CHAPTER 3 - 3-4 Conference and Cooperation Requirements

• Jurisdiction: United States

3-4 Conference and Cooperation Requirements

Texas Rule 191.2 provides that "[p]arties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case."²⁶ To that end, the Rule contains the following conference requirement: "All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed."²⁷ But Texas Rule 191.2 does not address the consequences of either a failure to confer or a failure to include a certificate of conference in the motion. It also does not explain what constitutes a "reasonable effort" to resolve a discovery dispute without court intervention.

3-4:1 Consequences of Not Including a Certificate of Conference

Because Texas Rule 191.2's certificate-of-conference requirement is "for the benefit of the trial court,"²⁸ it is "enforced at the option of the trial court."²⁹ Accordingly, an opposing party should not rely solely on the lack of a certificate of conference to defeat a discovery motion or hearing request.³⁰ Its focus instead should be on the actual effort that was made to resolve the discovery dispute without court intervention.³¹

3-4:2 Assessing Effort to Resolve Discovery Disputes

No statewide standard exists for assessing whether parties have made a reasonable effort to resolve a discovery dispute. Instead, efforts are assessed on a court-by-court and case-by-case basis. Some courts have local rules that define or otherwise address what constitutes "reasonable efforts" and include form certificates of conference that must be included on discovery motions and hearing requests.³² Some of those rules even extend the certificate-of-conference requirement to motions unrelated to discovery disputes.³³ In the absence of a local rule, "reasonableness" of the effort is the touchtone for conference requirements.

Generally, sending the opposing party a letter or email demanding certain action by a set deadline is unlikely to constitute a "reasonable effort" to resolve the discovery dispute "without court intervention," as required by Texas Rule 191.2.³⁴ Rather, to be safe, the movant's attorney should either meet or call the opposing attorney and discuss the issues and their potential resolution in good faith.³⁵

3-4:3 Consequences of Not Making a Reasonable Effort to Resolve Discovery Disputes

If a party files a motion to compel or for sanctions without first making a reasonable effort to resolve the discovery dispute at issue, the trial court has the discretion to deny the motion.³⁶ The order denying the motion, however, should be without prejudice, providing that the movant can refile its motion if the dispute cannot be resolved after a proper conference.³⁷

Although "reasonable efforts" are required to resolve a discovery dispute informally in all but the most unusual of circumstances, a trial court has discretion to grant a discovery motion despite a failure to confer.³⁸ In construing comparable Federal Rule 37, "'[c]ourts have excused a failure to meet and confer where: (1) under the circumstances, the parties do not have time to attempt to reach an agreement; or (2) an attempt to compromise would have been clearly futile.'"³⁹ What constitutes exigent circumstances or a futility depends on the case's facts.⁴⁰

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^[26] Tex. R. Civ. P. 191.2; see In re Weekley Homes, L.P., 295 S.W.3d 309, 321 (Tex. 2009) (orig. proceeding) ("A fundamental tenet of our discovery rules is cooperation between parties and their counsel, and the expectation that agreements will be made as reasonably necessary for efficient disposition of the case." (citing Tex. R. Civ. P. 191.2)); In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 846 (Tex. 2008) ("The Rules of Civil Procedure encourage parties to reach discovery agreements."); In re Alford Chevrolet-Geo, 997 S.W.2d 173, 184 (Tex. 1999) ("As with all litigants, we expect class-action litigants to cooperate on discovery plans and make any agreements reasonably necessary for the efficient disposition of the case."); In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *33 n.9, 2020 WL 1887762 (Tex. App.—Corpus Christi Apr. 16, 2020, orig. proceeding) (mem. op.) (same); Eurecat US, Inc. v. Marklund, 527 S.W.3d 367, 376 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (same); Clark v. Clark, 546 S.W.3d 268, 273 (Tex. App.—El Paso 2017, no pet.) (mem. op.) (noting that under Texas Rule 191.2 "'[p]arties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case'" and, "[t]o that end, all discovery motions must contain a certificate of conference stating that 'reasonable efforts' were used to resolve the pending dispute without the need for court intervention" (quoting Tex. R. Civ. P. 191.2)); Low v. State, No. 2-03-347-CV, 2005 Tex. App. LEXIS 3657, at *11-12, 2005 WL 1120013 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.) ("The rules of civil procedure require a certificate of conference on all discovery motions or requests for hearings related to discovery. The purpose of the rule is to ensure that parties cooperate during the discovery process and make reasonable efforts to resolve discovery disputes without the necessity of court intervention.").

