JW Flyer GATEKEEPER OR FACT FINDER?: THE TRIAL COURT S BROADENED ROLE IN DETERMINING THE RELIABILITY OF EXPERT TESTIMONY. An Aviation Law Update

Transcription

1 J J JW Flyer An Aviation Law Update GATEKEEPER OR FACT FINDER?: THE TRIAL COURT S BROADENED ROLE IN DETERMINING THE RELIABILITY OF EXPERT TESTIMONY United States Supreme Court Expands and Clarifies Daubert In 1993, the United States Supreme Court in Daubert v. Merrell Pharmaceuticals, Inc., 509 U.S. 579 (1993) adopted a more rigorous gate keeping function for federal district courts with regard to the admissibility of scientific expert testimony. Daubert required that scientific expert testimony meet certain indicia of reliability in order to be considered by the fact finder. Daubert listed four factors that should be considered in assessing the reliability of expert testimony: (1) whether a theory or technique can be and has been tested; (2) whether it has been subject to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error, and; (4) whether the theory or techniques enjoys general acceptance within a relevant scientific community. Daubert has been hailed by some for curtailing the use of junk science in the courtroom, and criticized by others for requiring district judges to evaluate the credibility of very technical and complex evidence, when most such judges are no more qualified than jurors to make that determination. Since the Daubert opinion, one of the debates pertaining to expert testimony has been whether the same strict standard should be applied to areas of expert testimony not involving scientific matters. In Kumho Tire Co. v. Carmichael, 119 S. Ct (1999), the Supreme Court addressed how Daubert applies to engineers and other experts who are not scientists. Kumho Tire involved a personal injury lawsuit arising from an accident in which a rear tire of a minivan blew out. The plaintiff offered the testimony of an expert in tire failure analysis. The expert concluded that a defect caused the tread of the tire to separate from its inner steel-belted carcass prior to the accident. The trial court examined the expert s methodology solely under the four Daubert factors, and found the testimony to be lacking in reliability. It granted the defendant s motion to exclude the testimony, and also granted the defendant s motion for summary judgment. The plaintiff asked the court to reconsider its ruling, arguing that its application of the Daubert factors was too inflexible. After reconsidering the matter, the trial court agreed that Daubert should be applied flexibly, that its four factors were simply illus- (Please see Gatekeeper or Fact Finder? on p. 5) Inside This Issue The New Texas Discovery Rules...2 The Aviation Medical Assistance Act...3 Tort Reform in Texas st Quarter CLE Schedule...12 VOLUME V NUMBER I WINTER 2000 JW Flyer 1 SUMMER 1998

2 THE NEW TEXAS DISCOVERY RULES: AN UPDATE The 1999 revisions to the Discovery Rules of the Texas Rules of Civil Procedure became effective January 1, Generally speaking, the revisions apply to pending cases and cases initiated after January 1, The trial courts are to implement the revisions consistent with Rule 1 of the Texas Rules of Civil Procedure to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. The revisions are designed to impose limits on the volume of discovery, curb abuses, reduce cost and delay, and modernize discovery practice in an effort to improve the discovery process. The notes and comments to the amended Discovery Rules are not merely advisory, but are intended to inform the construction and interpretation of the Rules for both courts and practitioners. This continues and expands upon a practice initiated by the Court in its promulgation of Rule 166a(i) and other recent rules enactments. In addition to notes and comments concerning specific rules, the Court also has included an Explanatory Note describing the general policy goals of the 1999 Discovery Rules revisions. With that said, below are the 1999 Discovery Rules revisions in a nutshell. Rule 190 is a new provision that, for the first time in Texas state courts, introduces the concept of reasonable limits on the volume of discovery. Rule 1 76 Trial and Discovery Subpoenas Rule 176 consolidates and clarifies the rules governing trial and discovery subpoenas, which formerly were scattered throughout Rules and Rule 201. The structure of Rule 176 is based loosely on Rule 45 of the Federal Rules of Civil Procedure. While Rule 176 is largely a non-substantive reorganization of the former rules governing trial and discovery subpoenas, it does effect some important substantive changes. For example, former Rule 176 of the Texas Rules of Civil Procedure (a person may not be required by subpoena to appear or produce documents or other things in a county that is more than 100 miles from the courthouse where the suit is pending) has been replaced by Rule 176.3, which mirrors Section of the Texas Civil Practice and Remedies Code (150 miles from the county where the suit is pending). Rule 1 90 Limitations on the Volume Of Discovery Rule 190 is a new provision that, for the first time in Texas state courts, introduces the concept of reasonable limits on the volume of discovery. It is intended both to compel parties to carefully consider the need for discovery before seeking it, and to encourage courts to actively monitor discovery to reduce unnecessary costs and delay. Rule 190 establishes three tiers of discovery control plans: Level One, Level Two and Level Three. Rule 190 requires that each civil case be in one of the discovery control plan levels at all times. Cases are assigned to Level One or Level Two by operation of the provisions of Rule 190 and cases are assigned to Level Three only by court order. Rule Modification of Discovery Limits; Conference Certification In Filing Rule 191 consists of five principal provisions: (1) a modification provision; (2) a conference requirement; (3) a certification requirement; (4) filing requirements; and (5) a service requirement. Rule 1 92 Scope and Forms Of Discovery Rule 192 describes the available forms and subject matter of discovery. All of the forms of discovery available under the former Discovery Rules are re- (Please see The New Texas Discovery Rules on p.4) JW Flyer 2 SUMMER 1998

