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A Comprehensive Guide to Discovery in Texas Civil Litigation

by | Dec 31, 2023 | Firm News

In the intricate world of Texas civil litigation, mastering the art of discovery is essential for building a strong case. This comprehensive guide addresses key aspects of discovery in a question-and-answer format, providing valuable insights for legal practitioners.

Q1: What types of discovery requests are allowed for non-parties in Texas?

A1: Texas Rule of Civil Procedure 201.2 permits a party to an out-of-state proceeding to compel discovery from a Texas resident via an oral deposition, a deposition on written questions, or a stand-alone document request. Document requests can be included in both oral and written depositions.

Q2: Do I need permission from the out-of-state court to serve discovery on a Texas non-party?

A2: Yes, Texas requires the party seeking discovery to obtain a “mandate, writ, or commission” from the out-of-state court, specifically detailing the sought-after discovery (TRCP 201.2).

Q3: Do I need a Texas subpoena to serve discovery on a Texan non-party?

A3: Yes, a Texas subpoena is the instrument that compels a non-party to comply with discovery requests in Texas. Texas courts will not enforce an out-of-state subpoena against a Texas citizen.

Q4: What are the requirements of a Texas subpoena?

A4: A Texas subpoena must be issued in the name of the State of Texas, state the style and cause number of the suit, indicate the court where the suit is pending, specify the issuance date, identify the recipient, detail the time, place, and nature of the required action, identify the issuing party and their attorney of record, include the text of the rule regarding contempt, and be signed by the person issuing the subpoena (TRCP 176.1).

Q5: Do I need to open an ancillary proceeding in a Texas court to serve a subpoena?

A5: While it’s not mandatory, opening an ancillary proceeding before serving the subpoena can ensure compliance. It provides a platform to address objections, resolve potential disputes during depositions, and seek rulings on motions to compel.

Q6: What are the notice requirements for a non-party subpoena?

A6: The notice requirements vary based on the type of discovery sought:

  • Oral deposition with or without document requests requires notice served a “reasonable time” before the deposition (TRCP 199.2(a)).
  • Deposition on written questions with or without document requests necessitates a notice served at least 20 days before the deposition (TRCP 200.1(a)).
  • A document request without a deposition must be served “a reasonable time” before the compliance time, with the subpoena itself served 10 days after notice (TRCP 205.3(a)).

Q7: Must a Texas subpoena be hand-delivered?

A7: Yes, Texas law mandates that a subpoena be served in Texas by a sheriff, constable, or a person who is not a party and is 18 years of age or older. They must deliver a copy of the subpoena to the witness and tender any required fees (TRCP 176.5).

Q8: Are there fees associated with a Texas subpoena?

A8: In specific situations, fees apply. For instance, when a discovery subpoena compels a non-party to attend a deposition, the non-party is entitled to receive one day’s witness fee ($10) at the time of service (CPRC § 22.001). Additionally, when a discovery subpoena seeks documents from a custodian of records, the custodian is entitled to $1.00 for producing and certifying the documents, payable at the time of service (CPRC § 22.004). Failure to attach these fees renders the subpoena legally defective.

Q9: How can I enforce a discovery subpoena in Texas?

A9: If a non-party fails to comply with a valid and enforceable subpoena without adequate excuse, a court can hold the non-party in contempt and impose fines or imprisonment (TRCP 176.8). Additionally, a Texas court can compel the non-party to respond to the discovery subpoena.

Q10: Should I consider hiring local counsel for non-party discovery?

A10: Yes, local counsel can play a pivotal role in ensuring the proper issuance and service of subpoenas, adherence to notice requirements, addressing complications, and providing invaluable local knowledge, including recommendations for process servers and court reporters.

Additional Information:

  1. Geographic Focus: Our practice primarily serves Brazoria County and, secondarily, Galveston County. Brazoria County boasts two family law courts, namely the 461st District Court presided over by Judge Bulanek and the 300th District Court with Judge Bradshaw at the helm. Assisting them are Associate Judges Judge Donnell (461st) and Judge Lehman (300th). In Galveston County, we serve the 306th District Court and the Galveston County Courts at Law 1, 2, and 3.
  2. Our Mission: At Beveridge Law Firm, PLLC, we are dedicated to helping individuals secure equal time with their children and enforcing court-ordered periods of possession when the other parent denies them. Our commitment is to your family’s well-being, and we encourage you to take action today. Call our office at 281-407-0961 or submit your information at https://www.beveridgelawfirm.com/contact/.
  3. Our Office: You can find us at 410 South 2nd Street, Alvin, Texas 77511.
  4. Meet the Founder: I am Ben Beveridge, the founder and owner of Beveridge Law Firm, PLLC. With a passion for family law and a commitment to your rights, I am here to serve you.

