Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190

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1 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule TEXT OF RULE 190 Rule 190 Discovery Limitations Discovery Control Plan Required. Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule Discovery Control Plan Expedited Actions and Divorces Involving $50,000 or Less (Level 1). (a) Application. This subdivision applies to: (1) any suit that is governed by the expedited actions process in Rule 169; and (2) unless the parties agree that Rule should apply or the court orders a discovery control plan under Rule 190.4, any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $ 50,000. TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 5 8/13/14 7:38:11 AM

2 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 (b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations: (1) Discovery Period. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. (2) Total Time for Oral Depositions. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit up to 10 hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage. (3) Interrogatories. Any party may serve on any other party no more than 15 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory. (4) Requests for Production. Any party may serve on any other party no more than 15 written requests for production. Each discrete subpart of a request for production is considered a separate request for production. (5) Requests for Admissions. Any party may serve on any other party no more than 15 written requests for admissions. Each discrete subpart of a request for admission is considered a separate request for admission. (6) Requests for Disclosure. In addition to the content subject to disclosure under Rule 194.2, a party may request disclosure 6 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 6 8/13/14 7:38:11 AM

3 TEXT OF RULE of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. A request for disclosure made pursuant to this paragraph is not considered a request for production. (c) Reopening Discovery. If a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery Discovery Control Plan By Rule (Level 2). (a) Application. Unless a suit is governed by a discovery control plan under Rules or 190.4, discovery must be conducted in accordance with this subdivision. (b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations: (1) Discovery Period. All discovery must be conducted during the discovery period, which begins when suit is filed and continues until: (A) 30 days before the date set for trial, in cases under the Family Code; or (B) in other cases, the earlier of (i) 30 days before the date set for trial, or (ii) nine months after the earlier of the date of the first oral deposition or TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 7 8/13/14 7:38:11 AM

4 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 the due date of the first response to written discovery. (2) Total Time for Oral Depositions. Each side may have no more than 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts designated by those parties, and persons who are subject to those parties control. Side refers to all the litigants with generally common interests in the litigation. If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated. The court may modify the deposition hours and must do so when a side or party would be given unfair advantage. (3) Interrogatories. Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory Discovery Control Plan By Order (Level 3). (a) Application. The court must, on a party s motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party s motion or agreed order under this subdivision as promptly as reasonably possible. (b) Limitations. The discovery control plan ordered by the court may address any issue concerning discovery or the matters listed in Rule 166, and may change any limitation on the time for or 8 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 8 8/13/14 7:38:11 AM

5 TEXT OF RULE amount of discovery set forth in these rules. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule apply unless specifically changed in the discovery control plan ordered by the court. The plan must include: (1) a date for trial or for a conference to determine a trial setting; (2) a discovery period during which either all discovery must be conducted or all discovery requests must be sent, for the entire case or an appropriate phase of it; (3) appropriate limits on the amount of discovery; and (4) deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses Modification of Discovery Control Plan. The court may modify a discovery control plan at any time and must do so when the interest of justice requires. Unless a suit is governed by the expedited actions process in Rule 169, the court must allow additional discovery: (a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if: (1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and (2) the adverse party would be unfairly prejudiced without such additional discovery; (b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 9 8/13/14 7:38:11 AM

