The purpose of the rules update was to clarify and streamline discovery procedures and reduce costs and delays. The scope of discovery has not changed. In this paper I will attempt to point out some of the more significant changes to the rules. This is not an all inclusive listing or summary of every change or provision in these rules; however, in large part any issue not referenced in the paper is not significantly changed from the old rules. Obviously some of these Rules will be clarified with case law in the coming months, but this should provide a starting place in understanding these rules.
RULE 176 SUBPOENAS
(Former Rules 176, 177, 177a, 178, 179 & 201)
The subpoena range of 150 miles has been clarified to mirror CPRC 22.002. For the first time, the required actions to be taken by the responding party are spelled out and are then referenced by other sections (Rule 176.2). Attorneys are now empowered to issue subpoenas under 176.4(b); hopefully, this will help limit costs. You may want to notice that an individual need not appear with subpoenaed documents unless specified to give testimony, otherwise, only the documents will be produced (Rule 176(c)). Material subpoenaed may be withheld pursuant to assertions of privileges under 193.3. Anyone subpoenaing documents must take reasonable steps to avoid undue burden or expense on the person served. The Court may in fact compensate the person producing documents for any undue hardship (Rule 176.7).
RULE 190 DISCOVERY LIMITATIONS
(New Rule)
These rules set out the discovery control plans that are one of the most significant changes to the rules. The Plaintiffs first numbered paragraph of the original petition should identify whether discovery is intended to be conducted under Level 1, 2, or 3 (Rules 190.1). This is to be done by affirmatively pleading an amount in controversy and/or citing a Level. Amended pleadings that disqualify a case from Level 1, reopen the discovery period under Level 2 or 3. Anyone may be redeposed. The Court should pass any trial on Motion to allow completion of discovery (190.2(d)). Two other times at which a Court must allow additional discovery are when new pleadings are filed that may require a response, but are filed after the end of the discovery period or so close to the end that the adverse party has no time to investigate, and the adverse party would be unfairly prejudiced, and when there has been a material change in the case after the end of the discovery period and trial is more than three months away (Rule 190.5).
Notice that Rule 166 scheduling orders are still available to the Court to be entered at any discovery level (see Comment 6). Furthermore, these rules do not apply to Depositions Before Suit or Discovery and Enforcement of Judgment.
RULE 191 MODIFYING DISCOVERY PROCEDURES AND LIMITATIONS; CONFERENCE REQUIREMENT; SIGNING DISCLOSURES, DISCOVERY REQUESTS, RESPONSES, AND OBJECTIONS; FILING REQUIREMENTS (New Rule)
All discovery motions or requests for hearing must contain certificates of conference asserting that reasonable efforts have been made to resolve the dispute without Court intervention and the effort failed (Rule 192.2). Rule 191.3 requires that every discovery document be signed by an attorney or pro se party. Such signature on a disclosure indicates that to the best of the signers information, knowledge, and belief, formed after a reasonable inquiry, that the disclosure is complete and correct as of the time it is made. Likewise, signatures on other discovery documents that to the best of the signers information, knowledge, and belief, formed after a reasonable inquiry, it is:
1. Consistent with law,
2. Not made for any improper purpose, and
3. Not unreasonable, unduly burdensome or expensive given the needs of the case.
Any such document not signed will be stricken unless the oversight is immediately cured. If such a certification is false, sanctions under CPRC Chapter 10 may apply.
Rule 191.4 identifies what documents are to be filed with the Court and what documents are not to be filed with the Court. Additionally, for any documents not filed with the Court, the filing attorney must retain the original or an exact copy during the pendency of the case and any appellate proceedings and for 2 years thereafter unless directed by the trial Court.
