CHAPTER 8 - 8-5 Objections
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8-5 Objections
Texas Rule 193.2 sets forth the obligations and procedures for objecting to written-discovery requests, such as production requests.111 The general principles relating to objections are discussed in Chapter 5, section 5-3. Proper and improper production-request objections are discussed in the following sections of this Chapter.
8-5:1 General, Subject-to, and Boilerplate Objections
As discussed in Chapter 5, sections 5-3:2 and 5-3:3, respectively, "general" and "subject-to" objections to production requests112 generally are improper and boilerplate objections to them are always improper.113
8-5:2 Proportionality
As discussed in Chapter 5, section 5-3:4, a lack of "proportionality" to the case's needs can be asserted as an objection to a production request in its entirety or to an individual production request.114
8-5:3 Privilege
Under the Texas discovery rules, unlike under the federal discovery rules, privilege is not a proper objection to a production request. Texas Rule 193.2(f) provides "[a] party should not object to a request for written discovery on the grounds that it calls for production of material that is privileged but should instead comply with [Texas] Rule 193.3."115 In addition, an objection that the production of documents according to responsive request requires the party to reveal privileged work-product is also improper.116 Privilege assertions under Texas Rule 193.3 are discussed at length in Chapter 5, section 5-4.
8-5:4 Scope Objections: Relevance and Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence
If a production request seeks material that neither is relevant to the action's subject matter nor reasonably calculated to lead to the discovery of admissible evidence, the responding party should object on those grounds. Discovery's scope (i.e., information that is relevant or reasonably calculated to lead to the discovery of admissible evidence) is discussed in Chapter 4, section 4-3, and Chapter 6, section 6-3:3.
An interesting question is whether a responding party can redact otherwise responsive documents because those documents contain irrelevant material. Although no Texas case has directly considered the question,117 federal courts generally hold that such redactions are improper.118
8-5:5 Overbreadth
Texas courts often use the term "overly broad" or "overbroad" in describing objectionable production requests.119 Basically, an overbroad request is one that seeks irrelevant information.120 A production request is overly broad when it encompasses time periods, activities, locations, or products that are not relevant to the action's subject matter.121 For example:
• A production request for about 20,000 pages of documents relating to products not at issue in the action was overbroad.122
• Production requests in a "simple" false-arrest case for all lawsuits, claims, or incident reports for a five-year period in all 227 stores owned by the defendant alleging false arrest, civil rights violation, and excessive use of force were "overly broad as a matter of law."123
• Where the "plaintiff could have worked at [the defendant's] factory for two years, 1998-1999," a production request that "went back to 1948" was overbroad.124
• A discovery order requiring an electric utility to produce all documents regarding all lawsuits involving its electrical poles, power lines, guy wires, or anchors for the five years preceding the accident was overbroad because it was not limited to accidents like the one at issue, which involved an allegedly rotten utility pole.125
• A discovery order ordering a defendant insurer to produce documents related to insurance claims other than the plaintiff's claim was overbroad.126
• A discovery order ordering the NCAA "to produce documents for a 67-year time period (1950 to present) regarding any head trauma suffered by student athletes in any NCAA sport" was overly broad because it was not limited to the type of head trauma sustained by the plaintiff's decedent—"concussive and sub-concussive blows to the head and to the brain diseases and injuries that may result from such blows."127
• A discovery order requiring the plaintiff "to produce all Facebook, Google Account, and cell phone information including posts, likes, pictures, groups, ads, 'pokes,' location history, login information, passwords, emails, etc., no matter how mundane or remote, regardless of the topic, content, or subject" was overboard.128
• A discovery order requiring a California company produce jurisdictional discovery encompassing "communications by parties other than Relators regarding matters other than the relationship between Relators, Texas, and the [plaintiff's] claims in [the] lawsuit" were overly broad.129
The volume of responsive information or material does not necessarily make a production request overbroad.130 Similarly, a request that is reasonably limited to activities, locations, or products may be overbroad if it not limited to a reasonable time period or vice-versa.131
A central consideration in determining overbreadth is whether the production request could have been more narrowly tailored.132 However, a reasonably tailored production request is not overbroad merely because it may include some information of doubtful relevance, and the parties have some latitude in fashioning proper discovery requests.133
The responding party is not required to show that responding to an overbroad production request is burdensome because such requests are improper whether they are burdensome or not.134 Oftentimes no evidence is needed to establish over-breadth.135
8-5:6 Undue Burden or Unnecessary Expense
The mere fact that locating and producing the material responsive to a production request may be burdensome or expensive is insufficient.136 It is only when producing the material is unduly burdensome or unnecessarily expensive that the request is objectionable.137 As explained by one federal court:
All discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden. Where the requested material is relevant and necessary to the discovery of evidence, a protective order should not be entered merely because compliance with a request for production would be costly or time consuming.138
"Undue burden" or "unnecessary expense" is shorthand for the standard found in Texas Rule 192.4, which is that a trial court "should" limit discovery if "the discovery sought is obtainable from some other source that is more convenient, less burdensome, or less expensive"139 or "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving them."140 In other words, the determination of whether a production request is unduly burdensome or unnecessarily expensive is not solely dependent on the inconvenience or expense of gathering the responsive information or producing the responsive material. To the contrary, the inconvenience and expense must be weighed against the other factors set forth in Texas Rule 192.4.141
Although the responding party has the burden of pleading and proving undue burden or unnecessary expense, very rarely does a responding party attempt to describe the nature of the undue burden or why producing the requested material is unnecessarily expensive. To prove undue burden or unnecessary expense, the responding party must do more than make a conclusory assertion that producing the requested material would be unduly burdensome or unnecessarily expensive.142 Rather, it must adduce evidence establishing the undue burden or unnecessary expense or that the material is obtainable from a more convenient source or in a less burdensome or expensive manner.143 Although most practitioners tend to equate undue burden and unnecessary expense with the number of hours of search time or the number of boxes of documents or the number of emails that must be reviewed, undue burden also includes the difficulty of the search process, including the interference with ongoing business activities and the number of diverse geographic locations and personnel that must be contacted, the commercial sensitivity of the material, privacy issues, and personal embarrassment.144
An undue burden or unnecessary expense objection is improper if the burden or expense is the result of the party's "own conscious, discretionary decisions."145 Thus, for example, a responding party cannot rely on problems in retrieving material resulting from the haphazard way it maintains its records.146 An undue burden or unnecessary expense objection also is improper if the responding party would have to gather the material in the preparation of its own case.147
8-5:7 Vagueness, Ambiguity, or Lack of Specificity
An objection to a production request because it lacks specificity or is ambiguous or vague is proper.148 Contrary to the belief of many practitioners, these are distinct objections.
By definition a production request that lacks specificity violates Texas Rule 196.1(b)'s "reasonable particularity" requirement.149 A production request, for example, lacks specificity if it does not describe either a specific document or item, such as a person's birth certificate, bank records, financial statements, or a specific contract, letter, memorandum, or report, or a specific category of items, such as documents relating to a specific allegation, claim, or defense in a pleading, a type of damage, activity, or communication.150 Thus, a request for "all notes, records, memorandum, documents, and communications made that [plaintiff] contends 'support its allegations'" is fatally nonspecific.151 Similarly...
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