BoyarMiller attorneys Robert Arthur and Whitney Brieck discussed evolving trends in how Texas courts are applying the Texas Rules of Civil Procedure to streamline written discovery, as well as some best practices for successfully making and challenging discovery objections.

1. Obtaining and Objecting to
Written Discovery
in Texas State Court
September 21, 2017:
Robert Arthur and Whitney Brieck

2. Discovery in Theory

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Cost of Discovery
THE NUMBERS
• 50-90% of total litigation costs
• 1000:1 ratio of pages vs. exhibits
• 100 emails per day
• 30 gigabytes of data
– 1.3 million pages per employee
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Theory
The discovery system is one that “requires
the production of a field full of ‘haystacks’
of information merely on the hope that the
proverbial ‘needle’ might exist.”

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The Problem
YOU CAN’T HANDLE THE TRUTH
• “a just, fair, equitable, and
impartial adjudications of the
rights of litigants”
• “with as great expedition and
dispatch at the least expense
both to the litigants and to the
state as may be practicable”
• However, the rising cost of
discovery is forcing many
clients to settle early,
regardless of the case’s merit.
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Theory
“The purpose
of discovery is
to seek the
truth.”
Jampole v. Touchy,
673 S.W.2d 569 (Tex. 1984).

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An Example
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WRITTEN DISCOVERY IN TEXAS STATE COURT

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An Example
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WRITTEN DISCOVERY IN TEXAS STATE COURT

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An Example
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WRITTEN DISCOVERY IN TEXAS STATE COURT

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An Example
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WRITTEN DISCOVERY IN TEXAS STATE COURT

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An Example
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WRITTEN DISCOVERY IN TEXAS STATE COURT

10. Discovery in Practice

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Winds of change
• In April 2016, the Texas Supreme Court asked Supreme Court
Advisory Committee to consider potential changes to rules
– “Modernize the rules”
– “Increase efficiency”
– “Decrease the cost of litigation”
• Inspired by:
– 2015 changes to Federal Rules of Civil Procedure
– State Bar Court Rules Committee proposals
– Last change was in late 1990s
• Discovery Subcommittee currently revising proposals based on
Advisory Committee feedback after numerous meetings
Discovery in Practice

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Winds of change
MANDATORY CONFERENCE
• Level 3
• Mirrors Federal Rule 26(f)
• Covers:
– Settlement potential
– Preserving discoverable info
– Proposed DCO
• Notes:
– 14-day deadline to submit
– Trial court to issue DCO
– No discovery beforehand
– Telephonic participation permitted
MANDATORY DISCLOSURES
• All cases
• Mirrors Federal Rule 26(a)
• Information and documents
• Notes:
– No discovery beforehand
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

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PROPORTIONALITY
• Mirrors new Federal Rule 26(b)(1)
• Much debate over sufficiency of current
rules
– Rule 192.3: Scope
• “any matter that is not privileged and is
relevant”
• “reasonably calculated to lead to the discovery
of admissible evidence”
• Documents, persons, witnesses, experts, etc.
– Rule 192.4: Limits
• “unreasonably cumulative or duplicative”
• “obtainable from some other source that is more
convenient, less burdensome, less expensive”
• ”burden or expense outweighs the benefit”
Discovery in Practice
Winds of change
OBTAINING AND OBJECTING TO
WRITTEN DISCOVERY IN TEXAS STATE COURT
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Recent SCOTX trends
1. Electronic discovery
2. Pre-suit discovery procedure
3. Discovery of categories of information:
a. Private HOA voting records
b. Medicaid/Medicare reimbursement information
c. Attorney billing records
Discovery in Practice

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Recent SCOTX trends
In re State Farm Lloyds: Electronic discovery
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• All discovery is subject to the proportionality overlay embedded
in our discovery rules and inherent in the reasonableness
standard to which our electronic discovery rule is tethered.
• No party has the unilateral right to specify the format of
discovery (i.e. native form, static form).
• Courts should consider the usefulness of metadata before
ordering the parties to incur the cost of producing documents
with all metadata.
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

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Recent SCOTX trends
In re City of Dallas: Pre-suit discovery procedure
501 S.W.3d 71 (Tex. 2016) (orig. proceeding)
• Mandamus relief was sought from order granting pre-suit
depositions of City of Dallas investigating tort claim
• Admissions in open court reflected that petitioners pled
themselves out of county court with amount in controversy
($200,000)
• Confirmed subject-matter jurisdiction is prerequisite for pre-suit
discovery
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

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Recent SCOTX trends
In re Keenan: Private HOA voting records
501 S.W.3d 74 (Tex. 2016) (orig. proceeding)
• HOA complained homeowner violated amended deed
restrictions that required majority vote of homeowners to enact
• Trial court allowed homeowner’s attorney to view ballots, but not
homeowner
• SCOTX concluded trial court could otherwise protect voter
information through redaction of identities and protective order
to preserve confidentiality, but attorney’s-eyes-only order was
abuse of discretion
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