6 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 so that the trial date is more than three months after the discovery period ends Certain Types of Discovery Excepted. This rule s limitations on discovery do not apply to or include discovery conducted under Rule 202 ( Depositions Before Suit or to Investigate Claims ), or Rule 621a ( Discovery and Enforcement of Judgment ). But Rule 202 cannot be used to circumvent the limitations of this rule. Notes and Comments to 1999 change: 1. This rule establishes three tiers of discovery plans and requires that every case be in one at all times. A case is in Level 1 if it is pleaded by the plaintiff so as to invoke application of Level 1, as provided by Rule 190.2(a). If a plaintiff does not or cannot plead the case in compliance with Rule 190.2(a) so as to invoke the application of Level 1, the case is automatically in Level 2. A case remains in Level 1 or Level 2, as determined by the pleadings, unless and until it is moved to Level 3. To be in Level 3, the court must order a specific plan for the case, either on a party s motion or on the court s own initiative. The plan may be one agreed to by the parties and submitted as an agreed order. A Level 3 plan may simply adopt Level 1 or Level 2 restrictions. Separate Level 3 plans for phases of the case may be appropriate. The initial pleading required by Rule is merely to notify the court and other parties of the plaintiff s intention; it does not determine the applicable discovery level or bind the court or other parties. Thus, a plaintiff s failure to state in the initial pleading that the case should be in Level 1, as provided in Rule 190.1, does not alone make the case subject to Level 2 because the discovery level is determined by Rule Likewise, a plaintiff s statement in the initial paragraph of the petition that the case is to be governed by Level 3 does not make Level 3 applicable, as a case can be in Level 3 only by court 10 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 10

7 TEXT OF RULE order. A plaintiff s failure to plead as required by Rule is subject to special exception. 2. Rule does not apply to suits for injunctive relief or divorces involving children. The requirement of an affirmative pleading of limited relief (e.g.: Plaintiff affirmatively pleads that he seeks only monetary relief aggregating $50,000 or less, excluding costs, pre-judgment interest and attorneys fees ) does not conflict with other pleading requirements, such as Rule 47 and Tex. Rev. Civ. Stat. Ann. art. 4590i, In a suit to which Rule applies, the relief awarded cannot exceed the limitations of Level 1 because the purpose of the rule, unlike Rule 47, is to bind the pleader to a maximum claim. To this extent, the rule in Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), does not apply. 3. Discrete subparts of interrogatories are counted as single interrogatories, but not every separate factual inquiry is a discrete subpart. See Fed. R. Civ. P. 33(a). While not susceptible of precise definition, see Braden v. Downey, 811 S.W.2d 922, (Tex. 1991), a discrete subpart is, in general, one that calls for information that is not logically or factually related to the primary interrogatory. The number of sets of interrogatories is no longer limited to two. 4. As other rules make clear, unless otherwise ordered or agreed, parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period. The court may order a deadline for sending discovery requests in lieu of or in addition to a deadline for completing discovery. 5. Use of forms of discovery other than depositions and interrogatories, such as requests for disclosure, TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 11

8 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 admissions, or production of documents, are not restricted in Levels 1 and 2. But depositions on written questions cannot be used to circumvent the limits on interrogatories. 6. The concept of side in Rule 190.3(b)(2) borrows from Rule 233, which governs the allocation of peremptory strikes, and from Fed. R. Civ. P. 30(a)(2). In most cases there are only two sides plaintiffs and defendants. In complex cases, however, there may be more than two sides, such as when defendants have sued third parties not named by plaintiffs, or when defendants have sued each other. As an example, if P1 and P2 sue D1, D2, and D3, and D1 sues D2 and D3, Ps would together be entitled to depose Ds and others permitted by the rule (i.e., Ds experts and persons subject to Ds control) for 50 hours, and Ds would together be entitled to depose Ps and others for 50 hours. D1 would also be entitled to depose D2 and D3 and others for 50 hours on matters in controversy among them, and D2 and D3 would together be entitled to depose D1 and others for 50 hours. 7. Any matter listed in Rule 166 may be addressed in an order issued under Rule A pretrial order under Rule 166 may be used in individual cases regardless of the discovery level. 8. For purposes of defining discovery periods, trial does not include summary judgment. 2-2 DISCOVERY S PURPOSE Discovery s purpose is to allow the parties to obtain full knowledge of the issues and facts before trial, with the goal being to seek the truth so that disputes are decided by what the facts reveal, not by what facts are concealed. 1 The Texas Supreme 1. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1989) (orig. proceeding) (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (orig. proceeding), disapproved of on 12 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 12

