THE FIRST YEAR UNDER THE NEW DISCOVERY RULES — Part II

by Robert H. Pemberton, Rules Attorney for The Supreme Court of Texas

Common Questions and Issues—Transition IssuesˆGeneral Principles

The vast majority of questions I have encountered have concerned whether or how the new discovery rules take effect in pending cases filed before January 1, 1999 ("pre-1999 cases"). But these types of questions have become increasingly less common as the months have passed.

Most transition questions can be answered by briefly reviewing the transition provisions of the two orders promulgating the rules, Order in Misc. Docket 98-9196, dated November 9, 1998, and the "Technical Corrections" order, Order in Misc. Docket No. 98-9224, dated December 31, 1998.1

Paragraphs 3, 4 and 5 of the November 9 Order and paragraphs 3-6 of the Technical Corrections Order govern transition. The Supreme Court’s basic philosophy in these provisions has been to apply the new discovery rules to all cases, regardless when filed and regardless whether discovery already has begun, except where precluded by logistical considerations or where doing so would undermine the larger goals of the new rules. In particular:

  1. Effective January 1, 1999, the following new rules took effect in all cases—regardless when the cases were filed or whether discovery had begun2:
  • 176 (subpoenas). Thus, among other changes, lawyers can now issue subpoenas in all civil cases.3
  • 191.1, 191.2 and 191.5 (modification, conference requirement, duty to agree, service). Thus, among other things, Rule 191.1’s expansive power to modify discovery procedures and limitations by order or agreement applies in all cases.
  • 192 (scope of discovery). This includes the changes to the scope of discovery affecting witness statements.
  • 194 (requests for disclosures). Thus, parties can serve requests for disclosures in all cases, all other things being equal.4
  • 196 (requests for production and entry onto property).
  • 197 (interrogatories). But note that the rules governing numerical limits on interrogatories are in Rule 190, which does not apply to pre-1999 filed cases. See par. 2, below.
  • 198 (requests for admissions).
  • 199 (oral depositions). Thus, the new deposition conduct rules and six-hour per-witness time limit apply in all cases. However, this time limit should not be confused with the aggregate deposition time limits in Rule 190, which do not apply to pre-1999 filed cases.
  • 200 (depositions on written questions). Thus, the new 20-day notice period governs written depositions taken after January 1, regardless when the case was filed.5
  • 201 (foreign depositions).
  • 203 (deposition certification). This includes the new timekeeping requirement.6
  • 204 (physical and mental examinations).
  • 205 (nonparty discovery; document requests to nonparties). This means that document requests to nonparties may be used in all cases.
  • 215 (sanctions).
  1. Other of the new discovery rules either do not apply to pre-1999 cases or apply subject to certain qualifications and limitations:
  • Rule 190, the new differential discovery tracking scheme, does not apply to pre-1999 cases.7 This reflects the difficulty of applying, e.g., a nine-month discovery period or aggregate deposition time limits to cases in which discovery already is in progress.

    However, a court may enter a "Level 3" court-tailored discovery control plan in a pre- 1999 case; because the court sets each discovery limitation in the plan, it can take into account prior discovery.8

    Absent a Level 3 plan, the discovery period in pre-1999 filed cases is deemed to end on the date the case is set for trial.9
  • Rule 191.3, the new certification requirement, and Rule 191.4, which forbids filing of most discovery, do not apply to discovery filed or served prior to January 1, 1999.10 This merely means that discovery documents that parties signed prior to January 1 are not retroactively deemed certified in accordance with Rule 191.3. Likewise, discovery documents filed by parties before January 1 do not have to be "un-filed" to comply with Rule 191.4.

