THE FIRST YEAR UNDER THE NEW DISCOVERY RULES

The Big Issues Thus Far*
by Robert H. Pemberton, Rules Attorney for The Supreme Court of Texas

This paper surveys the effects of the 1999 Texas discovery rules during their first year of implementation.¹ As Rules Attorney for the Texas Supreme Court, I—along with the Supreme Court Rules Advisory Committee and the State Bar Court Rules Committee, the two principal bodies that advise the Court regarding its rules—attempt to monitor how the new discovery rules, as well as other court rules, are affecting Texas practice. Additionally, I have served, and continue to serve, as a “hotline” for questions and comments from lawyers and other stakeholders in the Texas civil justice system concerning the new discovery rules, their origins and intent. This paper summarizes what I have heard and learned about the effects of the new discovery rules to date.

Part I relates the most common anecdotal general observations that our advisory committees and individual Texas lawyers and judges have shared with me concerning the effects of the new discovery rules. Part II discusses some of the specific issues and questions concerning the new rules that I or other Court personnel have most frequently encountered in phone calls, letters, or at CLEs. This portion of the paper is an update of The First 100 Days Under the New Discovery Rules: The Big Issues Thus Far, which originally was released in April 1999. Part III surveys the few reported appellate cases that have addressed issues arising under the new discovery rules.²

Please keep in mind that, as an employee of the Supreme Court, I cannot give advisory opinions or legal or tactical advice, and nothing in this paper should be construed as such or as a comment on any pending or impending case. My intent is merely to relate what I have heard about the effects of the new rules and, where possible, provide you with some guidance based solely on the text of the rules, their “legislative history,” and a purely factual recitation of the case law. Any opinions or observations expressed in this paper are my own.

Before proceeding with this discussion, however, I cannot emphasize enough that the Court encourages and values your input concerning the effects of the new discovery rules. If these rules prove to be a success, it is due largely to the vast volume of helpful comments the Court and its advisory committees received while drafting them. Now that the rules have been implemented, the Court, if anything, has an even greater need for your comments and suggestions “from the trenches” to ensure that the rules are achieving their intended purposes. How are the new rules working? What problems have you experienced? Alternatively, what improvements have you seen? What are your thoughts regarding the issues discussed in this paper? Please send your comments in writing to: Bob Pemberton, Rules Attorney, Texas Supreme Court, P.O. Box 12248, Austin, TX 78711

You may also email your comments to me at bob.pemberton@courts.state.tx.us. Any and all of your comments and suggestions will be promptly referred to the Rules Advisory Committee and the Court Rules Committee for study and recommendations for further action.

General Observations

The silence is unusually loud . . . .
Willie Nelson, The Ghost (1962)

From the perspective of my job, the first year under the new Texas discovery rules—like the old saying about March weather—blew in like a lion and out like a lamb. During the first 3-4 months under the new discovery rules, I was receiving dozens of calls each day concerning the rules from a wide range of stakeholders in the Texas civil justice system—lawyers, judges, legal assistants, clerks, court reporters, and members of the general public. As might be expected with any new law or rule, the new discovery rules raised a lot of questions as people began to read and understand them.³ Some lawyers—although not the majority who commented to the Court—also complained about the fact that the rules were being changed at all and expressed skepticism regarding the benefit of the changes.

To help smooth the transition to the new discovery rules, Justice Hecht and/or I spoke at dozens of CLE courses across Texas, wrote three papers—A Guide to the 1999 Texas Discovery Rules Revisions, a supplement to that paper, and The First 100 Days Under the New Discovery Rules: The Big Issues Thus Far—and made these papers, as well as copies of the rules themselves, available in the Supreme Court’s Clerk’s office and on the Court’s website at www.courts.state.tx.us.⁴ In addition to these efforts by the Court, numerous other commentators published articles and books providing guidance on the interpretation and application of the new rules. A list of some of these resources is attached as Appendix A.⁵

After those busy initial few months, however, the volume of questions I have received concerning the new discovery rules has decreased dramatically to an average of around 3-5 per week.⁶

Texas courthouses appear to be similarly silent with respect to issues and disputes under the new rules. While no definitive statistics are available, anecdotal accounts from judges and lawyers across Texas indicate that there have been few hearings under the new rules to date. Likewise, there have been only a handful of reported appellate cases under the new rules and less than ten mandamuses to the Supreme Court raising issues under the new rules—hardly the landslide that some predicted at the time the rules were implemented.

