This notice should be addressed to the defendant through his attorney if he is represented by one. Otherwise, send it directly to the defendant, addressed “To: [name of defendant], Defendant.” This form assumes that it is not being served before answer day.
If production is being sought from a nonparty, this form should be coupled with a subpoena commanding production. A notice to produce documents or tangible things under rule 205.3 must be served at least ten days before the subpoena is served. See section 18.30 in this chapter regarding subpoenas and form 18-4 for a subpoena. Also, unless the nonparty is also giving his deposition, he need not appear in person to produce the documents. Tex. R. Civ. P. 176.6(c). This form assumes that the party being served is the defendant.
See sections 18.71 through 18.77 regarding requests for production from parties and section 18.78 regarding production from nonparties.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Plaintiff’s Request for Production of Documents and Tangible Things
To: [name of defendant], Defendant, by and through [his/her] attorney of record, [name and address of attorney].
Pursuant to rule 196 of the Texas Rules of Civil Procedure, you are requested to produce and permit the inspection and copying of each of the items or categories of items identified in the attached Exhibit A. You are to produce these items or categories of items at [time and place for production] no later than thirty days from the date you receive this request.
Please note that if, after you submit your responses to these requests for production, you learn that any such response was either incomplete when made, or, although complete and correct when made, it is no longer complete and correct, you must amend or supplement your response reasonably promptly after you discover the necessity for such a response. Any amended or supplemental response made less than thirty days before trial will be presumed not to have been made reasonably promptly. A failure to make, amend, or supplement a response in a timely manner may result in your not being able to introduce into evidence the material or information not timely disclosed.
Definitions
“You” or “your” refers to you, your attorneys, accountants, bookkeepers, agents, employees, and/or representatives.
“Defendant” means [name of defendant] and all agents, employees, and other persons acting on [his/her/its] behalf.
“Documents and tangible things” means the existence, description, nature, custody, condition, location, and contents of papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations in your possession, custody, or control or known to you or your counsel, whether printed, computerized, microfilmed, reproduced by any other mechanical process or medium of expression, or written or produced by hand and whether or not claimed to be privileged, confidential, or personal, including but not limited to the final versions and all prior drafts of contracts; agreements; notes (including secretarial notes); business records; notebooks; work notes; work papers; communications (including intradepartmental communications and intercompany communications); facsimiles; telecopies; telefaxes; electronic mail; correspondence; statements; reports; telegrams; agendas; forms; memoranda; bulletins; appointment books; logs; messages; diaries; texts; manuals; reference works and materials; samples of materials; depositions; analyses; projections; damage projections; forecasts; statistical statements; financial records; reports; charts; brochures; purchase orders; estimates; computer inputs and outputs; calculations; compilations of data; demonstrative evidence (including physical models, sketches, charts, graphs, plans, drawings, etc.); journals; billings; billing statements and records; receipts; invoices; data compilations; slides; sketches; graphics; charts; movies; videotapes; photographs and the negatives thereof; summaries, records, or minutes of meetings or conferences; expressions of statements of policy; lists of people attending meetings or conferences; summaries, records, or reports of personal conversations or investigations; summaries, records, or reports of interviews; and all other writings, and any other similar matter, now or formerly in your possession, custody, or control or that of your counsel or of any other agent, representative, employee, bookkeeper, accountant, expert, or anyone else acting on your behalf, and includes documents used to support any conclusions or opinions reached. Any marginal comments appearing on any documents and any handwritten or other notations on any copy of a document render it original, requiring production of it or a true copy of it with such notations.
“Financial record” means, by way of example and without limitation, the original or true copies of the following items, whether printed, computerized, recorded, or reproduced by any other mechanical process or written or produced by hand: monthly unaudited statements and/or other periodic income and profit and loss statements; periodic balance sheets; financial statements or other statements regarding, relating to, or referring to your financial condition; federal and state income tax returns; volume of sales records; sales tax records and returns; payroll tax records and returns; cash disbursement journal(s); general ledger(s); receipts journal(s); accounts payable journal(s); and accounts receivable journal(s). If you are a partnership or limited partnership the phrase “financial record” also includes partnership agreement(s) and any amendments thereto and forms K-1 provided to the partners. Any marginal comments appearing on any financial record and any handwritten or other notations on any copy of a financial record render it original, requiring production of it or a true copy of it with such notations.
“Relate to” means to name, refer to either directly or indirectly, comment on, analyze, review, report on, form the basis of, be considered in the preparation of, result from, or have any logical relation or relevance to the entity, person, document, event, or action pertaining to the subject matter on which inquiry is made.
“Knowledge” means not only the personal and present knowledge of the person inquired of, but also the present knowledge of any officers, directors, agents, servants, employees, attorneys, and representatives of the person inquired of and information available to them.
“The Claims” means the claims that are the subject of this lawsuit, as alleged in Plaintiff’s original petition and amended or supplemental petition.
“Statement” is a written statement signed or otherwise adopted or approved by the person making it or a stenographic, mechanical, electrical, or other type of recording, or any transcription thereof that is a substantially verbatim recital of a statement made by the person and contemporaneously recorded.
“The Contract” means the contract dated [date] that is the subject of this lawsuit, as alleged in Plaintiff’s original petition and amended or supplemental petition.
“The Note” means the promissory note dated [date] that is the subject of this lawsuit, as alleged in Plaintiff’s original petition and amended or supplemental petition.
“The Guaranty” means the personal guaranty that is the subject of this lawsuit, as alleged in Plaintiff’s original petition and amended or supplemental petition.