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Recent SCOTX trends
In re Nw. Cypress Med. Ctr. Op. Co.: Medicaid/Medicare reimbursement info
—S.W.3d—, No.14-16-00671-CV (Tex. App.—Houston [14th Dist.] Oct. 20, 2016,
orig. proceeding), oral argument granted on pet. for writ of mandamus, 60 Tex.
Sup. Ct. J. 1353 (June 23, 2017) [16-0851]
• Uninsured patient sued for unreasonable charges
• The patient sought discovery of contracts and reimbursement
rates with Medicaid and Medicare, which the trial court ordered
produced
• The Texas Supreme Court will hear oral argument November 9
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

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Recent SCOTX trends
In re Nat’l Lloyds: Attorney billing records
—S.W.3d—, 60 Tex. Sup. Ct. J. 1165 (Tex. June 9, 2017) [15-0591]
• Homeowners sued insurer over underpayment of hailstorm damage
claims, seeking attorney’s fees
• The insurer’s counsel was designated as an expert on attorney’s fees and
testified in a similar case that an opposing party’s fees could be
considered in reasonableness analysis
• The homeowners sought billing records, which the trial court compelled
• In conditionally vacating the order, the Texas Supreme Court held:
– Invades the attorney/client relationship for which redactions are insufficient
– Challenges to another party’s attorney’s fees do not waive privilege
– Fees charged may be different based on variety of factors
– Caveat: as long as not using own fees for comparison or reviewing those bills as expert
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Discovery in Practice

20. Anatomy of a
Discovery Request

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Instructions and Definitions
• Electronic discovery protocol
• Preempt objections
• Each party includes its agents for “possession, custody, and control”
• Time period
• Key words:
– “Identify” contracts, claims, transactions, payments, etc.
– “Document”
– Shorthand for easily-confused multiple contracts, similarly-named parties
• If interrogatories answered by reference to documents, identify
Anatomy of a Discovery Request

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Requests for Production
POSSESSION, CUSTODY, OR CONTROL: GENERALLY
• In re Kuntz
124 S.W.3d 179 (Tex. 2003) (orig. proceeding)
– Husband in divorce proceeding stood to earn additional interests as employee of consultant for oil
and gas production company
– Wife requested information about production company prospects to which husband had access as
employee for consultant, which trial court compelled
– The Texas Supreme Court conditionally vacated the order, holding that husband had no
”possession, custody, or control” of information belonging to production company or consultant, in
his individual capacity
– No adequate remedy by regular appeal because of confidentiality agreement between production
company and consultant
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

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Requests for Production
POSSESSION, CUSTODY, OR CONTROL: BANK RECORDS
• Calhoun v. Ying
No. 01-05-00489-CV, 2006 Tex. App. LEXIS
(Tex. App.—[Houston [1st Dist.] July 27, 2006, no pet.)
– Request for “all cancelled checks, money order slips, checkbook ledgers, and bank statements for
all checking, savings, cash, or other accounts . . . in your name.”
– Checkbook produced, all other bank records demanded
– Court: “[T]he financial records that Calhoun requested were not within Ying’s possession. Thus,
these records were not within the scope of rule 196.”
• In re State Farm Mut. Auto. Ins. Co.
982 S.W.2d 21, 24 (Tex. App.—Houston [1st Dist.] 1998, no pet.)
– A customer’s financial records do not belong to the customer, but are possessed and owned by the
financial institution.
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

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Requests for Production
SPECIAL CONSIDERATIONS
• Texas Finance Code § 59.006(a)
“This section provides the exclusive method for compelled discovery of a
record of a financial institution relating to one or more customers . . . .”
– 24 days to comply
– Pay cost of compliance before compliance
– When customer not a party:
• Notice to customer
• File certificate of service regarding notice
• Request written consent from customer
• Absent consent, requesting party may file motion for in camera inspection
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

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Interrogatories
CONTENTION INTERROGATORIES
• Permissible use under Rule 197.1
– To inquire “whether a party makes a specific legal or factual contention”
– To ask party “to state the legal theories and to describe in general the factual
bases for the party’s claims or defenses”
– Request “the principal facts supporting” the party’s claim or defense
IMPERMISSIBLE USE
– Cannot ask party to “marshal all of its available proof or the proof it intends
to offer at trial”
– Don’t ask for every piece of evidence (i.e., requests for “any” and “all”
supporting facts)
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

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Interrogatories
ANSWER BY REFERENCE TO DOCUMENTS
• Parties may respond to an interrogatory by referencing records
– Must reference records “in sufficient detail to permit the requesting party to
locate and identify them as readily as can the responding party”
– Must afford a reasonable opportunity to inspect
• Note: It is never proper to incorporate allegations in pleadings
as an answer
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

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Request for Admissions
OBJECTIVE
• To limit scope of issues in dispute
• Wasted effort to prove key issues in dispute
QUALIFICATIONS
• Qualified admission or denial only when good faith requires
• Must “fairly meet the substance of the request”
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Request