The following is some other common anecdotal feedback concerning the new discovery rules:

• The new deposition conduct rules,⁷ initially one of the most controversial provisions in the new discovery rules,⁸ are winning some acclaim. A number of lawyers have recounted instances where the new rules have greatly reduced time and expense, particularly in acrimonious cases where speaking objections and arguments on the record previously added hours or days to depositions.
  
  
• Requests for disclosure, in general, have proven to be a helpful tool for obtaining basic discoverable information quickly and efficiently. Also, the new limitations on objections to written discovery have, at a minimum, generally caused lawyers to consider more carefully whether their objections are well-grounded, thus curtailing “boilerplate” objections. But some lawyers still have encountered reticence and gamesmanship from responding parties, particularly with regard to contention disclosures. These types of problems, and some ways to address them, are discussed in Part II(I), below.
  
  
• In urban jurisdictions and in larger cases, courts are tending to enter their own Level 3 discovery control plans⁹ or parties are seeking entry of such orders by agreement. But in smaller cases and in less urban jurisdictions, the majority of cases are “defaulting” into Level 2.¹⁰ There seem to be few cases going into Level 1.
  
  Whatever the discovery level, the new limits appear to be having their intended effect of causing parties to think about and plan discovery early in the case—and work together in this process. This tends to make discovery more efficient and less acrimonious.
  
  
• In addition to seeking agreed Level 3 discovery control plans, lawyers appear to be making widespread use of Rule 191.1 to tailor the new discovery rules to their cases or simply to “agree around” certain aspects of the new rules. For example, at least in the first few months of 1999, many lawyers used Rule 191.1 to “agree around” the new deposition conduct rules, preferring the less restrictive and more familiar former rules.
  
  
• A common reaction to the new rules has been one of pleasant surprise. Although many lawyers had an initial aversion to change, once they have taken the time to read the new rules and attempt to understand them, most either have endorsed the changes or have at least not opposed them or found them to be harmful.
  

Complaints regarding the new rules have been relatively rare. Those that have been raised have most prominently concerned the following issues:

• The discoverability of witness statements. Probably the most controversial aspect of the new rules has concerned the discoverability of witness statements obtained prior to January 1, 1999. This issue is discussed below in Part II(B) and Part III(A). As explained in Part II(B), the State Bar Court Rules Committee currently is considering ways to simplify some of the rules impacting this issue.
  
  
• Instructions not to answer. Some lawyers have expressed concern that Rule 199 and its comment 4 allow or encourage lawyers to excessively instruct witnesses not to answer. Both the Rules Advisory Committee and the Court Rules Committee currently are studying the extent to which this is a widespread problem and whether or how Rule 199 should be amended to address it.
  
  
• Requests for disclosure in family law cases. Some family lawyers have maintained that the current requests for disclosure, as well as some of the deadlines in the rules, are not well suited for family law cases.¹¹ To address these concerns, the Supreme Court asked the Family Law Section of the State Bar to draft proposed requests for disclosures for use in family law cases.¹² The Section recently submitted such a proposal to the Rules Advisory Committee.

