Required Initial Disclosures in Civil Litigation

Texas keeps tinkering with the rules for discovery in civil cases. The latest change applies to family law cases for divorce, child support or alimony. Effective September 1, 2023, parties in family law litigation are not required to exchange initial disclosures within 30 days of an answer or counterpetition. Instead, a party must make a discovery request to obtain information that is otherwise mandatory outside of cases governed by the Family Code.

On the other hand, parties in civil proceedings not governed by the Family Code remain subject to the discovery rules which last went into effect on September 1, 2021. These rules do mandate the disclosure of certain information early in the litigation process. Read on to learn more about discovery in general and the rules for required initial disclosures specifically. For help with a business dispute or other civil matter in Houston, contact the Leigh B. Meineke Law Firm for strategic advice and effective, goal-oriented representation.

What Is Discovery?

Discovery in the context of civil litigation is a critical phase where the parties involved in a lawsuit gather and exchange information relevant to the case. This process allows each side to understand the facts and evidence the other side may use, helping to prepare for trial, facilitate settlement discussions, or clarify issues in dispute. Examples of discovery requests include:

• Depositions: Oral questioning of parties or witnesses under oath, typically conducted in the presence of a court reporter. Depositions are used to gather information and assess the credibility of the witness.

• Interrogatories: Written questions that one party sends to another, requiring written answers that are also under oath. Interrogatories are used to obtain basic information such as names, facts, and document locations.

• Requests for Production of Documents: These requests are made to obtain documents relevant to the case, such as emails, contracts, medical records, and other pertinent documents.

• Requests for Admissions: A party may ask the other to admit or deny certain facts in writing and under oath, which can streamline issues in the case.

• Examinations: In certain cases, physical or mental examinations may be requested if a party’s health is a key issue in the case.

• E-Discovery: In modern litigation, electronic discovery (e-discovery) plays a significant role. This involves gathering electronic data like emails, digital files, metadata, and more.

What Is Discoverable?

The Texas Rules of Civil Procedure are generous on this point. Anything that is relevant and not privileged is theoretically discoverable; the material does not even have to be admissible in court, but it should be reasonably calculated to lead to the discovery of admissible evidence. At the same time, discovery requests should not be overly burdensome or expensive. The purpose of discovery is to prevent “trial by ambush,” where one side is unaware of the evidence until it is presented in court. It promotes fairness by ensuring both sides have access to relevant information, thereby facilitating a more informed decision-making process, whether in court or through a settlement.

What Must Initially Be Disclosed Under the Texas Rules of Civil Procedure?

Rule 194 of the Texas Rules of Civil Procedure deals with required initial disclosures. These disclosures must be provided without waiting for a discovery request. They cover information such as:

• The names of the parties and any potential parties
• The legal theories underlying the party’s claims or defenses
• The factual bases of the party’s claims or defenses
• The amount of economic damages and the method used for calculating them
• The names of other people with knowledge of facts relevant to the case
• “a copy–or a description by category and location–of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment”
• And much more

A few types of proceedings are exempt from the initial disclosure requirement, including an action for review on an administrative record, a forfeiture action arising from a state statute, and an action on appeal from a justice court, such as a small claims case or civil case with an amount controversy at or below $20,000.

What Are Discovery Control Plans?

Discovery is conducted according to a Discovery Control Plan. The Discovery Control Plan limits the scope and extent of discovery allowed. The Texas Rules of Civil Procedure recognize three levels of discovery control plans, depending on the type of litigation.

Level 1 plans apply to expedited actions and divorce cases not involving children and with a marital estate not more than $250,000. The following limits apply to Level 1 plans:

• All discovery must be conducted during the discovery period. This period starts when the initial disclosures are due and lasts for 180 days.
• 20-hour time limit for all witness depositions
• Maximum of 15 written interrogatories allowed
• No more than 15 written requests for production
• Limit of 15 written requests for admission

Level 2 plans apply to any cases not governed by Level 1 or Level 3. In Level 2, the following conditions apply:

• All discovery must be conducted during the discovery period. This period starts when the first disclosures are due and lasts for 30 days before the trial date or nine months after the initial disclosures are due, whichever comes first.
• 50-hour total time limit for oral depositions
• Maximum of 25 written interrogatories allowed

A Level 3 Discovery Control Plan is customized according to the extraordinary needs of the case. The plan should include appropriate limits on the amount of discovery and a set discovery period.

Get the Help You Need From an Experienced Houston Business Lawyer

If you find yourself on either side of a business dispute in Houston, whether the case is headed for trial or you hope to resolve it without litigation, contact the Leigh B. Meineke Law Firm at 832-706-0244 to discuss your needs and goals with an experienced and successful Texas business lawyer.