Discovery
The practice notes in this chapter reflect the Texas Rules of Civil Procedure that apply to discovery in suits filed on or after January 1, 2021, which differ in several respects from the rules for suits filed before that date. See Texas Supreme Court, Final Approval of Amendments to Texas Rules of Civil Procedure 47, 99, 169, 190, 192, 193, 194, 195, 196, 197, and 198, Misc. Docket No. 20-9153 (Dec. 23, 2020), 84 Tex. B.J. 149 (2021).
§ 5.1Forms of Discovery Generally
The permissible forms of discovery are (1) required disclosures, (2) requests for production and inspection of documents and tangible things, (3) requests and motions for entry on and examination of real property, (4) interrogatories to a party, (5) requests for admission, (6) oral or written depositions, and (7) motions for mental or physical examinations. Tex. R. Civ. P. 192.1. These forms may be combined in one document and may be taken in any order or sequence, although the rules provide that a party cannot serve discovery on another party until after the other party’s initial disclosures are due unless otherwise agreed to by the parties or ordered by the court. Tex. R. Civ. P. 192.2. The forms of discovery and related procedures are discussed in parts III. through VI. below.
A discovery control plan governs all cases. A petitioner must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under level 1, 2, or 3 of rule 190. Tex. R. Civ. P. 190.1.
The initial pleading required by rule 190.1 is merely to notify the court and the other parties of the petitioner’s intention and does not determine the applicable discovery level or bind the court or other parties. A petitioner’s failure to include this statement is subject to special exception. See Tex. R. Civ. P. 190 cmt. 1.
Discovery Control Levels:
Level 1: Level 1 applies to any suit that is governed by the expedited actions process in rule 169 and any divorce action not involving children in which a party pleads that the value of the marital estate is more than zero but $250,000 or less. Tex. R. Civ. P. 190.2(a)(2). Level 1 rules will not apply if the parties agree that level 2 rules should apply or the court orders a level 3 plan. If the filing of a pleading renders level 1 no longer applicable, the discovery period reopens, and discovery must be completed within the limitations set by level 2 or 3, whichever applies. Tex. R. Civ. P. 190.2(c).
Level 2: Level 2 applies to all other cases except level 3 cases. Tex. R. Civ. P. 190.3(a).
Level 3: Level 3 applies to those cases for which the court orders discovery conducted according to a discovery plan tailored to the circumstances of the specific suit. The court must make such an order on a party’s motion and may do so on its own initiative. The parties may submit an agreed order for the court’s consideration. The court should act on a party’s motion or agreed order as promptly as reasonably possible. Tex. R. Civ. P. 190.4(a).
Discovery Limitations: Level 1 and level 2 cases are subject to discovery limitations provided elsewhere in the rules, as well as to additional limitations (described below) specified in rule 190. Tex. R. Civ. P. 190.2(b), 190.3(b).
A level 3 plan may address any discovery issue or matter listed in rule 166 and may change any limitation on the timing or amount of discovery provided by the discovery rules. The level 1 or level 2 limitations apply unless they are specifically changed in the court-ordered plan. Tex. R. Civ. P. 190.4(b).
Level 1: For level 1 suits, the discovery period begins when the first initial disclosures are due and continues for 180 days. Tex. R. Civ. P. 190.2(b)(1). (Initial disclosures are due thirty days after the filing of the first answer or general appearance unless otherwise agreed by the parties or ordered by the court. Tex. R. Civ. P. 194.2(a).) Each party may have only twenty hours in total to examine and cross-examine all witnesses in oral depositions, although the court may modify the deposition hours so that no party is given unfair advantage. Tex. R. Civ. P. 190.2(b)(2).
Each party in a level 1 case may serve no more than fifteen interrogatories on any other party. Interrogatories asking only for identification or authentication of specific documents are not included in this fifteen-interrogatory limit. Each discrete subpart of an interrogatory is considered a separate interrogatory. Tex. R. Civ. P. 190.2(b)(3). A discrete subpart of an interrogatory is counted as a single interrogatory, but not every separate factual inquiry is a discrete subpart. Although not susceptible of precise definition, a discrete subpart is, in general, one that calls for information that is not logically or factually related to the primary interrogatory. Tex. R. Civ. P. 190 cmt. 3. See In re SWEPI L.P., 103 S.W.3d 578, 589 (Tex. App.—San Antonio 2003, orig. proceeding) (no “discrete subparts” found where each question related to particular claim and asked plaintiff to provide certain details about facts underlying that claim and “subparts” simply identified types of facts defendant would like to have had disclosed so that it could understand parameters of claims and prepare defenses).
Any party may serve on any other party no more than fifteen written requests for production and no more than fifteen written requests for admissions. Each discrete subpart of a request for production or request for admissions is considered a separate request. Tex. R. Civ. P. 190.2(b)(4), (b)(5).
Level 2: For level 2 suits, discovery begins when the first initial disclosures are due and, in cases under the Family Code, continues until thirty days before the date set for trial. Tex. R. Civ. P. 190.3(b)(1). (Initial disclosures are due thirty days after the filing of the first answer or general appearance unless otherwise agreed by the parties or ordered by the court. See Tex. R. Civ. P. 194.2(a).)
Each side in a level 2 case is limited to fifty hours of oral depositions to examine and cross-examine parties on the opposing side, those parties’ experts, and persons subject to those parties’ control. Each party may serve no more than twenty-five interrogatories on any other party. Interrogatories asking only for identification or authentication of specific documents are not included in this twenty-five-interrogatory limit. Each discrete subpart of an interrogatory is considered a separate interrogatory. Tex. R. Civ. P. 190.3(b)(2), (b)(3).
Level 3: A level 3 discovery control plan must include a date for trial or for a conference to determine a trial date; a discovery period for the entire case or an appropriate phase of it; appropriate limits on the amount of discovery; and deadlines for joinder, amendments or supplements to pleadings, and designation of expert witnesses. Tex. R. Civ. P. 190.4(b).
Exceptions: Rule 190 discovery limitations do not apply to discovery conducted under rule 202 (before suit) or rule 621a (after judgment), although rule 202 may not be used to circumvent rule 190. Tex. R. Civ. P. 190.6.
Modification of Discovery Control Plan: The court may modify a discovery control plan at any time and must do so when justice requires. Tex. R. Civ. P. 190.5. Rule 190.5(a) and (b) sets out the circumstances under which the court must allow additional discovery.
§ 5.3Modification of Discovery Procedures
Except where specifically prohibited, the parties may modify the procedures and limitations of the discovery rules by agreement. An agreement of the parties is enforceable if it complies with rule 11 or, as it affects an oral deposition, if it is made a part of the deposition record. The procedures and limitations may also be modified by court order for good cause. Tex. R. Civ. P. 191.1. See John H. Carney & Associates v. Ahmad, No. 07-15-00252-CV, 2016 WL 368527 (Tex. App.—Amarillo Jan. 28, 2016, pet. denied) (mem. op.).
§ 5.4Certificate for Discovery Motions
Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request stating that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and that the effort failed. Tex. R. Civ. P. 191.2. A court may hear a discovery motion or request even if the movant has failed to include a certificate of conference. The failure of a court to require the certificate of conference cannot justify mandamus relief. Tjernagel v. Roberts, 928 S.W.2d 297, 300–01 (Tex. App.—Amarillo 1996, orig. proceeding).
Every disclosure, request for discovery, notice, response, and objection must be signed by an attorney, if the party is represented by an attorney, and must show the attorney’s State Bar of Texas identification number, address, telephone number, and fax number, if any. If the party is not represented by an attorney, the item must be signed by the party and must show the party’s address, telephone number, and fax number, if any. Tex. R. Civ. P. 191.3(a).
The signature on a disclosure certifies that, to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made. Tex. R. Civ. P. 191.3(b). The signature on a discovery request, notice, response, or objection certifies that, to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the item (1) is consistent with the rules 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 an improper purpose; and (4) is not unreasonable or unduly burdensome or expensive. Tex. R. Civ. P. 191.3(c). If the certification required under rule 191.3 is false without substantial justification, the court may, on motion or on its own initiative, impose on the person who made 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).
A request, notice, response, or objection that is not signed must be stricken unless it is signed promptly after the omission is brought to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed. Tex. R. Civ. P. 191.3(d).
§ 5.6Filing, Retention, and Service of Discovery Materials
Filing: The following discovery materials must be filed with the court: (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 necessary to comply with rule 11. Tex. R. Civ. P. 191.4(b).
With certain exceptions, the following discovery materials must not be filed: (1) discovery requests, deposition notices, and subpoenas required to be served only on parties; (2) responses and objections to discovery requests and deposition notices; (3) documents and tangible things produced in discovery; and (4) statements prepared under rule 193.3(b) or (d). Tex. R. Civ. P. 191.4(a). However, the court may order discovery materials to be filed, a person may file discovery materials in support of or opposition to a motion or for other use in a court proceeding, and a person may file discovery materials necessary for an appellate proceeding. Tex. R. Civ. P. 191.4(c).
Retention: A person required to serve discovery materials that are not required to be filed must retain the original or an exact copy during pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless the trial court provides otherwise. Tex. R. Civ. P. 191.4(d).
COMMENT: To avoid this requirement, the practitioner should include a provision in the final order excusing each party from the obligation to retain these documents. The forms for final orders in this manual contain this provision as an option. The wise practitioner will want to omit this provision if there is a reasonable possibility of an appeal.
Service: Every disclosure, discovery request, notice, response, and objection that is required to be served on a party or person must be served on all parties of record. Tex. R. Civ. P. 191.5.
§ 5.7Orders for Protection from Discovery
Motion: A person from whom discovery is sought, and any other person affected by the discovery, may move for an order protecting the person from such discovery. The motion must be brought within the time permitted for response to the subject discovery. A person should not move for protection when an objection to written discovery or assertion of privilege is appropriate, although the motion does not waive the objection or assertion of privilege. A person seeking protection regarding the time or place of discovery must state a reasonable time and place for compliance. A person must comply with any part of a request from which protection is not sought unless it would be unreasonable under the circumstances to do so before obtaining a ruling. Tex. R. Civ. P. 192.6(a).
Order: The court may make any order necessary to protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, including but not limited to the orders listed in rule 192.6(b). Tex. R. Civ. P. 192.6(b).
COMMENT: Often documents are requested in a family law case, such as a divorce, that are of a highly confidential nature. If there is a concern that documents may cause harm if improperly disclosed to third persons, a confidentiality order may be considered to prevent disclosure. See Tex. R. Civ. P. 192.6 (discussed above). If sensitive material will be produced in the trial, it may be preferable to enter into a confidentiality agreement with opposing counsel and to request that the court’s file be sealed after trial instead of filing a formal motion for a protective order. See Tex. R. Civ. P. 76a. But see Tex. R. Civ. P. 76a(1) (“No court order or opinion issued in the adjudication of a case may be sealed.”), 76a(2)(a)(3) (other documents filed in action originally arising under Family Code are exempted from requirements of rule 76a). See also forms 5-8 (confidentiality order), 26-24 (motion to seal court records), and 26-25 (order on motion to seal court records) in this manual.
§ 5.8Discovery from Nonparties
A nonparty for purposes of discovery is defined as a person who is not a party or subject to a party’s control. Tex. R. Civ. P. 205.1.
COMMENT: Depending on the facts of the case, it is possible that persons such as a party’s employee, private investigator, accountant, stockbroker, expert, etc., would not be considered nonparties for purposes of discovery if they are subject to the party’s control.
A party may compel discovery from nonparties without the necessity of a motion or deposition. Tex. R. Civ. P. 205.1, 205.3. A party seeking discovery by subpoena from a nonparty must serve a copy of the form of notice that the rules require for the particular form of discovery. The party must serve this notice on the nonparty and on all other parties. A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. Tex. R. Civ. P. 205.2.
A party may compel production of documents and tangible things from a nonparty by serving, a reasonable time before the response is due but no later than thirty days before the end of any applicable discovery period, the required notice and a subpoena compelling production or inspection of documents or tangible things. Tex. R. Civ. P. 205.3(a). A notice to produce documents or tangible things under rule 205.3 must be served at least ten days before the subpoena compelling production is served. Tex. R. Civ. P. 205.2.
The notice must state the person from whom production or inspection is sought, a reasonable time and place for production or inspection, and the items to be produced or inspected. Tex. R. Civ. P. 205.3(b). If a nonparty’s health-care records are sought from another nonparty, the nonparty whose records are being sought must be notified of the request. Tex. R. Civ. P. 205.3(c).
The nonparty must respond to the notice and subpoena requesting production in accordance with rule 176.6. Tex. R. Civ. P. 205.3(d). The material obtained must be made available for inspection by any other party on reasonable notice, and copies must be furnished to any party at the requesting party’s expense. Tex. R. Civ. P. 205.3(e). The nonparty’s cost of producing records must be reimbursed by the party requesting the records from the nonparty. Tex. R. Civ. P. 205.3(f).
COMMENT: The practitioner may send the nonparty a business records affidavit or declaration for its custodian of records to complete and return with the requested records. The practitioner should include a letter asking for the execution of this affidavit or declaration to avoid having to depose the business records custodian or having to compel the testimony of the custodian at trial. In many cases the nonparty will gladly complete the affidavit or declaration to avoid further involvement in the suit. See form 5-95 in this manual. See also Tex. Civ. Prac. & Rem. Code § 22.004 (fees party must pay custodian of records).
The nonparty has standing to seek a protective order under rule 192.6. See Tex. R. Civ. P. 192.6; In re Shell E & P, Inc., 179 S.W.3d 125, 130 (Tex. App.—San Antonio 2005, orig. proceeding). See also section 5.7 above.
§ 5.9Discovery of Customer Records from Financial Institution
To obtain discovery of a record of a financial institution relating to one or more of that institution’s customers, the requesting party must comply with section 59.006 of the Texas Finance Code. With some exceptions that generally will not apply to a family lawsuit, section 59.006 is the exclusive method to compel this discovery. Tex. Fin. Code § 59.006(a). Subject to these exceptions, a financial institution is required to produce a record in response to a request only if it is served with the record request not later than the twenty-fourth day before the date that compliance with the record request is required and the requesting party pays the financial institution’s reasonable costs of complying with the record request before the institution complies with the request. Tex. Fin. Code § 59.006(b)(1), (b)(2). If the requesting party has not paid the financial institution’s costs or posted a cost bond, the court may not order the institution to produce the record or find the institution in contempt of court for failing to produce it. Tex. Fin. Code § 59.006(b–1).
If the customer is not a party to the proceeding in which the request was issued, in addition to serving the financial institution with a record request, the requesting party must satisfy the following conditions:
1.The requesting party must give the customer a notice stating the rights of the customer under Finance Code section 59.006(e) and give the customer a copy of the request in the manner and within the time provided by Texas Rule of Civil Procedure 21a.
