CHAPTER 1 Introduction

• Jurisdiction: United States

CHAPTER 1 Introduction

"Discovery" is the "[c]ompulsory disclosure, at a party's request, of information that relates to the litigation."¹ It allows the parties to "'seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.'"² Discovery's principal goals are to "provide[] notice of the evidence that the opposing party intends to present" and to "prevent trial by ambush."³ Notwithstanding its laudatory purpose and goals, discovery is "the bane of modern litigation."⁴ By its very nature, it is intrusive and invasive.⁵

Discovery also is the largest cost in most civil actions—as much as 90 percent in complex cases⁶ —and can be the most frustrating part of litigation because it often is mired in obstructionism.⁷ As one judge noted: "Although the . . . discovery rules were intended to facilitate discovery and refocus cases on the legal merits, 'the discovery process has supplanted trial as the most contentious stage in litigation.' Improper discovery responses necessarily add to the contentiousness of litigation, because they start with non-disclosure as their premise."⁸

Many practitioners are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. For example, in responding to written discovery (e.g., "requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission"⁹ ), many practitioners interpose every objection imaginable even though courts and commentators resoundingly disapprove boilerplate objections.¹⁰

Some practitioners engage in obstructionist discovery practice to grandstand for their clients, to intentionally obstruct the flow of clearly discoverable information, to win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it is how they were taught¹¹ or because they have a warped view of zealous advocacy.¹² As one discovery expert has written: "It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery."¹³ Irrespective of the reason, obstructionist discovery practice results in costly litigation and disregards the Texas Supreme Court's directive to use the Texas Rules of Civil Procedure "to obtain the just, fair, equitable, and impartial adjudication of the rights of litigants . . . at the least expense both to the litigants and to the state as may be practicable[.]"¹⁴

Obstructionist discovery practice persists in part because most practitioners simply accept it as inevitable and, more importantly, because courts often ignore it. By ignoring it, courts "reinforce—even incentivize—obstructionist tactics."¹⁵

This book's purpose is to provide a comprehensive guide to Texas discovery, primarily by focusing on each Texas discovery rule: Texas Rules of Civil Procedure 176 and 190-215.¹⁶ Some of these rules—Texas Rules 190 and 192-198—were amended in December 2020, with the amendments "apply[ing] to cases filed on or after January 1, 2021, except for those filed in justice court."¹⁷ The former version of these rules "continue to govern procedures and limitations in cases filed before January 1, 2021."¹⁸ As a result of that continued applicability, this book covers both the former and current versions of these amended rules.

This book's goal is to help all readers and ensure that the practitioners among them are never subject to the following admonishment:

If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.¹⁹

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Notes:

^[1] Discovery, Black's Law Dictionary (11th ed. 2019); accord Bryan A. Garner, A Dictionary of Modern Legal Usage 239-40 (2d ed. 1995) (defining "discovery" as "disclosure by a party to an action, at the other party's instance, of facts or documents relevant to the lawsuit"); see also Sec. Nat'l Bank v. Abbott Labs., 299 F.R.D. 595, 596 (N.D. Iowa 2014) (noting that "discovery" is "a process intended to facilitate the free flow of information between parties"), rev'd on other grounds, 800 F.3d 936 (8th Cir. 2015).

^[2] In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984)), disapproved of on other grounds by Walker v. Parker, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); accord Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 394 (Tex. 2014); In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999) (orig. proceeding); In re State Farm Lloyds, No. 02-20-00163-CV, 2020 Tex. App. LEXIS 7207, at *6-7, 2020 WL 5242414 (Tex. App.—Fort Worth Sept. 3, 2020, orig. proceeding) (mem. op.); In re United Fire Lloyds, 578 S.W.3d 572, 583 (Tex. App.—Tyler 2019, orig. proceeding) (mem. op.); In re Box, No. 13-16-00016-CV, 2016 Tex. App. LEXIS 1782, at *5, 2016 WL 747787 (Tex. App.—Corpus Christi Feb. 19, 2016, orig. proceeding) (mem. op.); Nancarrow v. Whitmer, 463 S.W.3d 243, 253 (Tex. App.—Waco 2015, no pet.); In re VERP Inv., LLC, 457 S.W.3d 255, 260 (Tex. App.—Dallas 2015, orig. proceeding).

^[3] Best Indus. Unif. Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 147 (Tex. App.—Amarillo 2000, pet. denied); accord Penny v. El Patio, LLC, 466 S.W.3d 914, 925 (Tex. App.—Austin 2015, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.—Austin 2002, pet. denied); see also Insignia Hosp. Grp., Inc. v. Jalaram Guru, LLC, No. 07-19-00057-CV, 2020 Tex. App. LEXIS 4146, at *3, 2020 WL 2786676 (Tex. App.—Amarillo May 27, 2020, pet. denied) (mem. op.) (addressing discovery rules' purpose of preventing trial by ambush); Black v. Watts, 04-17-00489-CV, 2018 Tex. App. LEXIS 6186, at *12, 2018 WL 3747746 (Tex. App.—San Antonio Aug. 8, 2018, pet. denied) (mem. op.) (same).

^[4] Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (Posner...