9 DISCOVERY S PURPOSE 2-2 Court has emphasized that discovery is the linchpin of the search for truth, as it makes a trial less of a game of blind man s bluff and more a fair contest with the issues and facts disclosed to the fullest practicable extent. 2 By enabling parties to obtain (and exchange) information and material regarding their claims and defenses before trial, the Texas discovery rules, in theory, eliminate trial by ambush, cause actions to be resolved on their merits, and promote settlement by giving the parties the information needed to fully and accurately evaluate their positions merits. 3 Unfortunately, innovations in computer word processing and photocopying that allow even litigants of modest means to bury their opponents in voluminous boilerplate discovery requests or objections, compounded by a weakening in professional ethics that in earlier times would have made discovery misuse or abuse unthinkable, and technological changes (e.g., text messaging and ) that have greatly increased the volume of documents and other things subject to discovery made it clear to the Texas Supreme Court that unrestricted discovery could, and was, being used to needlessly and improperly drive up litigation costs to extort settlements and delay the timely disposition of actions. 4 other grounds by Walker v. Parker, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding)); accord Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) (orig. proceeding) (holding that parties are entitled to full, fair discovery and to have their cases decided on the merits); State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (orig. proceeding) ( Affording parties full discovery promotes the fair resolution of disputes by the judiciary. ). 2. State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (orig. proceeding) (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958), and quoted with approval in Eli Lilly & Co v. Marshall, 850 S.W.2d 155, 164 (Tex. 1993), and In re Swepi L.P., 103 S.W.3d 578, 587 (Tex. App. San Antonio 2003, orig. proceeding)). See also Best Indus. Uniform Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 147 (Tex. App. Amarillo 2000, pet. denied) (identifying two goals of discovery: First, discovery provides the parties with notice of the evidence that the opposing party intends to present. Second, the discovery process prevents trial by ambush. ); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App. Austin 2002, pet. denied) (same). 3. See Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions II.A (Nov. 11, 1998), disccle3.htm. 4. Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions II.A (Nov. 11, 1998), see In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999), (recognizing that discovery is not only a tool for uncovering facts essential to accurate adjudication, but also a weapon capable of imposing large and unjustifiable costs on one s adversary. Discovery is often the most significant cost of litigation. Because the costs of compliance are usually borne solely by the replying party, a requesting party improves its bargaining position by maximizing those costs. (citations omitted and quoting Frank H. Easterbrook, Discovery as Abuse, 69 B.U.L. Rev. 635, 636 (1989)); Frank H. Easterbrook, Discovery as Abuse, 69 B.U.L. TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 13

10 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 Accordingly, to eliminate discovery s excesses while retaining its benefits, the Texas discovery rules were amended in 1999, and introduced, for the first time, limits on the amount of, and time for, discovery by means of discovery control plans and discovery levels discussed in the following chapter. 2-3 DISCOVERY CONTROL PLANS Texas Rule 190 divides civil actions into three levels of discovery control plans Level 1, Level 2 and Level 3 5 requires every civil action to be in one level at all times, 6 and controls the amount of, and time for, discovery for each level. 7 As discussed in detail in the following chapters, Level 1 is applicable to small actions; Level 2 applies to most cases and is the default level; and Level 3 generally applies to high-dollar or complex cases, although any case can be a Level 3 one :1 Level 1 Discovery Control Plans Level 1 applies to two types of actions: (1) an action governed by the expedited actions process in [Texas] Rule 169, 9 and (2) any action for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than $50,000[,] unless the parties agree to a Level 2 discovery control plan or the court orders a Level 3 one. 10 The expedited actions process of Texas Rule 169 applies to a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. 11 Thus, the Rev. 635, 636 (1989) ( Litigants with weak cases have little use for bringing the facts to light and every reason to heap costs on the adverse party. The prospect of these higher costs leads the other side to settle on favorable terms. ). 5. Tex. R. Civ. P Tex. R. Civ. P ( Every case must be governed by a discovery control plan); 190 cmt.1 ( This rule establishes three tiers of discovery plans and requires that every case be in one at all times. ). 7. Tex. R. Civ. P See Chapter 2, sections 2-2:1 to 2-2:3. 9. Tex. R. Civ. P. 169(d)(1) ( Discovery [in expedited actions] is governed by [Texas] Rule 190.2[.] ). 10. Tex. R. Civ. P (a)(1). 11. Tex. R. Civ. P. 169(a)(1) (emphasis added). 14 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 14

