law. Tex. R. Civ. P. 176.5(a). For proof of service, see Tex. R. Civ. P. 176.5(b).
§ 18.31Postdeposition Procedure
§ 18.31:1Submission to Witness, Changes, and Signature
After transcription of the testimony, the deposition officer must provide the original deposition transcript to the witness or to his attorney of record if he has one. The witness is to examine and sign the transcript under oath. No erasures or obliterations are to be made to the original testimony in the transcript. Any changes must be made in writing on a separate sheet of paper, along with a statement of the witness’s reasons for the changes. If the witness does not sign and return the original transcript within twenty days of its submission to him (or to his attorney of record), he is deemed to have waived his right to make any changes to his testimony. Tex. R. Civ. P. 203.1(b). These submission and signature requirements may be waived by the witness and all parties, and they do not apply to depositions on written questions or nonstenographic depositions. Tex. R. Civ. P. 203.1(c).
§ 18.31:2Transcription, Certification, and Delivery
The officer responsible for the deposition must certify the deposition transcript. See Tex. R. Civ. P. 203.2. The officer must deliver the deposition transcript to the party who asked the first question appearing in the transcript and must give notice of delivery to all other parties. Tex. R. Civ. P. 203.3. For a nonstenographic deposition, delivery is made to the party requesting it. Tex. R. Civ. P. 203.3(a). The officer must serve notice of delivery on all other parties. Tex. R. Civ. P. 203.3(b).
On request of a party, the original documents and things produced at the deposition must be marked for identification and annexed to the transcript by the deposition officer. The person producing the materials may produce copies instead of originals if he gives all other parties fair opportunity at the deposition to compare the copies with the originals. If the person offers originals rather than copies, the deposition officer must make copies to be attached to the original deposition transcript and return the originals to the person who produced them. The person who produced the originals must preserve them for hearing or trial and make them available for inspection or copying by any other party on seven days’ notice. Copies annexed to the original transcript may be used for all purposes. Tex. R. Civ. P. 203.4.
§ 18.31:4Inspection and Copying
On reasonable request, the party receiving the original deposition transcript or nonstenographic recording must make it available for inspection or copying by any other party to the suit. On payment of a reasonable fee, the deposition officer must furnish a copy of the deposition to any party or to the witness. Tex. R. Civ. P. 203.3(c).
If a deposition transcript has been delivered and notice of delivery has been given at least one day before the case is called for trial, errors and irregularities in the manner in which the testimony is transcribed, signed, delivered, or otherwise dealt with by the deposition officer are waived unless a motion to suppress all or part of a deposition is filed and served before trial commences. Tex. R. Civ. P. 203.5.
§ 18.32Necessity for and Form of Response
§ 18.32:1Failure to Appear or Answer
After service of a subpoena, a witness who fails to appear for the taking of his deposition or refuses to answer a question during his deposition may incur sanctions. See Tex. R. Civ. P. 215.1(b); see also Wiley v. Browning, 670 S.W.2d 729, 731 (Tex. App.—Tyler 1984, no writ). See also part VII. in this chapter.
§ 18.32:2Errors of Noticing Party
Reasonable attorney’s fees and expenses incurred for attending a deposition may be recovered if the noticing party fails to attend and proceed or if a witness does not attend because of fault of the noticing party. Tex. R. Civ. P. 215.5.
§ 18.33Use and Effect of Deposition
A deposition may contain helpful, admissible evidence. Additionally, a deposition is useful for exploring the knowledge of the witness for the purpose of discovering evidence and determining the need for additional investigation; it may lay the groundwork for subsequent discovery procedures (such as requests for admissions) that will establish admissible evidence or isolate and refine matters of fact that need to be tried. For a discussion of requests for admissions, see part III. in this chapter.
§ 18.33:2Inclusion in Evidence Generally
Depositions must be read into evidence at trial, not merely filed with the court, or introduced as exhibits in their entirety to be considered part of the record on appeal. Johnson by Johnson v. Li, 762 S.W.2d 307, 308–09 (Tex. App.—Fort Worth 1988, writ denied); Robertson Truck Lines v. Hogden, 487 S.W.2d 401, 402 (Tex. App.—Beaumont 1972, writ ref’d n.r.e.). However, the deposition need not be read into the record or played in chronological order. Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.—Texarkana 1991, writ denied).
The proper method for introducing deposition testimony into evidence is for the practitioner to read the proffered questions in the deposition transcript while another person reads the answers from the deposition transcript from the witness stand. See Fenn v. Boxwell, 312 S.W.2d 536, 546 (Tex. App.—Amarillo 1958, writ ref’d n.r.e.). Nonetheless, nothing prevents offering and admitting the complete deposition transcript into evidence in the absence of an objection, even if it is not read at trial. See Fenn, 312 S.W.2d at 546.
All or part of a deposition may be used for any purpose in the same proceeding in which it was taken. “Same proceeding” includes a proceeding in a different court but involving the same subject matter and parties (or their representatives or successors in interest). The deposition is admissible against a party joined in the suit after the deposition was taken if the deposition is admissible under Tex. R. Evid. 804(b)(1) or the party has had a reasonable opportunity to redepose the witness and has failed to do so. Tex. R. Civ. P. 203.6(b).
§ 18.33:3Use in Summary Judgment
Depositions properly filed with the court may be used as summary judgment evidence. Also, depositions not filed with the court clerk may be used as summary judgment evidence if copies of the material, appendixes containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proof at least twenty-one days before the hearing if the proof is to be used to support the summary judgment or at least seven days before the hearing if the proof is to be used to oppose the summary judgment. Tex. R. Civ. P. 166a(d). Depositions properly submitted as summary judgment proof can be considered on appeal.
Conflicting inferences that can be drawn from a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment raise a fact issue precluding summary judgment. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) (deposition testimony cannot be given controlling effect over affidavit); see also Highlands Insurance Co. v. Currey, 773 S.W.2d 750, 752 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (deposition of one party’s witness contradicted statements in adverse party’s affidavit, precluding partial summary judgment). However, in Cantu v. Peacher, 53 S.W.3d 5 (Tex. App.—San Antonio 2001, pet. denied), the court held that the preclusive effect depends on the nature and extent of the differences. See also Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 477 (Tex. App.—El Paso 1989, writ denied) (deposition testimony as reliable as, if not more reliable than, ex parte affidavit offered as summary judgment evidence).
[Sections 18.34 through 18.40 are reserved for expansion.]
Requests for admissions under rule 198 “primarily serve ‘to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove.’” Medina v. Zuniga, No. 17-0498, 2019 WL 1868012, at *3 (Tex. Apr. 26, 2019) (quoting Sanders v. Harder, 227 S.W.2d 206, 208 (Tex. 1950)). Requests for admissions can also serve to authenticate or stipulate to the admissibility of evidence. Medina, 2019 WL 1868012, at *3 (quoting Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005)). However, requests may not be used to trap an opponent into admitting that he has no cause of action or ground of defense. Medina, 2019 WL 1868012, at *3 (quoting U.S. Fidelity & Guaranty Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008)).
Many collections cases, in which the fact of the unpaid debt is not in dispute but the debtor has nonetheless filed an answer, are properly reduced to judgment by using admissions to establish the elements of the cause of action. See part III. in chapter 19 of this manual regarding summary judgments.
The requests-for-admissions rule, Tex. R. Civ. P. 198, has its source in and is almost identical to Fed. R. Civ. P. 36.
The rule governing requests for admissions does not provide for making such requests on non-parties. See Tex. R. Civ. P. 198.1. See also In re Anand, No. 01-12-01106-CV, 2013 WL 1316436, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet., orig. proceeding) (per curiam) (mem. op.) (“Rule 205 . . . governs discovery of nonparties . . . .”).
§ 18.42Scope of Requests for Admissions
Subject to certain limitations and protective orders, requests for admissions may inquire about any relevant matter of claim or defense, even though it may be inadmissible at trial, if the information appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). Requests for admissions may relate to statements of opinion or of fact or of the application of law to fact, including the genuineness of any document described in the request. Tex. R. Civ. P. 198.1. For a general discussion of the scope of discovery, see part I. in this chapter.
