CHAPTER 5 - 5-3 Objections to Written-Discovery Requests in General

• Jurisdiction: United States

5-3 Objections to Written-Discovery Requests in General

Texas Rule 193.2 sets forth the obligations and procedures for objecting to written-discovery requests.³³ An objection must be made in writing within the time allowed for the response to the request—usually thirty days after the written-discovery request's service.³⁴ Generally, the failure to object timely to a written-discovery request, no matter how improper, waives the objection.³⁵ There are, however, two exceptions to this rule.

First, under Texas Rule 193.2(e), a court can excuse the failure to assert a timely and proper objection for "good cause shown."³⁶ Unfortunately, no cases define "good cause shown" under that Rule or its predecessor, former Texas Rule 166(b)(4).³⁷ In the context of the withdrawal or amendment of an admission under Texas Rule 198.3,³⁸ "[g]ood cause is established by showing that the failure [to properly answer] was an accident or mistake, not intentional or the result of conscious indifference."³⁹ There is no reason why a more exacting standard should apply under Texas Rule 193.2(e).⁴⁰

Second, a party may amend or supplement a written-discovery response to state additional objections that were "inapplicable or . . . unknown" at the time of the response "after reasonable inquiry."⁴¹ The reasonable-inquiry requirement precludes a party from interposing new objections in an amended or supplemental response that were omitted from the original response intentionally or by inadvertence or oversight. Thus, new objections are proper when, for example, documents or information that was not reasonably available when the discovery request was first answered make a previously unmade objection applicable to the documents or information.⁴² The responding party has the burden of proving that the new objection was inapplicable or unknown when the original response was served.

The responding party must have "a good faith factual and legal basis" for each objection to a written-discovery request "at the time the objection is made."⁴³ The objection's legal or factual basis also must be stated specifically.⁴⁴ Thus, a responding party who objects to a request because it is overbroad, unduly burdensome, vague, ambiguous, or unreasonably cumulative or duplicative should explain why it suffers from each asserted malady.⁴⁵ Moreover, an objection "that is obscured by numerous unfounded objections[] is waived unless the court excuses the waiver for good cause shown."⁴⁶ These provisions' purpose is to eliminate the practice of interposing boilerplate, hypothetical, or prophylactic objections to obfuscate what information or material is being withheld or to prevent a waiver of objections.⁴⁷

In addition, in interposing an objection, the responding party, under Texas Rule 193.2(a), must state the extent to which it is refusing to comply with the written-discovery request⁴⁸ and generally must comply with that part of the request to which there is no objection.⁴⁹ In other words, if a request is objectionable only in part (e.g., because its scope is overly broad), the responding party must respond to as much of the request as it deems is proper.⁵⁰

Although Texas Rule 193.2(e)'s purpose is to allow discovery to proceed despite objections, it does not prohibit a responding party from objecting to a written-discovery request in its entirety.⁵¹ To the contrary, as Comment 2 to the 1999 change to Texas Rule 193 recognizes, a discovery request might be wholly objectionable.⁵² For example, if the responding party's documents are organized in a way that requires the same search regardless of the request's scope, the responding party can wait until the parties or court resolve the scope issues to produce any documents.⁵³ Of course, the responding party may choose to provide some information in response to the discovery request as a tactical matter in hope that the requesting party will be satisfied or that the court, in connection with a motion to compel, will look more favorably on a partial response than on no response.⁵⁴