11 DISCOVERY CONTROL PLANS 2-3 process does not apply to actions in which the plaintiffs seek injunctive or declaratory relief. Nor does it apply to an action in which a party has filed a claim governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code. 12 In addition, by statute, the expedited action process and Level 1 discovery control plans are inapplicable to probate or guardianship proceedings. 13 Thus, in the foregoing types of actions (except for the divorce actions as described above), Level 1 is never proper, even if the amount in controversy is less than $100,000. Rather, discovery will be governed by Level 2 or Level 3. Texas Rule 47 requires that an original pleading which sets forth a claim for relief, whether an original petition, counterclaim, crossclaim or third party claim (except in actions under the Family Code and in probate and guardianship proceedings), 14 include a statement that the party seeks: (1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre judgment interest and attorney fees; or (2) monetary relief of $100,000 or less and nonmonetary relief; or (3) monetary relief over $100,000 but not more than $200,000; or (4) monetary relief over $200,000 but not more than $1,000,000; or (5) monetary relief over $1,000,000[.] 15 Texas Rule 47(c), in effect, requires plaintiffs to plead into, or out of, the expedited actions process, and an action in which the original petition alleges that the plaintiff requests only monetary relief of $100,000 or less is governed by that process. 16 A party who fails to comply with Texas Rule 47(c) may not conduct discovery 12. Tex. R. Civ. P. 169(a)(2). 13. Tex. Estates Code , Tex. R. Civ. P. 47(c); see Tex. Estates Code , (providing that Texas Rule 47(c) inapplicable to probate and guardianship proceedings). 15. Tex. R. Civ. P. 47(c). 16. Tex. R. Civ. P. 47 cmt. to 2013 Change. TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 15

12 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 until its pleading is amended to comply. 17 The expedited actions process is mandatory, and any suit that falls within the definition of an expedited action is subject to it, 18 including Level 1 discovery under Texas Rule As Level 1 can only be chosen by the plaintiffs (by seeking damages of $100,000 or less), a defendant cannot force an action that it believes to be a Level 1 one into Level 1. Nonetheless, a defendant who believes that the action is a Level 1 action can seek an agreement or order, including a Level 3 discovery control plan, adopting Level 1 discovery limits. 20 Level 1 has the least discovery. 21 It allows each party (1) a total of six deposition hours to examine and cross-examine all witnesses in oral depositions, 22 (2) to serve on any other party no more than 15 written interrogatories[,] including discrete subparts, but excluding interrogatories asking a party only to identify or authenticate specific documents, 23 (3) to serve on any other party no more than 15 written requests for production[,] 24 including, discrete subparts, and (4) to serve on any other party no more than 15 written requests for admissions[,] including discrete subparts. 25 Notwithstanding these restrictions, Level 1 provides one discovery device that is unavailable in Level 2 and 3 actions a request for disclosure of all documents, electronic information, and tangible items that the disclosing party has in its 17. Tex. R. Civ. P Tex. R. Civ. P. 169 cmt Tex. R. Civ. P. 169(d)(1). 20. Tex. R. Civ. P. 190 cmt. 1. See also Chapter 2, section 2-2:4 (discussing modifying and changing the discovery level). 21. The limitations can be modified by the parties agreement or court order. Tex. R. Civ. P Further, an amended pleading might take the action out of Level 1. Tex. R. Civ. P (b), (d). See also Chapter 4, section 4-2:4 (discussing modifying and changing discovery-control plans). 22. Tex. R. Civ. P (b)(2). The parties may agree to expand this limit up to 10 hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage. Tex. R. Civ. P (b)(2). 23. Tex. R. Civ. P (b)(3). 24. Tex. R. Civ. P (b)(4). 25. Tex. R. Civ. P (b)(5). Oddly, the number of depositions on written questions is not limited in a Level 1 action. Tex. R. Civ. P (b). Nonetheless, such depositions cannot be used to circumvent the limits on interrogatories. Tex. R. Civ. P. 190 cmt Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 16