    Another limitation on the applicability of Rule 191.4 is that if it irreconcilably conflicts with pre-1999 local rules governing filing of discovery, the local rules control.11 Some specific issues that have arisen regarding this exception are discussed below in Part II(E)(2).
  • Rule 193, the new rule governing responses, objections, and privilege claims against written discovery, applies except to the extent that:
  1. a response to a discovery request;
  2. an objection to a discovery request;
  3. an assertion of privilege; or
  4. an amendment or supplementation of a discovery request made prior to January 1 need not conform with the new rule. But responses, objections, assertions of privilege—and, importantly, supplementations and amendments of discovery responses made after January 1—must comply with Rule 193. This aspect of the transition to Rule 193 has been misunderstood by some lawyers.12
  • Rule 195, the new rule limiting the timing and means of expert discovery, applies in all cases except to the extent it would disrupt expert discovery already in progress, impending, or scheduled by order or agreement of the parties.13 Moreover, if interrogatories concerning experts were served prior to January 1, 1999, those should be answered14; Rule 195.1 otherwise would make requests for disclosures the exclusive means of obtaining written discovery concerning experts.15
  • Rule 202, the new pre-suit deposition rule, applies only to cases filed after January 1, 1999.16 Obviously, a rule governing pre-suit depositions could not be applied to cases already filed. But courts may nonetheless look to Rule 202 with regard to whether pre- suit depositions taken under the former rules may be used in hearings or trial.17
  • In addition to the foregoing exceptions and qualifications concerning specific rules, the Court added a catch-all provision specifying that the application of the new rules to pre-1999 cases must be consistent with Rule 1 of the Rules of Civil Procedure, "must be consistent with the purposes of the revised rules to streamline discovery procedures and reduce costs and delays," and "must be without undue prejudice to any person on account of the transition from the prior rules."18
  1. All of the old discovery rules are repealed effective January 1, 1999.19 However, if a new rule that otherwise would replace a procedure or limitation from an old rule does not, by virtue of one of the exceptions or qualifications discussed in (2), apply to a pre-1999 case, the portion of any old rule governing that specific procedure or limitation remains in effect in that case.20

    One specific instance when this occurs concerns numerical limits on interrogatories.21 Although former Rule 168 is repealed, new Rule 190, which governs numerical limits on interrogatories, applies only to cases filed on or after January 1, 1999. All other things being equal, this arguably would mean that there would be no numerical limitation on interrogatories in pre-1999 cases.22 To close this gap, the rules borrow the numerical limits from former Rule 168. In practical terms, this means that parties in pre-1999 cases may still serve up to a total of two sets of thirty interrogatories.

2. The Problem of Duplicative Disclosure Requests

A more difficult transition issue that warrants more detailed explanation concerns requests for disclosures that are duplicative of prior discovery. This has been a common problem. Upon learning that requests for disclosures could be served in pre-1999 cases, many lawyers immediately fired off requests for disclosure in all directions without much regard for whether they needed the information or not. As a result, these requests frequently overlapped with the subject matter of other forms of discovery—typically interrogatories.23

Traditionally, parties would simply object to this sort of duplicative discovery and refuse to respond. But this is not an option with disclosures, as parties cannot object or assert a work product claim.24 Thus, the issue has frequently arisen: what, if anything, can a party do to resist requests for disclosures that merely duplicate old outstanding discovery?

Parties in this situation should first consider whether the requests for disclosures are, in fact, duplicative of prior discovery. In other words, do the party’s outstanding discovery responses provide the same information they are required to provide in response to the disclosures? In many cases, the answer will be "no"; the old responses frequently will be buried in prophylactic or "boilerplate" objections or otherwise fall short of the standards of Rule 194 or even the new standards governing written discovery generally in Rule 193. See Part II(A)(3), below. If this is true, parties would be hard- pressed to argue that the requests for disclosures should not be answered fully.

But if a party truly has already provided the same information called for in disclosures in prior discovery responses, the party has at least one potential remedy. It is suggested by comment 1 to Rule 194.25 Although cautioning that, in general, "to fail to respond fully to a request for disclosure would be an abuse of the discovery process," comment 1 contemplates that there may be "extremely rare cases" where a party should be permitted to move for protection against a request for disclosure.26

Arguably, if requests for disclosure are truly duplicative of prior discovery, this would be one of the "extremely rare cases" in which a protective order would be warranted. As noted above, paragraph 5 of the November 9 Order requires that the transition to the new rules must be "consistent with the purposes of the revised rules to streamline discovery procedures and reduce costs and delays," and "must be without undue prejudice to any person on account of the transition from the prior rules."27 Requiring parties to answer disclosures that merely restate old discovery responses would conflict with these goals.28

Finally, even though a protective order may be warranted, parties may actually want to respond to duplicative requests for disclosure as a means of resolving thorny issues regarding supplementation of outstanding discovery requests. See Part II(A)(3), below. If they do so, they can cross-reference their prior outstanding discovery responses if they do so specifically (e.g., "see response to interrogatory 5", not "see defendant’s deposition") and the information provided in the reference fully complies with the request for disclosure. This may alleviate some of the burden of potential duplication.

