CHAPTER 4 - 4-2 Discovery Types, Timing, and Sequence

• Jurisdiction: United States

4-2 Discovery Types, Timing, and Sequence

Texas Rule 192.1 identifies the seven permissible forms of discovery: "(a) required disclosures; (b) requests for production and inspection of documents and tangible things; (c) requests and motions for entry upon and examination of real property; (d) interrogatories; (e) requests for admission; (f) oral or written depositions; and (g) motions for mental or physical examinations."¹ A separate rule governs each form of discovery as well as discovery from nonparties.²

The 2021 amendments added the following standard for discovery's timing: "Unless 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."³ The default requirement for initial disclosures to precede other forms of discovery recognizes that the content of a party's initial disclosures may negate the need for additional discovery in relation to that party, or affect the scope or nature of such additional discovery. Of course, initial disclosures are not required in every case⁴ and, even when they are required, it might not make sense to begin with them (e.g., when a party is in poor health and needs to be deposed immediately).

Texas Rule 192.2(a)'s exceptions to the default requirement—by agreement or order—acknowledge that case-specific needs may warrant case-specific timing. Texas Rule 191.1 also allows modifications of default discovery procedures and limitations by agreement or order.⁵ But, unlike Texas Rule 192.2(a), it states that the agreements generally must comply with Texas Rule 11 and that court-ordered modifications require "good cause."⁶ An open question is whether those requirements apply to Texas Rule 192.2 agreements and orders. A plain, harmonious reading of Texas Rules 11, 191.1, and 192.2(a) suggests that Rule 192.2(a) agreements should comply with the requirements set forth in Texas Rule 191.1. The answer is less clear for the "good cause" requirement in Texas Rule 191.1. To err on the side of caution, when seeking an order under Texas Rule 192.2(a), a party should arm the court with good cause for the order sought.⁷

Other than initial disclosures, parties can use the forms of written discovery in any order or sequence and can combine them in the same document.⁸ Thus, for example, a single document can contain any two or more of the following: (1) production requests, (2) interrogatories, (3) requests for admissions, and (4)...