^[27] Tex. R. Civ. P. 191.2 (emphasis added); see, e.g., Goughnour v. Patterson, Tr. of Deborah Patterson Howard Tr., No. 12-17-00234-CV, 2019 Tex. App. LEXIS 1665, at *76, 2019 WL 1031575 (Tex. App.—Tyler Mar. 5, 2019, pet. denied) (mem. op.) ("[T]he rules of civil procedure require that all discovery motions contain a certificate of conference stating that reasonable efforts were used to resolve the pending dispute without the need for court intervention."); Low v. State, No. 2-03-347-CV, 2005 Tex. App. LEXIS 3657, at *11-12, 2005 WL 1120013 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.) ("The rules of civil procedure require a certificate of conference on all discovery motions or requests for hearings related to discovery. The purpose of the rule is to ensure that parties cooperate during the discovery process and make reasonable efforts to resolve discovery disputes without the necessity of court intervention.").

^[28] Groves v. Gabriel, 874 S.W.2d 660, 661 n.3 (Tex. 1994) (orig. proceeding); accord In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *33 n.9, 2020 WL 1887762 (Tex. App.—Corpus Christi Apr. 16, 2020, orig. proceeding) (mem. op.); Goughnour v. Patterson, Tr. of Deborah Patterson Howard Tr., No. 12-17-00234-CV, 2019 Tex. App. LEXIS 1665, at *76, 2019 WL 1031575 (Tex. App.—Tyler Mar. 5, 2019, pet. denied) (mem. op.).

^[29] Gunn v. Fuqua, 397 S.W.3d 358, 371 (Tex. App.—Dallas 2013, pet. denied); accord Groves v. Gabriel, 874 S.W.2d 660, 661 n.3 (Tex. 1994) (per curiam) ("Groves also complains that Owens' motion to compel discovery did not contain the certificate of conference required under [former] Texas Rule of Civil Procedure 166b(7). Because this rule is for the benefit of the trial court, the court's failure to require a certificate of conference does not justify mandamus relief.") (citation omitted); In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *33 n.9, 2020 WL 1887762 (Tex. App.—Corpus Christi Apr. 16, 2020, orig. proceeding) (mem. op.) (same); Goughnour v. Patterson, Tr. of Deborah Patterson Howard Tr., No. 12-17-00234-CV, 2019 Tex. App. LEXIS 1665, at *76, 2019 WL 1031575 (Tex. App.—Tyler Mar. 5, 2019, pet. denied) (mem. op.) (same); Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-17-00054-CV, 2018 Tex. App. LEXIS 9209, at *6, 2018 WL 5852772 (Tex. App.—Amarillo Nov. 8, 2018, no pet.) (mem. op.) ("This Court has held that 'rules requiring certificates of conference are for the trial court's benefit; thus, they may be enforced at the option of the trial court.'" (quoting Fuentes v. Schooling, No. 07-07-00118-CV, 2008 Tex. App. LEXIS 9001, at *9, 2008 WL 5083012 (Tex. App.—Amarillo Dec. 3, 2008. no pet.) (mem. op.))); Centennial Psychiatric Assocs., LLC v. Cantrell, Nos. 14-17-00391-CV, 14-17-00380-CV, 2017 Tex. App. LEXIS 11909, at *35 n.17, 2017 WL 6544283 (Tex. App.—Houston [14th Dist.] Dec. 21, 2017, no pet.) (mem. op.) ("While we do not vacate the sanction order based on Ryan's failure to confer with Centennial, we note that compliance with [Texas R]ule 191.2 may have saved the time Ryan spent preparing his motion, the time the trial court spent considering the motion, and the time this court spent addressing it on appeal."); Fuentes v. Schooling, No. 07-07-0118-CV, 2008 Tex. App. LEXIS 9001, at *8-9, 2008 WL 5083012 (Tex. App.—Amarillo Dec. 3, 2008, no pet.) (mem. op.) (rejecting an allegation that the trial court abused its discretion in levying sanctions because the amended motion to quash lacked a certificate of conference as the procedural "rules requiring certificates of conference are for trial court's benefit[, and] may be enforced at the option of the trial court"); Low v. State, No. 2-03-347-CV, 2005 Tex. App. LEXIS 3657, at *12, 2005 WL 1120013 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.) ("[T]he record shows that the State's reasonable efforts to resolve the discovery dispute failed, and the trial court did not abuse its discretion by assessing sanctions against Low despite the lack of a certificate of conference on the motion to compel."); Academy Corp. v. Interior Buildout & Turnkey Constr, Inc., 21 S.W.3d 732, 743 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (finding no error because the trial court did not require a certificate of conference for motions filed in her court). But see Clark v. Clark, 546 S.W.3d 268, 273-74 (Tex. App.—El Paso 2017, no pet.) (mem. op.) (noting that "[c]ourts are somewhat split...