2.The requesting party must file a certificate of service indicating that the requesting party has given the customer both this notice and a copy of the record request.
3.The requesting party must request the customer’s written consent authorizing the financial institution to comply with the record request.
If the customer is not a party to the proceeding, the financial institution does not have to provide the requested records until the requesting party completes each of these steps and the financial institution receives the customer’s written consent to release the record or the tribunal takes further action based on action initiated by the requesting party under section 59.006(d). Tex. Fin. Code § 59.006(b)(3).
If the customer is not a party to the proceeding and the customer does not execute a written consent on or before the date compliance is required, the requesting party may by written motion seek an in camera inspection of the requested record as its sole means of obtaining access to the requested record. In response to a motion for in camera inspection, the tribunal may inspect the requested record to determine its relevance to the matter before the tribunal. The tribunal may order redaction of portions of the records that the tribunal determines should not be produced and shall enter a protective order preventing the record that it orders produced from being disclosed to a person who is not a party to the proceeding before the tribunal and from being used by a person for any purpose other than resolving the dispute before the tribunal. Tex. Fin. Code § 59.006(d).
A customer that is a party to the proceeding bears the burden of preventing or limiting the financial institution’s compliance with a record request subject to section 59.006 by seeking an appropriate remedy, including filing a motion to quash the record request or a motion for a protective order. Any motion filed shall be served on the financial institution and the requesting party before the date that compliance with the request is required. A financial institution is not liable to its customer or another person for disclosure of a record in compliance with section 59.006. Tex. Fin. Code § 59.006(e). An order to quash or for protection or other remedy entered or denied by the tribunal under section 59.006(d) or (e) is not a final order, and an interlocutory appeal may not be taken. Tex. Fin. Code § 59.006(g).
A financial institution may not be required to produce a record under section 59.006 before the later of the twenty-fourth day after the date of receipt of the record request, the fifteenth day after the date of receipt of a customer consent to disclose a record, or the fifteenth day after the date a court orders production of a record after an in camera inspection of a requested record. Tex. Fin. Code § 59.006(f).
A party is entitled to full, fair discovery within a reasonable period of time. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam). Mandamus is available in some circumstances to protect a party against an order compelling a response to a discovery request or to require a trial court to compel a party to respond. In the discovery context, there are at least three situations in which a remedy by appeal will be inadequate:
1.The appellate court would not be able to cure the trial court’s discovery error; for example, the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party.
2.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.The trial court disallows discovery, and the missing discovery cannot be made part of the appellate record, or the trial court after proper request refuses to make the discovery 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 v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992, orig. proceeding).
If the discovery goes to the heart of the case there is not adequate remedy at law. See In re Colonial Pipeline, 968 S.W.2d at 942. Mandamus is the only remedy if a protective order shields the witnesses from deposition and thereby prevents the evidence from being part of the record. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding). The blanket denial of all discovery from a witness in a civil case, if that witness is also a defendant in a pending criminal case arising out of the same facts and the witness is also expected to testify in the criminal case, is subject to mandamus. See In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding). If the trial court fails to rule on discovery objections, the judge is subject to mandamus. In re Belton, No. 10-05-00285-CV, 2005 WL 2300366 (Tex. App.—Waco Sept. 25, 2005, orig. proceeding) (per curiam) (mem. op.).
Mandamus is discussed at length in chapter 27 of this manual.
[Sections 5.11 through 5.20 are reserved for expansion.]
§ 5.21Scope of Discovery Generally
Information is subject to discovery if it is not privileged and is relevant to the subject matter of the litigation or appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). Discovery is not limited to what may be admissible at trial. Tex. R. Civ. P. 192.3(a); Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (orig. proceeding); Lindsey v. O’Neill, 689 S.W.2d 400, 402 (Tex. 1985) (orig. proceeding) (per curiam); see also Tex. R. Evid. 401 (definition of “relevant evidence”). The Texas Supreme Court, however, has repeatedly emphasized that discovery may not be used as a fishing expedition. Rather, requests must be reasonably tailored to include only matters relevant to the case. In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam).
The court should limit the discovery methods permitted by the rules if it determines that the discovery sought is unreasonably cumulative or duplicative or may be obtained from another source that is more convenient, less burdensome, or less expensive, or that the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Tex. R. Civ. P. 192.4. A party resisting discovery may not make conclusory allegations that the requested discovery is unduly burdensome or unnecessarily harassing. The party must produce some evidence supporting its request for a protective order. In re Energas Co., 63 S.W.3d 50, 54 (Tex. App.—Amarillo 2001, orig. proceeding).
§ 5.22Documents and Tangible Things
§ 5.22:1Documents and Tangible Things Generally
A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person’s possession, custody, or control. Tex. R. Civ. P. 192.3(b).
“Possession, custody, or control of an item” means that the person either has physical possession of the item or has a right to possession that is equal to or superior to that of the person who has physical possession. Tex. R. Civ. P. 192.7(b); In re Sting Soccer Group, LP, No. 05-17-00317-CV, 2017 WL 5897454, at *7 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.) (objection that information sought is equally available is invalid objection; discovery request ensures that parties have same basic documents and allows party to activate automatic authentication rights provided by rule 193.7). A party’s mere access to the relevant item does not constitute “physical possession” under this definition if the item is owned or otherwise controlled by someone else. In re Kuntz, 124 S.W.3d 179, 184 (Tex. 2003) (orig. proceeding).
§ 5.22:2Medical Records and Authorizations
Records related to physical, mental, or emotional condition may be admissible under the provisions of rules 509(e)(4) and 510(d)(5) of the Texas Rules of Evidence, as construed by the Texas Supreme Court. R.K. v. Ramirez, 887 S.W.2d 836, 842–43 (Tex. 1994) (orig. proceeding). The rules provide that a privilege does not apply to a communication or record relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies on the condition as a part of the party’s claim or defense. Tex. R. Evid. 509(e)(4), 510(d)(5). The records sought must be relevant to the condition at issue, and the condition must be relied on as part of a party’s claim or defense, “meaning that the condition itself is a fact that carries some legal significance.” R.K., 887 S.W.2d at 843. The court must ensure that the need for the information is not outweighed by legitimate privacy interests protected by the privilege; the exception to the privilege does not extend to information about a nonparty patient who is or may be a consulting or testifying expert in the suit. Tex. R. Evid. 509 cmt., 510 cmt. See also section 5.28 below.
The test is not simply whether the condition is relevant, because any litigant could plead some claim or defense to which a patient’s condition could arguably be relevant and the privilege would cease to exist. See In re Morgan, 507 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). The test is not satisfied if the patient’s condition is merely an evidentiary or intermediate issue of fact, rather than an ultimate issue for a claim or defense, or if the condition is merely tangential to a claim rather than central to it. R.K., 887 S.W.2d at 843.
Chapter 611 of the Texas Health and Safety Code governs the confidentiality of mental health records and their disclosure. A parent’s right of access to a child’s psychological records is not absolute. Although Family Code section 153.073 grants a parent who is divorced and who has been named a conservator the same rights of access to a child’s psychological records as a parent who is not divorced, this right is subject to the provisions of chapter 611 of the Texas Health and Safety Code. Abrams v. Jones, 35 S.W.3d 620, 624 (Tex. 2000).
Communications between a patient and a professional, as well as records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. Tex. Health & Safety Code § 611.002(a). A “professional” is a person authorized to practice medicine in any state or nation; a person licensed or certified by Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder; or a person the patient reasonably believes is authorized, licensed, or certified as provided by Health and Safety Code section 611.001(2). Tex. Health & Safety Code § 611.001(2). Confidential communications or records may not be disclosed except as provided by Health and Safety Code section 611.004 or 611.0045. Tex. Health & Safety Code § 611.002(b). The privilege of confidentiality may be claimed by—
1.the patient;
2.if acting on the patient’s behalf, a person who has the written consent of the patient, a parent if the patient is a minor, or a guardian if the patient has been adjudicated as incompetent to manage the patient’s personal affairs;
3.if acting on the patient’s behalf, the patient’s representative if the patient is deceased; or
4.the professional, on behalf of the patient.
See Tex. Health & Safety Code § 611.003(a); see also Tex. Health & Safety Code § 611.004(a)(4), (a)(5).
A professional may disclose confidential information only in the limited circumstances set forth in Health and Safety Code section 611.004. See Tex. Health & Safety Code § 611.004. No exception to confidentiality under section 611.004 may be construed to create an independent duty or requirement to disclose the confidential information to which the exception applies. Tex. Health & Safety Code § 611.002(b–1). A professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient’s physical, mental, or emotional health. Tex. Health & Safety Code § 611.0045(b). A person who receives information from confidential communications or records may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information. This restriction does not apply to, among others, a person who has the written consent of the patient, or a parent if the patient is a minor, if the person is acting on the patient’s behalf. Tex. Health & Safety Code § 611.004(d). A mental health professional is not required to provide access to a child’s confidential records if a parent who requests them is not acting on behalf of the child. Abrams, 35 S.W.3d at 625–26. When a parent is acting on behalf of a child, the question that then arises is whether, under section 611.0045(b), a professional may nevertheless deny access to a portion of a child’s records if their release would be harmful to the patient’s physical, mental, or emotional health. Abrams, 35 S.W.3d at 626.
A person aggrieved by the improper disclosure of or failure to disclose confidential communications or records in violation of Health and Safety Code chapter 611 may petition the district court of the county in which the person resides for appropriate relief, including injunctive relief. A person may petition a district court of Travis County if the person is not a resident of Texas. Tex. Health & Safety Code § 611.005(a). In a suit contesting the denial of access under Health and Safety Code section 611.0045, the burden of proving that the denial was proper is on the professional who denied the access. Tex. Health & Safety Code § 611.005(b); see also Abrams, 35 S.W.3d at 627 (citing Health and Safety Code section 611.0045(b)). The aggrieved person also has a civil cause for damages. Tex. Health & Safety Code § 611.005(c). In addition, a parent denied access to a child’s records has judicial recourse and may petition a district court for appropriate relief. Abrams, 35 S.W.3d at 626–27 (citing Health and Safety Code section 611.0045(a)).
§ 5.22:4Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104–191, 110 Stat. 1936 (1996), went into effect on April 14, 2001, with compliance required of all health plans by April 14, 2004. See 45 C.F.R. § 164.534.
Under HIPAA, a “covered entity” means a health plan, a health-care clearinghouse, and a health-care provider who transmits any health information in electronic form in connection with a transaction covered by 45 C.F.R. subchapter C. “Health-care provider” means a provider of medical or health services and any other person or organization that furnishes, bills, or is paid for health care in the normal course of business. “Health information” means any information, including genetic information, whether oral or recorded in any form or medium, that (1) is created or received by a health-care provider, health plan, public health authority, employer, life insurer, school, university, or health-care clearing house and (2) relates to the past, present, or future physical or mental health or condition of an individual, to the provision of health care to an individual, or to the past, present, or future payment for the provision of health care to an individual. 45 C.F.R. § 160.103.
“Individually identifiable health information” is information that is a subset of health information, including demographic information that is collected from the individual, (1) that is created or received by a health-care provider, health plan, employer, or health-care clearinghouse; (2) that relates to the past, present, or future physical or mental health of an individual, to the provision of health care to an individual, or to the past, present, or future payment for the provision of health care to an individual; and (3) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual. “Protected health information” means individually identifiable health information that is transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or medium. However, protected health information excludes individually identifiable health information in education records covered by the Family Educational Rights and Privacy Act, records described at 20 U.S.C. § 1232g(a)(4)(B)(iv), and employment records held by a covered entity in its role as employer. 45 C.F.R. § 160.103.
45 C.F.R. § 164.508 permits disclosure of protected health information when a covered entity obtains or receives a valid authorization. A valid authorization must contain at least the following core elements:
1.A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion.
2.The name or other specific identification of the person(s) or class of persons authorized to make the requested use or disclosure.
3.The name or other specific identification of the person(s) or class of persons to whom the covered entity may make the requested use or disclosure.
4.A description of each purpose of the requested use or disclosure. The statement “at the request of the individual” is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.
5.An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure.
6.The signature of the individual and the date. If the authorization is signed by a personal representative of the individual, a description of the representative’s authority to act for the individual must also be provided.
The authorization must contain statements adequate to place the individual on notice of (1) the individual’s right to revoke the authorization in writing, (2) the ability or inability to condition treatment on the authorization if the covered entity is requesting the authorization, and (3) the potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer be protected by the rule. 45 C.F.R. § 164.508(c)(2).
The authorization must be written in plain language. 45 C.F.R. § 164.508(c)(3).
A personal representative must attach legal documentation that permits him to act on the patient’s behalf. See 45 C.F.R. § 164.508(c)(1)(vi).
COMMENT: A personal representative for a child is a parent, a guardian, or someone legally acting as a parent or guardian with authority to make health-care decisions on behalf of the minor. A personal representative for an adult or an emancipated minor is a person with a medical power of attorney or a health-care proxy or who has been given authority under a court order or has been appointed a legal guardian. A patient’s lawyer may never be the patient’s personal representative for HIPAA privacy purposes.
Generally stated, there are three ways to obtain copies of a person’s individually identifiable health information from a covered entity: (1) the patient may personally request the information, (2) the patient may sign an authorization in favor of a third party that contains prescribed statements and information, and (3) the party seeking the information may obtain an order made in a judicial or administrative proceeding pursuant to 45 C.F.R. § 164.512(e).
A covered entity may disclose protected health information (PHI) in the course of any judicial proceeding in response to a court order, provided the covered entity discloses only the PHI expressly authorized by the order. 45 C.F.R. § 164.512(e)(1)(i). A covered entity may also disclose PHI in response to a subpoena, discovery request, or lawful process not accompanied by a court order if the covered entity receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by that party to ensure that the individual who is the subject of the requested PHI has been given notice of the request or that the requesting party has made reasonable efforts to secure a qualified protective order that meets the requirements of 45 C.F.R. section 164.512(e)(1)(v). 45 C.F.R. § 164.512(e)(1)(ii)(A), (e)(1)(ii)(B). “Satisfactory assurance” is defined by the regulations. See 45 C.F.R. § 164.512(e)(1)(iii), (e)(1)(iv).
Depending on the severity of the offense, the criminal penalties for wrongful disclosure of individually identifiable health information can range from a fine of up to $50,000, imprisonment for up to one year, or both to a fine of up to $250,000, imprisonment for up to ten years, or both. The higher penalties are reserved for offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm. 42 U.S.C. § 1320d–6.
