CHAPTER 4 - 4-3 Discovery's Scope

• Jurisdiction: United States

4-3 Discovery's Scope

4-3:1 In General

Although discovery's scope is largely within the trial court's discretion,¹¹ that discretion is limited by Texas Rule 192.3(a), which provides:

In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.¹²

Texas Rule 192.3(a)'s general provision relating to discovery's scope is virtually identical to that in former Texas Rule 166b.2(a), which, in turn, was modeled after former Federal Rule 26.¹³ The crucial phrase in the definition—"relevant to the subject matter of the pending action"—has been construed broadly. For example, the United States Supreme Court has interpreted the comparable phrase in Federal Rule 26 "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case[,]" reasoning:

Consistently with the notice-pleading system establish by the [Federal] Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Nor is discovery limited to the merits of the case, for a variety of fact-oriented issues may arise during the litigation that are not related to the merits.¹⁴

In Texas, the crucial phrase—"relevant to the subject matter of the pending action"—has been interpreted in a similarly broad manner to encompass all information that "appears reasonably calculated to lead to the discovery of admissible evidence."¹⁵ The Texas Supreme Court has provided this guidance:

We broadly construe the phrase "relevant to the subject matter" to provide litigants the opportunity "to obtain the fullest knowledge of the facts and issues prior to trial." Evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Although the scope of discovery is broad, a request for information "must show a reasonable expectation of obtaining information that will aid the dispute's resolution."

The discovery guideposts can be summarized as follows: only relevant evidence is discoverable; relevant evidence that is privileged is not discoverable; relevant evidence that is not privileged is discoverable when (i) it is admissible or (ii) it is inadmissible but reasonably calculated to lead to the discovery of admissible evidence; and failing either of those admissibility criteria, the request for discovery may be denied even if the requested information is relevant and unprivileged.¹⁶

Under the Texas discovery rules, however, discovery is limited in two important respects. First, it is limited to the causes of action and defenses identified in the pleadings and cannot be used to develop new ones.¹⁷

Second, even though Texas Rule 192.3, unlike Federal Rule 26(b),¹⁸ has not been amended to expressly require the requested discovery to be proportional to the action's needs, the Texas Supreme Court has recognized that "all discovery is subject to the proportionality overlay embedded in our discovery rules[.]"¹⁹ Accordingly, proportionality always is a consideration in determining discovery's proper scope.

"The proportionality inquiry requires case-by-case balancing in light of the following factors:" (1) the "[l]ikely benefit of the requested discovery";²⁰ (2) "[t]he needs of the case"; (3) "[t]he amount in controversy";²¹ (4) "[t]he parties' resources";²² (5) the "[i]mportance of the issues at stake in the litigation";²³ (6) "[t]he importance of the proposed discovery in resolving the litigation";²⁴ and (7) "[a]ny other articulable factor bearing on proportionality."²⁵

The concept of "proportionality," however, does "not permit the opposing party to rely on boilerplate objections of disproportionality."²⁶ Rather, the responding party must object and support proportionality complaints with evidence if the parties cannot resolve a discovery dispute without court intervention, but the party seeking discovery must comply with proportionality limits on discovery requests and "may well need to . . . make its own showing of many or all of the proportionality factors." . . . Ultimately, the "court's responsibility, using all the information provided by the parties, is to consider [the proportionality] factors in reaching a case-specific determination of the appropriate scope of discovery."²⁷

To a large extent, what is discoverable is set forth in Texas Rule 192.3, which first defines discovery's scope generally and then sets forth specific matters that are within its scope: (1) "the existence, description, nature, custody, condition, location, and contents of documents and tangible things"; (2) "the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection to the case"; (3) "the name, address, and telephone number of any person who is expected to be called to testify at trial" other than "rebuttal or impeaching witnesses . . . whose testimony cannot be reasonably anticipated before trial"; (4) information regarding testifying experts and consulting experts whose mental impressions and opinions have been reviewed by testifying experts; (5) "the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment"; (6) "the existence and contents of any relevant portions of settlement agreements"; (7) "witness statement[s]"; (8) "the name, address, and telephone number of any potential party"; and (9) "any other party's legal contentions and the factual bases for those contentions."²⁸ Because the first item is covered by Texas Rules 196 and 205, which respectively govern production requests to parties and nonparties,²⁹ it is addressed in the chapters relating to party and nonparty production requests, Chapters 8 and 13, respectively. Because the second and fourth through ninth items are matters that a party is required to disclose under Texas Rule 194, they are addressed in Chapter 6, the chapter relating to required disclosures.

The third item—trial witnesses—as well as certain other types of information and material, are discussed below.

4-3:2 Trial Witnesses

Texas Rule 192.3(d) provides for the discovery of the "name, address, and telephone number of any person who is expected to be called to testify at trial."³⁰ The Texas discovery rules clearly distinguish between persons having knowledge of relevant facts and trial witnesses, and the disclosure of one is not the disclosure of the other.³¹ Consequently, a person who is not disclosed as a trial witness in response to an interrogatory asking the sponsoring party to identify its trial witnesses should be excluded absent the party's showing of good cause for the failure to disclose the person or a lack of unfair surprise or prejudice to the other parties.³²

Several questions arise with respect to Texas Rule 192.3(d). First, is a rebuttal or impeachment witness a person who is expected to be called to testify at trial? Such a witness is such a person unless his or her testimony could not reasonably have been anticipated before trial.³³

Second, is it proper to identify trial witnesses by using collective description, such as "employees," "insureds," "adjusters," "clients," or "customers" of a party or other person, or to identify an entity, such as a corporation or partnership? It generally is improper to do either because the clear purpose of Texas Rule 193.2(d) is to allow the requesting party to identify the specific individuals who the responding party expects to use as trial witnesses.³⁴

Third, as Texas Rule 192.3(d) only requires disclosure of the witness's "address and telephone number," a question exists regarding whether the responding party should disclose an individual's home or work address and telephone number. Because Texas Rule 192.3(d)'s obvious purpose is "to allow the opposing party to easily locate, interview, and depose the proposed witness[,]"³⁵ the responding party should be able to designate the individual's home address and telephone number, work address and telephone number, another address or telephone number, or a combination of the foregoing so long as the address and telephone number disclosed are ones at which the person easily can be found, contacted, and subpoenaed.³⁶ A court, however, should generally order the responding party to provide an identified trial witness's home address and telephone number if the requesting party claims that they are needed to enable it to conduct a thorough background check of the person because a person's home address and telephone number generally are not private or confidential information.³⁷

It is clear, however, that a responding party cannot properly disclose its attorney's address and telephone number for itself or its employees,³⁸ and courts have rejected the argument that the use of such an address and telephone number is justified by a concern that the requesting party may contact the responding party or its employees in violation of the ethical rules.³⁹

Because Texas Rule 192.3(d) allows parties to best allocate their limited deposition hours by deposing expected trial witnesses and because trial witnesses are not subject to disclosure under Texas Rule 194.2,⁴⁰ an interrogatory should be used to secure the information discoverable about trial witnesses.

4-3:3 Income Tax Returns

Public policy disfavors discovery of income tax returns.⁴¹ This policy is...