13 DISCOVERY CONTROL PLANS 2-3 possession, custody, or control and may use to support its claims or defenses. 26 Discovery, in a Level 1 action, must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. 27 Written discovery requests in a Level 1 action must be served no later than 30 days (and in some cases 31 or 33 days) before the discovery period ends :2 Level 2 Discovery Control Plans Level 2 is the default discovery control plan, applying to actions not in Level 1 and not subject to a court-ordered Level 3 discovery control plan. 29 Due to Level 1 s restrictive pleading criteria, most actions are in Level 2. If the plaintiff does not, or cannot, plead the action in compliance with Rule 190.2(a) so as to invoke Level 1, the action automatically is in Level 2 because an action cannot be in Level 3 until the court so orders on any party s motion or its own initiative. 30 Level 2, like Level 1, has limits on the amount of deposition time and the number of interrogatories. Level 2, however, does not limit the number of production requests or requests for admission Tex. R. Civ. P (b)(6). This disclosure is discussed in Chapter 6, section 6-2: Tex. R. Civ. P (b)(1). 28. Tex. R. Civ. P (disclosure requests), 196.1(a) (production requests), 196.7(a) (requests or motions for entry on land), (interrogatories), (requests for admission), 205.3(a) (nonparty subpoena for the production of documents). If the written discovery request is served by mail, it must be served at least 33 days before the discovery period s end. See Tex. R. Civ. P. 21a(c). If it is served by fax after 5:00 p.m. local time of the recipient, the request must be served at least 31 days before the discovery period ends. See Tex. R. Civ. P. 21a(b)(2). 29. Tex. R. Civ. P (a) ( Unless a suit is governed by a discovery control plan under [Texas] Rules or 190.4, discovery must be conducted in accordance with this subdivision. ). 30. Tex. R. Civ. P. 190 cmt. 1 ( If a plaintiff does not or cannot plead the case in compliance with [Texas] Rule 190.2(a) so as to invoke the application of Level 1, the case is automatically in Level 2. A case remains in Level 1 or Level 2, as determined by the pleadings, unless and until it is moved to Level 3. To be in Level 3, the court must order a specific plan for the case, either on a party s motion or on the court s own initiative. ); see Payne v. J. Baker Corp., No CV, 2013 Tex. App. LEXIS 6106, at *16 (Tex. App. Fort Worth May 16, 2013, no pet.) (mem. op.) ( Because the Homeowners did not affirmatively plead for the amount of monetary relief set out in [Texas R]ule 190.2, and the trial court has not ordered a discovery control plan, Level 2 discovery applied. (footnote omitted)). 31. Compare Tex. R. Civ. P (b) with Tex. R. Civ. P (b). TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 17