§ 5.22:5Substance Use Disorder Patient Records
Records of the identity, diagnosis, prognosis, or treatment of any patient that are maintained in connection with the performance of any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research that is conducted, regulated, or directly or indirectly assisted by any federal department or agency are generally confidential and may be disclosed only for specified purposes. 42 U.S.C. § 290dd–2. Among the means of authorized disclosure are a written consent of the patient and a court order. The content of any record described above may be disclosed in accordance with a prior written consent of the patient but only in accordance with federal regulations. See 42 U.S.C. § 290dd–2(b)(1). Records may also be disclosed if authorized by an appropriate order of a court of competent jurisdiction if the order is granted after an application showing good cause. In assessing good cause, the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. On granting the order, the court, in determining the extent to which any disclosure of all or any part of the record is necessary, shall impose appropriate safeguards against unauthorized disclosure. See 42 U.S.C. § 290dd–2(b)(2)(C).
A written consent to a disclosure of substance use disorder patient records covered by the federal regulations must include—
1.the name of the patient;
2.the specific name or general designation of the program, entity, or individual permitted to make the disclosure;
3.how much and what kind of information is to be disclosed, including an explicit description of the substance use disorder information that may be disclosed;
4.the names of the individual(s) or entity(ies) to whom disclosure is to be made;
5.the purpose of the disclosure;
6.a statement that the consent is subject to revocation at any time except to the extent that the program or person that is permitted to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third-party payer;
7.the date, event, or condition on which the consent will expire if not revoked before. This date, event, or condition must ensure that the consent will last no longer than reasonably necessary to serve the purpose for which it is provided;
8.the signature of the patient and, when required for a patient who is a minor, the signature of an individual authorized to give consent under 42 C.F.R. section 2.14 or, when required for a patient who is incompetent or deceased, the signature of an individual authorized to sign under 42 C.F.R. section 2.15; and
9.the date on which the consent is signed.
COMMENT: It may be advisable also to include in the written consent the address, Social Security number, and birth date of the patient, as well as the approximate dates of treatment. The attorney should contact the substance use disorder program administrator before preparing the consent to learn if the program requires any other specific information before it will honor the consent.
A disclosure may not be made on the basis of a consent that (1) has expired; (2) on its face substantially fails to conform to any of the requirements set forth in 42 C.F.R. section 2.31(a); (3) is known to have been revoked; or (4) is known, or through reasonable diligence could be known, by the individual or entity holding the records to be materially false. 42 C.F.R. § 2.31(b).
An order authorizing the disclosure of patient records for purposes other than criminal investigation or prosecution may be applied for by any person having a legally recognized interest in the disclosure that is sought. The application may be filed separately or as part of a pending civil action in which the applicant asserts that the patient records are needed to provide evidence. An application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the patient is the applicant or has given a written consent (meeting the requirements of the regulations) to disclosure or the court has ordered the record of the proceeding sealed from public scrutiny. 42 C.F.R. § 2.64(a). The patient and the person holding the records from whom disclosure is sought must be given adequate notice in a manner that does not disclose patient identifying information to other persons and an opportunity to file a written response to the application or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order. 42 C.F.R. § 2.64(b). Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner that ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing in a manner that meets the written consent requirements of the regulations. The proceeding may include an examination by the judge of the patient records referred to in the application. 42 C.F.R. § 2.64(c). An order under section 2.64 may be entered only if the court determines that good cause exists. To make this determination the court must find that other ways of obtaining the information are not available or would not be effective and that the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship, and the treatment services. 42 C.F.R. § 2.64(d).
A court order under the regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if (1) the disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances that constitute suspected child abuse and neglect and verbal threats against third parties; (2) the disclosure is necessary in connection with the investigation or prosecution of an extremely serious crime allegedly committed by the patient, such as one that directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or (3) the disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications. 42 C.F.R. § 2.63(a).
An order authorizing a disclosure must (1) limit disclosure to those parts of the patient’s record that are essential to fulfill the objective of the order; (2) limit disclosure to those persons whose need for information is the basis for the order; and (3) include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship, and the treatment services (for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient’s record has been ordered). 42 C.F.R. § 2.64(e). An order of a court of competent jurisdiction entered under 42 C.F.R. part 2, subpart E, to disclose confidential substance use disorder treatment records authorizes only a disclosure or use of patient information that would otherwise be prohibited by 42 U.S.C. section 290dd–2 and the regulations relating to the confidentiality of substance use disorder treatment records. The order does not compel disclosure. A subpoena or similar legal mandate must be issued to compel disclosure. The mandate may be entered at the same time as and accompany an authorizing court order entered under the regulations. 42 C.F.R. § 2.61(a).
Any person who violates any provisions of 42 U.S.C. section 290dd–2 or the regulations relating to the confidentiality of substance use disorder treatment records shall be fined in accordance with title 18 of the U.S. Code. 42 U.S.C. § 290dd–2(f); 42 C.F.R. § 2.3.
§ 5.23Potential Parties and Witnesses
A party may obtain discovery of the name, address, and telephone number of any potential party. Tex. R. Civ. P. 192.3(i).
The same information may be obtained for persons having knowledge of relevant facts, as well as a brief statement of each such person’s connection with the action. A person has knowledge of relevant facts when the person has or may have knowledge of any discoverable matter; the person need not have admissible information or personal knowledge. An expert is a “person with knowledge of relevant facts” only if the knowledge was obtained firsthand or if it was not obtained in preparation for trial or in anticipation of litigation. Tex. R. Civ. P. 192.3(c).
A party may obtain discovery of the name, address, and telephone number of any person expected to be called to testify at trial. This discovery does not extend to rebuttal or impeaching witnesses the necessity of whose testimony cannot be reasonably anticipated before trial. Tex. R. Civ. P. 192.3(d).
§ 5.24Testifying and Consulting Experts
Testifying Experts: A testifying expert is an expert who may be called to testify as an expert witness at trial. Tex. R. Civ. P. 192.7(c).
If a party intends to call an expert at trial, the opposing party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert: (1) the expert’s name, address, and telephone number; (2) the subject matter of expected testimony; (3) the facts known by the expert that relate to, or form the basis of, the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, regardless of when and how the factual information was acquired; (4) the mental impressions and opinions of the expert formed or made in connection with the case in which discovery is sought and any methods used to derive them; (5) evidence of bias; (6) all documents, tangible things, reports, models, or data compilations that have been 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. Tex. R. Civ. P. 192.3(e). Although rule 192.3(e)(5) permits discovery of bias evidence, a court generally may not require a nonparty witness to produce personal financial records and appointment books for that reason. See In re Doctors’ Hospital of Laredo, 2 S.W.3d 504, 506–07 (Tex. App.—San Antonio 1999, orig. proceeding).
COMMENT: Certain information concerning testifying experts is subject to required disclosures under rule 195.5(a). See the discussion at section 5.42 below. Although the information listed under that rule is substantially like the items listed above from rule 192.3(e), the language is not identical, and items 6 and 7 above are subject to required disclosure only for testifying experts retained by, employed by, or otherwise subject to the responding party’s control. Additionally, three further items are included in required disclosure regarding those experts: (1) the expert’s qualifications, including a list of all publications authored in the previous ten years; (2) unless the expert is the responding party’s attorney and is testifying to attorney’s fees, a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; and (3) a statement of the compensation to be paid for the expert’s study and testimony in the case. See Tex. R. Civ. P. 195.5(a)(4)(C)–(E).
A testifying expert may be “re-designated” as long as it is not part of a bargain between adversaries to suppress testimony or for some other improper purpose. The party may use the “re-designated” testifying expert as a consulting expert. In re Doctors’ Hospital of Laredo, 2 S.W.3d at 506.
See section 8.71 in this manual for discussion of exclusion of expert witnesses.
Consulting Experts: A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial but who is not a testifying expert. Tex. R. Civ. P. 192.7(d). The identity, mental impressions, and opinions of an expert used for consultation only are not discoverable unless the consulting expert’s opinions or impressions have been reviewed by a testifying expert. Tex. R. Civ. P. 192.3(e).
Any person may obtain, on written request, his or her own statement concerning the lawsuit that is in the possession, custody, or control of any party. A party may obtain discovery of the statement of any person with knowledge of relevant facts—a “witness statement”—regardless of when the statement was made. A witness statement is a written statement signed or otherwise adopted or approved in writing by the person making it or a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement or any substantially verbatim transcription of such a recording. Notes taken during a conversation or interview with a witness are not a witness statement. Tex. R. Civ. P. 192.3(h).
§ 5.26Other Topics of Discovery
A party may obtain discovery of any other party’s legal contentions and the factual bases for these contentions. Tex. R. Civ. P. 192.3(j). However, a marshaling of the evidence is not required for required disclosures or interrogatories. Tex. R. Civ. P. 194.2(b)(3), 197.1. The rules regarding requests for production do not contain any prohibition on marshalling of evidence. In re Sting Soccer Group, LP, No. 05-17-00317-CV, 2017 WL 5897454, at *7 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.). A party may also obtain discovery concerning indemnity and insuring agreements and settlement agreements as described in rule 192.3(f) and 192.3(g). See Tex. R. Civ. P. 192.3(f), (g).
Work Product Defined: The rules define the term work product as (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents, or (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. Tex. R. Civ. P. 192.5(a).
Protection of Work Product: Rule 192.5(b) provides two classifications for work product—core work product and other work product.
“Core work product” is defined as the work product of an attorney or an attorney’s representative that contains the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories. Core work product is not discoverable. Tex. R. Civ. P. 192.5(b)(1).
Any other work product is discoverable only on a showing that the party seeking discovery has substantial need of the materials in preparing the party’s case and that the party is unable, without undue hardship, to obtain the substantial equivalent of the material by other means. Tex. R. Civ. P. 192.5(b)(2). If a court orders discovery of “other work product” the court must, insofar as possible, protect against disclosure of the core work product. Tex. R. Civ. P. 192.5(b)(4). It is not a violation of rule 192.5(b)(1) if ordered disclosure of “other work product” incidentally discloses by inference an attorney’s mental processes that are otherwise protected under the rule. Tex. R. Civ. P. 192.5(b)(3). The privilege “is not an umbrella for protecting materials gathered in the ordinary course of business.” In re Maher, 143 S.W.3d 907, 912 (Tex. App.—Fort Worth 2004, orig. proceeding).
An assertion that material or information is work product is an assertion of privilege. Tex. R. Civ. P. 192.5(d). See section 5.28 below.
Work Product Not Protected from Discovery: Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery: (1) information discoverable under rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; (2) trial exhibits ordered disclosed under rule 166 or rule 190.4; (3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts; (4) any photograph or electronic image of underlying facts or a photograph or electronic image of any sort that a party intends to offer into evidence; and (5) any work product created under circumstances within an exception to the attorney-client privilege in rule 503(d) of the Texas Rules of Evidence. Tex. R. Civ. P. 192.5(c); In re Sting Soccer Group, LP, No. 05-17-00317-CV, 2017 WL 5897454, at *6 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.).
Information otherwise discoverable may be protected from disclosure by privilege. Privileges exist by way of court rules (procedural and evidentiary), statutes (including the Family Code), constitutional provisions, and case law. If not properly raised, privileges and other laws affecting discovery may be waived. See section 5.29 below. Procedures for asserting privileges to written discovery are described in section 5.47 below, and procedures for asserting privileges during an oral deposition are discussed in section 5.84 below.
The following is a brief summary of the privileges and laws affecting discovery that are most often encountered in family law cases.
1.Attorney Work Product Exemption. Rule 192.5 provides for protection of certain attorney work product, which is discussed fully in section 5.27 above. Core work product (that is, the work product of an attorney or an attorney’s representative that contains the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories) is not discoverable. Tex. R. Civ. P. 192.5(b)(1).
A request for a party to produce “a description and/or photograph of each and every exhibit that you intend to introduce in evidence” at trial was improper because it was directed at the attorney’s mental process and trial strategy. Texas Tech University Health Sciences Center v. Schild, 828 S.W.2d 502, 503–04 (Tex. App.—El Paso 1992, orig. proceeding).
2.Consulting Expert Privilege. Tex. R. Civ. P. 192.3(e).
3.Attorney-Client Privilege. Tex. R. Evid. 503. But see Tex. Fam. Code § 261.101 (duty to report child abuse or neglect overrides privilege).
4.Spousal Privilege. Tex. R. Evid. 504. But see, e.g., Tex. Fam. Code § 6.704; Tex. R. Evid. 504(a)(4)(B) (exceptions to privilege in proceedings between spouses). See also Tex. Code Crim. Proc. art. 38.10 (eliminating spouse’s right to refuse to testify against his or her spouse in suits relating to family violence or bigamy). In addition, in actions under the Uniform Interstate Family Support Act, the spousal privilege under rule 504 of the Texas Rules of Evidence is not applicable. Tex. Fam. Code § 159.316(h).
If the privilege is claimed, the party seeking to avoid discovery has the burden to establish by testimony or affidavit a prima facie case for the privilege. If that party has presented a prima facie case establishing that the requested information is privileged, the burden shifts to the party seeking to compel discovery to prove that an exception to the privilege applies. In re Burdick, No. 04-19-00833-CV, 2020 WL 1159049, at *3 (Tex. App.—San Antonio Mar. 11, 2020, orig. proceeding) (mem. op.) (text messages).
5.Clergyman Communications Privilege. Tex. R. Evid. 505. But see Tex. Fam. Code § 261.101 (duty to report child abuse or neglect overrides privilege).
6.Trade Secrets Privilege. Tex. R. Evid. 507.
7.Physician-Patient Privilege. Tex. R. Evid. 509. An exception is provided in rule 509(e)(4) of the Texas Rules of Evidence for a communication or record relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies on the condition as a part of the party’s claim or defense. See Tex. Fam. Code § 261.101 (duty to report child abuse or neglect overrides privilege). See section 5.22 above.
8.Mental Health Information Privilege. Tex. R. Evid. 510. An exception to the privilege is provided in rule 510(d)(4) of the Texas Rules of Evidence for court-ordered exams and in rule 510(d)(5) for a communication or record relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies on the condition as a part of the party’s claim or defense. See also Subia v. Texas Department of Human Services, 750 S.W.2d 827, 830–31 (Tex. App.—El Paso 1988, no writ) (“court-ordered exams” exception applies only if the person examined has “been previously informed that communications would not be privileged”). See section 5.22 above.
9.Self-Incrimination Privilege. U.S. Const. amend. V; Tex. Const. art. I, § 10; see also Tex. R. Evid. 513(c) (certain rules that apply to other privileges—that the claim of privilege is neither a proper subject of comment by the judge or counsel nor basis for an inference and that, to the extent practicable, the proceedings shall be conducted so as to facilitate the making of a claim without the jury’s knowledge—do not apply to a party’s claim of the privilege against self-incrimination in the present civil proceeding). A court can allow a civil jury to make a negative inference from the assertion of the privilege against self-incrimination. Texas Department of Public Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 763 (Tex. 1995).
