DISCOVERY AFTER A DECADE: RULE 194 AND OTHER …DISCOVERY AFTER A DECADE: RULE 194 and OTHER DISCOVERY ISSUES MARILEA W. LEWIS Judge, 330th District Court George Allen Courts Building

DISCOVERY AFTER A DECADE: RULE 194 and OTHER DISCOVERY ISSUES

MARILEA W. LEWIS Judge, 330th District Court

George Allen Courts Building 600 Commerce Street

Suite 340A Dallas, Texas 75202

[email protected]

SHERIDAN F. LEWIS Candidate for Juris Doctorate 2011

Dedman School of Law Southern Methodist University

Dallas, Texas [email protected]

State Bar of Texas 35th ANNUAL

ADVANCED FAMILY LAW COURSE August 3-6, 2009

Dallas

CHAPTER 18

MARILEA WHATLEY LEWIS

District Judge 330th Judicial District Court

Dallas, Texas

Undergraduate Education: Postgraduate Education: Baylor University Baylor University School of Law Bachelor of Arts – 1975 (cum laude) Juris Doctorate – 1978 Professional Activities: State Bar of Texas Dallas Bar Association State Bar Family Law Section Dallas Bar Family Law Section Texas Family Law Foundation Dallas Bar Foundation – Fellow College of the State Bar Texas Bar Foundation - Fellow Texas Academy of Family Law Specialists Board Certified in Family Law – Texas Board of Legal Specialization Master – Annette Stewart American Inn of Court Certified Mediator - both general and family practice Representative Presentations: “Invasion of Privacy – Illegally Obtained Evidence, Wiretapping, and Video Recording” - Marriage Dissolution Course

"Taping, Wiretapping, E-mail Interception, Surveillance, Scanners, etc. - What's Possible and What's Legal" Advanced Family Law Course "Violence Against Women Act; A National Response to Domestic Violence" - Advanced Family Law Course “Invasion of Privacy and Rules of Evidence” - American Academy of Matrimonial Lawyers “A National Response to Family Violence: The Violence Against Women Act and Texas Law” - State Bar of Texas Firearms Law Seminar “Children In Court: Should You? A Powerful Small Voice” -Texas Academy of Family Law Specialists “Unusual Possession: Structuring Access for the Divided Family” - Texas College for Judicial Studies “Evidentiary Issues in Termination of Parental Rights: An Interactive Simulation prepared by J. Eric Smithburn” - Texas Center for the Judiciary “The Pro Se Litigant” - Texas Center for the Judiciary; College for New Judges “Deadlines Every Family Lawyer Should Know” - Family Law Boot Camp “The Supreme Court and the Second Amendment: The Impact on Texas Gun

Laws” - State Bar of Texas Webcast Community Involvement:

Junior League of Dallas – Sustaining Member; Dallas Chapter – Pi Beta Phi Alumnae; Prudence Alexander Chapter – Daughters of the American Revolution; Church of the Incarnation – Altar Guild; La Fiesta de Las Seis Banderas; Life member - Baylor University Alumni and Baylor University School of Law Alumni

Board Memberships and State Bar Activity:

State Bar of Texas – Judicial Section Board; Family Law Section of the Dallas Bar Association – Board of Directors; Annette Stewart American Inn of Court – Past President; State Bar of Texas Pattern Jury Oversight Committee – member; Texas Center for the Judiciary - Curriculum Committee Chair, Special Events Committee

Discovery After a Decade: Rule 194 and Other Discovery Issues Chapter 18

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TABLE OF CONTENTS Discovery Rules I. Texas Rule of Civil Procedure 193: Written Discovery………………............................................................ 1 A. Rule 193.1 Responding to Written Discovery………………………....................................................... 1 B. Rule 193.2 Objecting to Written Discovery………………………… ...................................................... 1 C. Rule 193.3 Asserting a Privilege……………………………………....................................................... 1 D. Rule 193.4 Hearing and Ruling on Objections/Privilege…………… ...................................................... 2 E. Rule 193.5 Amending or Supplementing Responses to Written Discovery…………………………………………………………............................................................ 2 F. Rule 193.6 Failure to Timely Respond: Effect on Trial……………….................................................... 2 G. Rule 193.7 Production of Documents: Self-Authenticating…………...................................................... 2 II. Texas Rule of Civil Procedure: Requests for Disclosure…………………....................................................... 3 A. Rule 194.1 Request…………………………………………………........................................................ 3 B. Rule 194.2 Content…………………………………………………........................................................ 3 C. Rule 194.3 Response…………………………………………………. .................................................... 3 D. Rule 194.4 Production……………………………………………….. ..................................................... 3 E. Rule 194.5 No Objection or Assertion of Work Product…………….. .................................................... 3 F. Rule 194.6 Certain Responses Not Admissible………………………..................................................... 3 G. Practical Considerations………………………………………………. ................................................... 3 III. Texas Rule of Civil Procedure 195: Discovery Regarding Testifying Expert Witnesses………………………………………………………….. ...................................................... 4 IV. Texas Rule of Civil Procedure 196: Requests for Production & Inspection to Parties; Requests for Motions for Entry Upon Property……………….. ...................................................... 4 V. Texas Rule of Civil Procedure 197: Interrogatories………………………...................................................... 4 VI. Texas Rule of Civil Procedure 198: Requests for Admissions…………… ..................................................... 4 VII. Texas Rule of Civil Procedure 199: Depositions Upon Oral Examination....................................................... 4 A. Rule 199.1 Oral Examination: Alternative Methods of Conducting or Recording…………………………………………………. .............................................. 4 B. Rule 199.2 Procedure for Noticing Oral Deposition…………………. .................................................... 5 C. Rule 199.2 Compelling Witness to Attend…………………………….................................................... 5 D. Rule 199.4 Objections to Time and lace of Oral Deposition………… .................................................... 5 E. Rule 199.5 Examination, Objection, and Conduct During Oral Depositions…………………………………………………………................................................. 5 F. Rule 199.6 Hearing on Objections………………………………….. ...................................................... 5 VIII. Texas Rule of Civil Procedure 200: Depositions Upon Written Questions ........................................................ 6 IX. Texas Rule of Civil Procedure 201: Depositions In Foreign Jurisdictions For Use In Texas Proceedings; Depositions in Texas For Use in Foreign Proceedings…………………………………………………………… ............................................................ 6 X. Texas Rule of Civil Procedure 202: Depositions Before Suit or To Investigate

Claims…………………………………………………. ................................................................................... 6 XI. Texas Rule of Civil Procedure 203: Signing, Certification & Use of Oral and Written

