CHAPTER 4 - 4-5 Protective Orders

• Jurisdiction: United States

4-5 Protective Orders

Texas Rule 192.6 provides for protective orders. Under it, "[a] person from whom discovery is sought, and any other person affected by the discovery request, may move . . . for an order protecting that person from the discovery sought."¹⁹⁰ Because the Rule refers to "persons," not "parties," a nonparty has standing to seek protection when it is affected by the discovery request.¹⁹¹ Moreover, a party responding to a discovery request can seek a protective order to protect a nonparty's privileged, proprietary, or confidential information.¹⁹²

"A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate. . . ."¹⁹³ This provision relates to parties only and requires them to comply with Texas Rule 193 in interposing objections to written discovery and production requests in a deposition notice.¹⁹⁴ Its purpose is twofold: "First, it clarifies that persons should not move for a protective order when an objection is appropriate. Second, it attempts to avoid creating a 'trap' for the unwary or 'breeding satellite litigation' regarding whether a protective order or an objection was the appropriate vehicle for seeking relief from discovery."¹⁹⁵

Although the filing of a motion for protective order when an objection should have been interposed "does not waive the objection or assertion of privilege[,]"¹⁹⁶ the motion only preserves those objections made in it. In other words, any objection not made in the motion is waived. This principle is illustrated by the Tyler Court of Appeals' opinion in In re Park Cities Bank.¹⁹⁷

In that case, the defendants, rather than objecting to the plaintiff's production requests, filed a motion for protective order with respect to them.¹⁹⁸ After the motion was denied, they interposed objections to the requests that had not been asserted in the motion.¹⁹⁹ The plaintiff then moved to compel, arguing that the defendants waived the new objections by not asserting them in the motion.²⁰⁰ After being ordered to produce all nonprivileged documents, the defendants filed a petition for a writ of mandamus claiming that the trial court abused its discretion in overruling their new objections under Texas Rule 193.6(e)'s no-waiver provision.²⁰¹ The Tyler Court of Appeals disagreed:

Relators' argument suggests that filing a motion for a protective order provides an exception to [Texas Rule 193.2(e)] that "[a]n objection that is not made within the time required . . . is waived unless the court excuses the waiver for good cause shown." However, nothing in the language of either rule persuades us that this is the correct interpretation. Moreover, Relators have not directed us to any authority supporting this interpretation, nor have we been able to locate any such authority. Indeed, the express language of [Texas] Rule 192.6(a) is that "the objection" is not waived. We interpret "the objection" to mean the complaint that was asserted by a motion for protection when an objection was appropriate. This reading is consistent with the plain language of the rule and does not limit the application of [Texas] Rule 193.2(e). [Texas] Rule 192.6(a) does not aid Relators.²⁰²

If, however, a motion for protective order is proper (e.g., when the responding party seeks protection from an entire set of production requests, interrogatories, or requests for admission because they are unduly burdensome, unreasonably cumulative or duplicative of other discovery, or disproportionate the case's needs), the motion is denied, and the party is ordered to respond to the discovery, the responding party has not waived its specific objections to individual discovery requests and can assert them.²⁰³

To be consistent with Texas Rule 193's requirements regarding partial objections to discovery requests,²⁰⁴ Texas Rule 192.6(a) also provides that, "[i]f a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion."²⁰⁵ A party, however, should not file a motion for protection with respect to a production request on the ground that the time or place for production is unreasonable because it can object on that basis.²⁰⁶ Moreover, a responding party should rarely file a motion for protective order with respect to individual written-discovery requests because objections can be interposed with respect to them. Rather, such a motion generally is proper only when the responding party believes that an entire set of written-discovery requests is improper and protection is needed (e.g., a set of requests for admission contains so many requests that they are disproportionate to the case's needs or that responding to them would be unduly burdensome or expensive).

Unlike Texas Rules 196.2(b), 197.2(b), 198.2(b), and 176.6(d)—which respectively govern responses to production requests, interrogatories, requests for admission, and subpoenas requesting the production of documents and tangible things—there are no provisions in Texas Rules 199, 200, or 176.6 that allow a party or nonparty to object to a deposition notice or subpoena for an oral deposition or a deposition upon written questions. Rather, any objection to such a deposition notice or subpoena should be made by filing a motion for protective order or to quash.²⁰⁷

A motion for a protective order must be filed "within the time permitted for response to the discovery" (i.e., before the response date),²⁰⁸ which makes Rule 192.6 consistent with Texas Rule 193.2(a) governing objections.²⁰⁹ A person who fails to timely move for protection generally waives its objection to the discovery request.²¹⁰

Unlike under federal discovery practice, a party or nonparty who files a motion for protective order need not comply with the discovery request, deposition notice, or subpoena until the trial court rules on the motion.²¹¹ Accordingly, the party seeking the discovery or deposition should secure a ruling on the motion as quickly as possible.

Even though Texas Rule 192.6, unlike its predecessor, former Texas Rule 166b(5), does not expressly require the movant to specify the grounds for the protective order or to show good cause for its entry, the movant still has such burdens under longstanding Texas jurisprudence:

The party seeking to avoid discovery must show a particular, specific, and demonstrable injury by facts sufficient to justify a protective order, and the trial court may not grant a protective order limiting discovery unless the party seeking such protection has met this burden. Thus, the party resisting discovery is not free to make conclusory statements that the requested discovery is unduly burdensome or unnecessarily harassing, but, instead, must produce some evidence supporting its request for a protective order.²¹²

Texas Rule 192.6(b) sets forth the following nonexclusive bases for a protective order with respect to written discovery: "[t]o protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights."²¹³ In deciding whether a protective order is appropriate, a trial court balances the parties' interests.²¹⁴ The balancing test is codified in Texas Rule 192.4(b),²¹⁵ which provides that discovery "should be limited" if the court determines that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues" (i.e., a proportionality analysis).²¹⁶ The court can "also consider harm that the resisting party might suffer as a result of the discovery."²¹⁷

Texas Rule 192.6(b) lists the following types of orders a trial court can issue to protect a party or other affected person from such matters:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court; [and]

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Texas Rule 76a.²¹⁸

A trial court is not limited to protective orders of the types listed in Texas Rule 192.6(b). Rather, it can make any order that justice requires to protect a party or other affected person from annoyance, embarrassment, oppression, undue burden, or expense.²¹⁹ Thus, a court has discretion to fashion a protective order to fit the action's facts and circumstances. For example, in an action to recover disability benefits for psychiatric disorders, a federal court entered a protective order allowing the plaintiff to proceed in pseudonym because of a strong probability that he would be stigmatized in the community and would suffer irreparable harm to his professional reputation if his name were revealed.²²⁰

A court will deny a protective order if the movant fails to establish that it is needed to protect against annoyance, embarrassment, oppression, undue burden or expense, or to prevent an invasion of a personal, constitutional, or property right. For example, one federal court refused to issue a protective order precluding disclosure of the plaintiff's diary in a sexual-harassment action because the plaintiff had already disclosed intimate details of her sexual relationship with the professor she claimed had sexually harassed her.²²¹ In the same vein...