10.Court-Ordered Marital Counseling. Reports and information arising from court-ordered marital counseling in divorce cases are privileged. Tex. Fam. Code § 6.705.
11.Department of Family and Protective Services Records. With several exceptions, including court orders or for good cause shown, adoption records kept by the Texas Department of Family and Protective Services and the district clerk are confidential. Tex. Fam. Code §§ 108.002, 162.022; see also Tex. Fam. Code § 261.201.
12.Child Abuse Records. Reports required to be filed regarding allegations of child abuse or neglect are generally confidential. Tex. Fam. Code § 261.201. However, in any proceeding regarding the abuse or neglect of a child or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client. Tex. Fam. Code § 261.202.
13.Family Code Provisions for Juvenile Proceedings. Numerous provisions of the Family Code address immunities, confidentialities, privileges, and/or evidence in juvenile proceedings. See, e.g., Tex. Fam. Code §§ 51.095, 51.13, 53.03, 54.01(g), 54.031, 54.0406(c).
14.Family Violence. Confidentiality is imposed under some provisions of the Family Code concerning family violence. See, e.g., Tex. Fam. Code § 85.007.
15.Expunction. If a person is arrested and charged with a crime but the charges are dropped (and other criteria are met), the person is entitled to have the criminal charges expunged from his record. Tex. Code Crim. Proc. arts. 55.01–.06. When the order of expunction is final the records cannot be used for any purpose and the party may deny the occurrence of the arrest and the existence of the expunction order. Tex. Code Crim. Proc. art. 55.03.
16.ADR Proceedings. The statute providing for alternative dispute resolution procedures, including mediation, provides that communications and records involving such matters are confidential and protected from disclosure. Tex. Civ. Prac. & Rem. Code § 154.073.
17.Collaborative Law Proceedings. Title 1–A of the Family Code contains provisions for confidentiality and privilege for certain family law collaborative communications. See Tex. Fam. Code §§ 15.113–.115.
§ 5.29Waiving Objections to Discovery or Assertions of Privilege
Objections to discovery and assertions of privilege may be waived in numerous ways, including the following:
1.Failing to timely or properly object, unless the court excuses the waiver for good cause shown. Tex. R. Civ. P. 193.2(e); see also Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989) (failure to object to evidence controverting deemed admission). See sections 5.47 and 5.84 below for discussion of asserting privilege.
2.Obscuring the objection with numerous unfounded objections, unless the court excuses the waiver for good cause shown. Tex. R. Civ. P. 193.2(e).
3.Failing to get an agreed extension of time in writing. See London Market Cos. v. Schattman, 811 S.W.2d 550, 552 (Tex. 1991) (orig. proceeding) (per curiam).
4.Voluntarily disclosing a significant part of a privileged matter, which may waive the privilege. See Tex. R. Evid. 511; see also Tilton v. Moyé, 869 S.W.2d 955, 957 (Tex. 1994) (orig. proceeding); Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648–49 (Tex. 1985) (orig. proceeding). If a party produces material or information without intending to waive a claim of privilege, the producing party may, within ten days (or shorter time ordered by the court) of discovering that the production was made, amend the response, identifying the material or information produced and stating the privilege. The specified material or information and any copies must be returned on receipt of the amended response, pending any ruling by the court denying the privilege. Tex. R. Civ. P. 193.3(d).
5.Using documents to refresh memory before or during deposition or trial testimony. See, e.g., City of Denison v. Grisham, 716 S.W.2d 121, 123 (Tex. App.—Dallas 1986, orig. proceeding).
6.Using privileges offensively. See Republic Insurance Co. v. Davis, 856 S.W.2d 158, 160–64 (Tex. 1993) (orig. proceeding) (waiver applies to lawyer-client privilege); Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107–08 (Tex. 1985) (orig. proceeding).
[Sections 5.30 through 5.40 are reserved for expansion.]
§ 5.41Written Discovery Defined
The term written discovery means required disclosures, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission. Tex. R. Civ. P. 192.7(a).
Rule 194 provides for categories of discovery that a party must, unless otherwise agreed by the parties or ordered by the court, provide to the other parties without awaiting a discovery request. The categories of items for which disclosure is mandated are described in rules 194.2 (initial disclosures), 194.3 (testifying expert disclosures), and 194.4 (pretrial disclosures). Tex. R. Civ. P. 194.1(a).
If a party does not produce copies of all responsive documents, electronically stored information, and tangible things with the response, the party must state in the response a reasonable time and method for the production of the items, must produce the items at the time and in the method stated (unless there is agreement or court order otherwise), and must provide the requesting party a reasonable opportunity to inspect them. Tex. R. Civ. P. 194.1(b).
No objection or assertion of work product is permitted to a disclosure under rule 194. Tex. R. Civ. P. 194.5. A party may assert any applicable privileges other than work product by using rule 193.3 procedures. See Tex. R. Civ. P. 194 cmt. 1.
Initial Disclosures: Certain disclosures must be made by all parties before the court within thirty days after the filing of the first answer or general appearance unless a different time is set by the parties’ agreement or court order. A party first served or joined after the filing of the first answer or general appearance must make those disclosures within thirty days after being served or joined unless a different time is set by agreement or court order. Tex. R. Civ. P. 194.2(a).
In addition to the matters discussed below concerning medical records and authorizations and certain documents specifically required in family law cases, these initial disclosures include—
1.the correct names of the parties to the lawsuit;
2.the names, addresses, and telephone numbers of any potential parties;
3.the legal theories and general factual bases of the responding party’s claims or defenses;
4.the amount and any method of calculating economic damages;
5.the names, addresses, and telephone numbers of persons with knowledge of relevant facts and a brief statement of each person’s connection with the case;
6.a copy—or a description by category and location—of all documents, electronically stored information, and tangible things the party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
7.indemnity and insuring agreements;
8.settlement agreements; and
9.witness statements.
Tex. R. Civ. P. 194.2(b)(1)–(9).
COMMENT: The requirement of a brief statement of each person’s connection with the case is satisfied with a few words, such as “treating physician,” “chief financial officer,” “director,” “Plaintiff’s mother and eyewitness to accident,” “social worker,” “Petitioner’s father,” or “Petitioner’s sister.” See Van Heerden v. Van Heerden, 321 S.W.3d 869, 876 (Tex. App.—Houston [14th Dist.] 2010, no pet.). See also Tex. R. Civ. P. 192 cmt. 3.
Rule 194.2(b)(3) (the legal theories and general factual bases of the responding party’s claims or defenses) and rule 194.2(b)(4) (the computation of damages) permit a party further inquiry into another party’s legal theories and factual claims than is available through notice pleadings. The rules are designed to require disclosure of a party’s basic assertions. Tex. R. Civ. P. 194 cmt. 2 (referring to these provisions by their former designations). A disclosure under one of these categories that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment. Tex. R. Civ. P. 194.6.
If damages are sought for physical or mental injury from the occurrence that is the subject of the case, the party alleging the injury must produce or authorize disclosure of all medical records and bills reasonably related to the injury or damages asserted. Tex. R. Civ. P. 194.2(b)(10). The responding party must produce all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. Tex. R. Civ. P. 194.2(b)(11).
The party must also provide the name, address, and telephone number of any person who may be designated a responsible third party. Tex. R. Civ. P. 194.2(b)(12).
In suits for divorce or annulment or to declare a marriage void, a party must also provide to the other party the following, for the past two years or since the date of the marriage, whichever is less:
1.all deed and lien information on any real property owned and all lease information on any real property leased;
2.all statements for any pension plan, retirement plan, profit-sharing plan, employee benefit plan, and individual retirement plan;
3.all statements or policies for each current life, casualty, liability, and health insurance policy; and
4.all statements pertaining to any account at a financial institution, including banks, savings and loan institutions, credit unions, and brokerage firms.
Tex. R. Civ. P. 194.2(c)(1).
In a suit in which child or spousal support is at issue, a party must also provide to the other party—
1.information regarding all policies, statements, and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child or the spouse;
2.the party’s income tax returns for the previous two years or, if no return has been filed, the party’s Form W-2, Form 1099, and Schedule K-1 for those years; and
3.the party’s two most recent payroll check stubs.
Tex. R. Civ. P. 194.2(c)(2).
Certain procedures are exempt from the initial disclosure requirements, although the court may order the parties to make particular disclosures and set the time for disclosure. These exempt procedures include (1) an action under the Family Code filed by or against the title IV-D agency in a title IV-D case; (2) a child protection action under subtitle E of title 5 of the Family Code; (3) a protective order action under title 4 of the Family Code; and (4) other actions involving domestic violence. Tex. R. Civ. P. 194.2(d)(4)–(7).
Testifying Expert Disclosures: A party must also disclose testifying expert information as provided by rule 195. Tex. R. Civ. P. 194.3. Unless otherwise ordered by the court, a party must furnish this information (1) with regard to all experts testifying for a party seeking affirmative relief, by ninety days before the end of the discovery period, and (2) with regard to all other experts, by sixty days before the end of the discovery period. Tex. R. Civ. P. 195.2.
The following information must be disclosed for any testifying expert:
1.the expert’s name, address, and telephone number;
2.the subject matter on which the expert will testify; and
3.the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them or, if the expert is not retained by, em-ployed by, or otherwise subject to the control of the responding party, documents reflecting that information.
Tex. R. Civ. P. 195.5(a)(1)–(3).
If the testifying expert is retained by, employed by, or otherwise subject to the control of the responding party, the following must also be provided:
1.all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony;
2.the expert’s current resume and bibliography;
3.the expert’s qualifications, including a list of all publications authored in the previous ten years;
4.except when the expert is the responding party’s attorney and is testifying to attorney’s fees, a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; and
5.a statement of the compensation to be paid for the expert’s study and testimony in the case.
Tex. R. Civ. P. 195.5(a)(4).
Failure to respond or timely supplement a request for disclosure to provide the party’s expert’s mental impressions and opinions, a brief summary of the basis for the expert’s opinions, or any of the tangible information reviewed by the expert in anticipation of the expert’s testimony was held to automatically exclude the expert’s testimony under rule 193.6, absent a showing of good cause or lack of surprise or prejudice. VingCard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847, 856 (Tex. App.—Fort Worth 2001, pet. denied). See also In re D.W., No. 02-13-00293-CV, 2015 WL 1262820 (Tex. App.—Fort Worth Mar. 19, 2015, no pet.) (mem. op.) (expert should not have been allowed to testify when only expert’s name and subject matter of his testimony were disclosed, but not his opinions or any underlying documents he had reviewed). The burden of showing good cause or the lack of surprise or prejudice is on the party seeking to introduce the evidence. In re M.H., 319 S.W.3d 137 (Tex. App.—Waco 2010, no pet.).
COMMENT: Presumably, these holdings will apply to required disclosures in suits filed on or after January 1, 2021.
Pretrial Disclosures: A party must also provide to the other parties and promptly file certain information about the evidence it may present at trial other than solely for impeachment. These disclosures must be made at least thirty days before trial unless the court orders otherwise. The following information must be disclosed:
1.the name and, if not previously provided, the address and telephone number of each witness, separately identifying those the party expects to present and those it may call if the need arises; and
2.an identification of each document or other exhibits, including summaries of other evidence, separately identifying those items the party expects to offer and those it may offer if the need arises.
COMMENT: While a different time for the initial disclosures may be set by agreement of the parties or order of the court, the date for pretrial disclosures may be changed only by court order.
An action arising under the Family Code filed by or against the title IV-D agency in a title IV-D case is exempt from pretrial disclosure, although a court may order the parties to make particular disclosures and set the time for disclosure. Tex. R. Civ. P. 194.4(c).
§ 5.43Requests for Production and Inspection of Documents and Tangible Things
Request: A party may serve on another party a request for production or for inspection, to inspect, sample, test, photograph, and copy documents or tangible things within the scope of discovery. The request must be served no later than thirty days before the end of the discovery period. Tex. R. Civ. P. 196.1(a). See section 5.8 above concerning requests for production from nonparties.
The request must specify the items to be produced or inspected, either by individual item or by category, and describe each item or category with reasonable particularity. The request must also specify a reasonable time and place for production. The time must be on or after the date the response is due. If the request is for sampling or testing, the means, manner, and procedure must be described with sufficient specificity to inform the producing party. Tex. R. Civ. P. 196.1(b).
If a party requests another party to produce medical or mental health records about a nonparty, the nonparty must be served with the request for production. There is an exception if the nonparty signs an effective release, the nonparty’s identity will not be disclosed by production of the records, or the court orders for good cause that service is not required. Rule 196.1 does not excuse compliance with laws about the confidentiality of medical or mental health records. Tex. R. Civ. P. 196.1(c). See In re Christus Health Southeast Texas, 167 S.W.3d 596, 601 (Tex. App.—Beaumont 2005, orig. proceeding) (per curiam).
Response: A response must be served on the requesting party within thirty days after service of the request. Tex. R. Civ. P. 196.2(a).
With respect to each item or category of items requested, the responding party must state objections and assert privileges in accordance with the rules and must state the following as appropriate: (1) that production, inspection, or other requested action will be permitted as requested; (2) that the requested items are being served with the response; (3) that production, inspection, or other requested action will take place at an alternate specified time and place; or (4) that, after a diligent search, no responsive items have been identified. Tex. R. Civ. P. 196.2(b).
See section 5.47 below for procedures for objecting to written discovery requests.
Production: Subject to any objections stated in the response, the responding party must produce the requested documents or tangible things that are in the party’s possession, custody, or control at the time and place requested or the time and place stated 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). The responding party may produce copies in place of originals unless the authenticity of the original is questioned or it would be unfair in the circumstances to produce copies. A responding party who produces originals is entitled to retain the originals while the requesting party inspects and copies them. Tex. R. Civ. P. 196.3(b). The documents and tangible things must either be produced as they are kept in the usual course of business or be organized and labeled to correspond with the categories in the request. Tex. R. Civ. P. 196.3(c).
The rules do not permit the trial court to force a party to create documents that do not exist solely to comply with a request for production. McKinney v. National Union Fire Insurance Co., 772 S.W.2d 72, 73 n.2 (Tex. 1989). For example, a party may not be compelled by a request for production to complete and sign consent forms permitting the release of information to the requestor since the completed, executed forms did not exist. See In re Guzman, 19 S.W.3d 522, 523–25 (Tex. App.—Corpus Christi–Edinburg 2000, orig. proceeding).