Depositions…………………………………………......................................................................................... 6 XII. Texas Rule of Civil Procedure 204: Physical and Mental Examinations.......................................................... 6 A. Rule 204.1 Motion and Order Required…………………………… ........................................................ 6


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B. Rule 204.2 Report of Examining Physician or Psychologist………. ....................................................... 6 C. Rule 204.3 Effect of No Examination……………………………… ....................................................... 7 D. Rule 204.4 Cases Arising Under Title II or V, Family Code……… ........................................................ 7 E. Rule 204.5 Definition………………………………………………. ....................................................... 7 XIII. Texas Rule of Civil Procedure 205: Discovery From Nonparties……............................................................. 7 XIV. Texas Rule of Civil Procedure 215: Abuse of Discovery; Sanctions…............................................................ 7 A. Rule 215.1 Motion for Sanctions or Order Compelling ........................................................ …………….7 B. Rule 215.2 Failure to Comply with Order or with Discovery Request…………………………………………………………………. .................................................. 7 C. Rule 215.3 Abuse of Discovery Process in Seeking, Making or Resisting Discovery…………………………………………………….................................................... 7 D. Rule 215.4 Failure to Comply with Rule 198……………………............................................................ 7 E. Rule 215.5 Failure of Party or Witness to Attend or to Serve Subpoena;

Expenses……………………………………………………..................................................................... 8 F. Rule 215.6 Exhibits to Motions and Responses…………………… ........................................................ 8 Discovery Cases A. In the Interest of K.A.S.B…………………………………………........................................................... 8 B. Phan v. Addison Spectrum, L.P., et al……………………………............................................................ 8 C. In re Commitment of Todd Mitchell……………………………… .......................................................... 8 D. Tranum v. Broadway……………........................................................... ,,……………………………….8 E. Wingert V. Scenic Heights Subdivision Property Owners Association…................................................. 8 F. In the Interest of M.P.J., II………………………………………….......................................................... 8 G. In re Commitment of Michael Marks………………………………......................................................... 8 H. In the Interest of P.A. and C.A…………………………………….. ........................................................ 9 I. In the Interest of F.A.A……………………………………………........................................................... 9 J. In the Interest of P.M……………………………………………….......................................................... 9 K. In re Gilbert T. Adams, II…………………………………………........................................................... 9 L. Jackson v. Jackson………………………………………………….......................................................... 9 M. Norwood v. Norwood……………………………………………............................................................. 9 N. Taylor v. Taylor…………………………………………………….......................................................... 9 Discovery Rules Application XV. Request for Disclosure……………………………………………….. ........................................................... 10 XVI. Interrogatories………………………………………………………… .......................................................... 10 XVII. Requests for Production………………………………………………. .......................................................... 10 XVIII. Admissions…………………………………………………………….. ......................................................... 10 XIX. Depositions on Written Questions……………………………………............................................................ 10 Discovery Traps………………………………………………………………... ......................................................... 10 Conclusion……………………………………………………………………............................................................. 11


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TABLE OF AUTHORITIES

Rules of Civil Procedure Rule 193: Written Discovery .......................................................................................................................................... 1 Rule 194: Requests for Disclosure................................................................................................................................. 3 Rule 195: Discovery Regarding Testifying Witnesses .................................................................................................. 4 Rule 196: Requests for Production & Inspection to Parties: Requests & Motions for Entry Upon Property ..................................................................................................................................... 4 Rule 197: Interrogatories................................................................................................................................................ 4 Rule 198: Requests for Admissions ............................................................................................................................... 4 Rule 199: Depositions Upon Oral Examination............................................................................................................. 4 Rule 200: Depositions Upon Written Questions ............................................................................................................ 6 Rule 201: Depositions In Foreign Jurisdictions For Use in Texas Proceedings; Depositions in Texas For Use in Foreign Proceedings .................................................................................................................... 6 Rule 202: Depositions Before Suit or To Investigate Claims ........................................................................................ 6 Rule 203: Signing, Certification & Use of Oral & Written Depositions ....................................................................... 6 Rule 204: Physical & Mental Examinations .................................................................................................................. 6 Rule 205: Discovery From Nonparties .......................................................................................................................... 7 Rule 215: Abuse of Discovery; Sanctions ..................................................................................................................... 7 Additional Codes Civil Practice and Remedies Code Sec. 20.001 Government Code Secs. 52.021, 52.031, 52.059 Texas Disciplinary Rules of Professional Conduct 402(b) Uniform Manual for Texas Court Reporters Sec. 12 Cases Cases cited in paper: In re Commitment of Michael Marks, 230 S.W.3d 241 (Tex. App. – Beaumont, 2007) n.w.h...................................... 8 In re Commitment of Todd Mitchell, 2008 Tex. App. LEXIS 1999 (Tex. App. – Beaumont, 2008) pet. den’d......................................................................................................................................................................... 8 In re Gilbert T. Adams III, 2006 Tex. App. LEXIS 8463 (Tex. App. – Beaumont, 2006) ............................................ 9 In the Interest of F.A.A., 2005 Tex. App. LEXIS 6169 (Tex. App. – Corpus Christi, 2005) pet. den’d......................................................................................................................................................................... 9 In the Interest of K.A.S.B., 2007 Tex. App. LEXIS 5897 (Tex. App. – Beaumont, 2007) n.w.h. ................................. 8 In the Interest of M.P.J. II, 2004 Tex. App. LEXIS 6714 (Tex. App. – Houston [First District], 2004) pet. den’d......................................................................................................................................................................... 8 In the Interest of P.A. and C.A., 2004 Tex. App. LEXIS 9384 (Tex. App. – Fort Worth, 2004) pet. den’d......................................................................................................................................................................... 9 In the Interest of P.M., 2006 Tex. App. LEXIS 1429 (Tex. App. – Amarillo, 2006) pet. den’d......................................................................................................................................................................... 9 Jackson v. Jackson, 2006 Tex. App. LEXIS 10290 (Tex. App. – Houston [First District], 2006) n.w.h. ...................... 9 Norwood v. Norwood, 2008 Tex. App. LEXIS 8673 (Tex. App. – Fort Worth, 2008) n.w.h........................................ 9 Phan v. Addison Spectrum, L.P. et al., 244 S.W.3d 892 (Tex. App. – Dallas, 2008) n.w.h........................................... 8 Taylor v. Taylor, 254 S.W.3d 527 (Tex. App. – Houston [First District], 2008) n.w.h. ................................................ 9 Tranum v. Broadway, 2008 Tex. App. LEXIS 5043 (Tex. App. – Waco, 2008) pe.t den’d .......................................... 8 Wingert v. Scenic Heights Subdivision Property Owners Association, 2008 Tex. App. LEXIS 5334 (Tex. App. – Austin, 2008) n.w.h. .................................................................................................................................. 8 Cases used as reference but not cited: American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444 (Tex. App. – Dallas, 2002) no pet. Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) Hernandez v. Mid-Loop, Inc., 170 S.W.3d 138 (Tex. App. – San Antonio 2005) In re Christus Spohn Hospital Kleberg, 222 S.W.3d 434 (Tex. 2007)