Overall, the transition to the new discovery rules seems to be going smoothly. The confusion or consternation initially expressed by some lawyers seems to have gradually been supplanted by general contentment and even pleasant surprise or support. Indeed, the anecdotal evidence suggests that the new discovery rules are generally fulfilling their intended purposes, “to clarify and streamline discovery procedures and to reduce costs and delays associated with discovery practice.”¹³ Where aspects of the rules have appeared to raise frequent complaints or concerns, the Supreme Court’s rules advisory bodies have begun to address these areas.¹⁴

But, in fairness, it is still too early to draw any firm conclusions regarding many effects of the new discovery rules. It remains to be seen, for instance, whether the reduction in inquires to the Court and the dearth of discovery hearings and appellate court proceedings indicates that lawyers and judges are coming to understand the new rules—perhaps utilizing the growing array of CLE materials and other published reference sources—and that the rules are accomplishing their intended purposes, or is merely the “eye of the hurricane,” a lull resulting from lawyers not yet understanding the rules well enough to pick fights about them or play games with them. A factor potentially contributing to such a lull is an apparent widespread use of Rule 191.1 to “agree around” aspects of the new rules that lawyers don’t understand or that might otherwise give rise to disputes.

In sum, the impact of the new discovery rules one year after implementation has generally been “so far, so good,” but we’ll know more as time progresses.

* Part II of this paper will appear in the Summer 2000 TPJ

Robert H. (“Bob”) Pemberton is the Rules Attorney for the Texas Supreme Court. Bob helps oversee the Court’s work on procedural rules, including the recent rewrite of the civil discovery rules, the rules governing “judicial bypass” proceedings under the new Texas parental notification statute, and the ongoing recodification of the Texas Rules of Civil Procedure. Additionally, Bob assists Justice Nathan Hecht as liaison to various entities in state government and the bar with regard to court rules, frequently speaks at education programs, and helps individual lawyers and members of the public with their questions and concerns regarding court rules. Bob has spoken and written extensively concerning the new discovery rules, including co-authoring A Guide to the 1999 Texas Discovery Rules Revisions and the supplement to that paper with Justice Nathan Hecht, The First 100 Days Under the New Discovery Rules: The Big Issues Thus Far, and Texas Practice: Handbook on Texas Discovery Practice: The New Rules Governing Discovery (West 1999) with Supreme Court Advisory Committee members Professor Alex Albright and Charles Herring. Bob is active in the Austin Young Lawyers’ Association and the Travis County Bar Association. He recently was elected to the AYLA Board of Directors for the 1999-2000 bar year and is co-chairing the 2000 Travis County Bench-Bar Conference. Before joining the Supreme Court, Bob practiced law for four years in the trial section of Baker & Botts in Houston. Prior to working at Baker & Botts, he was a briefing attorney for Chief Justice Thomas R. Phillips of the Texas Supreme Court.

Bob received his B.B.A. summa cum laude from Baylor University, where he was the top graduate in the Hankamer School of Business, and his J.D. with honors from Harvard Law School, where he was an editor of the Law Review. He is a sixth generation Texan, born in Waco and raised in Temple.

APPENDIX A: NEW DISCOVERY RULES REFERENCE MATERIALS

1. Price Ainsworth, Spoliation 1998, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab R (1998).

2. Alex Wilson Albright, Charles Herring, Jr., and Robert H. Pemberton, Handbook on Texas Discovery Practice: The New Rules Governing Discovery (1999).

3. Joe Amberson, Civil Discovery Under the New Rules: 18 Discovery Traps: What You Must Know to Stay Out of Trouble, unpublished manuscript on file with the Supreme Court of Texas (1999).

4. Kim J. Askew, Written Discovery Under the New Rules: Drafting Effective Requests and Proper Responses, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab D (1999).

5. Kim J. Askew, Written Discovery Under the New Texas Rules of Civil Procedure, State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab D (1999).

6. Elizabeth G. (Heidi) Bloch, Strategic Considerations in Pursuing and Responding to a Discovery Mandamus, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab O (1998).

7. E. Leon Carter, Discovery About Experts, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab Q (1998).

8. Ricardo G. Cedillo, Experts Under the New Rules, University of Texas School of Law, 4th Annual Evidence and Discovery Symposium, at Tab 11 (1999).

9. Scott M. Clearman, Jennifer Witten Clearman, and Cory S. Fein, Discovery of Computer Based Information, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab I (1998).