Other Provisions: Special rules that apply to electronic or magnetic data are provided in Tex. R. Civ. P. 196.4. Except with prior court authorization, testing, sampling, or examination may not destroy or materially alter an item. Tex. R. Civ. P. 196.5. Unless the court orders otherwise for good cause, the responding party bears the expense of production and the requesting party bears the expense of inspecting, sampling, testing, photographing, and copying. Tex. R. Civ. P. 196.6.
§ 5.44Request or Motion for Entry on Property
Request or Motion: A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on the property in one of two manners, depending on whether the property belongs to a party or to a nonparty. Entry may be gained by serving a request on all parties if land or property belongs to a party or by motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. Service of the request or motion and hearing notice must be no later than thirty days before the end of any applicable discovery period. Tex. R. Civ. P. 196.7(a). Method of service on the nonparty is prescribed in rule 196.7(a)(2).
The request for entry on a party’s property or the order for entry on a nonparty’s property must state the time, place, manner, conditions, and scope of the inspection; specifically describe any desired means, manner, and procedure for testing or sampling; and designate the person who will make the inspection, testing, or sampling. Tex. R. Civ. P. 196.7(b).
Response: A response must be served on the requesting party within thirty days after service of the request. Tex. R. Civ. P. 196.7(c)(1). The responding party must state any objections or assertions of privilege and further state that the entry or other requested action either will be permitted as requested, will take place at an alternate specified time and place, or cannot be permitted for reasons stated in the response. Tex. R. Civ. P. 196.7(c)(2).
Order: An order for entry on a nonparty’s property may issue only for good cause shown and only if the land, property, or object on it is relevant to the subject matter of the action. Tex. R. Civ. P. 196.7(d). Generally, good cause is shown if the movant establishes that the discovery sought is relevant and material—that is, that the information will in some way help the movant prepare or defend the case—and that the substantial equivalent of the material cannot be obtained through other means. In re SWEPI L.P., 103 S.W.3d 578, 584 (Tex. App.—San Antonio 2003, orig. proceeding).
§ 5.45Interrogatories to Parties
Interrogatories: Written interrogatories may be served on a party inquiring about any matter within the scope of discovery except for matters regarding testifying expert witnesses. An interrogatory may ask whether a party makes a specific legal or factual contention. It also may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses. However, interrogatories may not require the responding party to provide all its available proof or the proof the party intends to offer at trial. Interrogatories may ask a party to identify facts of which the party is specifically aware that the party contends establish, demonstrate, or prove specific allegations made by the party in its pleadings; such requests do not require a marshaling of evidence. In re Sting Soccer Group, LP, No. 05-17-00317-CV, 2017 WL 5897454, at *5 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.). The interrogatories must be served no later than thirty days before the end of the discovery period. Tex. R. Civ. P. 197.1.
The number of interrogatories a party may serve is set by the discovery control plan. Under a level 1 discovery control plan, a party may serve no more than fifteen interrogatories on another party, excluding interrogatories asking a party only to identify or authenticate specific documents; in a level 2 discovery control plan, the limit is twenty-five such interrogatories. Each discrete subpart of an interrogatory is considered a separate interrogatory. Tex. R. Civ. P. 190.2(b)(3), 190.3(b)(3). A discrete subpart of an interrogatory is counted as a single interrogatory, but not every separate factual inquiry is a discrete subpart. Although not susceptible of precise definition, a discrete subpart is, in general, one that calls for information that is not logically or factually related to the primary interrogatory. Tex. R. Civ. P. 190 cmt. 3. See In re Sting Soccer Group, LP, 2017 WL 5897454, at *6; In re SWEPI L.P., 103 S.W.3d 578, 589 (Tex. App.—San Antonio 2003, orig. proceeding) (no “discrete subparts” found where each question related to particular claim and asked plaintiff to provide certain details about facts underlying that claim and “subparts” simply identified types of facts defendant would like to have had disclosed so that it could understand parameters of claims and prepare defenses).
The number of interrogatories permitted under a level 3 discovery control plan is the same as that in a level 1, if applicable, or level 2 discovery control plan unless altered by the court in the level 3 discovery control plan. See Tex. R. Civ. P. 190.4(b). A party can send as many sets of interrogatories as it wishes, as long as the maximum number of interrogatories is not exceeded. See Tex. R. Civ. P. 190 cmt. 3. See section 5.2 above.
Response: A response must be served on the requesting party within thirty days after service of the interrogatories. Tex. R. Civ. P. 197.2(a). Responses must include answers to the interrogatories, but objections and assertions of privilege may be included in the response or in a separate document. Tex. R. Civ. P. 197.2(b). See also Tex. R. Civ. P. 193.2(a), 193.3(a).
If the answer to an interrogatory may be derived or ascertained from public records or from the responding party’s business records (or a compilation, abstract, or summary of the business records) 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 answer the interrogatory by specifying and, if applicable, producing the records or compilation, abstract, or summary of the records. The answer must specify the records in sufficient detail to enable the requesting party to locate and identify the records as readily as can the responding party. If business records are involved, the responding party must state a reasonable time and place that the requesting party may examine the records, must produce them at that time and place unless otherwise agreed or ordered, and must provide the requesting party a reasonable opportunity to inspect them. Tex. R. Civ. P. 197.2(c).
Responses to interrogatories must be signed under oath (or pursuant to a declaration under section 132.001 of the Texas Civil Practice and Remedies Code) by the responding party—not an agent or attorney—with two exceptions. If the answers are based on information obtained from other persons, the party may so state. Additionally, the responding party is not required to sign answers to interrogatories about persons with knowledge of relevant facts, trial witnesses, and legal contentions. Tex. R. Civ. P. 197.2(d).
See section 5.47 below for procedures for objecting to written discovery requests.
Use: Answers to interrogatories may be used only against the responding party. Tex. R. Civ. P. 197.3; Palmer v. Espey Huston & Associates, Inc., 84 S.W.3d 345, 356 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied). An answer to an interrogatory inquiring about legal theories, factual bases, or economic damages that has been amended or supplemented is not admissible and may not be used for impeachment. Tex. R. Civ. P. 197.3.
Request: At any time following commencement of the action, and no later than thirty days before the end of the discovery period, a party may serve on any other party a written request to admit the truth of any matters within the scope of discovery, including statements of opinion or fact or of the application of law to fact, or the genuineness of documents served with the request or made available for inspection and copying. Each matter for which an admission is requested must be stated separately. Tex. R. Civ. P. 198.1.
Response: A response must be served on the requesting party within thirty days after service of the request. Tex. R. Civ. P. 198.2(a). If a response is not timely served, the request is considered admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c). Deemed admissions constitute judicial admissions, and a party may not introduce testimony to controvert them. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); see Kholaif v. Safi, 636 S.W.3d 313, 319 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (deemed admissions used as summary judgment proof). However, overly broad, merits-preclusive requests for admissions are improper and therefore may not result in deemed admissions in support of a default judgment. Vara v. Vara, 645 S.W.3d 818, 824 (Tex. App.—El Paso 2022, pet. denied).
Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. Qualified answers or partial denials are allowed only when good faith requires. Lack of information or knowledge is not a proper response unless it is stated that reasonable inquiry has been made but that the information known or easily obtainable is insufficient to enable the responding party 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 5.47 below for procedures for objecting to written discovery requests and section 5.114 below concerning the failure to comply with rule 198.
Withdrawal or Amendment: Matters admitted under rule 198 are conclusively established as to the admitting party unless the court permits withdrawal or amendment of the admission. The court may permit withdrawal or amendment if the admitting party shows good cause and the court finds that the parties relying on the responses and deemed admissions will not be unduly prejudiced and that the merits of the action will be promoted. Tex. R. Civ. P. 198.3.
Good cause is the threshold issue. City of Houston v. Riner, 896 S.W.2d 317, 319 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Boone v. Texas Employers’ Insurance Ass’n, 790 S.W.2d 683, 688 (Tex. App.—Tyler 1990, no writ). A party can establish good cause by showing that its failure to answer was accidental or the result of mistake, rather than intentional or the result of conscious indifference. Darr v. Altman, 20 S.W.3d 802, 808 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Genuine confusion, rather than conscious disregard or deliberate neglect, can be good cause to authorize withdrawal or amendment of responses and deemed admissions under rule 198.3. See Lewis v. Mundy Construction Co., 781 S.W.2d 333, 336 (Tex. App.—Houston [14th Dist.] 1989, writ dism’d w.o.j.) (regarding predecessor rule 169). But see Steffan v. Steffan, 29 S.W.3d 627, 631 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (husband’s status as pro se litigant when served with requests for admissions and his claim that he did not know or understand consequences of failing to timely answer found not to be good cause because pro se litigant must comply with applicable laws and rules of procedure and legal consequences of noncompliance were written on face of requests).
Effect: Any admission made under rule 198 is for the purpose of the pending action only. Tex. R. Civ. P. 198.3. See John H. Carney & Associates v. Ahmad, No. 07-15-00252-CV, 2016 WL 368527 (Tex. App.—Amarillo Jan. 28, 2016, pet. denied) (mem. op.).
A court is not bound by deemed admissions from requests that are “inappropriate,” because they pertain to matters about which the responding party could not have any personal knowledge, or that concern matters solely within the court’s discretion. Satterfield v. Huff, 768 S.W.2d 839, 840–41 (Tex. App.—Austin 1989, writ denied). “Deemed admissions under Rule 169 are . . . not of controlling effect in a child custody case when they conflict with an independent finding of fact as to a child’s best interests.” Erwin v. Erwin, 505 S.W.2d 370, 372 (Tex. App.—Houston [14th Dist.] 1974, no writ).
§ 5.47Responses and Objections to Written Discovery
A party must respond to written discovery in writing within the time provided by the rules or by court order. Responses must be complete, based on all the information that is reasonably available to the responding party or the responding party’s attorney at the time the response is made. All answers, objections, and other responses must be preceded by the request or required disclosure to which they apply. Tex. R. Civ. P. 193.1.
Objections: Objections to written discovery must be made in writing and within the time for response. A party must specifically state the legal or factual basis for the objection and the extent to which compliance with the request is refused. Objections may be made in the response or in a separate document. Tex. R. Civ. P. 193.2(a). A party must comply with all requests not objected to unless it would be unreasonable under the circumstances to do so before a ruling on the objections. If an objection is made to the time or place of production, the objecting party must state a reasonable alternative and comply at that alternative time and place without further request or order. Tex. R. Civ. P. 193.2(b).
A party may object to written discovery only if a good-faith factual and legal basis for the objection exists at the time the objection is made. Tex. R. Civ. P. 193.2(c). An objection or response may be amended or supplemented to state an objection or basis that was, at the time the objection or response was first made, inapplicable or unknown after reasonable inquiry. Tex. R. Civ. P. 193.2(d).
An objection may be waived if not timely made or if obscured by numerous unfounded objections. Tex. R. Civ. P. 193.2(e).
Assertion of Privilege: A party should not object to a request for written discovery on the grounds of privilege; instead, the party should comply with rule 193.3(a), which outlines the procedure for preserving a privilege. Tex. R. Civ. P. 193.2(f). Material or information for which a privilege is claimed may be withheld from the response. However, the responding party must state in the response or in a separate document that responsive information or material has been withheld, the request or required disclosure to which the information or material relates, and the privilege asserted. Tex. R. Civ. P. 193.3(a). Additional information describing the withheld material and asserting specific privileges may be requested of the responding party under rule 193.3(b). See Tex. R. Civ. P. 193.3(b).
The Office of the Attorney General may withhold as privileged all files and records of services provided, including information concerning a custodial parent, a noncustodial parent, a child, or an alleged or presumed father. Tex. Fam. Code § 231.108; In re Office of Attorney General, No. 02-13-00455-CV, 2014 WL 491684 (Tex. App.—Fort Worth Feb. 6, 2014, orig. proceeding) (mem. op.).
A party may withhold a privileged communication to or from a lawyer or a lawyer’s representative or a privileged document of a lawyer or a lawyer’s representative without complying with rule 193.3(a) or (b) if the communication or document was created or made from the point at which a party consults a lawyer with a view to engage the lawyer’s services for the litigation in which the discovery is requested or required and if the communication or document concerns the same litigation. Tex. R. Civ. P. 193.3(c).
If a party inadvertently produces privileged material or information, the privilege is not waived if, within ten days (or a shorter time ordered by the court) after discovery of the error, the party amends the response, identifying the material or information and asserting the privilege. The identified material or information and any copies must be returned on receipt of the amended response, pending any ruling denying the privilege. Tex. R. Civ. P. 193.3(d).
Hearing: A request for a hearing on an objection or a claim of privilege must be presented at a reasonable time. The party seeking to avoid discovery must present any evidence necessary to support the objection or privilege either by oral testimony or by affidavits served at least seven days before the hearing. Tex. R. Civ. P. 193.4(a). The mere listing of a specific privilege in a response or a privilege log does not prove that privilege. The response and log are the vehicles by which the privilege is claimed. Proof of the facts that justify the claim of privilege is necessary. In re Monsanto Co., 998 S.W.2d 917, 926 (Tex. App.—Waco 1999, orig. proceeding). To establish a prima facie case for the claim of privilege, an affidavit should set out “the factual basis for the applicability of the attorney-client and/or work product privileges to the documents at issue.” See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004) (orig. proceeding) (per curiam). If the party asserting a privilege has made a prima facie case for its claim, the requesting party has the burden to point out to the court which specific documents or groups of documents it believes require inspection. Otherwise, trial judges will be required to inspect untold numbers of documents. The requesting party should be in a position to do so based on (1) the contents of the privilege log, (2) other discovery and documents, (3) discovery specifically designed to test the claim of privilege, and (4) the evidence at the hearing. In re Monsanto Co., 998 S.W.2d at 925. If the court finds that an in camera review is necessary, the material must be presented in a sealed wrapper for inspection, segregated from the material for which no privilege is claimed. Tex. R. Civ. P. 193.4(a).
A party need not request a ruling on the party’s own objection or assertion of privilege to preserve the objection or privilege. If the claim of privilege with regard to written discovery is overruled, the responding party has thirty days to produce the material. To the extent that the objection or claim of privilege is sustained, the responding party has no further duty to respond. Tex. R. Civ. P. 193.4(b). A party may not use 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 that discovery. Tex. R. Civ. P. 193.4(c).
Authenticity of Documents: In most cases, production of a document in response to a written discovery request authenticates the document for use against the party producing it in any pretrial proceeding or at trial. However, after the producing party has had actual notice that the document will be used, the party can object to the authenticity of the document. The objection must be made within ten days or a longer or shorter time ordered by the court. Tex. R. Civ. P. 193.7. But see Merrell v. Wal-Mart Stores, Inc., 276 S.W.3d 117, 131 (Tex. App.—Texarkana 2008), rev’d on other grounds, 313 S.W.3d 837 (Tex. 2010). The objection must state the specific basis for the objection, must be either on the record or in writing, and must have a good-faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. If 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. Authenticity is not synonymous with admissibility.
