CHAPTER 13 - 13-3 Who Is a Nonparty?

• Jurisdiction: United States

13-3 Who Is a Nonparty?

As noted above, Texas Rule 205 governs discovery from "nonparties."¹² The Rule defines a "nonparty" in the negative—i.e., as "a person who is not a party or subject to a party's control."¹³ Nothing in the Rule or any other Texas discovery rule, however, defines "control."¹⁴ Because undefined words in procedural rules generally are given their plain or ordinary meaning,¹⁵ "control" as used in Texas Rule 205.1 should be given its plain or ordinary meaning—"[t]he power or authority to manage, direct, or oversee[.]"¹⁶ Thus, whether an individual or entity is subject to a party's control is a fact question.¹⁷ For example, a business entity controls its officers, employees, and agents; a principal controls its agents; and a corporation or other entity controls its subsidiaries.¹⁸

The burden of establishing control is on the requesting party.¹⁹ However, once it makes a prima facie showing of control, the burden shifts to responding party to show why it lacks control.²⁰

--------

Notes:

^[12] Tex. R. Civ. P. 205.

^[13] Tex. R. Civ. P. 205.1 (emphasis added).

^[14] The word "control" appears (outside of the phrase "discovery control plan") in the following discovery rules: Texas Rules 190.3(b)(2), 192.3(b), 192.3(h), 192.7(b), 194.2(b) (6), 195.3(a)-(b), 195.5(a)(3)-(a)(4), 195.6, 196.3(a), 199.2(b)(5), 199.3, 200.2, 204.1(a)(2), 204.1(c)(1), and 205.1. Texas Rule 192.7(b) comes the closest to defining "control," providing: "Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item." Tex. R. Civ. P. 192.7(b).

^[15] E.g., In re Tex. Educ. Agency, 619 S.W.3d 679, 687 (Tex. 2021) ("We apply the plain meaning of statutory language unless (1) the Legislature has prescribed definitions, (2) the words have acquired a technical or particular meaning, (3) a contrary intention is apparent from the context, or (4) a plain-meaning construction leads to nonsensical or absurd results.") (footnote omitted) (citation omitted); In re Silver, 540 S.W.3d 530, 534 (Tex. 2018) (orig. proceeding) ("[W]hen determining a rule's meaning we typically rely on the ordinary meaning of the words used, unless the text or relevant definitions indicate a different meaning. When determining the ordinary meaning of a word, we frequently consult dictionaries.") (citation omitted); In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 569 (Tex. 2015) (orig. proceeding) ("When we analyze Texas's procedural rules, we apply the same rules of construction that govern the interpretation of statutes. That is, we look first to the rule's language and...