CHAPTER 3 - 3-7 Service of Discovery Materials

• Jurisdiction: United States

3-7 Service of Discovery Materials

Texas Rule 191.5 provides that "[e]very disclosure, discovery request, notice, response, and objection required to be served on a party or person must be served on all parties of record."⁵⁵ Although not expressly required by the Rule, the service requirement logically applies to any documents used to satisfy the purpose of those listed in the Rule, such as documents containing privilege assertions.⁵⁶ However, it does not apply to documents or other tangible things produced in discovery.⁵⁷

Under Texas Rule 21a, service is made by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record in the manner specified below:

(1) Documents Filed Electronically. A document filed electronically under [Texas] Rule 21 must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager. If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may be served on that party or attorney under subparagraph (2).

(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.⁵⁸

In Level 1 and Level 2 cases filed before January 1, 2021, the discovery period began when the cases were filed, and parties could serve written discovery with their original pleadings.⁵⁹ This is not permitted in cases filed on or after January 1, 2021 because Texas Rule 192.2 provides that, "[u]nless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery on another party until after the other party's initial disclosures are due."⁶⁰ The reason for the change is that initial disclosures might obviate the need for certain discovery or at least narrow or otherwise impact its scope.

A failure to serve discovery in accordance with the rules will likely excuse the party to whom it is directed from responding to it.⁶¹ The Texas discovery rules also require service of written discovery, notices, responses, objections, and privilege assertions on the person to whom they are addressed.⁶² Under Texas Rules 196.1(c) and 205.3(c), discovery requests for a nonparty's medical or mental-health records must be served on the nonparty.⁶³

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^[55] Tex. R. Civ. P...