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=230&edition=S.W.3d&page=241&id=112108_01









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In re Honza, 242 S.w.3d 578 (Tex. App. – Waco, 2008) In re SWEPI L.P., 103 S.W.3d 578 (Tex. App. – San Antonio, 2003) In re Turner, 243 S.W.3d 843 (Tex. App. – Eastland, 2008) Moore v. Memorial Hermann Hospital System, 140 S.W.3d 870 (Tex. App. – Houston[14th Dist.], 2004) Spohn Hospital v. Mayer, 104 S.W.3d 878 (Tex. 2003) Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005)






Discovery After a Decade: Rule 194 and other Discovery Issues Chapter 18

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DISCOVERY AFTER A DECADE: RULE 194 AND OTHER DISCOVERY ISSUES The Texas Supreme Court adopted discovery rules to be effective January 1, 1999. For many years, those rules were referred to as the “new discovery rules”. They have now been in effect for more than a decade. In that time, there have been many presentations and discussions about the use and abuse of the discovery rules. It is hoped that this paper will help family law practitioners avoid some common, and often costly, mistakes. While the Court did adopt new rules, it did not restrict discovery. Currently, there are seven (7) permissible forms of discovery in Texas as set forth in Texas Rule of Civil Procedure 192.1:

(a) requests for disclosure; (b) requests for production and inspection of

documents; (c) requests and motions for entry upon and

examination of real property; (d) interrogatories to a party; (e) requests for admission; (f) oral or written depositions; and, (g) motions for mental or physical examinations.

The general rules relating to written discovery are found in Texas Rule of Civil Procedure 193. The purpose for Rule 193 is to impose a duty upon parties to make a full and complete response, subject to objections and privileges, to written discovery based upon all reasonably available information. Most practitioners are familiar with Rule 193 in very broad terms. However, there are traps in the rule that can significantly reduce the effectiveness of the presentation of evidence. DISCOVERY RULES I. TEXAS RULE OF CIVIL PROCEDURE 193:

WRITTEN DISCOVERY A. Rule 193.1 Responding to Written Discovery;

Duty to Make Complete Response This paragraph directs the responding party to make a complete response with all information that is reasonably available at the time the response is made. The answers, objections, and other responses must be preceded by the request to which they apply. This does not discharge the party’s responsibility to provided additional information in response to a

discovery request if it becomes available at a later date. The purpose of this rule is to impose a duty upon a responding party to comply and disclose. A responding party can only withhold that information that the party objects to producing. B. Rule 193. 2 Objecting to Written Discovery Any objection to written discovery must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request. The objection must state with specificity whether it is being made as to the information requested or as to the time or place of production. Simply making the objection does not excuse the party’s obligation to comply with the request to the extent that no objection is made. Additionally, there must be a good faith factual and legal basis for the objection existing at the time the objection is made. The requirement is for both factual and legal basis in order to satisfy non-compliance with the request. If the basis for the objection changes, then the responding party is under a duty to amend or supplement the responses. Clearly the burden of proving a legal and factual basis is upon the party claiming it. While an objection or response may be amended or supplemented, if it is not made within the time required it is waived. Or, if the objection is obscured by numerous unfounded objections, it is waived. The court may excuse the waiver for good cause but that is discretionary. As a matter of practice, a requesting party may argue that an objection has been waived if the objections offered are unfounded. In that instance, the responding party would be required to produce the requested discovery within no more than thirty (30) days or as directed by the court. C. Rule 193.3 Asserting a Privilege By adopting the “new rules”, the Supreme Court provided a definition of “work product” for the first time. Additionally, the exceptions to work product were codified. The definition of “work product” replaced the terms “attorney work product” and “party communication” that had been previously used. Work-product is material prepared by the lawyer or mental impressions developed by the lawyer in anticipation of litigation or for trial. (It is further defined in detail in Rule 192.5.) Rule 193.3 effectively dispenses with objections to written discovery requests on the basis of protection by a specific privilege. Statutory privileges recognized in Texas are found in Texas Rules of Evidence 501 through 510 and are:

1. Lawyer-client privilege (503) 2. Husband-wife privilege (504) 3. Communications to members of the clergy

(505)


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4. Political vote (506) 5. Trade secrets (507) 6. Identity of informer (508) 7. Physician-patient (509) 8. Mental health provider and/or patient (510)

The rule requires parties to state that information or materials have been withheld; further, to identify the privilege upon which the party is relying. This must be done with specificity and not merely as an attempt to circumvent production or response. The response may be supplemented or amended if additional information or material is discovered to be protected by a privilege. The import of this provision is the requirement to respond to the request for discovery. It is not allowed under the rules to just ignore the request or to globally object. In the event that privileged information is disclosed, the responding party may retrieve that information and protect it from use at trial. However, the procedure for that retrieval is clearly stated. The party who inadvertently produces privileged information may within ten (10) days or a shorter time ordered by the court, amend the response and identify the produced information or material as privileged, stating the privilege. The ten (10) day period begins to run from the date that the producing party discovers that the production was made. The production must have been made inadvertently, without intending to waive any applicable privilege. The requesting party is then obligated to return the discovery but may request a hearing to determine the existence of a privilege. D. Rule 193.4 Hearing and Ruling on Objections

and Assertions of Privilege Any party may request a hearing on objections made or privileges asserted. This may be done at any reasonable time. The party making the objection or claiming the privilege has the burden of proof at the hearing. There is no requirement for live testimony; rather evidence may be offered by affidavits served at least seven (7) days before the hearing. The court may require an in camera inspection of the requested discovery. E. Rule 193.5 Amending or Supplementing

Responses to Written Discovery The duty to supplement or amend is on going. A responding party has an obligation to correct or complete responses if necessary. Specifically, the responding party must amend or supplement to the extent that the discovery sought identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses. If other information is sought, it must be amended or supplemented unless that information has been made known to other parties in writing, on the record at a deposition, or through

other discovery responses. The caveat would be that the information must be made known and acknowledged by the opposing party in order to avoid the possible preclusion of the evidence at trial. The burden to demonstrate that the information has been provided by some means other than formal amendment or supplementation will be on the party charged with amending or supplementing. F. Rule 193.6 Failing to Timely Respond – Effect

on Trial The simple effect of failing to timely respond to discovery is to have that evidence excluded at the time of trial. There are two (2) exceptions to that rule. The first is that there was good cause for the failure. The second is that the failure will not unfairly surprise or unfairly prejudice the other parties. The party seeking to introduce the evidence has the burden of proof. The granting of the exceptions is discretionary. Additionally, even if the court does not grant the exception, the court may grant a continuance or a temporary postponement of the trial to allow the full response and further discovery to the response if necessary. G. Rule 193.7 Production of Documents Self-

Authenticating The production of a document in response to a discovery request authenticates the document for use against that party in any proceeding. If the producing party received actual notice that the document will be used at trial, then the party may object to the authenticity of it. However, the objection must:

1. be made within ten (10) days, or such time as the court may order, after receiving actual notice;

2. be specific; 3. be on the record or in writing; 4. be in good faith; and, 5, have a factual and legal basis.