§ 18.43Form of Requests for Admissions
Requests should be specific statements that the recipient is asked to admit or deny. It is generally more effective to first use a more exploratory form of discovery (such as interrogatories) to uncover and develop evidence and then use requests for admissions to establish specific matters of fact.
For pattern requests, see forms 18-8 (sworn account), 18-9 (contract or revolving credit account), 18-10 (promissory note), 18-11 (foreclosure of security interest), 18-12 (lease of personalty), and 18-13 (guaranty agreement) in this chapter.
§ 18.43:2Format and Number of Requests
Requests are usually phrased as statements sought to be affirmed. Each request must be separately set forth. A copy of a document whose genuineness is sought to be established should be served with the request, even if a copy has already been made available. Questions should be short and simple and should lend themselves to unambiguous answers; confusing questions may lead to confusing answers that the court may construe against the proponent. The questions should address the proper subject matter for requests for admissions. See Tex. R. Civ. P. 198.1.
Level 1 discovery limits a party to no more than fifteen requests for admissions. Each discrete subpart of a request for admission is considered a separate request. Tex. R. Civ. P. 190.2(b)(5).
§ 18.43:3Legal Advice or Threats
The instructions preceding the request, being a communication with an adverse party, should not contain legal advice or threats about possible consequences of not replying. See section 18.4:3 above. For a form set of instructions, see form 18-7 in this chapter.
See sections 18.13:3 and 18.13:4 above for a discussion about serving requests for admissions.
§ 18.45:1No Response or Late Response
If a responding party fails to serve a sufficient written answer or objection on the requesting party within thirty days after service of the request or otherwise as agreed by the parties (or fifty days if the requests were served on a defendant before his answer day), each requested matter will be deemed admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(a), (c); In re TT Fountains of Tomball, Ltd., No. 01-15-00817-CV, 2016 WL 3965117 (Tex. App.—Houston [1st Dist.] July 21, 2016, orig. proceeding); Skelton v. Commission for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.] 2001, no pet.). The trial court has no discretion to refuse to deem the matters admitted. Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App.—Dallas 1986, no writ). Nevertheless, the defaulting party can file a motion to amend, withdraw, or strike previously admitted matters. Curry, 715 S.W.2d at 78 n.3. See section 18.46 below.
Tex. R. Civ. P. 21a extends by three days the time period for responding to requests for admissions that are served by mail. Further, Tex. R. Civ. P. 4 allows the last day of the time period to run to a day that is not a Saturday, Sunday, or legal holiday. Therefore, in a case in which the record contained evidence of mailing, a party’s response to requests for admissions was timely filed on the thirty-fifth day. Benger Builders, Inc. v. Business Credit Leasing, Inc., 764 S.W.2d 336, 337–38 (Tex. App.—Houston [1st Dist.] 1988, writ denied). The time for response runs from the date of mailing, not the date of receipt, of the requests. Cherry v. North American Lloyds, 770 S.W.2d 4, 5 (Tex. App.—Houston [1st Dist.] 1989, writ denied).
Due diligence should be exercised in seeking an extension of time to file answers to requests. See Boyter v. M.C.R. Construction Co., 673 S.W.2d 938, 940 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). To avoid having requests deemed admitted, a party should move for permission to file late answers and obtain an order to that effect before the time for answering has expired. Tex. R. Civ. P. 5. The court has broad discretion to refuse or grant such a motion. See Hoffman v. Texas Commerce Bank, 846 S.W.2d 336, 338 (Tex. App.—Houston [14th Dist.] 1992, writ denied). But see Liberty Mutual Fire Insurance Co. v. Hayden, 805 S.W.2d 932, 935 (Tex. App.—Beaumont 1991, no writ) (trial court should have had full evidentiary hearing to determine date party received request for admissions).
The party seeking an admission may move for a determination of the sufficiency of an objection. Unless the court determines that an objection is justified, it must order that an answer be served. Tex. R. Civ. P. 215.4(a). Any objection must be served within the time for response. Tex. R. Civ. P. 193.2(a). See section 18.9 above regarding objections to written discovery.
Unless the responding party states an objection or asserts a privilege, he must either specifically admit or deny the request or explain in detail the reasons he cannot admit or deny it. A response must fairly meet the substance of the request. The responding party may qualify an answer or deny a request in part only when good faith requires. Tex. R. Civ. P. 198.2(b).
Lack of information or knowledge is not a proper response unless the responding party states that he has made a reasonable inquiry and that the information known or easily obtainable is insufficient to enable him to admit or deny the request. An assertion that the request presents an issue for trial is not a proper response. Tex. R. Civ. P. 198.2(b).
See section 18.9 above regarding objections to written discovery and section 18.10 regarding assertions of privilege.
The party requesting the admission may move to determine the sufficiency of answers or objections. If the court determines that an answer is inadequate, it may order the matter admitted or it may order the respondent to serve an amended answer. Unless the court determines that an objection is justified, it must order that an answer be served. Incomplete or evasive answers may be treated as a failure to answer and may therefore be deemed admitted. Tex. R. Civ. P. 215.4(a); see First Title Co. of Corpus Christi v. Cook, 625 S.W.2d 814, 818 (Tex. App.—Fort Worth 1981, writ dism’d); see also Kansas City Title Insurance Co. v. Atlas Life Insurance Co., 336 S.W.2d 204, 207 (Tex. App.—Texarkana 1960, no writ). The proponent’s attorney’s fees and expenses in a proceeding to determine the sufficiency of answers or objections may be recoverable. See Tex. R. Civ. P. 215.4(b). See also section 18.45:6 below.
The failure to serve a sufficient written answer or objection constitutes a violation of discovery. If the respondent fails to admit the genuineness of a document or the truth of a matter as requested and the proponent subsequently proves the genuineness of the document or truth of the matter, the proponent may request the court to order the respondent to pay for the reasonable expenses in making its proof, including reasonable attorney’s fees. The court must make this order unless it finds that (1) the request was held objectionable, (2) the admission sought was of no substantial importance, (3) the party failing to admit had a reasonable ground to believe he might prevail on the matter, or (4) other good reason exists for the failure to admit. Tex. R. Civ. P. 215.4(b).
The provisions concerning the award of expenses in connection with a motion to compel are applicable to motions to determine the sufficiency of the answers or objections to requests for admissions. Tex. R. Civ. P. 215.4(a); see also section 18.83 below. Additionally, if a party fails to admit the truth of any matter or the genuineness of any document as requested under Tex. R. Civ. P. 198 and if the party requesting the admission thereafter proves the truth of the matter or the genuineness of the document, the requesting party may apply to the court for an order requiring the failing party to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court is required to make the order unless the request was held objectionable under rule 193, the admission sought was of no substantial importance, the party failing to admit had a reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit. Tex. R. Civ. P. 215.4(b).
Responses must be served on the requesting party and on all parties of record. Tex. R. Civ. P. 191.5.
§ 18.46Withdrawal or Amendment of Admissions
The court may permit withdrawal or amendment of admissions on a showing of good cause and a finding that the party relying on the responses will not be unduly prejudiced and that the presentation of the merits of the case will be subserved by permitting the withdrawal or amendment. Tex. R. Civ. P. 198.3. Pitre v. Sharp, No. 05-15-00173-CV, 2016 WL 2967826, at *3 (Tex. App.—Dallas May 13, 2016, no pet.). Good cause is established by showing the failure to respond was an accident or mistake, not intentional or the result of conscious indifference. Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011); Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Undue prejudice depends on whether withdrawing an admission will delay trial or significantly hamper the op-posing party’s ability to prepare for trial. Marino, 355 S.W.3d at 633; Wheeler, 157 S.W.3d at 443.
The rules governing admissions are designed to bring about a fair disposition of litigation with a minimum of delay. They were never designed as traps for the unwary, nor should they be construed to deny a litigant the right to present the truth to the trier of the facts. Therefore, the right to amend answers on proper motion rests within the sound discretion of the trial court. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Pitre, 2016 WL 2967826, at *3. That discretion may be exercised to preclude amendment if the proponent would be prejudiced. See Ice Service Co. v. Scruggs, 284 S.W.2d 185, 190–91 (Tex. App.—Fort Worth 1955, writ ref’d n.r.e.).
Tex. R. Civ. P. 215 governs the sanctions applicable to discovery by requests for admissions, as well as other forms of discovery. Sanctions apply to any party abusing discovery. See part VII. below for a discussion of sanctions.