RULE 192 PERMISSIBLE DISCOVERY; FORMS AND SCOPE; WORK PRODUCT; PROTECTIVE ORDERS; DEFINITIONS (Former Rule 166b)
Requests for disclosure are added as a permissible form of discovery (Rule 192.1). The scope of discovery is not changed but Comment 1 specifically interprets the scope through K-Mart v. Sanderson, 937 S.W.2d 429 (Tex. 1996)(per curiam); Dillard Dept. Stores v. Hall, 909 S.W.2d 491 (Tex. 1995)(per curiam); Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995)(per curiam); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989).
For the first time the following matters are discoverable:
1. A brief statement for each person with knowledge of relevant facts regarding their connection to the case. Note that an expert whose knowledge was obtained in anticipation of litigation or for trial is not a person with knowledge (Rule 192.3(c) and Comment 3).
2. The name, address and phone number of trial witnesses (Rule 192.3(c)).
3. Statements (written and adopted or recorded) of persons with knowledge are discoverable regardless of when they were taken, thereby eliminating the witness statement exemption (Rule 192.3(h)).
4. Basic statements of parties legal contentions and factual basis for those contentions are discoverable; however, parties are not required to marshal their evidence to respond (Rule 192.3(j) and Comment 5).
In addition to adding to discovery, these rules provide for the Courts to limit discovery if it becomes unreasonably cumulative or duplicative or obtainable from another source more easily, cheaply, etc., or to limit discovery when the burden of responding outweighs the likely benefit (Rule 192.4) These provisions are to be applied in light of the revision goals of preventing unwarranted delay and expense, not to restrict access to critical information (see Comment 7).
Rule 192.5 defines work product basically combining what was previously known as attorney work product and party communication. Work product is then divided into core work product, which is the attorneys mental impressions, opinions, conclusions, or legal theories and is not discoverable, and other work product, which is discoverable. It can only be discoverable upon a showing of substantial need in the preparation of the case and an inability to obtain by other means without undue hardship. If ordered to produce other work product, and if some core work product is incidentally disclosed, no violation of the privilege is recognized. The Courts must try to craft their orders to protect core work product. Exceptions to the work product privilege include information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; trial exhibits ordered disclosed; identification of persons with knowledge; any photo of electronic image of underlying facts to be offered at trial; and any work product created under an exception to attorney client privilege according to 504(d) Rules of Evidence.
Under Rule 192.6, a responding party must respond to any request to the extent protection is not sought before obtaining a ruling from the Court and if protection is being sought as to time and place for production, the respondent must offer an alternative. This rule also encourages the use of proper objections and assertions of privilege in lieu of a Motion for Protection but will not waive the objections/privileges if a motion is filed.
RULE 193 WRITTEN DISCOVERY: RESPONSE; OBJECTION; ASSERTION OF PRIVILEGE; SUPPLEMENTATION AND AMENDMENT; FAILURE TO TIMELY RESPOND; PRESUMPTION OF AUTHENTICITY (Former Rule 166b)
Now a responding party has an actual duty to make a complete response, even when asserting privileges (Rule 193.1) Furthermore, Rule 193.2 requires that any objection must be made on a good faith basis at the time the objection is made and that the responding party specifically state the legal or factual basis for such objections and the extent to which the respondent is refusing to comply. Additionally, an untimely objection or one that is hidden in unfounded objections will be waived without a showing of good cause. Responses can be amended or supplemented if needed as information develops, and if objections arise out of the new information, they can be made at the time of the supplementation. The respondent must comply with every part of the request to which there is no objection and if the objection is to the time or place of production, the respondent must state an alternative and comply in that manner. In order to assert a privilege, Rule 193.3 requires that you must first restate the request, then state that information or material responsive to the request has been withheld, and specify the privilege asserted. After receiving such an assertion, the requesting party may ask that the withheld information be identified. Within 15 days of such a request, the responding party must describe the documents in such a way as to enable the requesting party to assess the applicability of the privilege without revealing the information or waiving the privilege and must assert the specific privilege for each item or group of items. The exception to this is that privileged communication from an attorney or any privileged document of an attorney, concerning the subject litigation, from the time the party consulted with the attorney for representation, can be assumed to be withheld (see Comment 3).