An objection made to only a portion of a document will not affect the remainder of the document. Additionally, if an objection is made, then the party intending to use the document should be given a reasonable amount of time to attempt to authenticate it. Authentication does not equate with admissibility. Any necessary prerequisite or predicate for admissibility must still be satisfied. Since the rule does allow for objection to authentication by the producing party, the party intending to use the document should give actual notice of intent to use the document well in advance of trial. That avoids any delay at trial. The rule was not intended to allow a producing party to authenticate documents for its use that would not otherwise be capable of authentication. A party


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cannot authenticate a document for use in its own favor by merely producing it in response to a discovery request. II. TEXAS RULE OF CIVIL PROCEDURE 194:

REQUESTS FOR DISCLOSURE A. Rule 194.1 Request A party may get pertinent information from an opposing party by serving a request for disclosure at least thirty (30) days prior to the end of any applicable discovery period. The purpose of this rule is to allow the parties basic discovery without the assertion of work product or objection. Additionally, it is designed to streamline discovery so that in every case a party may have actual discovery without incurring significant expense. While the intent to allow discovery without the need for objection, the responding party may still file appropriate responses, including a request for protection. This might very well be the case in a divorce action in which a family violence protective order has been entered and the address of the protected party should not be revealed. If there are privileges that could be asserted, then that must be done using the procedures of Rule 193.3. The failure to respond fully to a request for disclosure can be an abuse of discovery. In that situation, appropriate discovery abuse sanctions are available. However, the most common effect will be to limit the testimony to that disclosed. B. Rule 194.2 Content Texas requires only notice pleadings. Rule 194.2 allows a party to make further inquiry into another party’s legal theories and factual claims. The responding party is not required to marshall all of its evidence or to state a method of calculating non-economic damages. A request for disclosure is not intended to be used for the same discovery purpose as a deposition or interrogatories. If the responding party amends or supplements its response, then the original responses cannot be used for impeachment. C. Rule 194.3 Response The responding party must serve a written response on the requesting party within thirty (30) days, except:

1. if the request is served before the party’s answer date, then the response is not due until fifty (50) days from the date of service of the request, and

2. responses of experts are exempted and are governed by Rule 195.

D. Rule 194.4 Production The response must contain copies of documents or of other tangibles items. If the documents are voluminous, then the producing party may choose to produce the documents at a reasonable time and location. If the party does elect to produce the documents in some other manner, then that must be stated clearly in the response. The parties may agree to a time and place or the court may order a specific time and place. If the documents are not produced with the response, the responding party must produce the documents at the time and place stated. It is not sufficiently specific to state that the documents are available for copying and inspection at the responding party’s attorney’s office. The documents must be produced in a manner that will provide the requesting party a reasonable opportunity to inspect them. E. Rule 194.5 No Objection or Assertion of Work

Product The rule simply does not allow objection or assertion of work product because the inquiry is specific and, usually, not lengthy. F. Rule 194.6 Certain Responses Not Admissible If a party amends or supplements responses, then the original responses may not be used for purposes of impeachment. The original responses are not admissible. However, that does not preclude a requesting party from using other evidence to demonstrate a change in position or legal theory. G. Practical Considerations 1. A request for disclosure is the easiest form of

discovery. Its use will prevent any undisclosed, and often unpleasant, results. However, when responding to a request for disclosure, it is important to remember that the disclosure must state the general substance of the expert’s opinions. This may very well restrict the expert’s opinions at the time of trial unless all areas of inquiry and consideration are disclosed.

2. Restating the pleading is not responsive disclosure. While a party is not required to marshal all of the evidence to be used at trial, the party must state the relief sought, the basis for that relief, and the general factual grounds that support the allegations.

3. It is strongly suggested that the disclosure include the calculation of attorney’s fees. While there may be infrequent need to calculate economic damages, there is also a reason to claim attorney’s fees.

4. The rules of supplementation apply to requests for disclosure. Failure to supplement in a timely manner can result in the inability to present evidence.


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III. TEXAS RULE OF CIVIL PROCEDURE 195: DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES

This rule is self-explanatory. It is important to calendar the dates that would be applicable to the introduction of expert witness testimony at trial. It is also important to recognize the effect of Rule 192.3(e) upon discoverable information about a consulting or non-testifying expert witness. If the testifying expert has reviewed the consulting witnesses impressions or opinions, then those impressions and/or opinions, as well as the consulting expert himself are discoverable. IV. TEXAS RULE OF CIVIL PROCEDURE 196:

REQUESTS FOR PRODUCTION & INSPECTION TO PARTIES; REQUESTS & MOTIONS FOR ENTRY UPON PROPERTY

This rule requires specificity. The procedures to be used in sampling or testing must be described with sufficient specificity to allow the responding party to object. Also, the party requesting production of magnetic or electronic data must, in addition to requesting the data, specify the form in which it is to be produced and any extraordinary steps for retrieval and translation. Only those items kept in the ordinary or usual course of business are subject to production. Certainly, the requesting party may not alter, damage, or destroy those items produced. The producing party must produce the requested items at its expense; however the cost of sampling, testing, retrieving, translating, photographing, or copying will be allocated to the requesting party unless otherwise ordered by the court. V. TEXAS RULE OF CIVIL PROCEDURE 197:

INTERROGATORIES Proper interrogatories are those that inquire about specific legal or factual assertions; those that ask a party to state all legal or factual assertions are not. Like Rule 194, Rule 197 does not require a party to marshal of its evidence. Answers may only be used against the answering party. Additionally, just as in Rule 194(2)(c) and (d), an answer that provides the legal theories and factual basis of a party’s claims that is amended or supplemented may not be used. The failure to sign and verify answers is a defect in form and will not impair the effect of the answers unless the party refuses to sign or verify them after the defect is shown. VI. TEXAS RULE OF CIVIL PROCEDURE 198:

REQUESTS FOR ADMISSIONS The responding party must, within thirty (30) days after service of the request [or within fifty (50) days if served prior to answer date] specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. An

answer may be qualified only when good faith requires either a qualified answer or that an answer be admitted in part and/or denied in part. Failure to respond results in the request being considered admitted without the necessity of a court order “deeming” requests admitted. A matter admitted by a party conclusively establishes that matter as to that party for the particular action in which it is requested. The court may permit a party to withdraw or amend admissions if:

1. the party shows good cause for the withdrawal or amendment; and

2. the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.