14 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 Whereas Level 1 allows each party to serve up to 15 interrogatories (including discrete subparts, but excluding interrogatories asking a party only to identify or authenticate specific documents ) on any other party, 32 Level 2 allows each party to serve up to 25 interrogatories (including discrete subparts, but excluding interrogatories asking a party only to identify or authenticate specific documents ) on any other party. 33 In a Level 2 action, deposition time is limited to 50 hours per side. 34 This includes both the examination and cross-examination of the opposing sides parties, experts and persons under their control. 35 The 50 hour limit does not apply to depositions of nonparty fact witnesses who are not under a party s control. 36 Moreover, if one side designates more than two experts, the opposing side has an additional six hours of deposition time for each additional expert designated that can be used to depose the expert(s) or any other witness. 37 The discovery period in a non family law Level 2 action runs from the filing of the action until the earlier of (i) 30 days before the date set for trial, or (ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. 38 Written discovery requests in a Level 2 action must be served no later than 30 days (and in some cases 31 or 33 days) before the discovery period ends Tex. R. Civ. P (b)(3). Side refers to all the litigants with generally common interests in the litigation. Tex. R. Civ. P (b)(3). The concept is borrowed from Texas Rule 223, which governs the allocation of preemptory strikes. Tex. R. Civ. P. 190 cmt Tex. R. Civ. P (b)(3). What constitutes a discrete subpart and an interrogatory asking a party only to identify or authenticate documents is discussed in Chapter 8, section Tex. R. Civ. P (b)(2). 35. Tex. R. Civ. P (b)(2). 36. Tex. R. Civ. P (b)(2). As in Level 1, there is no limit on the number of depositions on written questions in a Level 2 action. Tex. R. Civ. P (b). Nonetheless, such depositions cannot be used to circumvent the limits on interrogatories. Tex. R. Civ. P. 190 cmt Tex. R. Civ. P (b)(2). 38. Tex. R. Civ. P (b)(1)(B). 39. Tex. R. Civ. P (disclosure requests), 196.1(a) (production requests), 196.7(a) (requests or motions for entry on land), (interrogatories), (requests for admission), 205.3(a) (nonparty subpoena for the production of documents). If the written discovery request is served by mail, it must be served at least 33 days before the discovery period s end. See Tex. R. Civ. P. 21a(c). If it is served by fax after 5:00 p.m. local time of the 18 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 18

15 DISCOVERY CONTROL PLANS :3 Level 3 Discovery Control Plans Level 3 provides for a discovery control plan similar to one entered under the Federal Rules of Civil Procedure. 40 It is designed for high-dollar or complex actions, although a party in any type of action can move for a Level 3 discovery control plan. 41 A trial court must issue a Level 3 discovery control plan as promptly as reasonably possible on the request of any party. 42 The court also may do so on its own initiative. 43 If a party is added to a Level 3 action after the discovery deadlines have expired, the better practice is for all parties upon [joinder of the new party] to submit a modified or new agreed scheduling order to establish a new discovery period and deadlines. 44 A Level 3 discovery control plan is to be tailored to the circumstances of the specific suit, 45 a court, however, can use a form order provided the order includes all four of the required elements discussed below, 46 and, the parties can submit an agreed order for the court s consideration, provided the order contains the four required elements discussed below. 47 If the parties submit such an order, the court should act on [it] as promptly as reasonably possible. 48 A Level 3 discovery control plan must include the following four matters: (1) a date for trial or for a conference to determine a trial setting; (2) a discovery period during which either all discovery must be conducted or all discovery requests must be sent, for the entire case or an appropriate phase of it; (3) appropriate limits on recipient, the request must be served at least 31 days before the discovery period ends. See Tex. R. Civ. P. 21a(b)(2). 40. Tex. R. Civ. P (a); Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions C-3 (Nov. 11, 1998), state.tx.us/rules/tdr/disccle3.htm. 41. Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions C-3 (Nov. 11, 1998), disccle3.htm. 42. Tex. R. Civ. P (a). 43. Tex. R. Civ. P (a). 44. In re Kings Ridge Homeowners Ass n, 303 S.W.3d 773, 7832 (Tex. App. Fort Worth 2009, orig. proceeding). 45. Tex. R. Civ. P (a). 46. Tex. R. Civ. P. 190 cmt Tex. R. Civ. P (a). 48. Tex. R. Civ. P (a). TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 19