§ 18.48Use, Effect, and Evidentiary Value of Requests and Responses
Under rule 198, admissions may be used only in the suit in which the requests were served, and in no other legal proceeding. Tex. R. Civ. P. 198.3. Admissions may be used by all parties to the suit, including parties that were joined after the admissions were made. Jolet v. Garcia, No. 05-97-01461-CV, 2000 WL 276906, at *3 (Tex. App.—Dallas March 15, 2000, pet. denied) (mem. op., not designated for publication). But an admission may be used against only the party making the admission. Tex. R. Civ. P. 198.3. See also Grimes v. Jalco, Inc., 630 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.), overruled on other grounds by Medina v. Herrera, 927 S.W.2d 597, 605 (Tex. 1996) (finding that a judicial admission by defendant that plaintiff was an employee and not an independent contractor was not binding on plaintiff). Deemed admissions may be employed as summary judgment proof. Elkins v. Jones, 613 S.W.2d 533, 534 (Tex. App.—Austin 1981, no writ).
A matter admitted is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. Tex. R. Civ. P. 198.3. Further, a party appearing in one capacity cannot be bound by an admission sent to it in another capacity, because admissions are binding against only the party making the admission. U.S. Fidelity & Guaranty Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008).
§ 18.48:2Matters Deemed Admitted Automatically
Unanswered requests for admissions are automatically deemed admitted unless the court, on motion, permits their withdrawal or amendment. No motion to have the matters deemed admitted is necessary. Tex. R. Civ. P. 198.2(c), 198.3. Nonetheless, local practice may require the filing of a motion before answers are deemed admitted.
Because deemed admissions can amount to a death-penalty sanction, there are due-process limits in the application of this rule. “Absent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions.” Medina v. Zuniga, No. 17-0498, 2019 WL 1868012, at *3 (Tex. Apr. 26, 2019) (quoting Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005)). When moving for judgment, therefore, consider supporting the deemed admissions with additional evidence as to each element in addition to facts supporting the debtor’s flagrant bad faith or callous disregard toward his duty to respond. See Cleveland v. Taylor, 397 S.W.3d 683, 695–96 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Practice Note: The best practice is to refer to a court’s local rules for further guidance.
§ 18.48:3Evidentiary Effect of Deemed Admissions
Admissions, deemed or otherwise, are considered judicial admissions. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 812 (Tex. App.—Waco 2007, no pet.). Thus, matters deemed admitted cannot be controverted by live testimony, deposition testimony, or summary judgment affidavits. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). If a jury determines facts that are contrary to a judicial admission, the admission is controlling. See Marshall, 767 S.W.2d at 700 (citing Shaw v. National County Mutual Fire Insurance Co., 723 S.W.2d 236, 238 (Tex. App.—Houston [1st Dist.] 1986, no writ)).
If requests are deemed admitted, the court should not allow evidence to controvert the matters taken as true. However, it is the responsibility of the party relying on the admissions to prevent controverting evidence from being used. Marshall, 767 S.W.2d at 700. Neither can the court ignore judicial admissions on its own motion. Pathfinder Personnel Service v. Worsham, 619 S.W.2d 475, 476 (Tex. App.—Houston [14th Dist.] 1981, no writ). On the other hand, a court is not bound by deemed admissions if the matters requested to be admitted are appropriately within its discretion. See Satterfield v. Huff, 768 S.W.2d 839, 840–41 (Tex. App.—Austin 1989, writ denied).
§ 18.48:4Offering Admissions in Evidence
Admissions need not be introduced in evidence to be properly before the trial court or court of appeals. Red Ball Motor Freight, Inc. v. Dean, 549 S.W.2d 41, 43 (Tex. App.—Tyler 1977, writ dism’d w.o.j.). In order to avoid confusion and promote clarity in the records, however, it is advisable to do so. Denials and objections to requests for admissions have no probative value. American Communications Telecommunications, Inc. v. Commerce North Bank, 691 S.W.2d 44, 48 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). At trial, a party relying on admissions must protect the record by objecting to controverting evidence and to the submission of any issue bearing on the facts admitted. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). Failure to properly protect the record waives the right to rely on the controverted admissions. See Marshall, 767 S.W.2d at 700 (holding that party waived right to rely on admissions controverted by testimony admitted at trial without objection); see also Acevedo v. Commission for Lawyer Discipline, 131 S.W.3d 99, 104–05 (Tex. App.—San Antonio 2004, pet. denied) (discussing waiver of right to rely on deemed admissions in summary judgment and trial contexts).
§ 18.48:5Admissions as Summary Judgment Evidence
Admissions are proper summary judgment evidence. Wenco of El Paso/Las Cruces, Inc. v. Nazario, 783 S.W.2d 663, 665 (Tex. App.—El Paso 1989, no writ); Velchoff v. Campbell, 710 S.W.2d 613, 614 (Tex. App.—Dallas 1986, no writ). Answers to requests for admissions, however, may be used only against the party filing the answers and may not be used by the party answering the admissions to raise fact issues to defeat a summary judgment motion. Jeffrey v. Larry Plotnick Co., 532 S.W.2d 99, 102 (Tex. App.—Dallas 1975, no writ). Furthermore, neither denials to requests for admissions nor nonresponsive or self-serving responses may be used to raise a fact issue on a motion for summary judgment. Canutillo Independent School District v. Kennedy, 673 S.W.2d 407, 408 (Tex. App.—El Paso 1984, writ ref’d n.r.e.); Denton Construction Co. v. Mike’s Electric Co., 621 S.W.2d 846, 848 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.). A party who has failed to answer requests will not be allowed to present summary judgment proof contradictory to those admissions. Henke Grain Co. v. Keenan, 658 S.W.2d 343, 347 (Tex. App.—Corpus Christi–Edinburg 1983, no writ).
[Sections 18.49 and 18.50 are reserved for expansion.]
§ 18.51Interrogatories Generally
Interrogatories are written questions directed solely to a party and answered by that party under oath. Tex. R. Civ. P. 197. Interrogatories are designed to elicit the basic facts of the case and to provide mutual knowledge of all relevant facts gathered by the parties. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 8 (Tex. 1974); see also Hickman v. Taylor, 329 U.S. 495, 507 (1947) (discussing the value of pretrial discovery in helping the parties understand the facts and reducing the possibility of surprise). Some of the functions formerly performed by interrogatories are now fulfilled by requests for disclosure. See part V. below regarding requests for disclosure.
The Texas interrogatory rule, Tex. R. Civ. P. 197, has its source in Fed. R. Civ. P. 33, and there is substantial similarity in the language of the two rules. However, rule 197 and other rules governing interrogatories cover a number of matters not mentioned in the federal rule, such as the following:
1.The responding party’s answers, objections, and other responses must be preceded by the interrogatory. Tex. R. Civ. P. 193.1.
2.Answers, subject to any objections as to admissibility, may be used only against the party answering the interrogatory. Tex. R. Civ. P. 197.3; Palmer v. Espey Huston & Associates, 84 S.W.3d 345, 356 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied).
3.Answers based on public records may be supplied by specifying the records from which the answers may be derived, in such a manner as to permit the propounding party to locate and identify the records from which the answers may be ascertained as readily as can the party served. For business records, the responding party must produce the documents at the time and place stated or afford the propounding party reasonable opportunity to examine, audit, or inspect those records and to make copies, compilations, abstracts, or summaries. Tex. R. Civ. P. 197.2(c).
4.Objection may be made to portions of interrogatories.
5.Any party may request a hearing about objections. Tex. R. Civ. P. 193.4(a).
§ 18.52Scope of Interrogatories
Interrogatories may inquire into any matter within the scope of discovery except matters covered by Tex. R. Civ. P. 195 (testifying expert witnesses). They may inquire whether the party makes a specific factual or legal contention and may ask the party to state the factual theories and describe in general the factual bases for the party’s claims or defenses, but may not be used to require the party to marshal all of his available proof or the proof the party intends to offer at trial. Tex. R. Civ. P. 197.1. Interrogatories may not ask a party to state all his legal and factual assertions. Tex. R. Civ. P. 197 cmt. 1.