VII. TEXAS RULE OF CIVIL PROCEDURE 199:

DEPOSITIONS UPON ORAL EXAMINATION

Clearly, the main purposes for taking a deposition are to determine what the witness knows and to have him committed to a position or opinion prior to trial. As pointed out by Alyson Nelson in her 1999 Comment, Deposition Conduct: Texas’ New Discovery Rules End Up Taking Another Jab At The Rambos of Litigation, 30 Tex. Tech L. Rev. 1471 at 1473 - 1474(1999), depositions can be one of the most powerful, informative, and productive devices in the litigation process: First, a deposition is virtually the only time an attorney will be able to question a witness in person before trial. This process allows

thequestioning attorney to judge the demeanor and credibility of the witness before the actual trial. Second, a deposition allows an attorney to obtain answers from a witness whose answers have not

been filtered through the opposing counsel. As a result, the questioning attorney may obtain more reliable and honest information.

Third, a deposition allows an attorney to

immediately ask follow-up questions when a witness answers in an unexpected or incomplete

way. In sum, depositions are ‘the factual battleground where the vast majority of litigation

actually takes place.’ A. Rule 199.1 Oral Examination: Alternative

Methods of Conducting or Recording A party may take the testimony of any person or entity by deposition on oral examination. The deposition may be conducted before any officer


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authorized to take depositions. It must be recorded. However, it does not have to be in person. It may be by telephone or other remote electronic means. The recording may be done by stenographic means or by nonstenographic means, such as videotape recording. If the deposition is to be by nonstenographic means, then the party must give at least five (5) days notice of the means of recording and whether the deposition will also be stenographically recorded. B. Rule 199.2 Procedures for Noticing Oral

Deposition Notice must be served upon the witness and all parties a reasonable time before the deposition. One can only be taken outside the discovery period by agreement of the parties or by order of the court. The notice must identify the person to be deposed and the subject matter of the deposition. Additionally, it must state a reasonable time and place for the oral deposition. It may include notice about additional attendees. If the deponent is a party, then the notice may include a request that the witness produce at the deposition documents or tangible things. If the deponent is not a party, then the request must be by subpoena; however, the notice must also contain a description of the materials to be produced. C. Rule 199.3 Compelling Witness to Attend Service of the notice of oral deposition upon the party’s attorney has the same effect as a subpoena for the party, or for a witness retained by, employed by, or otherwise subject to the control of a party. Otherwise, a nonparty witness may only be compelled to attend by subpoena. D. Rule 199.4 Objections to Time and Place of

Oral Deposition Objection to the time and place of the deposition may be made in the form of a motion for protection or motion to quash. The deposition is stayed if the motion is filed by the third business day after service of the notice of deposition. E. Rule 199.5 Examination, Objection, and

Conduct during Oral Depositions The requirement that depositions be conducted in the same manner as if in trial is a limit on the conduct of the lawyers and witnesses in the deposition. It does not limit the scope of the deposition. It clearly is designed to address Rambo tactics. If any party intends to have a person in attendance at the deposition who is not the witness, parties, spouses of parties, counsel, counsel employees, and then deposition officer, then notice must be given of the identity of that person. Depositions are six (6) hours long, not including breaks.

Objections are limited. A party can no longer make a “speaking” or “coaching” objection. The attorney may only object as to responsiveness. Witnesses may not confer with counsel unless it is with regard to an assertion of privilege. Any and all conferences between the deponent and counsel are noted on the record. In addition to the objection of non-responsive, the attorney may object with either “objection, form” or “objection, leading”. These objections are waived if not stated as phrased during the deposition. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the deposition, or the objection is waived. Argumentative or suggestive objections may be grounds for terminating the deposition or assessing costs or other sanctions. An objection to form includes objections that the question calls for speculation, calls for a narrative answer, is vague, is confusing, or is ambiguous. However, the witness must ordinarily answer a question at a deposition subject to the objection. The deponent’s attorney may instruct the deponent not to answer the question if the answer to the question would reveal privileged information. If requested to do so, the attorney must state the concise, non-argumentative, non-suggestive explanation of the grounds for the instruction. An attorney may also instruct the witness not to answer a question if necessary to comply with a court order or the rules of discovery, to protect a witness from an abusive question, or to protect a witness from answering a question if the answer would be misleading based upon the form of the question. A witness should not be required a question that incorporates unfair assumptions or that would result in any answer given being misleading. Abusive questions include questions inquiring into matters outside the scope of discovery, or argumentative, repetitious, or harassing. Attorneys must not ask questions solely to harass or mislead the witness, for other improper purpose, or without a good faith legal basis at the time. Objections should not be made, instruction given not to answer a question, or suspension of the deposition unless there is a good faith factual and legal basis for doing so at the time. F. Rule 199.6 Hearing on Objections Any party may request a hearing on an objection or assertion of privilege. Failure to obtain a ruling prior to trial does not waive any objection or privilege. The party objecting to discovery has the burden to present any evidence necessary to support the objection or privilege. This may be done either by testimony or by affidavit. If by affidavit, the affidavits must be served on the opposing party or parties at least seven


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(7) days prior to hearing. The court may require in camera review of some or all of the requested discovery. VIII. TEXAS RULE OF CIVIL PROCEDURE

200: DEPOSITIONS UPON WRITTEN QUESTIONS

A party may take the deposition of any person or entity by deposition by written questions before any person authorized by law to take depositions on written questions. A deposition on written questions of a witness who is alleged to reside or to be in this state may be taken by a clerk of a district court, a judge or clerk of a county court, or a notary public of the state. However, attorneys are not allowed to answer written depositions for their clients. The notice must be served at least twenty (20) days before the deposition. The direct questions to be asked of the witness are to be attached to the notice. Any party may object to the direct questions and serve cross-questions within ten (10) days after the service of the direct questions. Within five (5) days, any party may object and serve re-direct questions. Then the parties have three (3) days to object and serve re-cross questions. Objections are waived if not asserted timely. IX. TEXAS RULE OF CIVIL PROCEDURE 201:

DEPOSITIONS IN FOREIGN JURISDICTIONS FOR USE IN TEXAS PROCEEDINGS; DEPOSITIONS IN TEXAS FOR USE IN FOREIGN PROCEEDINGS

The rule provides procedures for obtaining deposition testimony of a witness in another state or foreign jurisdiction for use in a Texas court. However, it does not address whether the procedures listed are permitted or recognized by the law of the other state or foreign jurisdiction. It is imperative that the party first determine the procedures in the jurisdiction in which the deposition will be taken before using this rule. It also provides for procedures for a witness in Texas to be deposed by order or mandate of another jurisdiction. The deposition must be conducted pursuant to Texas law. X. TEXAS RULE OF CIVIL PROCEDURE 202:

DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS

The rule is designed to allow for depositions to perpetuate testimony and bills of discovery. To the extent that the deposition is taken prior to the filing of suit, it may be used in the subsequent suit as permitted by the rules of evidence. However, the court may restrict or prohibit its use in order to prevent the taking of unfair advantage of a witness.