3. The Problem of Old Discovery Responses Made Inadequate By Rule Changes; Supplementation

New Rule 193 significantly changes the standards for responding to written discovery in several ways. Among other things:

  • Parties must now assert privileges by withholding rather than by objecting.29
  • Prophylactic objections and privilege claims—commonplace under the former rules— are now forbidden.30 "Boilerplate" objections—"numerous unfounded objections"—are not only forbidden, but waive any valid objections they "obscure."31
  • There is now an affirmative duty to respond to written discovery, which applies even if a party has objected to a request, to the extent the party is not objecting to the request.32 Likewise, parties cannot merely object to the time and place called for in a discovery request, but must state an alternative time and place and comply accordingly.33

One of the practical implications of these changes is that many parties in pre-1999 cases will have outstanding discovery responses that, while perhaps proper under the former rules, will be improper or incomplete under Rule 193.

A similar problem results from changes to the scope of discovery in Rule 192. Rule 192, among other things, eliminates the old "witness statement" exemption and clarifies that trial witnesses are discoverable. Thus, parties may have objected to requests for these sorts of information prior to January 1, although they could not do so today. But the objections, all other things being equal, would remain pending.

Many lawyers have inquired as to whether they are required to supplement or amend old discovery responses, objections or privilege claims that would be invalid or incomplete under Rules 192 or 193 to comply with those rules. The answer requires some explanation.

As noted above, paragraph 4(d) of the November 9 Order provides that responses, objections, privilege claims, or amendments or supplementations made prior to January 1, 1999, "need not comply with [Rule 193]." This means that old, pending privilege claims asserted through objections are not retroactively made subject to the Rule 193.3 withholding procedures.34 Also, old prophylactic objections and old responses that would now be inadequate under the more demanding Rule 193 duties to respond "need not comply" with Rule 193. This "grandfather" clause was included so parties would not have to review and rewrite reams of old discovery responses merely to bring them into technical compliance with Rule 193. Of course, a party could voluntarily comply with Rule 193; paragraph 4(d) states merely that the party "need not" comply. A court could also order a party to comply with the new rule. Rule 191.1.

But, as suggested above, paragraph 4(d) speaks only to whether the pre-1999 response, objection, privilege claim, amendment or supplementation is considered proper—any responses, objections, privilege claims, amendments or supplementations made after January 1 must comply with Rule 193. Rather, paragraph 4(d) merely provides that parties do not have a duty to supplement pre-1999 discovery responses, objections, privilege claims, and amendments or supplementations that were adequate under the former discovery rules for the sole purpose of bringing them into compliance with Rule 193’s standards. But if the party has a duty to supplement deriving from some other rule, the party must supplement, and must do so in compliance with Rule 193. One example of such a rule is Rule 192.

In contrast to Rule 193, there is no "grandfather" clause for Rule 192. Thus, if the responding party made pre-1999 objections or privilege claims to requests that, due to changes to the scope of discovery, would now be proper, the party’s pending response would be inadequate as of January 1 and the party would be required to supplement that response.

Another example where supplementation would be required would be if a pre-1999 response would have been inadequate or incomplete under the former rules, as well as under Rule 193. This would be the case if, for example, a party failed or refused to answer a pre-1999 discovery request, the response was otherwise incomplete or incorrect when made, or intervening events—other than the adoption of Rule 193—made it incomplete or incorrect.

The issue then becomes the time at which the responding party must supplement their outstanding discovery responses. Parties are obligated to supplement their outstanding discovery responses, objections, privilege claims, amendments or supplementations in accordance with either Rule 193.5—the supplementation provision of the new rules—or former Rule 166b.6. By providing that pre-1999 responses, objections and privilege claims "need not comply with [Rule 193]," the "grandfather" provision of paragraph 4(d) necessarily extends to Rule 193.5. Thus, parties "need not" supplement their outstanding, pre-1999 responses, objections, privilege claims, amendments or supplementations in accordance with Rule 193.5. However, they may do so voluntarily. If parties elect not to comply with Rule 193.5, the supplementation requirements of former Rule 166b.5 governs.35

Thus, parties with outstanding, pre-1999 discovery responses, objections, or privilege claims can choose between the old and new supplementation rules. There are advantages and disadvantages to each:

• The Rule 193.5 supplementation requirement is general and continual; it requires supplementation "reasonably promptly" after the need for supplementation is discovered.36 By contrast, former Rule 166b.6 required continual supplementation ("as soon as practical") only for expert discovery and supplementation 30 days prior to trial for other types of information.37

