CHAPTER 6 - 6-3 Procedure

• Jurisdiction: United States

6-3 Procedure

6-3:1 Form of Disclosure Requests and Required Disclosures

Former Texas Rule 194.1 specifies the disclosure request's form. It provides, in relevant part: "A party may obtain disclosure from another party of the information or material listed in [Texas] Rule 194.2 by serving the other party . . . the following request: 'Pursuant to [Texas] Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g)].'"¹⁹ Accordingly, a disclosure request should contain the former Rule's exact language except that it may provide more than thirty days to respond²⁰ and must provide at least fifty days to respond if the request is served on the defendant before the defendant's answer date.²¹ For cases filed before January 1, 2021, a disclosure request also should refer to Former Texas Rule 190.2(b) (6) in an action under Level 1.²²

Former Texas Rules 190.2(b)(6) and 194 do not require disclosure requests to be made in any particular type of document or at any particular time. Thus, they can be made in the requesting party's initial pleading,²³ in a formal discovery request entitled "Request(s) for Disclosure," in a formal discovery request that combines disclosure requests with other written-discovery requests (e.g., interrogatories, production requests, or requests for admission),²⁴ or even in a letter to the responding party's attorney that is signed and served pursuant to Texas Rule 21a.²⁵

As provided by Texas Rule 194.1(a), in cases filed on or after January 1, 2021, a party generally must make required disclosures "without awaiting a discovery request[.]"²⁶ In other words, required disclosures do not necessitate a discovery request at all, much less a discovery request in a particular form. Indeed, in cases in which required disclosures apply and the number of discovery requests is limited (e.g., in Level 1 actions), parties should not use any of their limited discovery requests to seek information or material that they are entitled to receive as a matter of course pursuant to Texas Rules 194.2, 194.3, and 194.4—which govern initial disclosures, testifying-expert disclosures, and pretrial disclosures, respectively.

In cases exempt from initial disclosures, however, an interesting question is whether a party may seek disclosures from another party and, if so, in what form. Because the rules authorize courts to order parties to make particular disclosures in cases exempt from initial disclosures,²⁷ it is clear that parties can seek court-ordered initial disclosures in such cases and that a court can specify the form for any disclosure it requires. In the absence of a court order, parties can simply agree to make particular initial disclosures in cases exempt from required disclosures, and can agree further to the form of their agreed-upon disclosures.²⁸ In addition, in cases exempt from initial disclosures, nothing in the rules precludes a party from using other types of written discovery (e.g., requests for production or interrogatories) to request information or material encompassed by the initial-disclosure provision of Texas Rule 194.2 because the information and documents covered by the Rule are discoverable under Texas Rule 192.3, which governs discovery's scope. If a party uses a different type of written discovery to seek such information or material, the party should follow all requirements, including form requirements, that are applicable to the chosen type of discovery.

6-3:2 Timing of Disclosure Requests and Required Disclosures

For a case filed before January 1, 2021, disclosure requests can be served any time after the case's filing,²⁹ and generally must be served no later than thirty days (and in some cases thirty-one or thirty-three days) before the discovery period ends.³⁰ Thus, in cases filed before January 1, 2021, a disclosure request can be served with the party's initial pleading and, as discussed in Chapter 6, section 6-3.1, it even can be included in the pleading. The request should set forth when the response is due, usually thirty days after service, if the request is served after the defendant answers, but at least fifty days after service, if served before the defendant answers.³¹ As with other written-discovery requests, a party served with an unsigned disclosure request need not respond or take any action with respect to the disclosure request.³² And, a disclosure request that is not properly served need not be answered.³³

For a case filed on or after January 1, 2021 and subject to required disclosures, the Texas discovery rules provide deadlines to make each type of required disclosure. But the deadlines are not rigid; they can be modified by agreement or by court order.

Under Texas Rule 194.2(a), "[a] party must make the initial disclosures within 30 days after the filing of the first answer or general appearance unless a different time is set by the parties' agreement or court order[,]" and "[a] party that is first served or otherwise joined after the filing of the first answer or general appearance must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties' agreement or court order."³⁴ By default, the discovery period for Level 1 and 2 cases is set with reference to initial disclosures—it "begins when the first initial disclosures are due and continues for 180 days" for Level 1 cases³⁵ and, for Level 2 cases, it "begins when the first initial disclosures are due and continues until: (A) 30 days before the date set for trial, in cases under the Family Code; or (B) in other cases, the earlier of (i) 30 days before the date set for trial, or (ii) nine months after the first initial disclosures are due."³⁶ The Rule's language does not specify whether the referenced "due" date is the default deadline under Texas Rule 194.2(a) or any modified deadline set by agreement or by court order. Thus, to err on the side of caution and avoid uncertainty, if initial-disclosure deadlines in a Level 1 or 2 case are modified by agreement or by court order, the discovery period should also be modified by agreement (as permitted by Texas Rule 191.1) or by court order (as permitted by Texas Rules 190.5 and 191.1).³⁷ In addition, because a party generally "cannot serve discovery on another party until after the other party's initial disclosures are due[,]" if initial-disclosure deadlines are extended by agreement or by court order, there should be consideration of whether to allow service of other discovery before the initial disclosures are due.³⁸ When considering that possibility, however, practitioners should keep in mind why initial disclosures are due first by default—the content of initial disclosures may negate the need for certain additional discovery or at least affect that discovery's nature or appropriate scope in a case.³⁹

Under Texas Rule 194.3 "a party must disclose to the other parties testifying expert information as provided by [Texas] Rule 195."⁴⁰ Texas Rule 195.2, in turn, provides that, "[u]nless otherwise ordered by the court, a party must designate experts—that is, furnish information described in [Texas] Rule 195.5(a)—by the following dates: (a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period; (b) with regard to all other experts, 60 days before the end of the discovery period."⁴¹ If the default initial-disclosure deadline is modified and the discovery period is impacted as a result, parties should consider whether there is a need to modify the default testifying-expert-disclosure deadline, as well. If such a need is perceived, a court order modifying that should be obtained.⁴²

Finally, Texas Rule 194.4(b) provides that—by default—pretrial "disclosures must be made at least 30 days before trial."⁴³ As with the default testifying-expert-disclosure deadline, a court order is required to modify the default pretrial-disclosure deadline.⁴⁴ But, unlike all of the other required disclosures, pretrial disclosures must be filed with the court in addition to being served on the case's other parties.⁴⁵

6-3:3 Contents of a Disclosure Requests and Required Disclosures

Former Texas Rule 194.2 generally sets forth the information and material that can be obtained by disclosure requests in cases filed before January 1, 2021, under Level 1, 2, and 3 discovery control plans. It allows a party to request disclosure "of any or all" of the following:

(a) the correct names of the parties to the lawsuit;

(b) the name, address, and telephone number of any potential parties;

(c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial);

(d) the amount and any method of calculating economic damages;

(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case;

(f) for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:


(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and

(B) the expert's current resume and bibliography;

(g) any indemnity and insuring agreements described in [Texas] Rule 192.3(f);

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