28. Anatomy of a
Discovery Objection

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Properly objecting
When?
• “Within the time for response”
– Amendments if previously inapplicable or “unknown after reasonable inquiry”
– Waiver can also be excused for “good cause”
How?
• “The legal or factual basis for the objection”
• “The extent to which the party is refusing to comply”
– For time and place objections, “state a reasonable time and place” and “comply
at that time and place without further request or order”
What now?
• “Comply with as much of the request” for which there is “no objection”
– Unless it is “unreasonable under the circumstances to do so before obtaining a
ruling”
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Objection

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Properly objecting
PROPER OBJECTIONS
• Time and place for the response Rule 193.2
• Relevance Rule 192.3(a)
• Form of production Rule 196.4
• Unreasonably cumulative or duplicative Rule 192.4(a)
• Other more convenient, less burdensome, or less expensive source Rule 192.4(a)
• Burden or expense outweighs likely benefit Rule 192.4(b)
• Scope (see relevance) Rule 192.3(a)
• Lack of specificity Rule 196.1(b)
• Vagueness or ambiguity Rule 196.1(b)
Practice tip: For the benefit of yourself, not just your opposing
counsel, state the extent to which you are complying.
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Objection

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Properly objecting
IMPROPER OBJECTIONS
• Privilege (withholding statement required)
• Admissibility
• Marshalling evidence (RFP)
• The requested information is in the requesting party’s possession, custody, or control or
has already been produced by the requesting party
• Confidentiality
• Compound
• Legal conclusion
Practice tip: If you do not have a proper basis to object, consider
filing motion for a protective order. The court can “make any order
in the interest of justice.”
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Objection

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Properly objecting
ASSERTIONS OF PRIVILEGE ARE NOT OBJECTIONS
• Withholding privileged documents
– State information or material responsive to the request has been withheld
– Identify the request to which the information or material relates
– Identify any privileges asserted
• Exception
– Created or made after consulting a lawyer “with a view to obtaining
professional legal services from the lawyer in the prosecution or defense”
– Must concern the litigation
Practice tip: Protect documents that you review with a client
before a deposition, and that you think “support” your client’s claim
or defense.
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Response

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Specific Objections
CONFIDENTIALITY
• Not a proper objection
– Move for a protective order
– Must be “within the time permitted for response to the discovery request”
– For parties, protective order must be signed before withholding information
• Exception: trade secret information
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Response

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Specific Objections
TAX RETURNS AND SENSITIVE FINANCIAL INFORMATION
• Generally not discoverable
– Exception: Relevant, material, and unobtainable from another source
• Burden on requesting party
• Trial court must examine in camera before ordering production
• Practice tip:
– Limit the request to relevant parts or schedules
– If lost profits are at issue, request documents relevant to show revenue
• Key cases:
– Tax returns: Crane v. Tunks, 328 S.W.2d 434 (Tex. 1959)
– Charitable contributions: Mareska v. Marks, 362 S.W.2d 299 (Tex. 1962)
– Tithing records: Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996)
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Anatomy of a Discovery Response

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Specific Objections
CONTRACTS WITH CONFIDENTIALITY CLAUSES
• Confidentiality is still not a proper objection
– Seek a protective order before the discovery responses are due
– Discoverable contract cannot be withheld based on confidentiality clause
CONTENTION RFPS
• Loftin v. Martin
776 S.W.2d 145 (Tex. 1989)
– Don’t request “all documents that support your allegations”
– There must be some degree of specificity
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Anatomy of a Discovery Response
OBTAINING AND OBJECTING TO
WRITTEN DISCOVERY IN TEXAS STATE COURT

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Boilerplate Objections
• Under Rule 193.2(e), an objection that is obscured by numerous
unfounded objections is waived unless good cause is shown
• Boilerplate objections only stand to harm your clients’ interests
• Waives all objections, even valid ones under Rule 193.2(e)
• Rule 13 sanctions
• Ethical violations:
– Model Rule 3.4(d)
– Texas Rule 3.01
– Texas Rule 3.02
Anatomy of a Discovery Response

37. Third-Party
Discovery

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A practical guide
• Know your notice and service
requirements
– Who?
– When?
– What?
• When to seek a ruling or rely on
motion for protection
• Preservation notice
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Third-Party Discovery

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Parting thought
“If there is a hell to which disputatious, uncivil, vituperative lawyers
go, let it be one in which the damned are eternally locked in
discovery disputes with other lawyers of equally repugnant
attributes.”
Dahl v. City of Huntington Beach,
84 F.3d 363, 364 (9th Cir. 1996)
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WRITTEN DISCOVERY IN TEXAS STATE COURT
Obtaining and Objecting to Written Discovery

40. Questions?
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WRITTEN DISCOVERY IN TEXAS STATE COURT

41. Robert Arthur: rarthur@boyarmiller.com
Whitney Brieck: wbrieck@boyarmiller.com
BOYARMILLER : 713.850.7766