§ 5.48Amending or Supplementing Responses to Written Discovery
There is a duty to supplement a written discovery response if a party learns that the party’s response to written discovery was incomplete or incorrect when made or that, although the response was complete and correct when made, it is no longer complete and correct. The party must amend or supplement the response regarding (1) identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses and (2) other information requested, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses. Tex. R. Civ. P. 193.5(a).
An amended or supplemental response must be made reasonably promptly after the party discovers the necessity to make such a response. Unless otherwise provided under the discovery rules, it is presumed that an amended or supplemental response that is made less than thirty days before trial was not made reasonably promptly. An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be so verified. The failure to comply with this requirement does not make the amended or supplemental response untimely unless the party making the response refuses to correct the defect within a reasonable time after it is pointed out. Tex. R. Civ. P. 193.5(b); see also State Farm Fire & Casualty Co. v. Morua, 979 S.W.2d 616, 620 (Tex. 1998) (although supplemental interrogatory responses must be verified, requesting party waited thirteen months before objecting to defect at trial, thereby waiving its objection).
The requirements and procedures of rule 193.5 apply to a party’s duty to amend and supplement written discovery regarding a testifying expert. Tex. R. Civ. P. 195.6. The duties to designate an expert witness and make the expert available for deposition are triggered when the expert is retained, employed, or otherwise in the control of the party. Tex. R. Civ. P. 195.3(b), 195.6. The discovery rules do not prevent experts from refining calculations and perfecting reports through the time of trial. The testimony of an expert should not be barred because a change in some minor detail of the person’s work was not disclosed a month before trial. The additional supplementation requirement does require that opposing parties have sufficient information about an expert’s opinion to prepare a rebuttal with their own experts and cross-examination and that they be promptly and fully advised if further developments render past information incorrect or misleading. See Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 305 (Tex. 1993) (addressing former rule 166b(6)); see also Tex. R. Civ. P. 193.5, 195.6.
If the trial is reset and the discovery deadlines are governed by rule 190.3, the deadlines are reset to conform to the deadlines set out in the rule. See Tex. R. Civ. P. 190.3(b)(1)(A). However, by its own terms, this rule does not apply when a docket control order has been entered by the court. Tex. R. Civ. P. 190.3(a). If the court has issued a docket control order, a continuance does not reset the dates in that order. Sprague v. Sprague, 363 S.W.3d 788, 800 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
§ 5.49Effect of Failure to Timely Respond
Failure to make, amend, or supplement a discovery response, including a required disclosure, will result in exclusion from evidence of the material or information not timely disclosed or the testimony of a witness not timely identified, unless the court determines that there was good cause for the failure to timely make, amend, or supplement the response or that the failure will not unfairly prejudice or unfairly surprise the other parties. Tex. R. Civ. P. 193.6(a). Lack of surprise, inadvertence of counsel, and the uniqueness of the evidence are not in themselves good cause. Alvarado v. Farah Manufacturing Co., 830 S.W.2d 911, 915 (Tex. 1992); Sprague v. Sprague, 363 S.W.3d 788, 800 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). However, these factors, taken together or in some combination, may constitute good cause. Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex. 1992). The burden of proof on this issue is on the party seeking to introduce the evidence or call the witness. The party seeking to exclude evidence must establish that the party seeking to introduce the evidence had a duty to produce it prior to trial. In re E.L.A.V., ___ S.W.3d ___, No. 08-18-00052-CV, 2019 WL 5616970, at *3 (Tex. App.—El Paso Oct. 31, 2019, no pet.). A 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 fails to carry the burden, the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented and to allow opposing parties to conduct discovery about any new information thus disclosed. Tex. R. Civ. P. 193.6(c). Because the exclusion of evidence under rule 193.6 is automatic and not discretionary, a trial court’s imposition of the automatic exclusions mandated by the rule is not a death-penalty sanction subject to review under a Trans-American analysis. Amudo v. Amudo, No. 01-17-00318-CV, 2018 WL 3059729, at *5 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.).
Thus, the general rule is that if a party fails to timely and properly respond to or supplement a discovery request, order, or agreement, the undisclosed or improperly disclosed evidence must be excluded at trial. Rainbo Baking Co. v. Stafford, 787 S.W.2d 41, 41–42 (Tex. 1990) (per curiam); Sharp v. Broadway National Bank, 784 S.W.2d 669, 670–71 (Tex. 1990) (per curiam); Clark v. Trailways, Inc., 774 S.W.2d 644, 646 (Tex. 1989); McKinney v. National Union Fire Insurance Co., 772 S.W.2d 72, 74 (Tex. 1989); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986) (per curiam).
[Sections 5.50 through 5.60 are reserved for expansion.]
IV. Discovery Regarding Testifying Experts
§ 5.61Permitted Means of Discovery
Any discoverable information concerning testifying expert witnesses that cannot be obtained through required disclosures under rule 195 (see section 5.42 above) must be obtained by oral deposition or by a report prepared by the expert under rule 195. No other means of discovery regarding testifying experts is permissible. Tex. R. Civ. P. 195.1.
A party may obtain information concerning testifying expert witnesses only through required disclosures and through depositions and reports as permitted by rule 195. Tex. R. Civ. P. 195.1. Unless otherwise ordered by the court, a party must designate testifying experts—that is, furnish the information described in rule 195.5(a) (expert disclosures)—(1) for all experts testifying for a party seeking affirmative relief (which will be virtually every party to a family law case), by ninety days before the end of the discovery period, and (2) for all other experts, by sixty days before the end of the discovery period. Tex. R. Civ. P. 195.2.
COMMENT: Remember that, barring a court order or agreement between the parties to the contrary, the discovery period in level 2 cases under the Family Code ends thirty days before the date of trial. Tex. R. Civ. P. 190.3(b)(1)(A). Therefore, for parties seeking affirmative relief, the duty to disclose testifying experts occurs no later than 120 days before trial. See Gutierrez v. Gutierrez, 86 S.W.3d 729, 732 (Tex. App.—El Paso 2002, no pet.) (because former wife was seeking affirmative relief by requesting attorney’s fees in custody case, she was required to designate her expert ninety days before end of discovery period); see also In re B.N.L., No. 05-20-00575-CV, 2022 WL 1164658, at *3–4 (Tex. App.—Dallas Apr. 20, 2022, pet. filed) (mem. op.) (wife’s expert excluded although timely designated because expert’s opinion not disclosed until twenty-seven days before trial).
Oral Deposition: In addition to discovery under required disclosures, a party may obtain discovery about the subject matter of an expert’s expected testimony, the expert’s mental impressions and opinions, the facts known to the expert that relate to or form the basis of the testifying expert’s mental impressions and opinions, and other discoverable matters, including documents not produced in disclosure, only by oral deposition of the expert and by a report prepared by the expert under rule 195. Tex. R. Civ. P. 195.4.
Making Expert Available for Deposition: A party seeking affirmative relief, which will likely be every party to a family law action, must make all experts retained or employed by the party or otherwise in the party’s control available for depositions in the manner prescribed in rule 195.3(a). In general, the party must make the expert available reasonably promptly after the expert is designated, if a report of the expert’s factual observations, tests, supporting data, calculations, photographs, and opinions is not produced when the expert is designated; if the report is produced on designation, the party need not make the expert available until reasonably promptly after all other experts have been designated. Tex. R. Civ. P. 195.3(a). A party not seeking affirmative relief must make his experts available for deposition reasonably promptly after the expert is designated and experts testifying for the other party on the same subject have been deposed. Tex. R. Civ. P. 195.3(b).
Cost of Expert Witness for Deposition Time: When a party takes the oral deposition of an expert witness retained by the opposing party, the party who retained the expert must pay all reasonable fees charged by the expert for preparing for, giving, reviewing, and correcting the deposition. Tex. R. Civ. P. 195.7.
The court may order the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert reduced to tangible form and produced in addition to the deposition if they have not been recorded and reduced to tangible form. Tex. R. Civ. P. 195.5(b).
§ 5.65Protected Communications, Expert Reports, and Disclosures
Rule 195 provides that communications between the party’s attorney and a testifying expert witness are protected from discovery, regardless of the form of the communications, except to the extent that the communications relate to compensation for the expert’s study or testimony, identify facts or data that the attorney provided and the expert considered in forming the opinions to be expressed, or identify assumptions that the attorney provided and the expert relied on in forming the opinions to be expressed. Tex. R. Civ. P. 195.5(c).
A draft expert report or draft disclosure required under rule 195 is protected from discovery, regardless of the form in which the draft is recorded. Tex. R. Civ. P. 195.5(d).
§ 5.66Amendment and Supplementation of Discovery
Written discovery regarding a testifying expert must be amended and supplemented as required by rule 193.5. If the expert witness is retained by, employed by, or otherwise under the control of a party, the party must also amend or supplement any deposition testimony or written report by the expert, but only as to the expert’s mental impressions or opinions and the basis for them. Tex. R. Civ. P. 195.6.
[Sections 5.67 through 5.70 are reserved for expansion.]
V. Mental or Physical Examinations
§ 5.71Motion and Order for Mental or Physical Examination
A party may, no later than thirty days before the end of the applicable discovery period, move for an order compelling another party to submit to a physical or mental examination by a qualified physician or a mental examination by a qualified psychologist or to produce for such examination a person in the other party’s custody, conservatorship, or legal control. Tex. R. Civ. P. 204.1(a). The motion and notice of hearing must be served on the person to be examined and on all parties. Tex. R. Civ. P. 204.1(b). The order must be in writing and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Tex. R. Civ. P. 204.1(d). For purposes of rule 204, a psychologist is a person licensed or certified by a state or the District of Columbia as a psychologist. Tex. R. Civ. P. 204.5.
The court may issue an order for such an examination under rule 204.1 only for good cause shown and only in specified circumstances. In re Transwestern Publishing Co., L.L.C., 96 S.W.3d 501, 506 (Tex. App.—Fort Worth 2002, orig. proceeding). But see Tex. R. Civ. P. 204.4 (mental examinations and paternity testing in cases arising under title 2 or title 5 of the Family Code). To show good cause, the movant must (1) show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence, (2) establish a reasonable nexus between the requested examination and the condition in controversy, and (3) demonstrate that the desired information cannot be obtained by less intrusive means. In re H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016) (orig. proceeding); see In re Grohman, 640 S.W.3d 347, 350 (Tex. App.—San Antonio 2022, orig. proceeding). An order may be issued if the mental or physical condition, including the blood group, of a party or a person in the custody, conservatorship, or legal control of a party is in controversy. Except as provided in rule 204.4 (pertaining to suits under title 2 or title 5 of the Family Code), an examination by a psychologist may be ordered if the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist’s records for possible use at trial. Tex. R. Civ. P. 204.1(c).
A mental examination cannot be ordered if the party is merely seeking damages for “emotional distress” typically accompanying severe physical injury. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988) (orig. proceeding). However, if a party intends to call a medical expert to prove an alleged mental condition, an examination is authorized. Sherwood Lane Associates v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).
Rules 509 and 510 of the Texas Rules of Evidence should be taken into consideration in a proceeding under rule 204. See sections 5.22 and 5.28 above.
§ 5.72Cases Arising under Title 2 or Title 5 of Family Code
In cases arising under title 2 or title 5 of the Family Code, on a party’s or on the court’s own motion, the court may appoint one or more psychologists or psychiatrists to make the appropriate mental examinations of the children the subject of the suit or any other parties, regardless of whether a psychologist or psychiatrist has been listed by any party as a testifying expert, and may appoint one or more experts qualified in paternity testing to take blood, body fluid, or tissue samples to conduct paternity tests as ordered by the court. Tex. R. Civ. P. 204.4. For purposes of rule 204, a psychologist is a person licensed or certified by a state or the District of Columbia as a psychologist. Tex. R. Civ. P. 204.5.
If no examination is sought, the party whose condition is in controversy may not comment to the court or the jury about the party’s willingness to be examined or the other party’s right or failure to seek an examination. Tex. R. Civ. P. 204.3.
§ 5.74Selection and Report of Examining Professional
Selection of the examining doctor, psychiatrist, or psychologist is generally left to the sound discretion of the court. May v. Lawrence, 751 S.W.2d 678, 679 (Tex. App.—Tyler 1988, orig. proceeding [leave denied]) (per curiam); Employers Mutual Casualty Co. v. Street, 707 S.W.2d 277, 278 (Tex. App.—Fort Worth 1986, orig. proceeding). However, it may be error for a court to refuse to order an independent examination by a doctor, psychiatrist, or psychologist if only one party’s experts have had an opportunity to perform an examination. See Sherwood Lane Associates v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).
Provisions regarding copies of the report of the examining physician or psychologist are contained in rule 204.2 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 204.2.
[Sections 5.75 through 5.80 are reserved for expansion.]
Oral depositions are governed by rule 199. A party may depose any person or entity on oral examination before an authorized officer. The testimony, objections, and any other statements must be recorded when they are given or made. Tex. R. Civ. P. 199.1(a). Telephone depositions and deposition by remote electronic or nonstenographic means are authorized under rule 199.1(b) and (c). See the discussion in section 5.86 below.
Section III(14) of the Texas Lawyer’s Creed provides that a lawyer will not arbitrarily schedule a deposition until a good-faith effort has been made to schedule it by agreement.
The total time a party is allowed to examine and cross-examine all witnesses in oral depositions is set by the discovery control plan. Under a level 1 discovery control plan, a party may have no more than twenty hours; in a level 2 discovery control plan, the limit is fifty hours. Tex. R. Civ. P. 190.2(b)(2), 190.3(b)(2). The number of hours permitted under a level 3 discovery control plan is the same as that in a level 1, if applicable, or level 2 discovery control plan unless altered by the court in the level 3 discovery control plan. See Tex. R. Civ. P. 190.4(b).
Notice: A notice of intent to take an oral deposition must be served on the witness and all parties a reasonable time before the deposition is taken. The deposition may be taken outside the discovery period only if the parties agree or with leave of court. Tex. R. Civ. P. 199.2(a). Reasonable notice must be given of the identity of any nonparties who might be attending the deposition. Tex. R. Civ. P. 199.5(a)(3).
The notice must state the name of the witness, state a reasonable time and place for the deposition, and state whether the deposition is to be taken by telephone or other remote electronic means and identify the means. Tex. R. Civ. P. 199.2(b)(1)–(3). It may include the notice required by rule 199.1(c) concerning nonstenographic means, the notice required by rule 199.5(a)(3) about additional attendees, and a request for production. Tex. R. Civ. P. 199.2(b)(3)–(6).