16 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 the amount of discovery; and (4) deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses. 49 As made clear by the third requirement, a Level 3 plan can limit the time for, or amount of, discovery. The plan, however, need not address such matters because, before its entry, the action automatically is in Level 1 or 2, depending on the pleadings, and if the plan fails to modify any discovery limitation existing under the applicable level, that limitation will control. 50 As explained by the Fort Worth Court of Appeals: The rule addressing level 3 discovery control plans states that [t]he court must, on a party s motion, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. While the rule states that the court must enter a level 3 scheduling order on a party s motion, it does not require that the order provide deadlines different from those under a level 2 case; even under a level 3 scheduling order, the level 2 deadlines continue to apply unless specifically changed in the discovery control plan ordered by the court. That decision is left to the trial court s discretion: The discovery control plan ordered by the court may change any limitation on the time for discovery set forth in these rules. 51 Thus, for example, if the plaintiff initially pleaded the action into Level 1 and the court later enters a Level 3 discovery control plan that does not address the number of interrogatories, production requests or requests for admission, the 15 number limit of Texas Rules 190.2(b)(3)-(5) will control. 52 Similarly, if the action was 49. Tex. R. Civ. P (b). 50. Tex. R. Civ. P (b). 51. Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App. Fort Worth 2007, pet. denied) (quoting Tex. R. Civ. P (a), (b)); accord Brescia v. Slack & Davis, L.L.P., No CV, 2010 Tex. App. LEXIS 9204, at *9-10 (Tex. App. Austin Nov. 19, 2010, pet. denied) (mem. op.). 52. Tex. R. Civ. P (b) ( The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule apply unless specifically changed in the discovery control plan ordered by the court. ); Brescia v. Slack & Davis, L.L.P., No CV, 2010 Tex. App. LEXIS 9204, at *10 (Tex. App. Austin Nov. 19, 2010, pet. denied) (mem. op.) 20 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 20

17 DISCOVERY CONTROL PLANS 2-3 a Level 2 one before the Level 3 discovery control plan s entry, and the plan does not address the number of interrogatories or deposition hours, the 25-interrogatory limit per party and the 50-hour-deposition-time limit per side of Texas Rules 190.3(b)(2)-(3) will control. Importantly, a Level 3 discovery control plan can be used both to limit or expand the amount of, and time for, discovery. Thus, a party who believes that Level 2 allows more discovery than the action needs can move for a Level 3 plan limiting the amount of discovery, and, a Level 3 plan may provide for any amount of discovery, even Level 1 s discovery limitations. 53 Written discovery requests in a Level 3 action must be served no later than 30 days (and in some cases 31 or 33 days) before the discovery period ends :4 Choosing and Moving the Discovery Level and Modifying the Discovery Control Plan The first numbered paragraph of an original petition must state whether discovery is intended to be conducted under Level 1, 2 or This statement, however, is merely a nonbinding notice for the benefit of the court and the other parties. 56 It neither determines nor waives the applicable discovery level. Thus, a plaintiff s failure to choose Level 1 in its pleadings does not make the action a Level 2 one because the discovery level is determined by the pleadings ( [E]ven under a Level 3 scheduling order, Level 2 deadlines continue to apply unless specifically changed in the discovery control plan ordered by the court. (quoting Tex. R. Civ. P (b))). 53. Tex. R. Civ. P. 190 cmt Tex. R. Civ. P (disclosure requests), 196.1(a) (production requests), 196.7(a) (request or motion for entry on land), (interrogatories), (requests for admission), 205.3(a) (nonparty subpoena for the production of documents). If the written discovery request is served by mail, it must be served at least 33 days before the discovery period s end. See Tex. R. Civ. P. 21a(c). If it is served by fax or after 5:00 p.m. local time of the recipient, the request must be served at least 31 days before the discovery period ends. See Tex. R. Civ. P. 21a(b)(2). 55. Tex. R. Civ. P ; Brescia v. Slack & Davis, L.L.P., No CV, 2010 Tex. App. LEXIS 9204, at *8 (Tex. App. Austin Nov. 19, 2010, pet. denied) (mem. op.) ( [P]laintiff must allege in the original petition whether discovery is intended to be conducted under Level 1, 2, or 3. ). 56. Tex. R. Civ. P. 190 cmt.1 ( The initial pleading required by Rule is merely to notify the court and other parties of the plaintiff s intention; it does not determine the applicable discovery level or bind the court or other parties. ); Brescia v. Slack & Davis, L.L.P., No CV, 2010 Tex. App. LEXIS 9204, at *8 (Tex. App. Austin Nov. 19, 2010, pet. denied) (mem. op.) (same). TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 21