So-called “fishing expeditions” are not allowed in interrogatories. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). Interrogatories requesting a party to detail all relevant knowledge and opinions of each potential witness may be improper. Compare Housing Authority of El Paso v. Rodriguez-Yepez, 828 S.W.2d 499, 501 (Tex. App.—El Paso) (interrogatories held to be improper), writ denied per curiam, 843 S.W.2d 475 (Tex. 1992), with Gustafson v. Chambers, 871 S.W.2d 938, 945–46 (Tex. App.—Houston [1st Dist.] 1994, no writ) (interrogatories held to be proper).
§ 18.53Form of Interrogatories
§ 18.53:1Nature of Interrogatories
Interrogatories should be phrased to seek specific and precise answers in response to each question. They should be neither too narrow nor overbroad. For example, a narrowly drawn interrogatory that asked for the identities of fact witnesses who had “seen, heard, or known about” an accident was strictly interpreted so as not to include a request for disclosure of any potential witness with “knowledge of relevant facts,” and an undisclosed witness was allowed to testify. Robledo v. Grease Monkey, Inc., 758 S.W.2d 834, 835 (Tex. App.—Corpus Christi–Edinburg 1988, no writ). An interrogatory asking for the identity of any persons with knowledge of “any fact or record relating or pertaining to this cause of action” was found to be overbroad. Lunsmann v. Spector, 761 S.W.2d 112, 114 (Tex. App.—San Antonio 1988, no writ).
It is a good practice to establish specific matters of fact by requests for admissions (see part III. in this chapter), which often will be propounded after the receipt of (and based on information derived from) answers to interrogatories and requests for disclosure.
For pattern interrogatories, see forms 18-15 (sworn account), 18-16 (contract or revolving credit account), 18-17 (promissory note), 18-18 (foreclosure of security interest), 18-19 (lease of personalty), and 18-20 (guaranty agreement) in this chapter.
§ 18.53:2Format of Interrogatories
Because answers must be preceded by the interrogatories, the proponent should leave room after each question to allow the respondent to answer in the space provided. See Tex. R. Civ. P. 193.1. If a question relates to a document in the plaintiff’s possession, it is a good practice to attach a copy to the interrogatories—even if a copy has been filed or furnished previously—to avoid confusion about the document to which the question refers.
§ 18.53:3Number of Interrogatories
For cases controlled by level 1 discovery control plan, a party may serve no more than fifteen written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Tex. R. Civ. P. 190.2(b)(3). For cases controlled by level 2, a party may serve no more than twenty-five written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Tex. R. Civ. P. 190.2(b)(3). Each discrete subpart of an interrogatory is considered a separate interrogatory, but not every factual inquiry is such a discrete subpart. A “discrete subpart,” generally, is one that calls for information not logically or factually related to the primary interrogatory. Tex. R. Civ. P. 190.2(b)(3), 190.3(b)(3), 190 cmt. 3; see also Braden v. Downey, 811 S.W.2d 922, 927–28 (Tex. 1991). The attorney should avoid using interrogatories to ask about matters covered by requests for disclosure if there is any possibility of otherwise exceeding the interrogatory limit. See part V. below.
The court may modify the number of interrogatories and must do so when the interest of justice requires. Tex. R. Civ. P. 190.5. See forms 18-21 and 18-22 in this chapter for a motion and order enlarging or reducing the number of interrogatories.
§ 18.53:4Legal Advice or Threats
Interrogatories, being communications with an adverse party, should not contain legal advice or threats about possible consequences of not replying. See section 18.4:3 above. For a form set of instructions, see form 18-14 in this chapter.
§ 18.53:5Deadline for Propounding Interrogatories
Parties may serve interrogatories no later than thirty days before the end of the discovery period. Tex. R. Civ. P. 197.1.
§ 18.54Service and Filing of Interrogatories
A party may serve interrogatories on any other party, adverse or not. Tex. R. Civ. P. 197.1. Interrogatories must be served on all parties of record. Tex. R. Civ. P. 191.5. Rule 197.1 has no provisions for making interrogatory requests on nonparties. See Tex. R. Civ. P. 197.1. See also In re Anand, No. 01-12-01106-CV, 2013 WL 1316436, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet., orig. proceeding) (per curiam) (mem. op.) (“Rule 205 . . . governs discovery of nonparties . . . .”).
See sections 18.13:3 and 18.13:4 above for a discussion about service of interrogatories.
§ 18.54:3Filing of Interrogatories
Interrogatories are not filed with the court. Tex. R. Civ. P. 191.4(a). Instead, the propounding party must keep the original or an exact copy during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court. Tex. R. Civ. P. 191.4(d).
The responding party must serve his written response on the requesting party within thirty days after service unless the interrogatories were served on the defendant before his answer was due. In that case, the defendant has fifty days after service to serve his response. Tex. R. Civ. P. 197.2(a).
A response must include the responding party’s answers to the interrogatories. The response may include objections and assertions of privilege, as applicable. Tex. R. Civ. P. 197.2(b). Objections are discussed at section 18.9 above, and privilege is discussed at section 18.10.
§ 18.55:3Option to Produce Records
If public records, the responding party’s business records, or a compilation, abstract, or summary of those business records will supply the answer to an interrogatory and the burden of deriving or ascertaining the answer is substantially the same for the requesting party as for the responding party, the responding party may specify (and, if applicable, produce) those records or compilations, abstracts, or summaries. The records must be specified in sufficient detail to permit the requesting party to locate and identify the documents as readily as can the responding party. If the responding party has specified business records, he must state a reasonable time and place for examination of those records, must produce the documents at the time and place stated in the interrogatories (or as otherwise agreed by the parties or ordered by the court), and must afford the requesting party a reasonable opportunity to inspect them. Tex. R. Civ. P. 197.2(c).
Each interrogatory must be answered fully in writing, based on all information readily available to the responding party or his attorney when the response is made. The response must be preceded by the question to which the answer pertains. Tex. R. Civ. P. 193.1. If the responding party’s answer is based on information obtained from other persons, his answer may state that fact. Tex. R. Civ. P. 197.2(d)(1).
Answers must be made under oath, signed, and verified by the responding party (not his agent or attorney). The party need not sign answers to interrogatories about persons with knowledge of relevant facts, fact witnesses, and legal contentions. Tex. R. Civ. P. 197.2(d). It is an abuse of discretion for the trial court to dismiss a case with prejudice for failure to comply with the verification and signature requirements, without providing reasonable notice to the responding party of the defect and an opportunity to correct it. United States Leasing Corp. v. O’Neill, Price, Anderson & Fouchard, Inc., 553 S.W.2d 11, 13 (Tex. App.—Houston [14th Dist.] 1977, no writ) (interpreting former Texas Rules of Civil Procedure 215a(c)). See also State Farm Fire & Casualty Co. v. Morua, 979 S.W.2d 616 (Tex. 1998).
Amended or supplemental responses to interrogatories must also be verified by the responding party. Tex. R. Civ. P. 193.5(b); Morua, 979 S.W.2d at 620. (See section 18.7 above regarding amended and supplemental responses to discovery requests.) However, waiting until trial before objecting to a lack of verification may result in waiver of the objection. Morua, 979 S.W.2d at 621 (objection waived after thirteen months without objection).
Copies of the responses must be served on all parties of record. Tex. R. Civ. P. 191.5. See Tex. R. Civ. P. 21a regarding methods of service.
§ 18.56Use and Effect of Interrogatories and Answers
Answers to interrogatories may be used against only the answering party. Tex. R. Civ. P. 197.3. The answers are hearsay as to other parties and should not be admitted in evidence against them following a proper and timely objection. In Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 348–49 (Tex. App.—Houston [14th Dist.] 2001, pet. denied), the court permitted the answering party to use its own answer where, in addition to the answer itself, the party offering the answer testified during cross-examination that he prepared the interrogatory answer and swore to it under oath. See also United Services Automobile Ass’n v. Ratterree, 512 S.W.2d 30, 33 (Tex. App.—San Antonio 1974, writ ref’d n.r.e.). Once interrogatories are admitted and read into evidence, they become testimonial evidence. In re Marriage of Richards, 991 S.W.2d 32, 38 (Tex. App.—Amarillo 1999, pet. dism’d) (citing Eubanks v. Eubanks, 892 S.W.2d 181, 181–82 (Tex. App.—Houston [14th Dist.] 1994, no writ)). See also Bastida v. Aznaran, 444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no pet.) (upholding summary judgment on evidence presented in affidavit that could have been controverted by interrogatories but was not).
