CHAPTER 8 - 8-2 Production Requests in General

• Jurisdiction: United States

8-2 Production Requests in General

Texas Rule 196 governs requests for the production, inspection, sampling, photographing, and copying of documents and tangible things.³ As with other written-discovery requests, production requests must be served no later than thirty days (and in some cases thirty-one or thirty-three days) before the discovery period ends⁴ but not until after the responding party's initial disclosures are due.⁵

Production requests can seek the inspection, sampling, testing, photographing, or copying of any documents or tangible things within discovery's scope.⁶ Given Texas Rule 196.1's use of the broad term "tangible things," it is difficult to imagine anything that cannot be required to be produced, tested, or sampled under appropriate circumstances. For example, one federal court, under Federal Rule 34, on which Texas Rule 196 is based, ordered a dead body exhumed and produced⁷ and others have ordered DNA testing⁸ and handwriting exemplars or fingerprints.⁹

Each production request must specify the items to be produced or inspected individually or by category and, further, describe each item or category with "reasonable particularity."¹⁰ "Reasonable particularity," however, is not susceptible of a precise definition.¹¹ It depends on whether a reasonable person would know what documents or things are called for by the request.¹² The degree of specificity required depends on the requesting party's knowledge about the documents or things sought as well as the action's progress when the request is made. Thus, a request served early in an action generally can be less precisely drafted than one served after substantial discovery has been taken.¹³

Each production request must specify a reasonable time and place for the production or inspection on or after the date when the written response to the request is due.¹⁴ In other words, the request should generally set a deadline for the response (typically thirty days after service), as well as the place and time of production or inspection (for documents, typically thirty days after service at the requesting party's attorney's office; for testing or sampling, typically thirty days after service at the tangible thing's location).¹⁵

If the requesting party intends to test or sample the requested item, the requesting party must also specify the testing's or sampling's manner and its means and procedure with "sufficient specificity" to allow the responding party to make appropriate objections.¹⁶ Absent the parties' agreement, the requested testing, sampling, or examination may not destroy or materially alter an item without prior court approval.¹⁷

Production requests, like all other written-discovery requests, must be signed by either the party's attorney or a pro se party.¹⁸ If they are not properly signed, they "must be stricken unless [they are] signed promptly after the omission is called to the attention of the [requesting] party[.]"¹⁹ Moreover, a responding party need not respond to a production request that is not signed.²⁰

Like other written-discovery requests, production requests are not filed,²¹ but must be served on all parties to the action.²² In addition, the parties "must retain the original or exact copy of [the request] during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court."²³

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Notes:

^[3] Tex. R. Civ. P. 196.1(a) ("A party may serve on another party . . . a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things[.]"). The other discovery rules relating to production requests are Texas Rules 190, 191, 192, 193, 199.2(5), and 215. Under Texas Rule 199.2(5), a deposition notice can require a party to produce documents at its deposition. Such requests are governed by Texas Rule 196. Although a Texas Rule 196 production request cannot be served on nonparties, documents and tangible things can be obtained from them under Texas Rule 205.3(a). Tex. R. Civ. P. 205.3(a); see Tex. R. Civ. P...