10. Donald Colleluori, Admissions and Interrogatories: Complying With Litigation Control Plans and Drafting Good Paper Discovery in Complex Cases, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab L (1998).

11. Mark Cumden, New Discovery Rules Going to Texas Judges, Dallas Morning News, Nov. 16, 1998, at D1.

12. Doyle Curry, Objecting to Discovery Documents, 12th Annual Advanced Evidence and Discovery Course, at Tab T (1999).

13. Casey Dobson, Litigators Beware—New Rules of Discovery, The Texas Lawyers’ Insurance Exchange, Legal Malpractice Advisory, Issue No. 3, 1998, at 1.

¹ The new discovery rules were promulgated in two orders, Order in Misc. Docket 98-9196, dated November 9, 1998 (the “November 9 Order”), reprinted in 61 Tex. B.J. 1139 (Dec. 1998), and Order in Misc. Docket 98-9224, dated December 31, 1998 (the “Technical Corrections” Order), reprinted in 62 Tex. B.J. 115 (Feb. 1999).

² Part III focuses only on cases that address issues unique to the new discovery rules. It does not address cases arising under the new rules that apply preexisting legal principles that are carried over unaltered from the former discovery rules.

³ These tasks were made even more challenging by some initial, occasional confusion as to the correct text of the rules. As noted above, the new discovery rules were promulgated in two orders, the November 9 Order and the December 31 “Technical Corrections” Order. In addition to these two promulgations, the Court earlier had released three draft versions for comment. In the early months of 1999, some people mistakenly relied on one of the draft versions or only on the November 9 Order. See also Part II(A), below, discussing transition issues and the relationship between the November 9 Order and the Technical Corrections Order.

⁴ We also made available redlined and clean copies of documents that consolidate the November 9 Order and the Technical Corrections Order, copies of each draft of the discovery rules that the Court released for comment, and derivation and distribution tables. These materials can be accessed two different ways from the Texas Judiciary home page at www.courts.state.tx.us: (1) click on “Supreme Court” and then “Rules”; or (2) click on “Court Rules and Texas Law” and then “Procedures and Rules Revisions.”

The standard practice of the Court in recent years has been to post on the website all rules promulgations, as well as all drafts it has released for public comment.

⁵ You are invited to submit citations to or copies of any other articles or CLE materials addressing the new discovery rules that are not yet included on this list.

This list does not include regularly published treatises or guides to Texas procedural rules, such as those of Professor Dorsaneo and Justice O’Connor. These commentators, among others, have published updated volumes that address the new discovery rules.

⁶ Cf. the Maytag repairman in the familiar television commercials.

⁷ Tex. R. Civ. P. 199.5.

⁸ See David C. Kent, The Lawyer as “Potted Plant”, Texas Lawyer, Aug. 24, 1998, at 24.

⁹ Rule 190.4.

¹⁰ Rule 190.3. This information is from the State Bar Court Rules Committee.

¹¹ See Kenneth G. Raggio, Discovery Rules Don’t Work in Family Law Cases, Texas Lawyer (Dec. 6, 1999), at 30.

¹² The input of the Family Law Section was invaluable as the new discovery rules were being drafted. For example, the separate Level 2 discovery period for family law cases, see Rule 190.3(b)(1)(A) (ending 30 days before the date the case is set for trial); compare Rule 190.3(b)(1)(B) (discovery period in other Level 2 cases ends 9 months after discovery is initiated), was based on a suggestion from this group and addresses the fact that the evidence in family law cases typically continues to evolve until trial. See also Letter from Cheryl L. Wilson to Chief Justice Thomas R. Phillips, Feb. 19, 1999 (conveying resolution from Family Law Section commending Supreme Court’s receptiveness to Section’s input) (on file with the Supreme Court of Texas).

¹³ Explanatory Statement Accompanying the 1999 Amendments to the Rules of Civil Procedure Governing Discovery 7 1.

¹⁴ In addition to the three issues identified above, see also Part II(E)(1), (I)(2), and J, below.