This comprehensive guide to discovery in Texas civil litigation is designed to provide legal professionals with a robust understanding of the intricacies involved in non-party discovery. By acquainting themselves with statutes, rules, and case law, practitioners can confidently navigate the challenges of Texas litigation.

Tex. R. Civ. P. 205

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As amended through November 17, 2023
Rule 205 – Discovery from Non-parties
205.1 Forms of Discovery; Subpoena Requirement.

A party may compel discovery from a nonparty–that is, a person who is not a party or subject to a party’s control–only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena compelling:

(a) an oral deposition;
(b) a deposition on written questions;
(c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and
(d) a request for production of documents and tangible things under this rule.
205.2 Notice.

A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. A notice to produce documents or tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

205.3 Production of Documents and Tangible Things Without Deposition.
(a)Notice; subpoena. A party may compel production of documents and tangible things from a nonparty by serving – reasonable time before the response is due but no later than 30 days before the end of any applicable discovery period – the notice required in Rule 205.2 and a subpoena compelling production or inspection of documents or tangible things.
(b)Contents of notice. The notice must state:
(1) the name of the person from whom production or inspection is sought to be compelled;
(2) a reasonable time and place for the production or inspection; and
(3) the items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling.
(c)Requests for production of medical or mental health records of other non-parties. If a party requests a nonparty to produce medical or mental health records of another nonparty, the requesting party must serve the nonparty whose records are sought with the notice required under this rule. This requirement does not apply under the circumstances set forth in Rule 196.1(c)(2).
(d)Response. The nonparty must respond to the notice and subpoena in accordance with Rule 176.6.
(e)Custody, inspection and copying. The party obtaining the production must make all materials produced available for inspection by any other party on reasonable notice, and must furnish copies to any party who requests at that party’s expense.
(f)Cost of production. A party requiring production of documents by a nonparty must reimburse the nonparty’s reasonable costs of production.

FAMILY CODE


TITLE 6. CIVIL PROCEDURE


CHAPTER 301. DISCOVERY PROCEDURES FOR CIVIL ACTIONS


SUBCHAPTER A. GENERAL PROVISIONS


Sec. 301.001. APPLICABILITY OF CHAPTER. This chapter applies only to a civil action brought under this code.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.002. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE. Notwithstanding Section 22.004, Government Code, this chapter may not be modified or repealed by a rule adopted by the supreme court.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.003. DRAFT EXPERT REPORTS AND DISCLOSURES PROTECTED. A draft expert report or draft disclosure required under this chapter is protected from discovery, regardless of the form in which the draft is recorded.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

SUBCHAPTER B. REQUEST FOR DISCLOSURE


Sec. 301.051. REQUEST. Not later than the 30th day before the last day of any applicable discovery period, a party may obtain disclosure from another party of the information or material described by Section 301.052 by serving the other party the following request:

“Under Subchapter B, Chapter 301, Family Code, you are requested to disclose, not later than the 30th day after the date of service of this request, the information or material described by Section (state applicable provision of Section 301.052).”

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.052. CONTENT. (a) A party may request disclosure under Section 301.051 of any or all of the following:

(1) the correct names of the parties to the action;

(2) the name, address, and telephone number of any potential parties;

(3) the legal theories and, in general, the factual bases of the responding party’s claims or defenses;

(4) the amount and any method of calculating economic damages;

(5) the name, address, and telephone number of any person having knowledge of relevant facts and a brief statement of each identified person’s connection with the action;

(6) for any testifying expert:

(A) the expert’s name, address, and telephone number;

(B) the subject matter on which the expert will testify;

(C) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for those impressions and opinions, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting that information; and

(D) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:

(i) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and

(ii) the expert’s current resume and biography;

(7) any discoverable settlement agreement described by Rule 192.3(g), Texas Rules of Civil Procedure;

(8) any discoverable witness settlement described by Rule 192.3(h), Texas Rules of Civil Procedure;

(9) in an action alleging physical or mental injury and damages from the occurrence that is the subject of the action:

(A) all medical records and bills that are reasonably related to the injuries or damages asserted; or

(B) an authorization permitting the disclosure of the information described by Paragraph (A);

(10) in an action alleging physical or mental injury and damages from the occurrence that is the subject of the action, all medical records and bills obtained by the responding party through an authorization provided by the requesting party; and

(11) the name, address, and telephone number of any person who may be designated as a responsible third party.