On a motion for summary judgment, the nonmoving party may not resort to his own answers to the moving party’s interrogatories as proof of the existence of a genuine issue of material fact. Thurman v. Frozen Food Express, 600 S.W.2d 369, 370 (Tex. App.—Dallas 1980, no writ); see also Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998) (per curiam). Neither may the moving party rely on his own answers to interrogatories in support of his motion for summary judgment. These answers may be used only against the party filing the answers. Holmes v. Canlen Management Corp., 542 S.W.2d 199, 201 (Tex. App.—El Paso 1976, no writ).
In a multiparty case, any party may use interrogatories against the answering party. Ticor Title Insurance Co. v. Lacy, 803 S.W.2d 265, 266 (Tex. 1990); Smith v. Christley, 755 S.W.2d 525, 530 (Tex. App.—Houston [14th Dist.] 1988, writ denied). The answering party, however, is required to answer only the proponent of the interrogatories, not all parties, and he is not required to supplement the answers to interrogatories of a party who has settled, for the benefit of other parties who remain in the lawsuit. See Austin Ranch Enterprises v. Wells, 760 S.W.2d 703, 710 (Tex. App.—Fort Worth 1988, writ denied).
One party may rely on interrogatories and answers of another party in the same suit. Lacy, 803 S.W.2d at 266. Therefore, if one party asks an opponent for information, it is considered a request by all parties. A party, however, may not respond to an interrogatory seeking the identity of witnesses by referring to another party’s answer to a similar interrogatory. See American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 655 (Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.). A supplemental answer to one party, however, may be adequate supplementation to the same inquiry propounded by another party. See Ward v. O’Connor, 816 S.W.2d 446, 447 (Tex. App.—San Antonio 1991, no writ) (allowing plaintiff to supplement answers to interrogatories from multiple defendants in one document titled “Supplemental to All Other Discovery”).
§ 18.56:2Inclusion in Evidence
To have probative value, answers to interrogatories must be properly offered at trial or at an appropriate hearing. Sammons Enterprises, Inc. v. Manley, 540 S.W.2d 751, 757 (Tex. App.—Texarkana 1976, writ ref’d n.r.e.); Richards v. Boettcher, 518 S.W.2d 286, 288 (Tex. App.—Texarkana 1974, writ ref’d n.r.e.).
[Sections 18.57 through 18.60 are reserved for expansion.]
§ 18.61Purpose and Nature of Requests for Disclosure
The ability to make requests for disclosure improves efficiency; parties can make a single request for basic information common to all litigation by simply referencing the list of information and documents found in Tex. R. Civ. P. 194.2. Tex. R. Civ. P. 194.
Requests for disclosure are a hybrid of basic interrogatories and requests for production. See Tex. R. Civ. P. 194. They are similar to interrogatories in that the respondent may be required to disclose information such as the correct names of the parties, addresses and telephone numbers of persons having knowledge of relevant facts, and the legal theories and factual bases of the respondent’s defenses or claims. They are similar to requests for production in that the respondent may be required to produce documents or other things, such as insurance contracts or settlement agreements. See Tex. R. Civ. P. 194.2.
In an expedited action, a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Tex. R. Civ. P. 190.2(b)(6). A request for disclosure under rule 190.2 is not considered a request for production.
The rule governing requests for disclosure has no provisions for serving such requests on non-parties. See Tex. R. Civ. P. 194.1. See also In re Anand, No. 01-12-01106-CV, 2013 WL 1316436, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet., orig. proceeding) (per curiam) (mem. op.) (“Rule 205 . . . governs discovery of nonparties . . . .”).
§ 18.63Requesting and Using Requests for Disclosure
The procedure for submitting a request for disclosure is set out in Tex. R. Civ. P. 194.1, which simply requires that the requesting party serve another party with a written request seeking various information available under Tex. R. Civ. P. 194.2. Service of the request for disclosure must be made by the requesting party no later than thirty days before the end of the discovery period. Tex. R. Civ. P. 194.1. The party may obtain disclosure by serving the following request: “Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)–(g)].” Tex. R. Civ. P. 194.1. See form 18-23 in this chapter for a sample request for disclosure. The following request may be made in an expedited action under rule 190.2: “Pursuant to Rule 190.2(b)(6), you are requested to disclose all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.”
Responses to requests for disclosure should be introduced into evidence in the same manner as answers to interrogatories. No objections or assertions of work product may be made to re-quests for disclosure. Tex. R. Civ. P. 194.5. Responses to requests for disclosure under rule 194.2(c) and (d) that have been changed by an amended or supplemental response are not ad-missible and may not be used for impeachment. Tex. R. Civ. P. 194.6.
Generally, the responding party must serve a written response on the requesting party within thirty days of being served with the request. However, if the request for disclosure was served on a defendant before the defendant’s answer day, that defendant has fifty days from the date of service to serve his response. A response to a request for disclosure for any testifying expert under rule 194.2(f) is governed by the deadlines set out in rule 195. Tex. R. Civ. P. 194.3.
If documents or other items are responsive to the request for disclosure, those items must ordinarily be served with the written response. If the copies are voluminous, the response must state a reasonable time and place for production of them. Otherwise, the responding party must produce the items at the time and place stated in the request, unless the parties agree otherwise or the court orders otherwise, and must provide the requesting party a reasonable opportunity to inspect them. Tex. R. Civ. P. 194.4.
§ 18.66No Objection or Claim of Work Product Privilege
The responding party may not object to a request for disclosure or assert a work product privilege. Tex. R. Civ. P. 194.5.
[Sections 18.67 through 18.70 are reserved for expansion.]
§ 18.71Requests for Production Generally
Tex. R. Civ. P. 196 provides for the discovery and production of documents and things from parties. The appropriate method is to serve a request on the party from whom production is sought. If a party fails to comply with a proper request, sanctions may be sought under Tex. R. Civ. P. 215. For a discussion of sanctions, see part VII. in this chapter.
Nonparties may be compelled by subpoena to produce documents without the necessity of a court order. See Tex. R. Civ. P. 205.3 and section 18.78 below. Sections 18.72 through 18.75 pertain only to requests for production from parties.
§ 18.71:2Use of Requests for Production
A request for production is a simple and direct method of discovering tangible things and obtaining the inspection and copying of documents. A request for production may also be used to obtain access to documents that cannot be reached by a subpoena duces tecum, but in such a case the requests must not be overly broad, and the documents sought must be properly designated in accordance with Tex. R. Civ. P. 196.1(b). See section 18.73:1 below.
Production requests may be served on parties and in certain circumstances on nonparties. See section 18.78 below for more information on production from nonparties.
§ 18.72Scope of Requests for Production
Subject to certain exemptions and protective orders, requests for production may seek any tangible things that appear reasonably calculated to lead to the discovery of admissible evidence; see Tex. R. Civ. P. 192 and section 18.1 above. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of any documents and tangible things constituting or containing matters relevant to the subject matter of the action. “Documents and tangible things” include books, papers, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations. A person is required to produce a document or tangible thing that is within his possession, custody, or control. Tex. R. Civ. P. 192.3(b). Actual physical possession is not required. Constructive possession is sufficient. Possession, custody, or control of an item refers to a person having physical possession or a right to possession that is equal or superior to that of the person who has physical possession. Tex. R. Civ. P. 192.7(b). A request may also be directed to permit entry on designated land or other property. Tex. R. Civ. P. 196.7.
§ 18.73Form of Requests for Production
A request for production must designate by individual item or by category the items to be produced or inspected and must describe with reasonable particularity each item and category. The request must state a reasonable time and place for production. Tex. R. Civ. P. 196.1(b). For a sample request for production, see form 18-24 in this chapter.
To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which he wants it produced. Tex. R. Civ. P. 196.4.
§ 18.73:2Testing or Examination
If testing or sampling of the items is requested, the requesting party must describe the means, manner, and procedure for testing with sufficient particularity to inform the producing party of that means, manner, and procedure. Tex. R. Civ. P. 196.1(b). Testing, sampling, or examination must not extend to destruction or material alteration of an item without authorization by the court. Tex. R. Civ. P. 196.5.