• Former Rule 166b.6 required formal supplementation—filing or service of a document supplementing the original response—whenever supplementation was required. Rule 193.5 requires formal supplementation only of information concerning witnesses; as to other types of information, a party need not formally supplement as to other types of information if it has been provided through other forms of discovery or in writing, such as in a letter.38

• Rule 193, unlike former Rule 166b, expressly permits supplementation or amendment of objections or privilege claims.39

Moreover, if parties opt to supplement in accordance with Rule 193.5, they would also avail themselves of Rule 193’s standard governing late supplementation, which is set forth in Rule 193.6. This standard is more flexible than that under Former Rule 166b.6. Former Rule 166b.6 permitted late supplementation only upon a showing of "good cause." Rule 193.6 permits late supplementation upon a showing of either "good cause" or lack of unfair surprise or unfair prejudice.40

This discussion illustrates the complexity concerning whether and when outstanding, pre-1999 discovery responses, objections and privilege claims must or will be supplemented to comply with the new rules. This complexity is a problem for both requesting and responding parties. Requesting parties are entitled to obtain supplemental responses complying with the new rules governing scope of discovery, but may have to wait until 30 days before trial to receive them. Regardless of the time at which they elect to supplement, responding parties in many cases will be faced with the problem of pouring over reams of old discovery responses.

A practical solution that has been advocated at several CLEs by members of both the plaintiffs and defense bar is to "wipe the slate clean" by serving requests for disclosures and agreeing that the responses satisfy any obligation to supplement pre-1999 discovery concerning the subject matter of the disclosures. Alternatively, if the responding party elects to proceed under Rule 193.5, that rule’s provisions for informal supplementation would enable the party to satisfy, via disclosure responses, its supplementation obligations as to outstanding discovery requests for the same types of information, except with regard to requests concerning witnesses.41

A. Witness Statements

As noted above in Part II(A)(1), the "witness statement" discovery exemption has been eliminated in all cases, even if the statement was obtained prior to January 1, 1999. This has been the single most controversial aspect of the new discovery rules and has already given rise to several reported appellate cases. The manner in which this change has been implemented has prompted two types of questions: (1) those that may be summed up simply as "Why???!!!"; and (2) those concerning the interplay of other privileges, as contemplated by comment 9 to Rule 192.

In response to the first type of question, much of the debate in the Supreme Court Rules Advisory Committee—which prepared the initial drafts of the new discovery rules—centered on the idea that witnesses’ factual information should not be withheld from the parties based on the circumstance that one party managed to get to the witness first. Also, because witnesses can obtain their own statements, the Committee believed that there could be unfairness in a case if some witnesses were willing to obtain and disclose their statements to one party or another and others were not. After lengthy debate, the Committee was largely of the view that witness statements, as defined in the rule, should be discoverable.

Because procedural rules often affect pending cases and thus have retroactive application, the change regarding witness statements was not made prospective only. This is the same way that the Court implemented the recent change in the Texas Rules of Evidence adopting the "subject matter" test in place of the "control group" test for the attorney-client privilege.

Regarding the second question, the elimination of the witness statement privilege does not, as comment 9 states, render all witness statements automatically discoverable.42 Rule 192 merely omits an express "witness statement" exemption and further provides that witness statements are not work product.43 The net effect of these changes is that witness statements no longer are protected by any of what were termed "investigatory privileges" under former Rule 166b(3).44 But witness statements may be protected against disclosure by other types of privileges, including, most notably, the attorney-client privilege.

Once Texas lawyers began to understand this important distinction, they started advancing a number of sometimes novel theories in attempts to apply or extend the attorney-client privilege to witness statements obtained by non-lawyers, such as insurance adjusters or investigators. This trend already has bred disputes and case law, and is likely to continue to do so, all other things being equal.45 A key contributing factor likely will be the yet largely undefined parameters of the new subject matter test under Texas law.

The State Bar Court Rules Committee currently is evaluating whether the subject matter test and/or Rule 192.3(h) can be amended to clarify the types of witness statements that are protected by the attorney client privilege. One concept being explored would be to identify categories of statements according to the identity of the person who obtained them and his or her relationship to the witness or the witness’ lawyer, and then define whether statements within each category are privileged or not privileged.

C. Experts

There have been several common questions regarding the implementation of the new rules governing discovery of testifying experts. Rule 195 provides that requests for disclosures, oral deposition and reports are the sole permissible means of discovery concerning testifying experts. It also sets forth a detailed time line for "designating" testifying experts and producing them for deposition.