If a party inadvertently produces privileged information, and if you amend the response to properly assert the privilege within 10 days after the mistake is discovered, the privilege is not waived and the requesting party must return any documents pending any Court ruling denying the privilege. These rules are broader than Rule 511 Rules of Evidence and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992) to the extent the two conflict (see Comment 4).
Any party may request a hearing on privilege, but the burden of proof for any such hearing lies with the party asserting the privilege. Said party must present evidence to support the privilege by testimony or affidavits filed 7 days prior to the hearing. To the extent the Court overrules the privilege, the responding party must produce the required information within 30 days of the order or by the date specified in the order (see Rule 193.4).
All parties must amend or supplement written discovery as to persons with knowledge, trial witnesses, expert witnesses and other information unless that information was already made known to all parties in writing, on the record at a deposition, or through other discovery responses. Supplementation must be made reasonably promptly after discovery of the information. Less than 30 days before trial will be presumed to not meet that standard. All supplementation must be verified by the party if the original response required verification (see Rule 193.5).
Any information withheld cannot be used at trial unless it is timely supplemented (see Rule 193.4(c)). The burden to establish good cause to have such documents admitted is on the party seeking admission. The Court may grant a continuance to allow the supplementation and for the opposing party to conduct discovery based on such disclosure (see Rule 193.7).
Rule 193.7 provides for the self-authentication of documents produced in response to discovery requests for use against the responding party, unless that party promptly objects on the record or in writing. If such objection is sustained, the party seeking to use the document should be given the opportunity to otherwise authenticate.
Mandatory disclosure (Rule 194) is another of the major revisions in these rules. Any party may request that another party respond to some or all of the mandatory disclosure matters. Such request, and in fact all discovery requests, are to be made no later than 30 days before the end of any discovery period. A complete listing of the content of the disclosure may be found in Rule 194.2, but includes the legal theories and factual basis of the responding partys claims or defenses (all evidence that may be offered need not be marshalled), the amount and any method of calculating economic damages, identification of persons with knowledge and a brief statement of each identified persons connection with the case, specific information about testifying experts, and discoverable witness statements. Written responses are due within 30 days of service, except if served before the answer was due, then within 50 days (this response time is true for all written discovery); except that part of the response that pertains to testifying experts, which is governed under Rule 195. Responsive documents are to be served with the responses unless they are voluminous, then a time and place for production should be stated. No objections to mandatory disclosure are permitted, except in extremely rare situations when ordinarily discoverable material should be protected, as for personal safety (see Comment 1).
RULE 195 DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES (New Rule)
These rules do not pertain to consulting experts nor to experts who are not under the control of a party, such experts are governed under Rules 176 and 205. The only discovery methods to gather information on testifying experts are disclosure, depositions, and reports (see Rules 195.1 and 195.4). Designation of a testifying expert in response to disclosure must be made by the later of:
1) 30 days after service of the request, or
2) 90 days before the end of the discovery period by parties seeking affirmative relief and 60 days before the end of the discovery period for all other experts
A party seeking affirmative relief must make its experts available for deposition under two scenarios. If no report for the expert has been furnished, then reasonably promptly after the designation. If the deposition cannot be concluded more than 15 days before the opposing partys designation deadline, that deadline must be extended. However, if a report for the expert has been furnished, reasonably promptly after all experts have been designated. Other experts must be made available reasonably promptly after their designation and after all experts, testifying on the same matter, for the party seeking affirmative relief have been deposed. (see Rule 195.3) All reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition must be paid by the retaining party (see Rule 195.7). All parties must supplement their experts deposition or reports with regard to their mental impressions or opinions and the basis for them (see Rule 195.6).