§ 18.73:3Format and Number of Requests
There is no particular format required for a request for production. The proponent, however, should keep in mind the potential for imposition of sanctions if the court finds that a request for inspection or production is “unreasonably frivolous, oppressive, or harassing” under Tex. R. Civ. P. 215.3; see part VII. in this chapter regarding sanctions.
For an expedited action (level 1) case filed after March 1, 2013, a party may serve no more than fifteen requests for production. Each discrete subpart is considered a separate request for production. Tex. R. Civ. P. 190.2(b)(4).
§ 18.73:4Legal Advice or Threats
The request for production, being a communication with an adverse party, should not contain legal advice or threats about possible consequences for not complying. See section 18.4:3 above. For a form set of instructions, see form 18-24 in this chapter.
§ 18.73:5Drafting Requests Narrowly
Requests should be carefully drafted so as not to be too narrow or overbroad. For example, photographs and videotapes are considered separate types of documents; therefore, a request for “all photographs” was held not to include a videotape offered into evidence at trial. County of Dallas v. Harrison, 759 S.W.2d 530, 531 (Tex. App.—Dallas 1988, no writ). The request must be specific and state particularly what material is requested; “all notes, records, memoranda, documents, and communications” is overbroad. Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989); see also In re Shipmon, 68 S.W.3d 815, 821 (Tex. App.—Amarillo 2001, orig. proceeding) (requests for documents without any limitation on time deemed overbroad on their face).
See sections 18.13:3 and 18.13:4 above for a discussion about serving requests for production.
§ 18.75Responses and Objections to Requests for Production
§ 18.75:1Deadline for Answering
Responses and objections must be served within thirty days after service of the request, except that if the request is served before a defendant’s answer day, that defendant may respond and object within fifty days after service of the request. Tex. R. Civ. P. 196.2(a); see also Hobson v. Moore, 734 S.W.2d 340, 341 (Tex. 1987) (objections not served within thirty days waived). Sanctions for failure to respond or permit discovery in accordance with rule 196 requests are discussed in part VII. in this chapter.
§ 18.75:2Contents of Responses
Responses must be in writing and must state as appropriate, with respect to each item or category of items, that—
1.production, inspection, or other requested action will be permitted as requested;
2.the requested items are being served on the requesting party with the response;
3.production, inspection, or other requested action will occur at a specified time and place, if the responding party is objecting to the time and place of production; or
4.no items have been identified, after a diligent search, that are responsive to the request.
Objections are discussed generally at section 18.9 above. A party objecting to production of documents on grounds of relevancy has the burden of pleading and proving that the documents are not relevant. Valley Forge Insurance Co. v. Jones, 733 S.W.2d 319, 321 (Tex. App.—Texarkana 1987, no writ). Relevance is determined by weighing the probative value of the information sought against the burden of production. Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 803 (Tex. App.—Fort Worth 1987, writ dism’d); see, e.g., Lunsmann v. Spector, 761 S.W.2d 112, 114 (Tex. App.—San Antonio 1988, no writ) (request for copies of pleadings from all lawsuits involving defendant insurance company during past three years, in which defense asserted was same as in present case, denied as unduly burdensome; plaintiff could ascertain information from public records). Requests for production may not be used as “fishing expeditions.” Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989) (request for production that fails to identify a particular type of document is overbroad); but see Kern v. Gleason, 840 S.W.2d 730, 736 (Tex. App.—Amarillo 1992, no writ); Chamberlain v. Cherry, 818 S.W.2d 201, 204–05 (Tex. App.—Amarillo 1991, no writ) (use of words “any and all” did not invalidate otherwise proper request).
Failure to present evidence of objections requires production of the documents sought. See Wadley Research Institute v. Whittington, 843 S.W.2d 77, 86 (Tex. App.—Dallas 1992, no writ) (responding party must locate all documents requested and specifically state objections or exemptions that justify nonproduction).
§ 18.75:4Service of Responses and Objections
Responses must be served on all parties to the action but not filed with the court. Tex. R. Civ. P. 191.4(a), 191.5. See Tex. R. Civ. P. 21a concerning methods of service.
Subject to any objections stated in the response, the responding party must produce the requested documents or tangible things within the person’s possession, custody, or control at the time and place stated in the request or in the response, unless otherwise agreed or ordered, and must give the requesting party a reasonable opportunity to inspect them. Tex. R. Civ. P. 196.3(a).
Copies may be produced in lieu of originals unless authenticity of the original is questioned or the substitution would be unfair in the circumstances. If originals are produced, the producing party may retain the originals while the requesting party inspects and copies them. Tex. R. Civ. P. 196.3(b).
A party who produces documents or tangible things for inspection must either produce them as they are kept in the usual course of business or organize and label them to correspond with the categories in the request. Tex. R. Civ. P. 196.3(c). The producing party cannot withhold production by requiring the requesting party to inspect documents at the office of the producing party’s attorney unless the documents are voluminous. Overall v. Southwestern Bell Yellow Pages, Inc., 869 S.W.2d 629, 631 (Tex. App.—Houston [14th Dist.] 1994, no writ).
Special rules for production of electronic or magnetic data are set out at rule 196.4.
The expense of producing items is borne by the responding party, and the expense of inspecting, copying, and so forth is borne by the requesting party, unless otherwise ordered. Tex. R. Civ. P. 196.6.
§ 18.77Authentication of Documents Produced
A party’s production of a document in response to a request for production authenticates that document for use against that party in any pretrial proceeding or trial unless, within ten days (unless modified by the court) after the party has actual notice that the document will be used, the party objects to the authenticity of the document or any part of it, stating the specific basis for the objection. Such an objection must be either on the record or in writing and have a good-faith basis in both fact and law. An objection to the authenticity of only part of the document does not affect the authenticity of the remainder. If such an objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity. Tex. R. Civ. P. 193.7. The ten-day period for objection to authenticity does not run from the date of production but from the party’s actual awareness that the document will be used. Tex. R. Civ. P. 193 cmt. 7.
The requesting party may identify before trial the documents intended to be offered, triggering the ten-day deadline for objection to their authenticity. Tex. R. Civ. P. 193 cmt. 7. The following notice may also be used to trigger the objection deadline: “Pursuant to Rule 193.7, be advised that we will rely on documents produced by [producing party] in discovery in our pretrial motions and at trial.”
§ 18.78Production from Nonparties
§ 18.78:1Nonparty Production Generally
A party may compel production of documents and other tangible items from nonparties either by subpoena or by court order. Tex. R. Civ. P. 205.1(d); 205.3. The ability of attorneys to obtain documents from nonparties by subpoena and to issue their own subpoenas (see section 18.30:4 above) effectively gives them the power to demand production both from nonparties and parties without the need for court action.
A party may depose any person or entity. Tex. R. Civ. P. 199.1(a), 200.1(a). When requesting the mental health or medical records of a nonparty, the requesting party must serve the request on the nonparty. See Tex. R. Civ. P. 196.1(c). A party may gain entry on the land or other property of a nonparty to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Tex. R. Civ. P. 196.7. A party may file a motion for physical or mental examination of a nonparty under the legal control of a party. Tex. R. Civ. P. 204. The rules governing requests for disclosure, interrogatories, and requests for admissions have no provisions for making such requests on nonparties. See Tex. R. Civ. P. 194.1, 197.1, 198.1. See also In re Anand, No. 01-12-01106-CV, 2013 WL 1316436, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet., orig. proceeding) (per curiam) (mem. op.) (“Rule 205 . . . governs discovery of nonparties . . . .”).
Special rules apply to discovery sought from financial institutions. See section 18.16 above. Subpoenas are discussed in more detail at section 18.30.
§ 18.78:2Limitations of Subpoena
A person may not be required by subpoena to produce documents in a county that is more than 150 miles from where he resides or is served. Tex. R. Civ. P. 176.3(a). If the documents are sufficiently important and the 150-mile requirement would otherwise prevent production, the documents may be produced at a location close to the nonparty.
A party seeking production from a nonparty must serve on the nonparty and all parties a subpoena and notice, using “the form of notice required under the rules governing the applicable form of discovery.” Tex. R. Civ. P. 205.2. Because rule 196 imposes no particular form of notice, the only guidelines are those set out in Tex. R. Civ. P. 205.3(b). See section 18.78:4 below.