XI. TEXAS RULE OF CIVIL PROCEDURE 203: SIGNING, CERTIFICATION & USE OF ORAL & WRITTEN DEPOSITIONS

The deposition officer is charged with presenting the deposition to the witness for examination and signature. If the witness does not sign the deposition under oath and return it to the deposition officer within twenty (20) days of the date the transcript was provided, changes may be deemed waived. The requirement of presentation and signature are inapplicable:

A. if the witness and all parties waive the requirement,

B. to depositions on written questions; or, C. to nonstenographic recordings of oral

depositions. All or part of a deposition may be used for any purpose in the same proceeding for which it was taken. A deposition is admissible against a party joined after the deposition was taken if the deposition was admissible pursuant to Rule 804(b)(1) of the Rules of Evidence and the party had a reasonable opportunity to redepose the witness but did not do so. XII. TEXAS RULE OF CIVIL PROCEDURE 204:

PHYSICAL & MENTAL EXAMINATIONS A. Rule 204.1 Motion and Order Required A party may move for an order compelling another party to submit to a physical or mental examination no later than thirty (30) days before the end of any applicable discovery period. The court may issue an order compelling only for good cause shown. Good cause requires a showing of three components:

1. that an examination is relevant to issues that are genuinely in controversy in the case;

2. that a reasonable nexus exists between the condition in controversy and the examination sought; and,

3. that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination.

B. Rule 204.2 Report of Examining Physician or

Psychologist The examined person has a right to review the report of the examining professional. If the examined person has additional reports from other examinations, and is a party, then those reports must be delivered when requested. The court may limit delivery of a report on such terms it deems just.


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C. Rule 204.3 Effect of No Examination If neither party seeks examination, the party whose physical or mental condition is at issue may not comment to the court or a jury about the party’s willingness to be examined or the failure of the other party to request examination. D. Rule 204.4 Cases Arising Under Titles II or V,

Family Code The court on its own initiative or on motion of a party may appoint one or more psychologists or psychiatrists to make mental examinations as indicated. Additionally, the court may appoint one or more experts for purposes of paternity testing. E. Rule 204.5 Definition A psychologist is a person licensed by a state as a psychologist. XIII. TEXAS RULE OF CIVIL PROCEDURE

205: DISCOVERY FROM NONPARTIES A party may compel discovery from a

nonparty only by obtaining a court order or by subpoena. A party may compel production of documents and tangible things from a nonparty by serving no later than thirty (30) days before the end of the discovery period notice and subpoena compelling production or inspection. Under this rule, a party may subpoena production of documents and tangible things from a nonparty without the requirement of a motion or deposition. XIV. TEXAS RULE OF CIVIL PROCEDURE

215: ABUSE OF DISCOVERY; SANCTIONS

A. RULE 215.1 MOTION FOR SANCTIONS OR ORDER COMPELLING A party may apply for sanctions or an order

compelling discovery upon reasonable notice to other parties and persons affected by the discovery motion.

If the issue is a deposition, the application may be made in the court in which the case is pending or to any district court in the district where the deposition is being taken. If the deponent is a nonparty, then the application should be made in the district where the deposition is being taken. B. Rule 215.2 Failure to Comply with Order or

with Discovery Request If the deponent fails to appear or to answer

questions after being directed to do so by a district court, the failure may be considered contempt of that court.

If a party or an entity’s designee fails to comply with a proper discovery request or to obey an order to provide or permit discovery, the court has

several options available as sanctions. The court may, after notice and hearing:

1. disallow any further discovery of any kind or of a particular kind by the disobedient party;

2. charge all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;

3. determine that designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

4. refuse to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters;

5. strike pleadings or parts thereof; 6. stay further proceedings until the order is

obeyed; 7. dismiss with or without prejudice the entire

action or any part thereof; 8. render a judgment by default against the

disobedient party; 9. treat as contempt the failure to obey any

orders except an order to submit to mental or physical examination;

10. require the payment of expenses, attorney’s fees, and costs incurred as a result of the failure to obey the court’s order.

CAVEAT: There are exceptions that would allow the court to admit evidence even if the responding party did not timely make, amend, or supplement a discovery response:

1. testimony from a named party 2. good cause 3. no unfair surprise 4. trial is continued or reset

C. Rule 215.3 Abuse of Discovery Process in

Seeking, Making, or Resisting Discovery If the court finds that a party is abusing or

resisting discovery or the discovery request in any form is unreasonably frivolous, oppressive, or harassing, or that a response is unreasonably frivolous or made for the purpose of delay, the court may impose sanctions as outlined above. D. Rule 215.4 Failure to Comply with Rule 198

If the court determines that an answer does not comply with the requirements of Rule 198, it may order that the matter is admitted or that an amended answer be provided. Additionally, the court may order


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the noncompliant party to pay expenses, including attorney’s fees. E. Rule 215.5 Failure of Party or Witness to

Attend or to Serve Subpoena: Expenses The party giving the notice of deposition who fails to attend the deposition, or who cause a witness to not attend, may be ordered to pay expenses of the deposition and the attending party, including attorney’s fees. F. Rule 215.6 Exhibits to Motions and Responses Motions or responses may have exhibits attached, including affidavits, discovery pleadings, or any other documents. DISCOVERY CASES A. In the Interest of K.A.S.B., (2007 Tex. App.

LEXIS 5897) addresses exclusion of expert testimony in a custody hearing based on the timeliness requirement of Rule 193.5. Appellee father’s attorney objected in trial to the witness on the ground of surprise because the appellant mother failed to supplement discovery with information that witness until four days prior to their final hearing. Both counsel took the witness on voir dire and the court sustained the objection regarding inadequate notice.