RULE 196 REQUESTS FOR PRODUCTION AND INSPECTION TO PARTIES; REQUESTS AND MOTIONS FOR ENTRY UPON PROPERTY (Former Rule 167)
If sampling or testing of produced materials is to be performed, the requesting party must identify the means, manner and procedures specifically enough to inform the opposing party and enable them to make appropriate objections (see Comment 1). Testing or sampling that is destructive to the material is still not allowed without prior Court approval (see Rule 196.5).
New notice requirements are made under Rule 196.1(c) for requesting a nonpartys medical or mental health records; however, the scope of such requests has not changed (see Comment 8). All relevant confidentiality rules still apply.
Pursuant to Rule 196.2(b), in addition to assertions of privilege, all responses must state:
1. That the production, inspection, or other requested action will be permitted as requested,
2. That the requested items are being served on the requesting party with the response;
3. That the production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
4. That no items have been identifiedafter a diligent searchthat are responsive to the request.
The producing party must produce all responsive documents in their possession, custody, or control. Copies may be produced unless a question is raised as to their authenticity. Documents are to be produced in the manner in which they are kept in the usual course of business, or they may be labeled to correspond with certain requests. (see Rules 196.2 and 196.3)
Requests for electronic or magnetic data must specify the form in which the data is to be produced. If the responding party cannot, with reasonable effort, retrieve or produce the data as requested, they must state an objection. If the Court orders compliance, it must also order the requesting party to pay for any extraordinary steps to retrieve and produce the data (see Rule 196.4). Normally, the cost to produce will fall to the responding party and the expense to inspect, test, photograph, and copy will be borne by the requesting party (Rule 196.6).
If a request to enter land is made to a party, a request is sufficient. However, a motion and hearing are required if the land is owned by a nonparty. If the identity of the owner is unknown, service other than by Rule 21a is permissible to get notice of the motion and hearing to the owner (see Rule 196.7).
RULE 197 INTERROGATORIES TO PARTIES (Former Rule 168)
Interrogatories may address anything within the scope of discovery, except testifying experts. The responding party may produce records in response to requests and must state the time and place for the production. The verification issues are clarified in Rule 197.2(d); a party must verify all interrogatory answers under oath except when answers are based on information obtained from others, the party must so state, and answers regarding persons with knowledge of relevant facts, trial witnesses, and legal contentions need not be verified. Contention interrogatories are permitted if they are specific; however, requests to state all legal and factual assertions are impermissible (see Comment 1).
RULE 198 REQUESTS FOR ADMISSIONS (Former Rule 169)
There are no substantive changes to admissions.
RULE 199 DEPOSITIONS UPON ORAL EXAMINATION (Former Rules 200, 202, & 204)
To take depositions in remote locations by telephone or other electronic means (yes we are preparing for internet or video conferencing depositions), the witness must be placed under oath by a person present with the witness and authorized to administer oaths in that jurisdiction. A deposition notice to an organization must reasonably describe the matters on which the examination is requested. The organization then must designate each appropriate witness and identify the matters each will testify to at a reasonable time prior to the deposition (see Rule 199.2). No depositions are to be taken outside the discovery period without agreement or leave of court. Rule 199.2(b)(2) sets out reasonable places for the taking of a deposition including the county of witness residence or employment or where he/she regularly transacts business in person, the county where the witness was served, or any convenient place ordered by the Court.
Deposition notices may contain requests for production of documents. If a witness is a nonparty, such requests must comply with Rule 205 (discovery from non-parties), and the requests for production of documents must be attached to or incorporated in the notice. The response to such a request must be in compliance with Rule 176 (subpoenas) and 205. If the witness is a party and receives a request, the request and response are governed under Rules 193 (responding to discovery and asserting objections/privileges) and 196 (requests for production).
