CHAPTER 3 - 3-3 Modification: In General

• Jurisdiction: United States

3-3 Modification: In General

Texas Rule 191.1 allows parties and courts to modify "the procedures and limitations set forth in the rules pertaining to discovery[,]" except "where specifically prohibited" from doing so.¹ For example, "[i]n individual instances, courts may order, or parties may agree, to use discovery methods other than those prescribed in [the Texas discovery rules] if appropriate."² Also by way of example, "parties can agree to enlarge or shorten the time permitted for a deposition and to change the manner in which a deposition is conducted, notwithstanding [Texas] Rule 199.5, although parties could not agree to be abusive toward a witness."³

The ability of parties and courts "to adapt discovery to different circumstances . . . is broad but not unbounded" under Texas Rule 191.1.⁴ Distinct modification standards and limits apply to parties versus courts.

3-3:1 Modification by Parties

Under Texas Rule 191.1, "the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by [an] agreement of the parties . . . [that] complies with [Texas] Rule 11 or, as it affects an oral deposition, . . . is made a part of the record at the deposition."⁵ To comply with Texas Rule 11, the parties' agreement must "be in writing, signed[,] and filed with the papers as part of the record" or "be made in open court and entered of record."⁶ For written agreements, "[Texas] Rule 11, like the statute of frauds, requires a 'written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement,' so that the agreement 'can be ascertained from the writings without resorting to oral testimony.'"⁷ Moreover, an agreement, to be enforceable under Texas Rule 191.1, must be made by all parties that are impacted by it⁸ and either "made in open court and entered of record"⁹ or filed in the court record before "it is sought to be enforced."¹⁰

In explaining the bounds on parties' ability to modify discovery procedures and limitations, the Texas Supreme Court has made clear that "[p]arties cannot merely by agreement modify a court order without the court's concurrence."¹¹ Also, as Texas Rule 191.1 provides, parties cannot agree to a modification that is specifically prohibited by another rule.¹² Similarly, as Texas case law provides, parties cannot agree to a modification that is prohibited by statute.¹³

"Wherever possible, a trial court should give effect to agreements between the parties" that are enforceable under Texas Rule 191.1.¹⁴ In explaining why this is so, the Texas Supreme Court reasoned: "Discovery agreements serve an important role in efficient trial management, permitting the parties to settle their disputes without resort to judicial supervision. The [Texas] Rules of Civil Procedure encourage parties to reach agreements. When the parties conclude an agreement, the court should not lightly ignore their bargain."¹⁵ Furthermore, "[a] court should be particularly reluctant to set aside a [Texas] Rule 191.1 agreement after one party has acted in reliance on the agreed procedure and performed its obligations under the agreement. An easy disregard for partially performed agreements would discourage parties from committing to discovery agreements for fear that the other party would avail itself of the benefit of the bargain and then attempt to avoid its own obligations."¹⁶

3-3:2 Modification by Court

Texas Rule 191.1 provides, in relevant part, that "[e]xcept where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause." Accordingly, "a trial court may modify discovery procedures and limitations for 'good cause'" under Texas Rule 191.1.¹⁷ The good-cause standard gives trial courts a fair amount of discretion. For example, good cause may exist to reset a party's expert-designation deadline when another party discloses the nature and amount of its damages after the first party's expert-designation deadline has passed and within days of the end of the discovery period in a case.¹⁸

Another example would be a motion asking a trial court to compel a party to sign an authorization for the release of relevant documents in the possession of a nonparty, such as employment records, federal or state tax returns, emails, or a state or federal agency's records regarding the party, where it would be extremely time-consuming or impossible to obtain the document from the nonparty by subpoena. Typically, the authorization will be sought by means of a production request under Texas Rule 196.1. The Texas Supreme Court has not directly decided whether such a production request is proper under that Rule,¹⁹ and the Texas courts of appeals have split on the question with some holding that production requests for authorizations are proper under the Rule because they merely require the responding party to produce documents under its "control" and others holding that such requests are improper because they require the creation of a document (i.e., the authorization).²⁰

Irrespective of whether Texas Rule 196 permits a production request for authorizations, Texas Rule 191.1 clearly allows a trial court to order a party to sign one if the requesting party can establish good cause for the authorization (i.e., the documents sought are relevant and the authorization is more convenient than a subpoena). This is because nothing in the Texas discovery rules "specifically prohibit" a trial court from ordering a responding party to provide an authorization.²¹ To the contrary, they clearly indicate that authorizations are permitted because the discovery rules expressly provide for medical authorizations.²²

Texas Rule 191.1 prohibits discovery modifications that are specifically prohibited under the Texas discovery rules.²³ Moreover, Texas Rule 191.1 does not permit trial courts to "simply 'opt out' of [the Texas discovery R]ules by form orders or approve or order a [Level 3] discovery control plan that does not contain the matters specified in [Texas] Rule 190.4[.]"²⁴ "[B]ut trial courts may use standard or form orders for providing discovery plans...