If the witness named is a public or private corporation, partnership, association, governmental agency, or other organization, the notice for deposition must describe with reasonable particularity the matters on which the examination is requested. In response, the organization named in the notice must, a reasonable time before the deposition, designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify about matters that are known or reasonably available to the organization. Tex. R. Civ. P. 199.2(b)(1). A litigant seeking to depose an organization is not precluded from specifically designating the exact officer(s) of an entity who shall be deposed. Hospital Corp. of America v. Farrar, 733 S.W.2d 393, 395 (Tex. App.—Fort Worth 1987, orig. proceeding).
A deposition may be conducted in the county of the witness’s residence; the county where the witness is employed or regularly transacts business in person; the county of the suit, if the witness is a party or a person designated by a party under rule 199.2(b)(1) for testimony on behalf of an organization; the county in which the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or any other convenient place directed by the court. Tex. R. Civ. P. 199.2(b)(2).
The notice may include a request for production of documents or tangible things within the scope of discovery that are within the witness’s possession, custody, or control. If the witness is a nonparty, the request must comply with rule 205, and a designation of the materials must be included or attached to the notice. Tex. R. Civ. P. 199.2(b)(5). A nonparty for purposes of discovery is defined as a person who is not a party or subject to a party’s control. Tex. R. Civ. P. 205.1. (The nonparty’s response is governed by rules 176 and 205.) If the witness is a party or subject to a party’s control, document requests are governed by rules 193 and 196. Tex. R. Civ. P. 199.2(b)(5).
Objection to Time or Place: A party or witness may object to the time and place designated for an oral deposition by a motion for protective order or motion to quash the notice. An objection to the time or place of the deposition filed by the third business day after service of the notice stays the oral deposition until the motion can be heard. Tex. R. Civ. P. 199.4. The trial court has broad powers and discretion to control the time, place, and manner of taking depositions. Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 111 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Examination: The witness must stay in attendance until the deposition is begun and completed. Tex. R. Civ. P. 199.5(a)(1). Rules for attendance by telephone or other remote electronic means are provided in rule 199.5(a)(2). See Tex. R. Civ. P. 199.5(a)(2).
Answers must be given under oath, and the deponent may be examined and cross-examined by all parties, either orally or by written questions served in a sealed envelope on the party noticing the deposition. Tex. R. Civ. P. 199.5(b). No side may examine or cross-examine a witness for more than six hours, excluding breaks. Tex. R. Civ. P. 199.5(c).
§ 5.82Compelling Appearance; Production of Documents and Things at Oral Deposition
A party may compel the witness to attend the oral deposition by serving the witness with a subpoena under rule 176. If the witness is a party or subject to a party’s control, however, service of the notice of oral deposition on the party’s attorney is sufficient. Tex. R. Civ. P. 199.3.
A person who is properly served with a subpoena in accordance with rule 176 must comply with the command stated in the subpoena. Tex. R. Civ. P. 176.6(a). This includes attendance at the deposition and remaining at the place of the deposition until the deposition is begun and completed. Tex. R. Civ. P. 199.5(a)(1).
The subpoena may include a command for the witness to produce at the deposition designated documents or tangible things in the witness’s possession, custody, or control. Tex. R. Civ. P. 176.2(b). If the subpoenaed witness is a nonparty, the request must comply with rule 205. If the witness is a party, or subject to the control of a party, the document requests for depositions are governed by rule 196. Tex. R. Civ. P. 176.3(b), 176 cmt. 2.
If the witness is a party, the subpoena may be served on the party’s attorney of record in the proceeding. Tex. R. Civ. P. 176.5(a).
§ 5.83Written Questions at Oral Deposition
Any party may, instead of attending the oral deposition, propound written questions to be asked at the oral deposition. Any such questions are to be served in a sealed envelope on the party noticing the deposition, who must deliver the written questions to the deposition officer, who must open the envelope and propound the questions to the witness. Tex. R. Civ. P. 199.5(b).
§ 5.84Conduct and Objections during Oral Deposition
Parties and counsel are expected to be courteous and professional to one another and to the witness during the course of the deposition. Private conferences between the witness and the witness’s attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences are permitted during agreed recesses and adjournments. If the lawyers and witnesses fail to comply with this rule, the court may allow in evidence at trial the statements, objections, discussions, and other occurrences during the oral deposition that reflect on the credibility of the witness or the testimony. Tex. R. Civ. P. 199.5(d).
Objections: Objections to questions asked in the deposition are limited to “objection, leading” and “objection, form.” Objections to testimony during the deposition are limited to “objection, nonresponsive.” Objections not phrased in this manner are waived. All other objections need not be made or recorded during the deposition to be raised later with the court. The objecting party must clearly and concisely explain an objection if requested by the party taking the deposition, or the objection is waived. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition. The officer taking the deposition does not rule on objections but must record them for ruling by the court. The officer must record testimony even though an objection has been made. Tex. R. Civ. P. 199.5(e).
Instruction Not to Answer: An attorney may not instruct a witness to refuse to answer questions unless it is necessary to preserve a privilege, comply with a court order or the discovery rules, protect a witness from an abusive question or one for which any answer would be misleading, or secure a ruling regarding the suspension of the deposition. If a witness is instructed not to answer, the attorney must state on the record a concise, nonargumentative, nonsuggestive explanation of the grounds for the instruction if requested to do so by the party who asked the question. Tex. R. Civ. P. 199.5(f).
Suspending Deposition: If the rules regarding conduct of oral depositions are being violated or the time limitations for the deposition have expired, a party or witness may suspend the deposition for the time necessary to obtain a ruling from the court. Tex. R. Civ. P. 199.5(g).
Good Faith Required: An attorney must not ask a question at an oral deposition solely to harass or mislead the witness, for any other improper purpose, or without a good-faith legal basis at the time. A good-faith factual and legal basis is required for objecting, instructing the witness not to answer, and suspending the deposition. Tex. R. Civ. P. 199.5(h).
Sanctions: See section 5.115 below regarding sanctions for the noticing party’s failure to attend the deposition or serve a subpoena.
§ 5.85Hearing on Objection or Privilege
At any reasonable time a party may request a hearing on an objection or a privilege asserted by an instruction not to answer or suspension of an oral deposition, but a party’s failure to obtain a ruling before trial does not waive the objection or privilege. The party must present any evidence necessary to support the objection or 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 is needed, the answers 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.
§ 5.86Nonstenographic Recording; Deposition by Telephone
Nonstenographic Recording: Any party may cause a deposition on oral examination to be recorded by nonstenographic means, including videotape. However, five days’ written notice must be served on the witness and all parties. The notice must state the method of nonstenographic recording and whether the deposition will also be recorded stenographically. On written notice, any other party may designate an additional method of recording the deposition, at that party’s expense unless the court orders otherwise. The party requesting the nonstenographic recording is responsible for obtaining a person authorized by law to administer the oath and for ensuring that the recording will be intelligible, accurate, and trustworthy. Tex. R. Civ. P. 199.1(c). See the discussion at section 5.90 below concerning requirements of delivery, certification, and use of the nonstenographic recording.
Deposition by Telephone: A party may take a deposition by telephone or other remote electronic means on reasonable prior written notice. The deposition is considered to be taken in the district and at the place where the witness is located when answering the questions. Tex. R. Civ. P. 199.1(b).
§ 5.87Depositions on Written Questions
A deposition on written questions may be taken of any person or entity with twenty days’ written notice served on the witness and all parties. The deposition may be taken outside the discovery period only by agreement or with leave of court. Tex. R. Civ. P. 200.1(a).
Notice: The notice must comply with the requirements of rules 199.1(b), 199.2(b), and 199.5(a)(3). If the witness is an organization, the organization must also comply with those requirements. The notice may also include a request for production under rule 199.2(b)(5). Tex. R. Civ. P. 200.1(b).
Questions and Objections: The direct questions to be asked must be attached to the notice. Tex. R. Civ. P. 200.3(a). Within ten days of service of the notice, any party may object to the direct questions attached to the notice and serve cross-questions on all other parties. Within five days after the cross-questions are served, any party may object to the cross-questions and serve redirect questions on all other parties. Within three days after the redirect questions are served, any party may object to the redirect questions and serve recross questions on all other parties. Any objections to the recross questions must be served within five days after the day they are served or at the time of the deposition, whichever occurs first. Tex. R. Civ. P. 200.3(b). Objections to the form of the questions are waived if this procedure is not followed. Tex. R. Civ. P. 200.3(c).
Conducting Deposition: The person noticing the deposition provides the deposition officer with a copy of the notice and of all the questions to be asked. Tex. R. Civ. P. 200.1(a). The deposition officer must conduct the deposition at the time and place designated and record the testimony of the witness under oath in response to the questions. If necessary, the deposition officer may summon and swear an interpreter. The deposition officer must prepare, certify, and deliver the deposition transcript in accordance with rule 203 (as discussed in section 5.90 below). Tex. R. Civ. P. 200.4.
Compelling Attendance: A party may compel the witness to attend the deposition on written questions by serving the witness with a subpoena under rule 176; see section 5.82 above. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the deposition notice on the party’s attorney has the same effect as a subpoena served on the witness. Tex. R. Civ. P. 200.2.
§ 5.88Depositions in Foreign Jurisdictions
A party may take a deposition on oral examination or written questions of any person or entity located in another state or foreign country for use in Texas proceedings. The deposition may be taken by notice; by letter rogatory, letter of request, or other such device; by agreement of the parties; or by court order. Tex. R. Civ. P. 201.1(a).
The deposition may be taken by notice in accordance with the discovery rules as if it were taken in Texas, except that the deposition officer may be a person authorized to administer oaths in the foreign jurisdiction. Tex. R. Civ. P. 201.1(b).
Deposition by letter rogatory, letter of request, or other such device is allowed only after motion filed with the court. Tex. R. Civ. P. 201.1(c), (d). The court must set a time for objection to the form of the device, and the objecting party must object in writing served on all other parties within that time or the objection is waived. Tex. R. Civ. P. 201.1(e). Evidence obtained in response to such a device is not inadmissible merely because of formal departures from the deposition requirements of Texas discovery rules. Tex. R. Civ. P. 201.1(f).
A deposition in another jurisdiction may be taken by electronic means in accordance with rule 199. Tex. R. Civ. P. 201.1(g).
COMMENT: The mere fact that the procedure is authorized by the Texas Rules of Civil Procedure does not necessarily mean that it is permitted or recognized by the law of the state or foreign jurisdiction in which the witness is located. The parties should first determine what procedures are permitted by the jurisdiction in which the witness is located and apply the appropriate procedure. Tex. R. Civ. P. 201 cmt. 1.
§ 5.89Depositions before Suit or to Investigate Claims
A person may petition the court for an order authorizing a deposition to be taken before the filing of a suit to perpetuate or obtain testimony for use in an anticipated suit or to investigate a potential claim or suit. Tex. R. Civ. P. 202.1. The petition and notice of the hearing must be served at least fifteen days before the date of hearing on all persons to be deposed and, if suit is anticipated, on all potential adverse parties. Tex. R. Civ. P. 202.3(a). Provisions regarding the petition, notice and service, the order, the manner of taking such a deposition, and its permitted use are contained in rules 202.2 through 202.5. See Tex. R. Civ. P. 202.2–.5.
§ 5.90Signing, Certification, and Use of Depositions
Signature by Witness: The deposition officer must provide the original deposition transcript directly to the witness to examine and sign. If the witness is represented by an attorney at the deposition, the transcript is sent to the attorney. Tex. R. Civ. P. 203.1(a). All the witness’s changes to the transcript must be done in writing on a separate sheet of paper and include a reason for the change. No erasures or obliterations may be made to the original transcript. The transcript must be signed by the witness, under oath (or pursuant to a declaration under section 132.001 of the Texas Civil Practice and Remedies Code), and returned to the deposition officer within twenty days, or the witness will be deemed to have waived the right to make the changes. Tex. R. Civ. P. 203.1(b). These requirements do not apply if the signature requirement is waived by the witness and all parties, to depositions on written questions, or to nonstenographic recordings of oral depositions. Tex. R. Civ. P. 203.1(c).
Deposition Certificate: The deposition officer files a sworn deposition certificate with the court and serves a copy on all parties; the certificate must also be attached as part of the deposition transcript or nonstenographic recording. Tex. R. Civ. P. 203.2.
Originals: The original transcript is returned to the party who asked the first question; the original nonstenographic recording is returned to the party who requested it. Tex. R. Civ. P. 203.3(a). The deposition officer must serve notice of delivery on all other parties. Tex. R. Civ. P. 203.3(b).
The party who has the original transcript or recording must make it available for inspection and copying by any other party. A party or the witness may obtain a copy of the transcript or recording from the deposition officer on payment of a reasonable fee. Tex. R. Civ. P. 203.3(c).
Exhibits: On request of a party, the original documents and things produced for inspection during the witness’s examination must be marked for identification by the deposition officer and annexed to the transcript or nonstenographic recording. Tex. R. Civ. P. 203.4.
Objections: A party may object to errors and irregularities in the manner in which the testimony is transcribed, signed, delivered, or otherwise dealt with by the deposition officer by filing a motion to suppress all or part of the deposition. If the officer complies with rule 203.3 (concerning delivery) at least one day before the case is called to trial, with regard to a deposition transcript, or thirty days before the case is called to trial, with regard to a nonstenographic recording, the party must file and serve the motion to suppress before the trial begins to preserve the objections. Tex. R. Civ. P. 203.5.
Use: A nonstenographic recording, or a written transcription of all or a portion of the recording, may be used to the same extent as a stenographic deposition. However, for good cause shown, the court may require that the party seeking to use the nonstenographic record 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).
All or part of a deposition may be used for any purpose in the same proceeding in which it was taken. A deposition is admissible against a party joined after the deposition is taken if it is admissible under rule 804(b)(1) of the Texas Rules of Evidence or if the later-joined party has had a reasonable opportunity to redepose the witness but has not done so. Tex. R. Civ. P. 203.6(b). Depositions taken in other proceedings may be used as permitted by the Texas Rules of Evidence. Tex. R. Civ. P. 203.6(c); see also Tex. R. Evid. 801(e)(2) (prior deposition testimony of party not hearsay if offered against party), 804 (prior deposition of unavailable witness).
§ 5.91Amending or Supplementing Deposition Testimony
If an expert witness is under a party’s control, that party must amend or supplement any deposition testimony 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. This rule provides the only duty to supplement deposition testimony. See Tex. R. Civ. P. 193 cmt. 5.