(b) For purposes of Subsection (a)(3), the responding party is not required to compile all evidence that may be offered at trial.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.053. RESPONSE. The responding party must serve a written response on the requesting party not later than the 30th day after the date the requesting party serves a request under Section 301.051, except that:

(1) a defendant served with a request before the defendant’s answer is due is not required to respond until the 50th day after the date the request is served; and

(2) a response to a request under Section 301.052(a)(6) is governed by Subchapter C.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.054. PRODUCTION OF DOCUMENTS AND TANGIBLE ITEMS. The responding party shall provide copies of documents and other tangible items with the response to a request served under Section 301.051 unless:

(1) the responsive documents are voluminous;

(2) the responding party states a reasonable time and place for the production of the documents;

(3) the responding party produces the documents at the time and place stated under Subdivision (2) unless otherwise agreed by the parties or ordered by the court; and

(4) the responding party provides the requesting party a reasonable opportunity to inspect the documents.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.055. WORK PRODUCT OBJECTION PROHIBITED. A party may not assert a work product privilege for or object on the basis of a work product privilege to a request served under Section 301.051.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.056. CERTAIN RESPONSES NOT ADMISSIBLE. A response to a request under Section 301.052(a)(3) or (4) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

SUBCHAPTER C. DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES


Sec. 301.101. PERMISSIBLE DISCOVERY METHODS. A party may request another party to designate and disclose information concerning testifying expert witnesses only through:

(1) a disclosure request served under Section 301.051; or

(2) a deposition or report permitted by this subchapter.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.102. DEADLINE FOR RESPONSE. Unless otherwise ordered by the court, a responding party shall provide the information requested under Section 301.052(a)(6) not later than the later of:

(1) the 30th day after the date the request is served; or

(2) either, as applicable:

(A) with respect to an expert testifying for a party seeking affirmative relief, the 90th day before the end of the discovery period; or

(B) with respect to an expert not described by Paragraph (A), the 60th day before the end of the discovery period.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.103. DEPOSITION AVAILABILITY. (a) A party seeking affirmative relief shall make an expert retained by, employed by, or otherwise under the control of the party available for a deposition in accordance with this section.

(b) If a party seeking affirmative relief does not provide a report of the party’s expert’s factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party shall make the expert available for a deposition reasonably promptly after the designation. If the deposition cannot be reasonably concluded more than 15 days before the deadline for designating other experts due to the actions of the party who designated the expert, the court shall extend the deadline for other experts testifying on the same subject.

(c) If a party seeking affirmative relief provides a report of the party’s expert’s factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party is not required to make the expert available for a deposition until reasonably promptly after all other experts have been designated.

(d) A party not seeking affirmative relief shall make an expert retained by, employed by, or otherwise under the control of the party available for a deposition reasonably promptly after the party designates the expert and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.104. CONTENT OF ORAL DEPOSITIONS AND COURT-ORDERED REPORTS. In addition to a disclosure request served under Section 301.051, a party may obtain discovery by oral deposition and a report prepared in accordance with Section 301.105 of:

(1) the subject matter on which a testifying expert is expected to testify;

(2) the expert’s mental impressions and opinions;

(3) the facts known to the expert, regardless of when the factual information is acquired, that relate to or form the basis of the expert’s mental impressions and opinions; and

(4) other discoverable items, including documents not produced in response to a disclosure request.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.105. COURT-ORDERED REPORTS. If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert are not recorded and reduced to tangible form, the court may order that information be reduced to tangible form and produced in addition to the deposition.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.106. AMENDMENT AND SUPPLEMENTATION OF DISCOVERY. A party’s duty to amend and supplement written discovery regarding a testifying expert is governed by Rule 193.5, Texas Rules of Civil Procedure. If a party retains, employs, or otherwise controls an expert witness, the party must amend or supplement the expert’s deposition testimony or written report only with regard to the expert’s mental impressions or opinions and the basis for those impressions or opinions.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.107. COST OF EXPERT WITNESSES. When a party takes the oral deposition of an expert witness retained by an opposing party, the party retaining the expert shall pay all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.

Sec. 301.108. EXPERT COMMUNICATIONS PROTECTED. Communications between a party’s attorney and a testifying expert witness in an action subject to this chapter are protected from discovery regardless of the form of the communications, except to the extent that the communications:

(1) relate to compensation for the expert’s study or testimony;

(2) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions the expert will express; or

(3) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions the expert will express.

Added by Acts 2023, 88th Leg., R.S., Ch. 844 (H.B. 2850), Sec. 1, eff. September 1, 2023.