CHAPTER 6 - 6-2 Disclosures in General

• Jurisdiction: United States

6-2 Disclosures in General

Former Texas Rule 194 generally governs requests for disclosure⁴ —written requests to obtain one or more of a laundry list of twelve categories of basic information set forth in Texas Rule 194.2.⁵ Disclosure requests provide inexpensive, basic discovery without the delay relating to objections or work-product assertions.⁶ Although the discovery device is borrowed from Federal Rule 26(a),⁷ former Texas Rule 194 is different from the federal rule in two important respects. First, unlike the federal rule, former Texas Rule 194 disclosures are not mandatory;⁸ rather, they are request driven.⁹ Second, the information that must be disclosed is different under the two Rules.¹⁰

As noted above, the 2021 amendments to the Texas Rules of Civil Procedure brought Texas's disclosure rules more in line with the federal disclosure rules. First, like Federal Rules 26(a)(1)-(a)(3), Texas Rules 194.1-194.4 now require initial disclosures, testifying-expert disclosures, and pretrial disclosures, with some exceptions that are set forth in the Rules and discussed in subchapter 6-3:3 below.¹¹ Second, disclosure provisions in Federal Rule 26 have been carried over to Texas Rule 194. For example, like Federal Rule 26(a)(1)(A)(ii), Texas Rule 194.2(b)(6) now requires disclosure of "a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment[.]"¹² And Texas Rule 194.2(d) exempts certain state-court proceedings from initial-disclosure requirements, as Federal Rule 26(a)(1)(B) does for certain federal-court proceedings.¹³ In addition, the pretrial-disclosures provisions in Federal Rule 26(a)(3)(A)(i) and (iii) have been carried over to Texas Rule 194.4(a) (1)-(2), and, in both sets of rules, the default deadline for pretrial disclosures is "30 days before trial."¹⁴ Finally, as discussed in Chapter 7, section 7-4:3, expert-disclosure provisions in Federal Rules 26(a)(2)(iv)-(vi) and 26(b)(4)(B)-(C) have been carried over to Texas Rules 195.5(a)(4)(C)-(E), 195.5(c)(1)-(3), and 195.5(d).¹⁵

Differences remain between Texas's disclosure rules and the federal disclosure rules. For example, the initial disclosures required under Texas Rule 194.2(b) differ in several ways from the initial disclosures required under Federal Rule 26(a)(1).¹⁶ In addition, the deadlines for initial disclosures and expert disclosures are different under the two sets of rules.¹⁷ But, differences notwithstanding, to the extent that the Texas disclosure rules track language in the corresponding federal disclosure rules, federal cases interpreting the federal disclosure rules offer helpful guidance for Texas courts and practitioners when addressing questions related to disclosures.¹⁸

¹ See Tex. R. Civ. P. 194.1(a) (referencing required disclosures under Texas Rules 194.2, 194.3, and 194.4); Tex. Civ. P. 194.2 (addressing initial disclosures); Tex. R. Civ. P. 194.3 (addressing testifying-expert disclosures); Tex. R. Civ. P. 194.4 (addressing pretrial disclosures).

² Tex. R. Civ. P. 194.2(b)(6); cf. Fed. R Civ. P. 26(a)(1)(A)(ii) (requiring the same disclosure).

³ Final Approval of Amendments to Texas Rules of Civil Procedure 47, 99, 169, 190, 192, 193, 194, 195, 196, 197, and 198, Misc. Docket No. 20-9153, at 1, ¶ 2 (Tex. Dec. 23, 2020), available at https://www.txcourts.gov/supreme/administrative-orders/2020/.

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