CHAPTER 14 - 14-2 Motions for Sanctions or Order Compelling Discovery

• Jurisdiction: United States

14-2 Motions for Sanctions or Order Compelling Discovery

Texas Rule 215 addresses discovery failures that warrant a motion for sanctions or to compel discovery.³ It contains procedures that apply equally to both types of motions, as well as procedures unique to each type of motion.⁴ A party can seek sanctions without first moving to compel discovery; likewise, a party can move to compel discovery without seeking sanctions.⁵ Regardless, the party must follow the Texas Rule 215.1 procedures.

14-2:1 Notice and Hearing Requirements

Under Texas Rule 215.1, a party may move for sanctions or an order compelling discovery, "upon reasonable notice to other parties and all other persons affected" by the relief sought.⁶ Oral notice of a sanctions hearing has been deemed "insufficient as a matter of law[.]"⁷ Accordingly, a party who files a motion for sanctions should ensure that all other parties, as well as all other persons affected by the sanctions sought, receive written notice of the sanctions hearing.

A court must provide an opportunity for a hearing regarding a sanctions motion and a motion to compel discovery.⁸ But the hearing need not be oral; written submissions will suffice.⁹

14-2:2 Where and What to File

Texas Rule 215.1(a) identifies the appropriate court in which to file a motion for an order directed to a party deponent, a motion for an order directed to a nonparty deponent, and a motion for an order regarding "all other discovery matters."¹⁰ A motion relating to a party deponent must be filed in "the court in which the action is pending, or . . . any district court in the district where the deposition is being taken."¹¹ A motion relating to a nonparty deponent, however, must be filed in "the court in the district where the deposition is being taken."¹² Finally, "[a]s to all other discovery matters," the motion must be filed in "the court in which the action is pending."¹³

A motion or response filed in any court, pursuant to Texas Rule 215.6, "may have exhibits attached including affidavits, discovery pleadings, or any other documents."¹⁴ Thus, in the context of discovery motions and responses, there is an exception to the general rule against filing discovery materials served on or by parties.¹⁵ Even though Texas Rule 215.6 does not require the filing of exhibits with a motion or response, movants and respondents should attach all discovery materials and other items of import as exhibits because (1) the trial court may rule on the motion without an oral hearing,¹⁶ and (2) the exhibits will be part of the record if either the movant or respondent seeks review of the trial court's ruling on appeal or by mandamus.¹⁷

Although Texas Rule 215.6 expressly permits affidavits as exhibits to motions and responses, some courts have excluded such affidavits as hearsay.¹⁸ Thus, movants and respondents should not assume that affidavits in this context will be treated like affidavits in the summary judgment context. When evidence is provided with a sanctions motion or a response thereto, the most prudent course is to treat the hearing on the motion as a traditional evidentiary hearing.

14-2:3 Timeliness of Motions

Texas Rule 215 contains no filing deadline for motions for sanctions or to compel discovery.¹⁹ Nonetheless, a party should not lay behind the log and complain about alleged discovery abuse long after it has occurred. Delay may result in denial of the motion during pretrial proceedings.²⁰ And "the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct."²¹

The trial court has the authority to sanction discovery abuse that is discovered during trial.²² But any motion seeking sanctions for discovery abuse discovered during trial must be filed before the trial court loses plenary power over its judgment.²³

14-2:4 Motion's Grounds

Under Texas Rule 215.1(b), "the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with [a discovery] request, or apply to the court in which the action is pending for the imposition of any sanction authorized by Texas Rule 215.2(b)" for the following reasons:

(1) If a party or other deponent which is a corporation or other entity fails to make a designation under [Texas] Rules 199.2(b)(1) or 200.1(b); or

(2) if a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:

(A) to appear before the officer who is to take his deposition, after being served with a proper notice; or

(B) to answer a question propounded or submitted upon oral examination or upon written questions; or

(3) if a party fails:

(A) to serve answers or objections to interrogatories submitted under [Texas] Rule 197, after proper service of the interrogatories; or

(B) to answer an interrogatory submitted under Rule 197; or

(C) to serve a written response to a request for inspection submitted under [Texas] Rule 196, after proper service of the request; or

(D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection submitted under [Texas] Rule 196[.]²⁴

When assessing whether a party has failed to answer a discovery request as provided in Texas Rule 215.1(b), "an evasive or incomplete answer is to be treated as a failure to answer."²⁵

In addition, sanctions may also be appropriate even when a party eventually complies with a discovery request.²⁶ For example, in Drozd Corporation v. Capitol Glass & Mirror Company, the plaintiff moved for sanctions when the defendant failed to answer Plaintiff's interrogatories.²⁷ The defendant did not appear at the hearing but instead filed its responses two days later.²⁸ The trial court granted the plaintiff's motion on the same day, and the trial court's order was upheld on appeal.²⁹

Although the prefatory language to Texas Rule 215.1(b) provides for a motion "compelling . . . production," the Rule does not list a failure to produce documents as a ground for a motion to compel discovery. Federal Rule 37(a)(3)(B) contained a similar disconnect until December 1, 2015, when it was amended to provide: "A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if . . . a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under [Federal] Rule 34."³⁰ The Advisory Committee explained the amendment as follows: Federal "Rule 37(a)(3)(B)(iv) is amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. This change brings item (iv) into line with paragraph (B), which provides a motion for an order compelling "production, or inspection."³¹ Texas Rule 215.1(b) would be clearer with a similar amendment, but case law leaves no doubt that a party's failure to produce responsive documents or responsive electronically stored information is a proper ground for a motion to compel production in Texas state-court proceedings.³²

Texas Rule 215.1(e) provides an additional basis for a motion to compel, relating to witness statements, providing: "If a party fails to comply with any person's written request for the person's own statement as provided in [Texas] Rule 192.3(h), the person who made the request may move for an order compelling compliance."³³

Texas Rule 215.2(b) enables a movant to seek certain enumerated sanctions orders and other sanctions "orders . . . as are just" if "a party or an officer, director, or managing agent of a party or a person designated under [Texas] Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery."³⁴ Also, Texas Rule 215.3 provides more generally that, "[i]f the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purpose of delay," then the court may impose any appropriate sanction under Texas Rule 215.2(b)(1)-(5) and (8).³⁵

As discussed in Chapter 10, sections 10-8 and 10-9, Texas Rule 215.4 also provides a procedure for motions relating to a party's failure to comply with Texas Rule 198, regarding requests for admission.

14-2:5 Conference and Cooperation Requirements for Motions

As explained in Chapter 3, section 3-3, motions for sanctions and motions to compel discovery are subject to the conference and cooperation requirements of Texas Rule 191.2 and applicable local rules.³⁶ Movants and respondents should also heed any applicable standing orders relating to conference and cooperation requirements. Although such orders cannot be applied to determine the merits of any matter,³⁷ they generally warrant attention and adherence.

14-2:6 Award of Reasonable Expenses, Including Attorney's Fees

Texas Rule 215.1(d) provides for an award of reasonable expenses, including attorney's fees, incurred in pursuing or opposing a motion to compel discovery.³⁸ The rule provides that such expenses may be awarded against a party or an "advising" attorney, and it contains varying standards for determining the award depending on whether the motion is (1) granted, (2) denied, or (3) granted in part and denied in part:

If the motion is granted, the court shall, after opportunity for hearing, require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including attorney fees,

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