1. Applying the New Timelines in Pre-1999 Cases

Several lawyers have asked whether or how they are to comply with the new timelines for "designating" experts (generally speaking, 90 days before the end of the discovery period for plaintiffs; 60 days for defendants) and presenting them for deposition in pre-1999 cases where expert discovery already has been initiated by interrogatories.

If no requests for disclosures concerning experts have been served on a party, the party is not subject to the timetables of Rule 195. The term "designate" experts, as the term is used in Rule 195, means to respond to Rule 194.2(f) requests for disclosures concerning experts.46 Thus, the time lines for "designating" experts governs only responses to disclosure requests and not interrogatories or other forms of discovery concerning experts. Likewise, because the schedule for presenting experts for deposition is based on the time of "designation," it does not apply in the absence of disclosure requests.47

If the party is served with requests for disclosures concerning experts, the party would, all other things being equal, be bound by the Rule 195 timetables. But the party might be able to resist the requests for disclosures, designations or deposition schedules if these duplicate or conflict with prior discovery. See Part II(A)(2) , above; see also November 9 Order 7 4(e).

2. Discoverable Matters Not Covered By Disclosures

The scope of Rule 194.2(f) requests for disclosures concerning testifying experts is narrower than the scope of discovery for experts generally. For example, Rule 192.3(e), the rule defining the scope of discovery concerning experts, authorizes discovery concerning "consulting plus" experts and bias. Rule 194.2(f) disclosures, by contrast, apply only to testifying experts and do not extend to bias. These distinctions have confused some lawyers.

These types of issues can be resolved by considering the relationship between Rule 192 and Rule 195. Rule 192 defines the scope of discovery, including expert discovery. Succeeding rules define how and when this discovery can be obtained. Rule 195 is one of these rules. It limits the means of obtaining permissible discovery concerning testifying experts to disclosures, oral depositions, and reports. The permissible discovery concerning testifying experts that can’t be obtained by disclosures, in other words, must be obtained by oral depositions or reports.

Rule 195, however, does not limit the means of obtaining discovery concerning "consulting plus" experts. Thus, this discovery can be obtained through any means permitted by the rules, including interrogatories and requests for production.48

D. Changes to the Response Period for Document Requests Served With Deposition Notices

The new discovery rules provide that document requests served with a deposition notice—what were formerly called "subpoenas duces tecum"—are governed by the same rules as ordinary requests for production under Rule 197 or 205.49 Importantly, this means that, with respect to a notice and document request served on a party, the party has 30 days to respond to the request.50

It is important not to confuse this rule change with the rules governing the deadlines for responding to subpoenas under Rule 176 (as distinguished from subpoenas duces tecum, the former term for document requests served with a deposition notice), document requests served on nonparties under Rule 205, and document requests served with deposition notices to nonparties.

  • In contrast to Rule 197, there is no minimum response period specified in Rule 176.51 This is true for both subpoenas served with discovery requests and trial subpoenas.
  • Rule 205.3 is similar to Rule 197. It permits parties to serve a "stand-alone" document request on a nonparty without a deposition notice. A Rule 205.3 document request must be served with a subpoena under Rule 176. Unlike the case with a Rule 197 document request, however, a Rule 205.3 document request may require response within a "reasonable time"—there is no 30-day or other specific minimum response period.52
  • As noted above, a party may also serve a document request with a deposition notice to a nonparty. Because Rule 199.2(b)(5) incorporates the rules governing an ordinary document request served on the nonparty, the nonparty could be compelled to respond within a "reasonable time."

A number of lawyers have inquired as to whether or how they should object to a document request with a deposition notice served on them less than 30 days before the deposition if they are a party. Because Rule 197 does not require a response or objections until 30 days after service, the responding party, in theory, has no obligation to do either until that time. But the party must show up at the deposition if the notice is otherwise valid.

In light of the Rule 191.2 duty to agree and confer, however, responding parties in this situation might be wise to inform the party noticing the deposition in advance of the deposition that they do not intend to comply with the document request at the deposition. In many instances, the party noticing the deposition will agree to postpone the deposition until after the documents can be obtained. Furthermore, the responding party would avoid the appearance of simply "jerking around" the opposing party—a factor that might become important if the opposing party later moved to compel production of the documents.

A related issue concerns whether the three-day period for objecting to the time and place of an oral deposition in Rule 199.4 applies to document requests served with an oral deposition. Rule 199.4 provides that a motion to quash or for protective order concerning the time or place of an oral deposition stays the deposition without need for court order if the motion is filed within 3 days after the notice is served. This requirement does not apply to objections to the time and place for compliance for document requests served with deposition notices, but only to those concerning the time and place of the deposition itself.