5-3:1 Proper and Improper Objections to Written-Discovery Requests

Most practitioners do not realize that besides objections regarding scope (i.e., that the discovery request, in whole or in part, seeks irrelevant information or material, or information or material not reasonably calculated to lead to the discovery of admissible evidence), the proper objections to interrogatories and production requests, for the most part, are set forth in the Texas discovery rules. For example, Texas Rule 192.6, which sets the bases for the entry of a protective order, also sets forth proper objections to interrogatories and production requests: "undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights[.]"⁵⁵ Similarly, Texas Rule 192.4, which addresses limitations on discovery's scope, defines undue burden and unnecessary expense⁵⁶ and sets forth other proper objections—the discovery is "unreasonably cumulative or duplicative[.]"⁵⁷ Other than the few objections discussed in the immediately following chapters, proper and improper objections to production requests, interrogatories, requests for admission, and nonparty document subpoenas are discussed in Chapter 8, section 8-5, Chapter 9, section 9-5:3, Chapter 10, section 10-5:8, and Chapter 13, section 13-4:4, respectively. As provided in Texas Rule 194.5 and discussed in Chapter 6, section 6-3:4.1, no objections are permitted with respect to disclosure requests (in cases filed before January 1, 2021) or required disclosures (in cases filed on or after January 1, 2021).

5-3:2 General and "Subject-to" or "Without Waiving" Objections Are Generally Improper

Many practitioners, even the most sophisticated and experienced ones, use one of two evasive methods in responding to written-discovery requests. The first method is to have a section at the beginning of the response entitled "general objections" that contains every imaginable objection—such as overly broad, unduly burdensome, irrelevant, vague, ambiguous, harassing, cumulative, duplicative, and privilege⁵⁸ —followed by a separate section with answers to each written-discovery request that incorporate all of the general objections by reference "to the extent" they apply to the specific request.⁵⁹ The second method is to include in each written-discovery response a litany of prophylactic, boilerplate objections,⁶⁰ such as those set forth above, and then "subject to and without waiving" the objections state, for example, that "non-privileged responsive documents will be produced."⁶¹

These methodologies have three purposes—one nefarious and two benign.⁶² The nefarious purpose is pure gamesmanship—to hide damaging information or material behind a wall of objections.⁶³ The benign purposes are to protect against the possibility that an answer might be found to be inadequate or that an objection has been waived.⁶⁴ Both methodologies are improper.⁶⁵

First, they violate Texas Rule 193.2(c) because they are hypothetical, and hypothetical objections are impermissible under the Rule, which limits objections to those for which "a good faith factual and legal basis . . . exists at the time the objection is made."⁶⁶

Second, general objections and "subject-to" or "without waiving" objections violate Texas Rule 193.2(a)—which requires the responding party to "state . . . the extent to which the party is refusing to comply with the request" and to "state specifically the . . . factual basis for the objection"—because they are nonspecific and "hide the ball" with respect to what information or material is being provided and what information or material is being withheld and why.⁶⁷ In fact, both methodologies have been condemned by courts for this very reason. As explained by one federal court in holding that "subject-to" and "without waiving" objections are improper:

The practice of including "subject to" or "without waiving" statements after objections is an age-old habit comparable to belts and suspenders. This practice is "manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure." Such an objection and answer "leaves the requesting [p]arty uncertain as to whether the question has actually been fully answered," and "wondering as to the scope of the documents or information that will be provided as responsive."

[Federal] Rule 34 does not allow this kind of hedging. [Federal] Rule 34 allows a party either to "state that inspection and related activities will be permitted as required" or to "state with specificity the grounds for objecting to the request." If a party chooses to object to part of a request, the party "must specify the part and permit inspection of the rest." A response that states "subject to the foregoing" is not specific enough as to either (1) the completeness of the answer or (2) the availability of documents for inspection. The Court finds that Defendants' inclusion of "subject to the foregoing" is not supported by the federal rules and goes against the purposes of a just, speedy, and inexpensive resolution.⁶⁸

Another federal court has reasoned similarly in condemning the use of general objections that are not tethered to any specific discovery request:

Defendant's "General Objections" and "General Statements" contained in its Amended Objections do not relate to any particular discovery request and, in fact, are nothing more than boilerplate, designed to obfuscate. It is impossible to tell which, if any, of these General Objections or General Statements would actually be relied upon with respect to any particular interrogatory. They are not specific nor [sic] appropriate and are, therefore, stricken.⁶⁹

Third, general and subject-to objections violate Texas Rule 191.3(c)'s certification requirement:

The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the

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