Litigators Beware - New Rules of Discovery

Effective January 1, 1999, the Texas Rules of Civil Procedure regarding discovery are going to be rewritten They have not undergone wholesale revision in 15 years. To get an idea of the scope of the changes, just take a look at a partial list of the rules being repealed effective January 1, 1999: 166b, 167, 167(a), 168, 169, 200, 201 and 202. Many, including myself, have questioned the wisdom and necessity of such sweeping changes. See, e.g., "Confronting the Discovery Beast," Texas Lawyer, February 19, 1996. However, those of us who thought that many of these changes would create more problems than they would solve have lost: the changes are coming. All Texas litigators should read in full the proposed rules set forth in the September, 1998 Texas Bar Journal. The changes are too pervasive to describe completely in one short article. Instead, I will describe just briefly a few of the changes that are most different from current practice. This article will be presented in two parts. In this issue I will focus on the changes to Rule 166b, and the ways in which litigators will no longer be able to conduct discovery as before.

NEW RULES 191 AND 192 SUPPLANT RULE 166b

New Rules 191 and 192 basically replace Rule 166b as the main rules governing discovery. The rules are too long to discuss in full here. Major new provisions include:

• Presently, an interrogatory that requests your opponent to list his trial witnesses is objectionable as inquiring into work product. New Rule 192.3(d) specifically says that a party may obtain discovery of the name, address and telephone number of any person who is expected to be called to testify at trial.
• New Rule 192.3(j) specifically provides that parties may obtain "discovery of any other party’s legal contentions and the factual bases for those contentions." Under the current practice, many attorneys take the position that interrogatories that seek such information are objectionable as seeking work product. I never thought that was a valid objection, but in the future it clearly will not be one.
• New Rule 192.4 is entitled "limitations on scope of discovery." It provides that the discovery permitted by the rule should be limited by the court if it determines, either on its own initiative or on motion, that either: (a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive; or (b) the burden or expense of the proposed discovery outweighs its likely benefit.
• New Rule 192.5 specifically defines work product and what is and is not protected from disclosure by the work product doctrine.
• New Rule 193.3 will govern asserting privileges when responding to written discovery. A party that withholds documents pursuant to a privilege must state that responsive material has been withheld, the request to which the information or material relates, and the privilege or privileges asserted. Upon receiving such a statement, the requesting party can compel the withholding party to produce a privilege log. You do not have to follow these procedures in order to withhold materials protected by the attorney-client privilege that concern the pending litigation in which the discovery is requested.
• New Rule 193.3(d) provides that if a party inadvertently produces privileged materials, it does not constitute a waiver of the privilege if the procedures set out in the rule are followed.
• New Rule 193.7 provides that a party’s production of a document in response to written discovery authenticates the document for use against the party, unless the party promptly objects to the authenticity of the document.
• In a nod to recent changes in federal practice, new Rule 194 allows parties to request disclosure of certain enumerated, basic information. The big change here is in Rule 194.5, which states that "no objection is permitted to a request under this rule." Accordingly, under the new rules, if you follow Rule 194, you can get most of the basic information that we usually seek by written discovery without having to worry about objections.

SUMMARY

Like it or not, the discovery rules with which we have all become familiar and comfortable will soon be gone. There are many traps for the unwary in the new rules. Attorneys who care to submit formal comments about the new rules should address them to Mr. Robert H. Pemberton, the Rules Staff Attorney at the Supreme Court of Texas.

Ed. Note: In the next issue of the TLIE Advisory, Mr. Dobson’s review of changes in the discovery rules will continue with presentation of expert witnesses in depositions, attorney conduct in depositions, and discovery control plans. TLIE greatly appreciates Mr. Dobson’s contribution of this informative and timely article.

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