New Discovery Reference Materials

14. Casey Dobson, Litigators Beware—New Rules of Discovery Part II, The Texas Lawyers’ Insurance Exchange, Legal Malpractice Advisory, Issue No. 4, 1998, at 2.

15. Dan Downey, Evidence Law Update, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab E (1998).

16. A. Erin Dwyer, Donald Colleluori & Gary D. Eisenstadt, Texas Civil Procedure, 52 S.M.U. L. Rev. 1485, 1496-1502 (1999).

17. Janet Elliot, Court Loosens Discovery Rule Provisions, Texas Lawyer, July 6, 1998, at 1.

18. Stephen H. Forman and Kelli B. Smith, The New Discovery Rules: Changes and Challenges, unpublished manuscript on file with the Supreme Court of Texas (1998).

19. Paul N. Gold, Talking Heads, Potted Plants and Speaking Objections: Understanding the New Rules of Deposition Practice in Texas, University of Texas School of Law, New Discovery Rules, at Tab 5 (1999).

20. Jim Hartnett, Jr., Discovery Avenues in Trust and Probate Litigation: The Information You Need, Where to Find It, and How to Get It, South Texas College of Law Affiliated With Texas A&M University, Wills and Probate Institute (1999).

21. J. Patrick Hazel, The Proposed Discovery Rules: The Top Ten, 17 The Advocate 241 (1998).

22. Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions, www.courts.state.tx.us.

23. Nathan L. Hecht & Robert H. Pemberton, Supplement to "A Guide to the 1999 Texas Discovery Rules Revisions" Regarding December 31, 1998 Technical Corrections, www.courts.state.tx.us.

24. Tom Henson, Scope of Discovery Under Rule 26: Does it Have an Influence on Texas Practice Under the New Discovery Rules?, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab C (1999).

25. Robert I. Howell, Privileges: Asserting, Contesting and Preserving Discovery Under the New Rules, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab F (1998).

26. Tommy Jacks, Discovery of Technology Under the New Rules, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab H (1999).

27. Wallace B. Jefferson & Nissa M. Sanders, Privileges, University of Texas School of Law, 4th Annual Evidence and Discovery Symposium, at Tab 9 (1999).

28. Sam Johnson, Scope of Discovery Under the 1999 Revisions to the Texas Discovery Rules, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab C (1998).

29. David E. Keltner, Scope and Form of Written Discovery: Emphasis on New Rules, University of Texas School of Law, 4th Annual Evidence and Discovery Symposium, at Tab 4 (1999).

30. David E. Keltner, The New Discovery Rules: Discovery Control Plans, University of Texas School of Law, New Discovery Rules, at Tab 2 (1999).

31. David C. Kent, Objecting to Discovery: A New Approach, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab D (1998).

32. David C. Kent, The Lawyer as "Potted Plant", Texas Lawyer, Aug. 24, 1998, at 24.

33. Mark C. Lenahan, Practice Makes Perfect, Texas Lawyer, April 12, 1999.

34. Lynne Liberato & Patrice Pujol, New Discovery Rules and Their Impact on Appellate Practitioners, State Bar of Texas, Advanced Civil Appellate Practice Course, at Tab H (1999).

35. Lynne Liberato & Patrice Pujol, The Effect of the New Discovery Rules on Summary Judgment Practice, Preservation of Error, Sanctions, and Writs of Mandamus, State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab E (1999).

36. John H. Martin, Texas Supreme Court Adopts New Discovery Rules, State Bar of Texas, Advanced Medical Malpractice Course, at Tab A (1999).

37. Hon. Bob McCoy, 60 Things You Need to Know About the New Discovery Rules, State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab F2 (1999).

38. Robert E. Meadows & Jackson Wyatt Moore, A Practical Handbook on the Scope of Discovery, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab G (1999).

  1. Alyson Nelson, Deposition Conduct: Texas’s New Discovery Rules End Up Taking Another Jab at the Rambos of Litigation, 30 Texas Tech L. Rev. 1471 (1999).

40. Richard R. Orsinger, Questions for the Business Litigation Panel (With Proposed Answers), State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab F (1999).

41. Richard R. Orsinger, Questions for the Family Law Panel (With Proposed Answers), State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab H (1999).

42. Scott Ozmun, Sally S. Metcalfe, Sanctions for Discovery Abuse, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab N (1998).