The notice and subpoena must be served a reasonable time before the response is due but no later than thirty days before the end of any applicable discovery period. Tex. R. Civ. P. 205.3(a). A copy of the notice must be served on the nonparty and all parties at least ten days before the subpoena compelling production from the nonparty is served. Tex. R. Civ. P. 205.2.
The notice must state—
1.the name of the person from whom production or inspection is sought to be compelled;
2.a reasonable time and place for the production or inspection; and
3.the items to be produced or inspected, either by individual item or category, describing each item and category with reasonable particularity and, if applicable, describing any desired testing or sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling.
§ 18.78:5Response from Nonparty
The nonparty must respond to the notice and subpoena, but need not appear in person at the time and place of production unless he is also commanded to appear and give testimony, either in the same subpoena or a separate one. He must either produce the items as they are kept in the usual course of business or organize and label them to correspond with the categories in the request. Tex. R. Civ. P. 176.6(c), 205.3(d).
§ 18.78:6Objections and Claims of Privilege
If the person commanded to produce documents under the subpoena wishes to object, he must do so before the time specified in the subpoena for performance. He need not comply with that part of the subpoena he has objected to unless ordered to do so by the court. The party requesting the subpoena may request such an order anytime after the objection is made. Tex. R. Civ. P. 176.6(d).
Similarly, the nonparty may withhold documents from production based on a claim of privilege, but if he does so he must comply with Tex. R. Civ. P. 193.3. See Tex. R. Civ. P. 176.6(c). See section 18.10 above for a discussion of privilege.
§ 18.78:7Authentication of Document Produced
Production of a document from a nonparty authenticates the document for use against the nonparty to the same extent as a party’s production of a document authenticates it for use against the party under Tex. R. Civ. P. 193.7. See Tex. R. Civ. P. 176.6(c). See section 18.77 above for discussion.
If the recipient of the request for production could be considered to be the custodian of the records requested, he is entitled to payment of $1 for production of those records. He is not entitled to additional fees for production of more than one record. Tex. Civ. Prac. & Rem. Code § 22.004(a). If the recipient is the defendant, a check for $1 should be attached to the request; the bank endorsement on the canceled check could provide valuable information regarding the location of the defendant’s funds.
If the recipient is a nonparty but not the custodian of records, he is entitled to reasonable costs of production from the requesting party. Tex. R. Civ. P. 205.3(f).
[Sections 18.79 and 18.80 are reserved for expansion.]
§ 18.81Source of Rule and Purpose of Sanctions
The Texas sanctions rule, Tex. R. Civ. P. 215, is similar to Fed. R. Civ. P. 37, although the Texas rule is more expansive than the federal rule in the options provided to the trial court in the exercise of its discretionary control over discovery.
Sanctions are used in the litigation process to secure compliance with the discovery rules, to deter future violations, and to facilitate the litigation of lawsuits. See Response Time, Inc. v. Sterling Commerce (North America), Inc., 95 S.W.3d 656 (Tex. App.—Dallas 2002, no pet.); Dolenz v. Nationwide Mutual Fire Insurance Co., No. 14-94-01112-CV, 1996 WL 101134, at *3 (Tex. App.—Houston [14th Dist.] Mar. 7, 1996, writ denied); Waguespack v. Halipoto, 633 S.W.2d 628, 631–32 (Tex. App.—Houston [14th Dist.] 1982, writ dism’d w.o.j.); see also Downer v. Aquamarine Operators, 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986) (purpose of sanctions not only to ensure compliance with rules but also to deter abuse).
Sanctions also have been imposed to punish parties who violate discovery rules. See Carr v. Harris County, 745 S.W.2d 531, 532 (Tex. App.—Houston [1st Dist.] 1988, no writ). When ruling on a motion for sanctions, the trial court is not limited to considering only the violation for which sanctions are sought but may consider the entire record and other matters that have occurred throughout the litigation. See Van Es v. Frazier, 230 S.W.3d 770, 777–78 (Tex. App.—Waco 2007, pet. denied); Davenport v. Scheble, 201 S.W.3d 188, 194 (Tex. App.—Dallas 2006, pet. denied); Tidrow v. Roth, 189 S.W.3d 408, 412 (Tex. App.—Dallas 2006, no pet.); Garcia Distributing, Inc. v. Fedders Air Conditioning, U.S.A., Inc., 773 S.W.2d 802, 806–07 (Tex. App.—San Antonio 1989, writ denied); Larson v. H.E. Butt Grocery Co., 769 S.W.2d 694, 696–97 (Tex. App.—Corpus Christi–Edinburg 1989, writ denied); First State Bank, Bishop v. Chappell & Handy, P.C., 729 S.W.2d 917, 921 (Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.).
Discovery sanctions barring introduction of certain evidence for failure to timely respond to discovery requests do not survive a nonsuit; thus, such evidence is admissible in a subsequent suit between the parties on the same issue. Schein v. American Restaurant Group, Inc., 852 S.W.2d 496, 497 (Tex. 1993).
§ 18.82:1Forms of Discovery Abuse and Sanctions Available
Abuse of the discovery process may include—
1.failure to designate an entity representative for deposition under rules 199.2(b)(1) or 200.1(b) (Tex. R. Civ. P. 215.1(b)(1));
2.failure to appear for deposition after proper notice (Tex. R. Civ. P. 215.1(b)(2)(A));
3.failure to answer oral or written deposition questions (Tex. R. Civ. P. 215.1(b)(2)(B));
4.failure to serve answers or objections to properly served interrogatories under rule 197 (Tex. R. Civ. P. 215.1(b)(3)(A));
5.failure to answer an interrogatory under rule 197 (Tex. R. Civ. P. 215.1(b)(3)(B));
6.failure to serve a written response to a properly served request for inspection under rule 196 (Tex. R. Civ. P. 215.1(b)(3)(C));
7.failure to respond that discovery will be permitted as requested or to permit discovery under a request for inspection under rule 196 (Tex. R. Civ. P. 215.1(b)(3)(D));
8.failure to comply with any person’s written request for his own prior statement under rule 192.3(h) (Tex. R. Civ. P. 215.1(e));
9.failure to comply with proper discovery requests (Tex. R. Civ. P. 215.2(b));
10.failure to obey an order to provide or permit discovery, including an order under rule 204 or 215.1 (Tex. R. Civ. P. 215.2(b));
11.abuse of the discovery process in seeking, making, or resisting discovery (Tex. R. Civ. P. 215.3);
12.propounding interrogatories or requests for inspection or production that are “unreasonably frivolous, oppressive, or harassing” (Tex. R. Civ. P. 215.3);
13.submitting a response or answer that is “unreasonably frivolous or made for the purpose of delay” (Tex. R. Civ. P. 215.3);
14.failure to admit the genuineness of any document or the truth of the matter asserted in a request for admission and the requesting party thereafter proves the genuineness or truth of the matter (Tex. R. Civ. P. 215.4);
15.providing an evasive or incomplete answer (Tex. R. Civ. P. 215.1(c));
16.failure of the party to attend after giving notice of a deposition (Tex. R. Civ. P. 215.5(a)); and
17.failure of a witness to attend an oral deposition because of the fault of the party giving notice (Tex. R. Civ. P. 215.5(b)).
§ 18.82:2Motion to Compel or Motion for Sanctions
Depending on the violation, a party, on reasonable notice to other parties and all other persons affected, may move for sanctions or an order compelling discovery. Tex. R. Civ. P. 215.1. However, the better practice is to seek a motion to compel before requesting sanctions. Motions or responses under rule 215 may have exhibits attached, including affidavits, discovery pleadings, or any other documents. Tex. R. Civ. P. 215.6. Like all discovery motions, these motions must contain a certificate by the movant stating that efforts to resolve the discovery dispute without the necessity of court intervention have been attempted and have failed. See Tex. R. Civ. P. 191.2. See section 18.84 below regarding available sanctions. See forms 18-26 through
18-28 in this chapter.
Practice Note: Some local rules require a party to include a certificate of conference with any motion filed to show either that the parties discussed the matter before the filing of the motion or that the party that filed the motion attempted to confer on the matter first but was unsuccessful.