Instructions
If any document or response to these requests is withheld or objected to under a claim of attorney-client privilege, under a claim of limitation on scope of discovery pursuant to rule 192.4 or 193 of the Texas Rules of Civil Procedure, under a claim of work product pursuant to rule 192.5, under any other qualified privilege, or for any other reason, you are instructed to identify each such document with the following items:
1.the date of the document;
2.the author and addressee(s);
3.all persons indicated as recipients of copies;
4.all persons known to you to have received the document and/or information or to have learned the substance of its contents;
5.the subject matter of the document and/or response; and
6.the specific privilege or objection alleged to be applicable or other reason for its being withheld or not answered.
If you or any of your attorneys, agents, or representatives at any time had possession or control of a document requested and that document has been lost, destroyed, or purged or is not presently in your possession, custody, or control, identify the document and describe the circumstances surrounding the loss, destruction, purge, or separation from your possession, custody, or control, indicating the dates that those circumstances occurred.
If you allege that any request is in any manner ambiguous, you are instructed to describe in detail the reasons for your allegations that the request is ambiguous, including but not limited to each interpretation that you allege the specific request for discovery is subject to. Notwithstanding, you are instructed to respond, to the best of your ability, to the request for production and produce the documents requested.
If you object to any request, you are instructed to identify, with specificity, the specific procedural rule(s) or substantive laws(s) on which you base your objection.
When producing documents and tangible things responsive to a request, you 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.
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
|
Include a certificate of service (form 19-1). |
Exhibit A
1.All documents and tangible things that discuss, relate to, or refer to [specify, e.g., the Note, the Guaranty, the Contract, or the services to be performed by you in connection with the Claims that are the subject matter of this litigation].
2.All documents and tangible things that discuss, relate to, or refer to any communication between you and Plaintiff regarding [specify, e.g., the Note, the Guaranty, the Contract, or the services to be performed by you in connection with the Claims that are the subject matter of this litigation].
3.All contracts or agreements entered into between you and Plaintiff pertaining to the Claims asserted in this litigation.
4.All documents and tangible things that discuss, relate to, or refer to communications, including but not limited to correspondence, sent by you to Plaintiff or any nonprivileged third party or received by you from Plaintiff or any nonprivileged third party that discuss, relate to, or refer to the Claims [specify, e.g., the Note, the Guaranty, or the Contract] that are the subject matter of this litigation.
5.All documents and tangible things that discuss, relate to, or refer to any and all Claims, counterclaims, allegations, and defenses you may have against Plaintiff.
6.All documents and tangible things written or reviewed by any testifying expert or by any consulting expert whose mental impressions or opinions have been reviewed by a testifying expert, in connection with this case, including but not limited to—
a.all reports, models, data compilations, documents, communications, bills, reports, and writings that have been reviewed by the testifying and/or consulting expert in anticipation of a testifying expert’s testimony;
b.all reports, models, data compilations, documents, communications, bills, reports, and writings generated by and/or received from the testifying and/or consulting expert in anticipation of a testifying expert’s testimony;
c.all publications or other documents, communications, reports, and writings that will be used in the trial of this lawsuit to substantiate the opinions or allegations of the testifying expert and/or that were or will be relied on by the testifying expert in reaching opinions or conclusions of fact or law;
d.all nonprivileged documents containing the names, addresses, and telephone numbers of any and all persons whose opinions the testifying and/or consulting expert is relying on in reaching opinions or conclusions of fact or law;
e.all reports and nonprivileged documents that describe the subject matter about which the testifying expert witness is expected to testify;
f.the facts known by the testifying expert and/or consulting expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with this case;
g.the testifying and/or consulting expert’s mental impressions and opinions formed or made in connection with this case;
h.evidence of bias on the part of the testifying or consulting expert;
i.each testifying and consulting expert’s current resume and bibliography;
j.each testifying and consulting expert’s entire file for this case; and
k.all documents evidencing any agreement you have with your testifying and consulting experts regarding the method by which they are paid and any arrangements for payment for their services, including any contingency agreements, assignments of claims or an interest therein, and any lien agreements.
7.All documents and tangible things identified in your answers to interrogatories, if any.
8.Any documents and tangible things, including but not limited to photographs or other physical evidence, that will be used or offered at trial.
9.Any statements obtained from any person pertaining to the Claims, counterclaims, allegations, and defenses asserted in this lawsuit.
10.Any documents and tangible things describing, summarizing, or recording a history of payments, credits, deductions, interest charged, interest paid, principal paid, and charges pertaining to Plaintiff’s account with you.
11.All documents and tangible things that discuss, relate to, or refer to each and every fact, reason, allegation, or theory under which you deny that you are liable to Plaintiff for the Claims that are the subject of this litigation.
12.All documents and tangible things that discuss, relate to, or refer to any basis for asserting that the amounts charged for items purchased from Plaintiff were not the usual and customary price(s) in [county] County, Texas.
13.All documents that discuss, relate to, or refer to your claim that the amounts charged for items purchased from Plaintiff were not the reasonable price(s) in [county] County, Texas.
|
Include the following if applicable. |
14.If you are claiming damages, produce all documents and tangible things that you relied on or used to support each element of your claim, including the source of your figures for arriving at that amount and how you arrived at that amount.
15.If you are requesting attorney’s fees in this case, produce a copy of the contract or fee agreement between you and every attorney who was or is currently representing you, including all bills, statements, and/or invoices showing services rendered, the amounts charged, and all other charges for costs and expenses.