43. E. Lee Parsley, Forms, University of Texas School of Law, New Discovery Rules, at Tab 8 (1999).

44. E. Lee Parsley, How Does Rule 166 Work With the New Discovery Rules?, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab B (1999).

45. Robert H. Pemberton, Applying New Rule 190 in Justice Court, Texas Justice Court Training Center Quarterly Report, April 1999, at 1.

46. Robert H. Pemberton, The First 100 Days Under the New Discovery Rules: The Big Issues Thus Far, www.courts.state.tx.us.

47. David L. Perry, Discovery of Expert Witnesses: Their Opinions and Reports Under the New Discovery Rules, University of Texas School of Law, New Discovery Rules, at Tab 6 (1999).

48. David L. Perry, Discovery Regarding Expert Witnesses Under the New Rules of Discovery, Corpus Christi Lawyer, Spring 1999, at 5.

49. David L. Perry, A Short Summary of the Major Changes in the New Texas Rules of Discovery, Corpus Christi Lawyer, Summer 1999, at 16.

50. George (Tex) Quesada, How to Use the New Discovery at Trial, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab M (1999).

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

52. John Wesley Raley, Andrew Price, Specialized Discovery Devices, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab H (1998).

53. Ernest (Skip) Reynolds & Dan Price, Discovery: Overlooked and Forgotten Rules—Traps for the Unwary, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab V (1999).

54. Thomas C. Riney, Objections and Claims of Privilege: Making and Responding to Them Under the New Rules of Discovery and Evidence, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab E (1999).

55. Robert M. Roach, Jr., Robert B. Dubose, Ten Keys to Developing an Effective Discovery Strategy and Budget Under the New Discovery Rules, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab B (1998).

56. Iris Hefter Robinson, Jo Ann Collier, Ethical Considerations and Malpractice Prevention in Litigation, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab K (1998).

57. James G. Ruiz, Requests for Production Under the Revised Discovery Rules, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab M (1998).

58. Richard A. Sheehy, Deposition Practice Under the New Rules, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab J (1998).

59. Darlene Payne Smith & Michael E. Richardson, Probate and Guardianship Issues Under the New Discovery Rules, State Bar of Texas, The New Rules of Discovery: Issues for Business, Personal Injury and Family Law Litigators, at Tab F (1999).

60. Stephen Susman, The Search for Truth Must Rule, Texas Lawyer, Sept. 28, 1998, at 41.

61. Robert A. Shults, Discovery in Multi-Party Cases, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab P (1998).

62. Larry R. Veselka, The New Discovery Rules—Understanding the New Rules and How They Change Your Practice, University of Houston Law Foundation, Civil Discovery Under the New Rules Seminar, at Tab A (1998).

63. Traci J. Willi, The New Texas Rules of Discovery: What the Appellate Lawyer Needs to Know, The Appellate Advocate, June 1999, at 20.

64. Thomas C. Wright, Protecting Your Record Under the New Rules, State Bar of Texas, 12th Annual Advanced Evidence and Discovery Course, at Tab S (1999).

Notes

1 See note 1, in Part I.

2 See generally November 9 Order 7 4.

3 Rule 176.4(c).

4 But see Part II(A)(2), below.

5 Rule 200.1(a).

6 Rule 203.2(e); see Part I(G), below.

7 November 9 Order 7 4(b).

8 Id.

9 Technical Corrections Order 7 3.

10 November 9 Order 7 4(c).

11 Technical Corrections Order 7 6.

12 The provision governing transition to Rule 193, paragraph 4(d) of the November 9 Order, provides:

Rule 193 is effective January 1, 1999, except that a response to a discovery request, an objection to a discovery request, an assertion of privilege, or an amendment or supplementation to a discovery response made before that date need not comply with the new rule.

Some lawyers have construed the phrase "made before that date" (January 1, 1999) as modifying only "discovery response" in "amendment or supplementation to a discovery response made before that date." Such a reading would suggest that amendments or supplementations to pre-1999 discovery responses made after January 1, 1999 are not governed by Rule 193. A reading of the entire paragraph 4(d), however, reveals that "made before that date" does not modify "discovery response" but instead separately modifies "a response to a discovery request," "an objection to a discovery request," "an assertion of privilege," and "an amendment or supplementation to a discovery response." Thus, paragraph 4(d) "grandfathers" pre-1999 amendments and supplementations to discovery responses—not all amendments and supplementations to pre-1999 responses—as well as pre-1999 responses, objections, and privilege assertions. Were it otherwise, the phrase "made before that date" would not limit the preceding references to "a response to a discovery request," "an objection to a discovery request," and "an assertion of privilege," meaning that all responses, objections and privilege assertions, whenever made, would be perpetually "grandfathered" and never subject to Rule 193. Such a reading would render new Rule 193 a nullity.