B. Phan v. Addison Spectrum, L.P., et al., 244 S.W.3d 892 (Tex. App. – Dallas, 2008) n.w.h. The trial court refused to admit expert testimony on attorney’s fees during a breach of contract trial. The plaintiff failed to disclose any experts in discovery despite requests form the defendants to do so. The Court of Appeals found that the trial court did not abuse its discretion because the plaintiff never responded to discovery requests that she would be offering expert testimony on any issue and therefore violated Rule 193.6. Also, she gave no reason and

made no showing that her failure disclose any experts would not unfairly surprise or prejudice the other parties in violation of Rule 193.6(a).

C. In Re Commitment of Todd Mitchell (2008 Tex. App. LEXIS 1999) addresses a trial court’s decision to strike an expert’s designation due to untimely notification under Rule 193.6. The deadline for designating experts passed while Mitchell was represented by the State Counsel for Offenders. Two (2) months after the deadline passed, Mitchell’s newly retained counsel filed the witness designation. The trial court implicitly found that the change in attorneys, without more, was insufficient to disregard the scheduling order in place. Likewise, because Mitchell’s attorney failed to file a motion for more time, to go along

with notice and a hearing, the trial court refused to grant any time extension or exception. The Court of Appeals found that the trial court did not abuse its discretion in striking the expert designation.

D. Tranum v. Broadway (2008 Tex. App. LEXIS 2935) dealt with the question of exclusion. The trial court excluded expert testimony in a malicious prosecution and slander action because the expert was not timely designated under Rule 193.6. Three days before trial, the plaintiff filed his first response to the defendant’s requests for disclosures. Under the basic rule, this expert’s testimony should be prohibited unless the court finds good cause for the failure to timely identify the expert or that there is no unfair surprise or prejudice to the opposing party. Here, the judge found that the opposing party’s knowledge of an expert’s report and possible awareness of an expert’s pending testimony does not negate unfair surprise or prejudice.

E. Wingert v. Scenic Heights Subdivision Property Owners Association, Inc. (2008 Tex. App. LEXIS 5334). The trial court excluded the testimony of a named party due to failure to comply to discovery under Rule 193.6. The Rule does not preclude the testimony of a named party, but the appellant’s failure to object to the trial court’s ruling to disallow the testimony, failure to request a continuance, and failure to make an offer of proof, did not preserve the error for appellate review.

F. In the Interest of M.P.J., II (2004 LEXIS 6714) addresses the Rule 193.6 exception dealing with named parties’ testimony. The Texas Department of Protective and Regulatory Services (TDPRS), a named party in an adoption matter, did not disclose a witness during discovery who was a representative of the agency. Because the witness was the agency’s representative at trial, and because the court asked for testimony on the agency’s behalf, the trial court did not err in allowing the representative’s testimony without specific witness designation.

G. In re Commitment of Michael Marks, 230 S.W.3d 241 (Tex. App. – Beaumont, 2007) n.w.h. deals with exclusion of expert testimony under Rule 194.2 as well as exclusion of an undisclosed witness under Rule 193.6. The trial court excluded and expert’s testimony under Rule 193.6 (3) because the proponent party failed to disclose the “general substance of the expert’s mental impressions” as required by Rule 194.2. Additionally, the proponent party here made no request for a finding or argue good cause for including the testimony, and he did not argue or attempt to show a lack of unfair surprise or prejudice to the other party. The Court of Appeals addresses the argument that this witness was






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called for rebuttal by explaining that generally rebuttal witnesses whose use could have been anticipated are not exempt from discovery rules. There was a second excluded witness in this case and, without the proponent party showing good cause or a lack of unfair surprise or prejudice to the opponents, the trial court excluded her lay testimony under Rule 193.6.

H. In the Interest of P.A. and C.A. (2004 Tex. App. LEXIS 9384) was a termination of parental rights case in which the trial court allowed testimony of a named party under the exception to Rule 193.6. Here, the appellant was not designated as a witness in discovery responses, but was listed as a “party to be served.” Because appellant was a named party, the proponent was not required to designate her as a witness during discovery.

I. In the Interest of F.A.A. (2005 Tex. App. LEXIS 6169) is a termination of parental rights case in which the trial court excluded testimony of an undisclosed witness under Rule 193.6. Here, the proponent party did not include the witness on the witness list provided to opposing counsel and previously knew about the witness. The proponent party argued good cause because he did not know the witness’ name or whereabouts until the day before trial, but once aware, he still failed to notify opposing counsel of the witness’ intent to testify until the witness was called at trial.

J. In the Interest of P.M. (2006 Tex. App. LEXIS 1429) is a termination of parental rights case in which the trial court allowed an undisclosed witness to testify in order to authenticate a piece of evidence.

The witness was not disclosed in response to a request under Rule 194. However, the Court of Appeals found that because the opposing party knew of the substantive evidence and the intent of the party to offer it, the trial court could have determined a lack of unfair prejudice or surprise despite the opposing party not knowing who the evidence would be offered through in trial. That the witness did little more than authenticate the evidence at trial was also a factor in the Court of Appeals determination that there was no unfair surprise or prejudice under Rule 193.6 (a).

K. In re Gilbert T. Adams III (2006 Tex. App. LEXIS 8463) is a memorandum opinion on a writ of mandamus in a custody hearing seeking to prevent the presiding judge from conducting an in camera review of records sought for production. The trial court’s findings that no timely objections had been made to the production of the records and that the records were relevant, probative, and at issue, were the basis for its order for release of the record for in camera reviews for relevance.

The court must balance the interests of the parties with the need for disclosure.

L. In Jackson v. Jackson (2006 Tex. App. LEXIS 10290), the court imposed a “death penalty sanction” against the appellant former husband for failing to comply with Texas Rule of Civil Procedure 193.6. Among the list of “just” sanctions under 215.2 is “an order prohibiting [the disobedient party] from introducing designated matters into evidence.” The former wife filed a motion to compel then a motion for sanctions when the former husband did not comply. The court conditionally granted the motion for sanctions contingent on the former husband’s showing during trial that his discovery responses satisfied requests). The Court of Appeals upheld the sanctions because he failed to make an offer of proof or bill of exception to substantiate the contents of any excluded evidence and did not attempt to satisfy the exception to 193.6 (a)-(b).

M. In Norwood v. Norwood (2008 Tex. App. LEXIS 8673), the trial court granted the appellee former husband’s motion for sanctions based on a claim that the appellant former wife’s responses to requests for disclosure and interrogatories were deficient. Specifically, he contended that his former wife had failed to include a brief statement about each witness listed and their connection to the case. Additionally, she had failed to answer completely the questions about the legal theories and factual bases of her claims and defenses. The court imposed sanctions that prohibited her from calling any witnesses or offering any evidence at trial on those claims. Also noted is that the failure to obtain a ruling on discovery inadequacies before trial is the only way that a party waives the right to complain about them in trial. Here, the court held that the motion to compel was not required before a motion for sanctions could be filed and granted.