[Sections 5.92 through 5.100 are reserved for expansion.]
A subpoena may be issued by an attorney authorized to practice in Texas, by the clerk’s office, or by an officer authorized to take depositions in Texas. Tex. R. Civ. P. 176.4. (See Tex. Civ. Prac. & Rem. Code § 20.001 regarding authority to take depositions.) The subpoena may be served by a sheriff or constable or any nonparty person over eighteen years of age. Tex. R. Civ. P. 176.5(a). Proof of service must be documented either by memorandum signed by the witness acknowledging acceptance of the subpoena or by a statement by the person serving, which must include the date, time, and manner of service and the name of the person served. Tex. R. Civ. P. 176.5(b).
All subpoenas must be issued in the name of “The State of Texas” and contain these elements: the style; the cause number; the court; the date of issuance; identification of the subpoenaed person; the time, place, and nature of the action required by the subpoenaed person; the name of the party causing the subpoena to be issued (and the party’s attorney, if any); the text contained in rule 176.8(a); and the signature of the issuing person. Tex. R. Civ. P. 176.1.
Properly issued subpoenas are generally valid within a radius of 150 miles from the county in which the subpoenaed person resides or is served. Tex. R. Civ. P. 176.3(a). Subpoenas may be served on witnesses who reside 150 miles or less from the county in which the suit is pending or who may be found within that distance at the time of trial. Tex. Civ. Prac. & Rem. Code § 22.002. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness’s attorney of record. Tex. R. Civ. P. 176.5(a).
A subpoena must command the person to attend and give testimony at a deposition, hearing, or trial; produce and permit inspection and copying of designated documents or tangible things in the person’s possession, custody, or control; or both. Tex. R. Civ. P. 176.2. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the discovery rules. Tex. R. Civ. P. 176.3(b).
Witnesses and custodians of records are entitled to the payment of fees before they must appear to testify or produce or certify records, as applicable. A witness is entitled to $10 for each day the witness attends court. This fee includes the entitlement for travel, and the witness is not entitled to any reimbursement for mileage traveled. Tex. Civ. Prac. & Rem. Code § 22.001(a). The party who summons the witness must pay that witness’s fee for one day at the time the subpoena is served on the witness. Tex. Civ. Prac. & Rem. Code § 22.001(b). Witnesses summoned by a state agency are entitled to different fees. See Tex. Civ. Prac. & Rem. Code § 22.003.
A custodian of records who produces or certifies a record in response to a request for production or certification of a record under a subpoena, a request for production, or other instrument issued under the authority of a tribunal that compels production or certification of a record is entitled to $1 for production or certification of the record. If more than one record is produced or certified, the custodian of the records is entitled to only one fee under section 22.004 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code § 22.004(a). Note, however, that other laws may require the payment of additional fees for the production of these records. The fee required by section 22.004 is in addition to any other fee imposed by law for the production or certification of a record. Tex. Civ. Prac. & Rem. Code § 22.004(e). The party requesting the production or certification of the records must pay the $1 fee at the time the subpoena, request, or other instrument is served. Tex. Civ. Prac. & Rem. Code § 22.004(c). If the custodian of records produces or certifies a record but is not required to appear in court, the custodian is not entitled to the $10 per day witness fee under section 22.001. Tex. Civ. Prac. & Rem. Code § 22.004(b).
A party causing a subpoena to issue must take reasonable steps to avoid undue burden and expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship. Tex. R. Civ. P. 176.7. In determining whether a deposition notice or subpoena duces tecum is unreasonable and oppressive, the following factors are relevant: (1) the quantity of materials subpoenaed, (2) the ease or difficulty of collecting and transporting the materials, (3) the length of time before the deposition, (4) the availability of the information from other sources, and (5) the relevance of the materials. St. Luke’s Episcopal Hospital v. Garcia, 928 S.W.2d 307, 310 (Tex. App.—Houston [14th Dist.] 1996, orig. proceeding).
§ 5.102Enforcement of Subpoenas
Failure by a subpoenaed person to obey the subpoena, without adequate excuse, may be deemed a contempt of court. (Requirements related to the response, objections, and protective orders are detailed in rule 176.6.) On a finding of contempt, the court may punish the violating party by fine, confinement, or both. Tex. R. Civ. P. 176.8(a).
Before a fine may be imposed on a person who has failed to comply with a subpoena, there must be filed an affidavit of the party requesting the subpoena, or of the attorney of record, that all fees due the witness by law were paid or tendered. Tex. R. Civ. P. 176.8(b).
[Sections 5.103 through 5.110 are reserved for expansion.]
VIII. Abuse of Discovery and Sanctions
§ 5.111Motion for Sanctions or Order Compelling Discovery
A party may apply for sanctions, an order compelling discovery, or both on reasonable notice to other parties and to all other persons affected thereby as described below. Tex. R. Civ. P. 215.1. The imposition of an available sanction must be “just.” Whether a sanction is “just” is measured by two standards. First, a direct relationship must exist between the offensive conduct and the sanction imposed. The sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party. In addition, the sanction should be directed against the offender. Therefore, the trial court must attempt to determine whether the conduct in question is attributable to counsel only, to the party only, or to both. Second, for a punishment to be “just,” it must not be excessive. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. Thus, the courts must first consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance and deterrence and discourage further abuse. A trial court exceeds its discretion if the sanction it imposes exceeds the purposes that discovery sanctions are intended to further. Best Industrial Uniform Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 148 (Tex. App.—Amarillo 2000, pet. denied).
Appropriate Court: An application for an order must be made to the court in which the action is pending, except in two circumstances: (1) on matters relating to the deposition of a party, an application for an order to the party may be made to the court in which the action is pending or to any district court in the district in which the deposition is being taken and (2) an application for an order related to a nonparty deponent shall be made to the court in the district in which the deposition is being taken. Tex. R. Civ. P. 215.1(a).
Motion: The party seeking discovery may move for an order compelling discovery or apply for the imposition of sanctions (without the necessity of first having obtained a court order compelling the discovery) if one of the following occurs:
1.A party or other deponent that is a corporation or other entity fails to designate a person for deposition and state the matters on which the person will testify.
2.A party, other deponent, or person designated to testify on behalf of a party or other deponent fails to appear before the officer who is to take his deposition (after being served with a proper notice) or to answer a question propounded or submitted on oral examination or written questions.
3.A party fails to serve answers or objections to properly served interrogatories, fails to answer an interrogatory, fails to serve a written response to a properly served request for inspection, or fails to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection under rule 196.
For purposes of rule 215.1, an evasive or incomplete answer is treated as a failure to answer. Tex. R. Civ. P. 215.1(c).
When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. Tex. R. Civ. P. 215.1(b).
If the court denies the motion in whole or in part, it may make such discovery protective order as it would have been empowered to make on a motion under rule 192.6. Tex. R. Civ. P. 215.1(b).
Rule 215.1(d) provides for the awarding of expenses, including attorney’s fees, following a hearing on a motion to compel. See Tex. R. Civ. P. 215.1(d).
If a party fails to comply with any person’s written request for the person’s own statement as provided in rule 192.3(h), the person making the request may move for an order compelling compliance and, if the motion is granted, the movant may recover the expenses incurred in obtaining the order, including attorney’s fees, that are reasonable in relation to the amount of work reasonably expended in obtaining the order. Tex. R. Civ. P. 215.1(e).
§ 5.112Failure to Comply with Order or Discovery Request
Sanctions by Court in District in Which Deposition Is Taken: If a deponent fails to appear, fails to be sworn, or fails to answer 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).
Sanctions by Court in Which Case Is Pending: For failure to comply with a proper discovery request or to obey an order to provide or permit discovery, the court in which the action is pending may, after notice and hearing, enter such orders “as are just.” Tex. R. Civ. P. 215.2(b). The Supreme Court of Texas said in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (orig. proceeding):
In our view, whether an imposition of sanctions is just is measured by two standards. First, a direct relationship must exist between the offensive conduct and the sanction imposed. This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. It also means that the sanction should be visited upon the offender. . . .
Second, just sanctions must not be excessive. The punishment should fit the crime. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. It follows that courts must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance.
TransAmerican Natural Gas Corp., 811 S.W.2d at 917; see In re Marriage of Mize, 558 S.W.3d 187, 195–96 (Tex. App.—Texarkana 2018, no pet.) (when client claims Fifth Amendment privilege to questions in deposition that are not connected to criminal charges, court should try to determine if offensive conduct is attributable to party, counsel, or both and must consider lesser sanctions if appropriate). Possible sanctions include, but are not limited to—
1.an order disallowing any further discovery of any kind or of a particular kind by the disobedient party (see Thompson v. Davis, 901 S.W.2d 939, 940 (Tex. 1995) (orig. proceeding) (per curiam));
2.an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising the party;
3.an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
4.an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting that party from introducing designated matters in evidence;
5.an order striking out pleadings or parts of pleadings, staying further proceedings until the order is obeyed, dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party (see Salomon v. Lesay, 369 S.W.3d 540, 557 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Weimer v. Weimer, 788 S.W.2d 647, 648–50 (Tex. App.—Corpus Christi–Edinburg 1990, no writ); Monaghan v. Crawford, 763 S.W.2d 955, 956–59 (Tex. App.—San Antonio 1989, no writ));
6.in lieu of or in addition to any of the foregoing orders, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; and
7.when a party has failed to comply with an order under rule 204 requiring him to appear or produce another person for examination, such orders as are listed in items 1.–5. above, unless the person failing to comply shows that he is unable to appear or to produce the person for examination.
In lieu of or in addition to any of the foregoing orders, the court shall require the party failing to obey the order or the attorney advising the party, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Tex. R. Civ. P. 215.2(b).
This is a nonexclusive list of available sanctions. For example, although the rule does not specifically authorize the imposition of punitive monetary sanctions, these may be justified under the “as are just” language of the rule. See Ismail v. Ismail, 702 S.W.2d 216, 224–25 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) ($15,000 fine for failure to file court-ordered inventory and appraisement). Note that some courts have limited monetary sanctions available for abuse of discovery to reasonable expenses, including attorney’s fees, caused by the abuse. Clone Component Distributors of America, Inc. v. State, 819 S.W.2d 593, 597 (Tex. App.—Dallas 1991, no writ); Owens-Corning Fiberglas Corp. v. Caldwell, 807 S.W.2d 413, 415 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding [leave denied]). Sanctions striking a party’s pleadings and deeming the party’s net monthly resources to be $6,000 have been upheld. See In re J.D.N., 183 S.W.3d 128 (Tex. App.—Dallas 2006, no pet.). However, there are limitations on a trial court’s ability to impose sanctions; the reviewing court must consider whether (1) a direct relationship exists between the offensive conduct and the sanctions imposed and (2) the sanctions are excessive. TransAmerican Natural Gas Corp., 811 S.W. 2d at 917.
The trial court must consider the availability of lesser sanctions and state a reasoned explanation as to the appropriateness of the greater sanction before imposing the death penalty sanction. An order merely listing instances where the party failed to comply with discovery orders, with no indication why the death penalty sanctions were warranted, will not be upheld. Mullins v. Mullins, No. 02-16-00449-CV, 2017 WL 3184676 (Tex. App.—Fort Worth July 27, 2017, no pet.) (mem. op.); see also Young v. Young, No. 03-14-00720-CV, 2016 WL 7339117 (Tex. App.—Austin Dec. 15, 2016, no pet.) (mem. op.).
To obtain sanctions for nonproduction of documents, the requesting party has the burden to prove that the other party has possession of the requested documents. GTE Communications Systems Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (orig. proceeding).
Sanctions against Nonparty: If a nonparty fails to comply with an order under rule 196.7 or rule 205.3, the court that made the order may treat the failure to obey as contempt of court. Tex. R. Civ. P. 215.2(c).
§ 5.113Abuse of Discovery Process
The court in which an action is pending may, after notice and hearing, impose any appropriate sanction listed in paragraphs 1–5 and paragraph 8 of rule 215.2(b) if the court finds that a party is abusing the discovery process in seeking, making, or resisting discovery; that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing; or that a response or answer is unreasonably frivolous or made for purposes of delay. Tex. R. Civ. P. 215.3.
The rules permit the suspension of a deposition based on events that occur during the deposition—specifically, the expiration of time limits or violation of applicable rules governing taking depositions. Tex. R. Civ. P. 199.5(g). However, counsel for one of the parties cannot unilaterally suspend the deposition before it commences without incurring a finding of an abuse of discovery. For a deponent not wanting to be deposed, the proper avenue is to file a motion to quash. A finding of bad faith is not necessarily a factor when a trial court imposes a sanction, other than a death penalty sanction, under rule 215.2(b). Wilson v. Shamoun & Norman, LLP, 523 S.W.3d 222, 229–31 (Tex. App.—Dallas 2017, pet. denied).
§ 5.114Failure to Comply with Rule 198
A party who has requested an admission under rule 198 may move to determine the sufficiency of the answer or objection. An evasive or incomplete answer may be treated as a failure to answer. The court shall order that an answer be served, unless it determines that an objection is justified. If the court determines that an answer does not comply with the requirements of rule 198, it may order either that the matter is admitted or that an amended answer be served. Rule 215.1(d) provisions apply to the award of expenses incurred for the motion. Tex. R. Civ. P. 215.4(a).
If a party proves the genuineness of a document or the truth of a matter after another party fails to admit the genuineness or truth as requested under rule 198, the proving party may apply to the court for an order for the other party to pay the reasonable expenses incurred in making the proof, including reasonable attorney’s fees. The court shall order the expenses paid unless it finds that the request was held objectionable under rule 193, the admission sought was not of substantial importance, the party failing to admit had a reasonable ground to believe he might prevail on the matter, or there was other good reason for the failure to admit. Tex. R. Civ. P. 215.4(b).
§ 5.115Failure to Attend or Serve Subpoena
If a party who gives notice of an oral deposition fails to attend and proceed and another party attends in person or by attorney, the court may order the party giving the notice to pay the other party’s reasonable expenses, including attorney’s fees, incurred in attending. Those expenses may also be ordered paid if a party gives notice of the taking of an oral deposition of a witness and the witness does not attend because of the fault of the party giving the notice (for example, failure to subpoena a nonparty witness). Tex. R. Civ. P. 215.5.
In a parentage determination or child support proceeding under title 5 of the Family Code, a court or the title IV-D agency may issue an order suspending license if a parent or alleged parent has failed, after receiving appropriate notice, to comply with a subpoena. Tex. Fam. Code §§ 232.001(4), 232.003(b); see also Tex. Fam. Code §§ 232.004–.016.
If the certification required under rule 191.3 is false without substantial justification, the court may, on motion or on its own initiative, impose on the person who made 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).