13 November 9 Order 7 4(e).

14 November 9 Order 7 4(e).

15 Rule 195.1.

16 November 9 Order 7 4(f).

17 Id., see Rule 202.5 & cmt. 2.

18 November 9 Order 7 5. This provision was construed in several cases addressing the discoverability of witness statements obtained prior to 1999. See Part III(A), below.

19 November 9 Order 7 3.

20 Technical Corrections Order 7 4.

21 And perhaps also with regard to the supplementation requirements of Rule 193.5. See Part II(A)(3), below.

22 But see November 9 Order 7 5.

23 This problem presumably should not recur in many cases filed on or after January 1, 1999. Particularly where parties are now limited to a total of 25 interrogatories in most cases, Rules 190.2(c)(3) & 190.3(b)(3), they are unlikely to "waste" interrogatories by seeking the types of information obtainable through disclosures. See also Rule 195.1 (making disclosures, oral depositions and reports the exclusive means of obtaining discovery concerning testifying experts).

24 Rule 194.5 & cmt. 1.

25 The notes and comments to the new discovery rules, unlike those accompanying most prior rules promulgations, are intended to inform the construction and application of the rules by both courts and practitioners. November 9 Order 7 2.

26 Rule 194 cmt. 1.

27 November 9 Order 7 5.

28 See also Rule 192.4, which permits parties to seek an order limiting discovery otherwise "permitted by these rules" that is "unreasonably cumulative or duplicative." But keep in mind that this remedy, unlike protective orders, is not expressly referenced in Rule 194 or its comments.

29 Rules 193.2(f), 193.3.

30 Rule 193.2(c) & cmt. 3.

31 Rule 193.2(e).

32 Rule 193.1, 193.2(b) & cmt. 2.

33 Rule 193.2(b).

34 Additionally, even under the new discovery rules, if a party has asserted a privilege by objecting rather than withholding, this is sufficient to preserve the privilege until the error is "pointed out." Rule 193.2(f).

35 Technical Corrections Order 7 4; see Part II(A), above.

36 Rule 193.5(b).

37 Former Rule 166b.6(a) & (b).

38 Rule 193.5(b).

39 Rule 193.2(d) & cmt. 3.

40 Rule 193.6(a).

41 Rule 193.5(a).

42 Rule 192, cmt. 9.

43 Rule 192.5(c)(1) & cmt. 8.

44 Broadly speaking, the former "attorney work product" and "party communication" exemptions have been subsumed in the new "work product" exemption. Rule 192.5(a).

45 But some have suggested that insurers and others who regularly obtain witness statements will simply cease to take such statements and rely instead on notes from interviews, see Rule 192.3(h), or will attempt to shield future statements of parties under the attorney-client privilege by having lawyers take the statements. But see In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340-41 (Tex. App.—Texarkana 1999, orig. proceeding) (distinguishing between communications to lawyers in their capacity of rendering legal services, which would be privileged, and those obtained while the lawyer was acting as an "investigator," which would not be privileged); see also In re Monsanto, 998 S.W.2d 917, 930 (Tex. App.—Waco 1999, orig. proceeding) (questioning whether all corporate communications to in-house lawyers would be privileged, even under the subject matter test, because "[w]e do not believe that it is necessary for the legal department to be advised of every development out in the field, no matter how minute"), discussed below in Part III(C)(2).

46 Rule 195.2.

47 Rule 195.3.

48 But there are no requests for disclosure concerning "consulting plus" experts. Hence, this form of written discovery would be unavailable.

49 Rule 199.2(b)(5) & cmt. 1; Rule 200.1(b).

50 Id.

51 See generally Rule 176. See also Rule 176.3(b) (subpoena may not be used for discovery in a manner or at a time other than as provided in the discovery rules). With discovery subpoenas, the effect of these rules is to make the discovery request served with the subpoena control as to the response time. Thus, Rule 205.3’s "reasonable time" requirement would control where a document request is served on a nonparty with a subpoena. Also, these rules would prevent a party from attempting to circumvent the minimum response period in Rule 197 by serving a discovery subpoena requesting documents from a party requiring response in less than 30 days.

  1. Rule 205.3(a); see Rules 176.6 & Rule 205(d).

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