A trial court may, after notice and hearing, impose sanctions on any party that abuses the discovery process. Tex. R. Civ. P. 215.3. The sanctions are within that court’s discretion and will be set aside only if the court clearly abused its discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986).
For a discussion of the standards for permissible sanctions under Tex. R. Civ. P. 215 within which the trial court is to exercise its discretion, see Spohn Hospital v. Mayer, 104 S.W.3d 878, 881–82 (Tex. 2003); Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992); and TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (sanctions must be just—for example, they must relate directly to abuse found and must not be excessive). To ensure that a sanction is not excessive, the court must consider whether lesser sanctions would fully promote compliance. Chrysler Corp., 841 S.W.2d at 849; TransAmerican, 811 S.W.2d at 917. In TransAmerican, the supreme court also discussed the constitutional due-process limitations on severe sanctions. TransAmerican, 811 S.W.2d at 917–18. Before a court may deprive a party of its right to present the merits of its case because of discovery abuse, it must determine that the party’s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. GTE Communications Systems v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993).
See section 18.84:3 below regarding the options available to the court regarding the exclusion of evidence not disclosed in discovery.
§ 18.83Attorney’s Fees and Expenses on Motion to Compel
If a party applies for an order compelling discovery, the court must, after opportunity for a hearing and on granting the motion, require the resisting party or deponent or the party or attorney advising the conduct, or both of them, to pay the moving party’s reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the opposition to the motion was substantially justified or other circumstances make an award of expenses unjust. The court also has discretion to apportion the reasonable expenses incurred in relation to a motion that is granted in part and denied in part. Tex. R. Civ. P. 215.1(d).
Practice Note: It is good practice to include on the proposed order a date by which the moving party’s reasonable expenses must be paid by the other party and where payment must be made. Including this in a proposed order can clarify matters and avoid confusion, without having to bring the matter before the court again.
If the motion to compel is denied, after opportunity for hearing, the court may order the moving party or the attorney advising that the motion be prosecuted to pay the opposing party or deponent the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless there was substantial justification for making the motion or there are other circumstances making the award unjust. The court also has discretion to apportion the reasonable expenses incurred in relation to a motion that is granted in part and denied in part. Tex. R. Civ. P. 215.1(d).
§ 18.83:3Amount of Reasonable Expenses
In determining the amount of reasonable expenses, including attorney’s fees, the court must award expenses that are reasonable in relation to the amount of work reasonably expended in obtaining an order compelling compliance or opposing a denied motion. Tex. R. Civ. P. 215.1(d). Attorney’s fees are discussed in chapter 31 in this manual.
§ 18.84Sanctions against Parties
Sanctions against a party for deposition abuse may be imposed by the court in which the action is pending or any district court in the district in which the deposition is taken. For all other discovery matters, sanctions for discovery abuse are imposed by the court in which the case is pending. Tex. R. Civ. P. 215.1(a).
If a deponent fails to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. Tex. R. Civ. P. 215.2(a).
After notice and hearing, the court in which an action is pending may enter all such orders as are just with respect to the failure to comply with proper discovery requests or failure to obey an order of the court regarding discovery. Specifically, the court may enter an order that does the following:
1.Disallows any further discovery of any kind or of a particular kind by the disobedient party. Tex. R. Civ. P. 215.2(b)(1). This sanction is particularly applicable to the abuse of “burying the adversary in paperwork” by the party seeking discovery. See William Wayne Kilgarlin & Don Jackson, Sanctions for Discovery Abuse under New Rule 215, 15 St. Mary’s L.J. 767, 797 (1984).
2.Charges all or any portion of the expenses of discovery or taxable court costs, or both, against the disobedient party or the attorney advising him. Tex. R. Civ. P. 215.2(b)(2). This provision appears to permit the trial court to charge the abusing party with all reasonable expenses incurred during the entire discovery process.
3.Deems that the matters regarding which the order was made or any other designated facts will be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. Tex. R. Civ. P. 215.2(b)(3).
4.Precludes the disobedient party from supporting or opposing designated claims or defenses or prohibits introduction of designated matters in evidence. Tex. R. Civ. P. 215.2(b)(4); see In re T.K.D-H., 439 S.W.3d 473, 479 (Tex. App.—San Antonio 2014, no pet.).
5.Strikes out pleadings or parts thereof, stays further proceedings until the order is obeyed, dismisses with or without prejudice the action or proceedings or any part thereof, or renders a judgment by default against the disobedient party (“death penalty” sanction). Tex. R. Civ. P. 215.2(b)(5).
6.In lieu of or in addition to any of the foregoing orders, treats as contempt the failure to obey any orders except an order to submit to a physical or mental examination. Tex. R. Civ. P. 215.2(b)(6). For a general discussion of contempt of court, see section 26.7 in this manual.
7.Applies any of the sanctions listed above for failure to comply with a rule 204 order requiring a party to appear or produce another for examination, unless the person failing to comply shows that he is unable to appear or to produce the person for examination. Tex. R. Civ. P. 215.2(b)(7).
8.In lieu of or in addition to any of the foregoing orders, requires the party failing to obey the order or the attorney advising him, or both, to pay reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make the award unjust. Such an order shall be subject to review on appeal from the final judgment. Tex. R. Civ. P. 215.2(b)(8). Attorney’s fees are discussed in chapter 31 in this manual.
Notice is essential before sanctions can be imposed. However, a party who does not receive adequate notice must specifically object to lack of notice to preserve error for appeal. Prade v. Helm, 725 S.W.2d 525, 527 (Tex. App.—Dallas 1987, no writ). A trial court cannot sua sponte order sanctions if there is no motion for sanctions before that court. Zep Manufacturing Co. v. Anthony, 752 S.W.2d 687, 689–90 (Tex. App.—Houston [1st Dist.] 1988, no writ). However, on motion, a trial court can impose sanctions even though the party has not disobeyed a formal discovery request or a discovery order. Plorin v. Bedrock Foundation & House Leveling Co., 755 S.W.2d 490, 491 (Tex. App.—Dallas 1988, writ denied) (failure to comply with discovery agreement). A trial judge cannot impose sanctions for pretrial discovery abuses after the court loses plenary jurisdiction. Faherty v. Knize, 764 S.W.2d 922 (Tex. App.—Waco 1989, no writ) (more than thirty days after judgment signed, no motion for new trial filed and no appeal perfected).
§ 18.84:3Automatic Exclusion of Evidence
Failure to properly respond to, amend, or supplement a discovery response in a timely manner results in the automatic exclusion of the evidence or testimony that is the subject of the request, unless the trial court finds either good cause for the failure or that the failure will not unfairly surprise or prejudice the other parties. Tex. R. Civ. P. 193.6(a). The burden of proof is on the party seeking admission of the evidence, and the finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. Tex. R. Civ. P. 193.6(b).
Even if the party seeking to introduce the evidence or call the witness fails to carry the burden imposed by Tex. R. Civ. P. 193.6(a), (b), the court may grant a continuance or postpone the trial to allow a response to be made, amended, or supplemented and to allow opposing parties to conduct discovery regarding any new information presented by that response. Tex. R. Civ. P. 193.6(c).
§ 18.85Sanctions against Nonparties
An application for an order for sanctions against a deponent who is not a party must be made to the court in the district in which the deposition is being taken. Tex. R. Civ. P. 215.1(a).
§ 18.85:2Contempt of Court Sanctions
Failure to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken may be considered a contempt of that court. Tex. R. Civ. P. 215.2(a). A nonparty may be incarcerated for contempt. See Hennessy v. Marshall, 682 S.W.2d 340, 343 n.1 (Tex. App.—Dallas 1984, no writ). The sanction of contempt of court is applicable if a nonparty fails to comply with an order for production, inspection, copying, or photographing under rule 205.3 or an order for entry on property under rule 196.7. Tex. R. Civ. P. 215.2(c). For a general discussion of contempt of court, see section 26.7 in this manual.
In addition to the sanctions discussed above, Tex. R. Civ. P. 215.1(d) apparently authorizes the charging of expenses and attorney’s fees on motion to compel to nonparties. See section 18.83 above for discussion of expenses on motion to compel. Attorney’s fees are discussed in chapter 31 in this manual.