THE FIRST YEAR UNDER THE NEW DISCOVERY RULES
The Big Issues Thus Far*
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 firstname.lastname@example.org. 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.
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:
Complaints regarding the new rules have been relatively rare. Those that have been raised have most prominently concerned the following issues:
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.
© 2000, Legal Assistants Division State Bar of Texas