If a Motion for Protection or to Quash is being filed, it must be filed by the third business day after service of the deposition notice and object to the time and place of a deposition in order to stay the deposition until the motion is heard by the Court (see Rule 199.4)
Rule 199.5 addresses examination and conduct during depositions. No side may examine an individual witness for more than 6 hours, not including breaks. Further, the conduct of the attorneys and witnesses is limited, but not the scope of the interrogation, under subsection (d) stating that counsel should conduct themselves in the same manner as if the testimony were being obtained in Court. Private conferences between the witness and his/her attorney during the deposition, other than during breaks, are improper except to determine the need of asserting privilege. If the attorneys and witnesses do not comply with this rule, the statements, objections, discussions and other occurrences during the deposition that reflect on the credibility of the witness or testimony may be allowed in evidence at trial. Objections to the questions are limited to objection, leading and objection, form. Objections to the testimony are limited to objection, nonresponsive. Objections are only to be made in good faith and be accompanied by a clear and concise explanation. Argumentative or suggestive objections or explanations may be grounds for terminating the deposition. A witness may be instructed not to answer a question only to preserve a privilege, to comply with a court order, protect a witness from an abusive question, for which any answer would be misleading, or to secure a ruling on suspending the deposition due to time limitations or a violation of these rules.
RULE 200 DEPOSITIONS UPON WRITTEN QUESTIONS (Former Rule 208)
The notice period of an intention to take a written deposition is increased to 20 days and the deposition itself, not the filing of the notice, must take place within the discovery period unless there is an agreement among parties or leave of court. Rules pertaining to the oral deposition notices, responses, organizations, and requests for production of documents are incorporated into Rule 200.
RULE 201 DEPOSITIONS IN FOREIGN JURISDICTIONS FOR USE IN TEXAS PROCEEDINGS; DEPOSITIONS IN TEXAS FOR USE IN FOREIGN PROCEEDINGS (Former Rule 188)
There are no substantial changes to these rules, although a restatement of CPRC section 20.002 is added. However, remember that just because these rules make certain provisions, there are no guarantees that they will be permitted or recognized in another state. You must first determine the requirements of the state where the witness is located and then apply these rules.
RULE 202 DEPOSITIONS BEFORE SUIT (Former Rules 187 & 737)
Former Rule 187 has been broadened to permit testimony other than preserving testimony and try to prevent this discovery tool from being used to get around other limitations.
RULE 203 SIGNING, CERTIFICATION AND USE OF ORAL AND WRITTEN DEPOSITIONS (Former Rules 205, 206 & 207)
Notice that if a witness does not sign an errata sheet with 20 days of receipt of the transcript, they are deemed to have waived the right to make changes except by agreement of counsel, in depositions on written questions, or non-stenographic depositions (see Rule 203.1).
The court reporters certification will include the amount of examination time used by each party to assist in tracking deposition time limits. Deposition transcripts are to be delivered 1 day before trial or 30 days before if non-stenographic, in order to trigger Motions to Suppress (see Rule 203.5). For good cause, a court may require that a non-stenographic deposition be transcribed by a certified court reporter at the expense of the party seeking to use the deposition at trial (see Rule 203.6). A deposition is admissible against a party joined after the deposition was taken if the deposition is admissible under Rule 804(b)(1) of the Rules of Evidence or if the party had a reasonable opportunity to redepose the witness.
RULE 204 PHYSICAL AND MENTAL EXAMINATIONS (Former Rule 167a)
Such a motion must be filed at least 30 days before the end of the discovery period and must be served on all parties and the person to be examined. Except under Rule 204.4, applying to Titles of the Family Code, psychological evaluations may be ordered when a party responding has designated a psychologist as a testifying expert or disclosed a psychologists records for possible use at trial. Rule 204.4, applying to Titles II and V of the Family Code adds psychiatrists to the provisions for psychologists.
RULE 205 DISCOVERY FROM NONPARTIES (New Rule)
You may compel a nonparty to respond to discovery only by court order or subpoena and only to oral depositions, depositions on written questions, Requests for Production served with notice of deposition or DWQ, or Requests for Production. The party requesting production must reimburse the nonparty for expenses in responding.