N. In Taylor v. Taylor, 254 S.W.3d 527 (Tex. App. – Houston [First District], 2008) n.w.h. the court imposed sanctions prohibiting the appellant father from presenting evidence in a custody case based on his violation of an order from the Rule 166 pretrial hearing on discovery. Case law dictates that the court can impose sanctions for these violations but they must be just and appropriate. The facts were unique as to the father’s decision to change counsel before the trial and the timeline of his representation during discovery, but the Court of Appeals did not find this issue dispositive. After an abuse of discretion standard analysis, the Court of Appeals ultimately decided that the sanctions were unjust because the best interests of the child in this case could not be



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properly achieved without the presentation of evidence from the father to the jury.

DISCOVERY RULES APPLICATION XV. REQUEST FOR DISCLOSURE A. It requires disclosure of expert witnesses and fact

witnesses; it does not require the disclosure of witnesses who will testify at trial.

B. It should not be just a restatement of the pleadings but should contain the statutory, equitable, or common law basis for relief and the factual basis for recovery.

C. It may contain a calculation of attorney’s fees. D. It may contain a calculation of damages if allowed

by a pre-marital or a post-marital agreement. E. It may contain a calculation of damages for

economic contribution F. It should be supplemented as needed to reflect

updated or newly discovered evidence. G. It must designate expert witnesses by providing

all of the pertinent information requested. XVI. INTERROGATORIES A. Interrogatories should ask for the other

party’s trial witnesses. B. Interrogatories should not ask about the

opposing party’s expert witnesses. C. Interrogatories should not be used to

identify or authenticate documents. D. Interrogatories should not contain discrete

subparts. E. Interrogatories require timely response or

objections may be considered waived. XVII. REQUESTS FOR PRODUCTION A. The request should be broad. B. The request should have one of the

following responses:

1. production, inspection, or other requested action will be permitted as requested;

2. the requested items are being served on the requesting party with the response;

3. 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. no items have been identified – after a diligent search – that are responsive to the request.

C. The requested production must be produced as

requested unless an objection is made and a

reasonable time and place is provided for compliance with the request.

D. When produced, the documents must be either:

1. produced as they are kept in the ordinarycourse of business; or

2. organized in response to the individualcategories.

E. When produced, the costs will be borne by the producing party; the requesting party

will bear the cost of inspecting, sampling, testing, photographing, and copying documents/items produced.

XVIII. ADMISSIONS A. Each admission should only ask for one fact or

one element. B. Each admission should ask for facts and not

for legal conclusions. XIX. DEPOSITIONS ON WRITTEN

QUESTIONS A. The notice of intent to take depositions on

written questions must be served on the witness and all parties at least twenty (20) days before the date of the deposition.

B. The attendance of the witness can be compelled by subpoena.

C. The direct questions asked at the deposition must be attached to the notice.

D. The deposition must be noticed so that the responses are due within the discovery period.

DISCOVERY TRAPS A. Beware of not providing a reasonable time

and location for the production of documents as a responding party. The failure to do so may prevent the admission of documents at trial.

B. Avoid supplementing discovery through a letter to opposing counsel rather than through proper supplementation. Supplement regularly.

C. Do not make global or non-specific objections to discovery and never object to Requests for Disclosure.

D. Do not send out “mirror” discovery and then object to the discovery that has been served by opposing counsel.

E. Be certain that the correct subpoena is used when requesting documents. Although the documents may be discoverable, they may be protected.

1. Medical records – HIPPA


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2. Bank records – Texas Finance Code Sec. 59.001 – 59.006

F. Designate the expert witnesses only when the

request is made. Interrogatories are inappropriate for expert witnesses. They must be deposed to find out in depth the extent of their expertise and their opinion.

G. Do not contact the opposing party’s retained expert. Texas Disciplinary Rules of Professional Conduct prohibit the contacting of a retained expert by opposing counsel. If the expert is retained, he may not be contacted without the consent of the attorney by whom he is retained.

H. Segregate non-testifying experts, or consulting experts, who do not need to be disclosed. However, if the testifying expert reviews or relies upon information or documents provided by the testifying expert, then the consulting expert must be disclosed or a new testifying expert retained.

I. Do not use a Daubert challenge to attempt to strike an expert. Daubert challenges only go to the opinion of the expert, not to other testimony he may offer. Consequently, know what other testimony the expert may provide.

J. Do disclose consulting experts if they become fact witnesses.

K. Do disclose experts who are not retained or not consulting. If they will be called and they do have particular expertise, they must still be disclosed and mental impressions, opinions, and a brief summary of the basis of those impressions and opinions must be provided when requested.

L. Do not make inquiry into matters that are clearly protected by attorney-client privilege or that would be work-product.

M. Do seek a ruling on objections when made or received. Do not wait until the time of trial to assert an objection or to challenge one.

N. Count the days correctly for designating experts. Rule 194.2 provides that designation of testifying experts is ninety (90) days before the end of the discovery period and sixty (60) days before the end of the discovery period of other experts. That is a total of 120 days and 90 days respectively.

CONCLUSION Discovery is essential in the effective representation of clients. The days of Rambo litigation and trial by ambush are, hopefully, gone. At the very least, all cases should include a Rule 194 Request for Disclosure. It was clearly the intent of the Supreme

Court to provide a vehicle for basic discoverable information in a cost-effective and time-efficient manner. However, just as the rules provide for discovery, they also contain traps for the unprepared. It is important that the effective practitioner understands the rules and avoids the traps.

BIBLIOGRAPHY

Ike Vanden Eykel, J.H. Amberson, III, and Christopher M. Lake, Family Law Discovery 2002, State Bar of Texas, Advanced Evidence & Discovery Course, 2002 R. Scott Downing, Carmen Elaine Eiker, William M. Reppeto, III, Elizabeth D. Branch, and Susan Ormand, Be Careful What You Ask For, You May Get It: Common Sense Discovery Requests and Responses, State Bar of Texas, 32nd Annual Advanced Family Law Course, 2006 Stephen J. Naylor, If You Can’t Get It Before the Fact Finder, You Can’t Win: Effective and Practical Application of The Rules of Evidence, State Bar of Texas, 32nd Annual Advanced Family Law Course, 2006 William M. Reppeto, III, Discovery – Its Effective Use and The Avoidance of Pitfalls, State Bar of Texas, Family Law Boot Camp “Practice in the Trenches, 34th Annual Advanced Family Law Course, 2008