18 Chapter 2 Discovery s Purpose and Discovery Control Plans and Limitations Texas Rule 190 substantive allegations regarding the action s nature and the relief sought. 57 Thus, for example, if the original petition states that the discovery is intended to be conducted under Level 2, but seeks only monetary relief of $100,000 or less, the action is governed by Level However, if the plaintiff does not, or cannot, so plead the action (and thereby invoke Level 1 s application), the action automatically is in Level 2. In addition, a statement in an original petition s first paragraph that discovery is intended to be governed by Level 3 does not make Level 3 applicable because an action can be in Level 3 only by court order. 59 A court must remove an action from the expedited actions process, and, therefore, from Level 1, in two circumstances: (1) on motion and a showing of good cause by any party, or (2) if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading seeking nonmonetary relief or monetary relief of more than $100, A pleading, amended pleading or supplemental pleading removing an action from the expedited actions process cannot be filed without leave of court unless it is filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial. Leave to amend may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party. 61 If an action is removed from the expedited actions process, the court must reopen discovery. 62 Discovery must then be completed under Level 2 or Level 3, whichever is applicable. Any person previously deposed may be deposed again. On any party s motion, the court should continue the trial date if necessary to permit discovery s completion See Chapter 2-3:1 (discussing Level 1 discovery control plans). 58. Tex. R. Civ. P. 190 cmt.1 ( [A] plaintiff s failure to state in the initial pleading that the case should be in Level 1, as provided in Rule 190.1, does not alone make the case subject to Level 2 because the discovery level is determined by Rule ). 59. Tex. R. Civ. P. 190 cmt. 1 ( [A] plaintiff s statement in the initial paragraph of the petition that the case is to be governed by Level 3 does not make Level 3 applicable, as a case can be in Level 3 only by court order. ); Brescia v. Slack & Davis, L.L.P., No CV, 2010 Tex. App. LEXIS 9204, at *8 (Tex. App. Austin Nov. 19, 2010, pet. denied) (mem. op.) ( A case can be designated Level 3 only by court order, despite pleading an intention to conduct discovery under Level 3. ). 60. Tex. R. Civ. 169(c)(1). 61. Tex. R. Civ. 169(c)(2). 62. Tex. R. Civ. 169(c)(3). 63. Tex. R. Civ. P (c). 22 Texas WRITTEN DISCOVERY 2015 TX_Written_Discovery_CH02.indd 22

19 DISCOVERY CONTROL PLANS 2-3 An action moves to Level 3 from Level 1 or 2 only if the trial court enters a Level 3 discovery control plan. 64 There are three ways to obtain such a plan: (1) any party can move for one without regard to whether the action was previously a Level 1 or 2 one, (2) the parties can submit an agreed order for a Level 3 plan, or (3) the court can institute a Level 3 plan on its own initiative. 65 Although the court is not required to approve the particular Level 3 plan submitted by a party, the court must rule on the motion or agreed order as promptly as reasonably possible. 66 A court can modify a discovery control plan at any time and must do so when the interest of justice requires. 67 Unless a suit is governed by the expedited actions process of Texas Rule 169, the court must allow additional discovery: (a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if: (1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and (2) the adverse party would be unfairly prejudiced without such additional discovery; (b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends Tex. R. Civ. P. 190 cmt Tex. R. Civ. P (a). 66. Tex. R. Civ. P. 190 cmt Tex. R. Civ. P Tex. R. Civ. P TEXAS WRITTEN DISCOVERY TX_Written_Discovery_CH02.indd 23

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