CHAPTER 5 - 5-2 Responses to Written-Discovery Requests and Required Disclosures

• Jurisdiction: United States

5-2 Responses to Written-Discovery Requests and Required Disclosures

Texas Rule 193.1 sets forth a party's general obligations regarding written-discovery requests. It requires a written response within the time provided by the pertinent rule governing the discovery type or by court order.¹ Generally, in cases filed on or after January 1, 2021, a party must make required disclosures by the deadlines set forth in Texas Rules 194.2(a) (initial disclosures), 194.4(b) (pretrial disclosures), and 195.2 (expert disclosures) unless the time is extended or otherwise modified by the parties' agreement or by court order,² except that initial disclosures and pretrial disclosures are not required in certain proceedings.³ A party must generally respond to written-discovery requests within thirty days after their service unless the time is extended due to the manner of service, by the parties' agreement, or by court order.⁴ Moreover, "[t]he responding party's answers, objections, and other responses must be preceded by the request or required disclosure to which they apply."⁵

Perhaps most importantly, a responding party is affirmatively required to "make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made."⁶ In addition, Texas Rule 193.5 requires a responding party to supplement incomplete or incorrect written-discovery responses "reasonably promptly" after discovering the original response's deficiency.⁷ Finally, Texas Rule 193.6(a) provides that both a failure to amend or supplement discovery and a failure to "make . . . a discovery response, including a required disclosure, in a timely manner" may prevent the responding party from using the information or material at trial.⁸

These provisions are intended to require parties to provide complete written-discovery responses as early in the action as possible. Nothing in Texas Rule 193's comments explains when "information" is "reasonably available" under Texas Rule 193.1,⁹ and no Texas case addresses that question.¹⁰ But federal courts interpreting comparable federal written-discovery rules provide useful guidance.

What information and material is "reasonably available" depends largely on the responding party's obligation of reasonable inquiry (i.e., the search the party must conduct to respond to a discovery request) and what information and material is under its control.

5-2:1 Reasonable Inquiry with Respect to Disclosures, Interrogatories, and Requests for Admission

A reasonable-inquiry obligation applies to a party providing required disclosures and responding to interrogatories and requests for admission.¹¹ What constitutes a reasonable inquiry is case-specific,¹² but some general principles exist. For example, federal courts have held that "a reasonable inquiry is limited to inquiry of documents and persons 'readily available' and within the responding party's control."¹³ This requires the responding party to review its readily available documents and inquire of its officers, employees, agents, attorneys, and others subject to its control "who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response."¹⁴ As noted by one federal court: "When answering interrogatories, '[a] party is charged with knowledge of what its agents know, or what is in records available to it, or even, for purposes of [Federal] Rule 33, information others have given it on which it intends to rely in its suit.' A party responding to interrogatories 'cannot meet its discovery obligations by sticking its head in the sand and refusing to look for the answers and then saying it does not know the answer.'"¹⁵ In other words, "a party must identify potentially 'key players' in the litigation 'who [are] likely to have relevant information' and then ensure that these key players turn over all of the relevant material in their possession."¹⁶

Thus, in the case of an organizational party, such as a corporation, partnership, limited-liability company, or unincorporated association, the duty to provide information reasonably available includes information reasonably imputed to the party, including information possessed by its officers, employees, partners, managers, members, agents, and others under its control.¹⁷ For example, a corporation answering interrogatories must provide information within the knowledge of any of its employees and others under its control who conceivably, but realistically, could have responsive information.¹⁸ An unincorporated association must provide information known to its members and others under its control who conceivably, but realistically, could have responsive information.¹⁹

The reasonable-inquiry requirement for required disclosures, interrogatories, and requests for admission also requires the responding party to make a good-faith effort to refresh its recollection about matters about which it previously had knowledge.²⁰ Although the responding party generally is not required "to interview or subpoena records from independent third parties" to respond to required disclosure, interrogatories, or requests for admission,²¹ "'[u]nder certain circumstances, parties may be required to inquire of third parties to properly respond to requests to admit.' Such circumstances exist where, for example, the respondent and the third party have parallel interests and have been closely cooperating in discovery in related cases, where respondent can respond by getting information from co-defendants without extraordinary expense or effort, where 'there is some identity of interest manifested, such as by both being parties to the litigation, a present or prior relationship of mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential conflict between the party and the third party,' where the third party is the respondent's family member, or where the third party is a former employee without any adverse interest to the respondent."²² Generally, a reasonable inquiry also requires the responding party to review deposition testimony, witness statements, and interviews.²³ However, it is not bound by a third party's testimony or statements when the third party is hostile or when the responding party has evidence that is contrary to the third party's testimony.²⁴

Further, individuals and organizations generally have an obligation to obtain relevant information that is readily available to them from nonparties under their control,²⁵ such as information from entities owned or controlled by them²⁶ or their designated, retained-testifying experts.²⁷

Finally, if the responding party would have to obtain the information needed to respond to discovery in order to prepare for trial, the party should obtain the information in connection with discovery if it is reasonably and readily available.²⁸

5-2:2 Reasonable Inquiry with Respect to Production Requests

The reasonable-inquiry requirement with respect to requests for production is like that for other written discovery. The keys are "control" and "reasonable availability."²⁹ As one federal court explained: "[P]rior to responding to a request for production of documents under [Federal] Rule 34, a party must undertake a reasonable search to determine whether it has any responsive documents in its possession, custody, or control. Consistent with these requirements, after a litigation hold is issued, a party must identify potentially 'key players' in the litigation 'who [are] likely to have relevant information' and then ensure that these key players turn over all of the relevant material in their possession."³⁰ The party generally also must obtain documents that are readily available from nonparties under its control, such as entities owned or controlled by them.³¹ Obligations for affiliates are case-specific.³²

--------

Notes:

^[1] Tex. R. Civ. P. 193.1 ("A party must respond to written discovery in writing within the time provided by court order or these rules."); see, e.g., Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669, 671 (Tex. 1990) (holding that oral identification of witnesses was improper); Zaatari v. City of Austin, 615 S.W.3d 172, 186 (Tex. App.—Austin 2019, pet. denied) (stating Texas Rule 193.1's requirement for a party to "respond to written discovery in writing within the time provided by court order or [the Texas discovery] rules").

^[2] Tex. R. Civ. P. 194.2(a) (initial disclosures), 194.4(b) (pretrial disclosures), 195.2 (expert disclosures).

^[3] See Tex. R. Civ. P. 194.2(d) (listing proceedings exempt from initial disclosures), 194.4(c) (listing proceedings exempt from pretrial disclosures). See Chapter 6 for a thorough discussion of required disclosures.

^[4] See Tex. R. Civ. P. 196.2(a) (production requests), 196.7(c)(1) (request for entry on land or other property), 197.2(a) (interrogatories), 198.2(a) (requests for admission); see $2,424.21 in U.S. Currency v. State, No. 02-18-00303-CV, 2019 Tex. App. LEXIS, at *8-9, 2019 WL 3244495 (Tex. App.—Fort Worth July 18, 2019, no pet.) (mem. op.) (listing Texas discovery rules containing 30-day response deadlines); In re Nat'l Lloyds Ins. Co., No. 13-14-00713-CV, 2015 Tex. App. LEXIS 5509, at *20, 2015 WL 3751701 (Tex. App.—Corpus Christi May 29, 2015, orig. proceeding) (mem. op.) ("In general, the rules require the responding party to serve a written response, including any objections to written discovery, within thirty days after service of a request for production."); In re Summersett, 438 S.W.3d 74, 80 n.4 (Tex. App.—Corpus Christ 2013, orig. proceeding) ("Responses to requests for production are due within 30 days after the date of service."); Izen v. Sjostrom, No. 14-06-00142-CV, 2007 Tex. App. LEXIS 2586, at *5-6, 2007 WL 968841 (Tex. App.—Houston [14th Dist.] Apr. 3, 2007, no pet.) (mem. op.) ("A party has thirty days to respond to a request for production and an interrogatory request.")...