3 J J THE AVIATION MEDICAL ASSISTANCE ACT OF 1998 The Act did not require any immediate action by domestic air carriers with regard to changing medical equipment or training. In recent years, there had been growing debate, both outside and within the aviation industry, as to whether the Emergency Medical Kits carried on domestic air carriers were adequate, particularly for treating heart attack victims. The Emergency Medical Kit is intended for use by a medically trained person responding to a medical emergency. The FAA medical kit requirements were basically established in 1986 and have not been substantially changed since then. In 1997, Congress began to review the issue of inflight emergencies and in 1998, the Aviation Medical Assistance Act was passed into law. The key provisions of the Act are as follows: Medical Kit Equipment And Training The Act did not require any immediate action by domestic air carriers with regard to changing medical equipment or training. Instead, Congress established a scheme whereby the FAA would evaluate the airlines medical equipment and training and if the administrator determined that the current regulations should be modified as a result of such reevaluation, the administrator would issue a notice of proposed rule making. The period for evaluation has expired and a decision by the administrator regarding medical equipment and training is expected in the near future. Reports Regarding Deaths On Aircraft Because the lack of definitive data of the nature and extent of medical emergencies, the Act provided for a one year reporting period during which the major domestic air carriers were to provide quarterly reports regarding deaths that occurred on board or after removal from the aircraft. That reporting period The FAA medical kit requirements were basically established in 1986 and have not been substantially changed since then. ended June 30, 1999 and the Federal Air Surgeon is currently evaluating that data. Decision On Automatic External Defibrillator One of the key objectives of Congress was to determine whether passenger deaths could be prevented by the improved technology of portable defibrillators; whether the benefits of installing defibrillators would justify the cost of the airlines; and on what types of aircraft equipment should be required. A defibrillator is needed to treat sudden cardiac arrest, which according to the American Heart Association, occurs to more than 1,000 people per day in the United States. In recent years, the manufacturers have been able to develop a very portable and virtually automatic defibrillator which can be used by the cabin crew with minimal training. As noted above, the FAA is expected to announce whether it will mandate the AED s on domestic aircraft and/or other medical equipment this fall. Several domestic airlines have not waited for the results of the FAA s decision. American Airlines has already equipped its entire fleet with AED s and enhanced medical kits. American reports that its AED s have been used more than a 100 times to monitor passengers with cardiac problems and the lives of six passengers have been saved to date. Delta, USAirways, Northwest Airlines, United Airlines, Alaska Airlines, and Hawaiian Airlines have either installed the AED s and enhanced medical kits or are in the process of doing so. Limitation Of Liability Perhaps the most significant aspect of the AMAA (Please see Aviation Medical on p.7) JW Flyer 2 SUMMER 1998

4 TORT REFORM IN TEXAS: AN UPDATE In 1995 and 1997, Texas enacted major tort reform with significant changes to laws pertaining to punitive damages, joint and several liability, venue, the Deceptive Trade Practices Act, governmental liability, medical liability, frivolous lawsuits, and access to the courts in cases having little or no connection with Texas. The legislation has had a significant impact upon the number of lawsuits filed in Texas and the amount of damages awarded by juries and affirmed on appeal. Although most of the major tort reform issues had been addressed with earlier tort reform measures, However, the legislature did pass a significant bill establishing immunity for certain Y2K issues. there was an attempt in the recently concluded 1999 legislative session to enact additional tort reform measures. These included a provision for submission to the jury of the fault of a responsible thirdparty who could not be joined in the suit, which could include the plaintiff s employer in a third-party workers compensation case. Others involved an attempt to reform class action lawsuit practice in Texas, a prohibition on prejudgment interest on future damages, a limitation on multiple awards on punitive damages and an adoption of a federal style offer of settlement rule. None of these legislative proposals were successful. However, the legislature did pass a significant bill establishing immunity for certain Y2K issues. In essence, so much was accomplished with the sweeping changes in 1995 and 1997, there was not sufficient interest to carry through with any further legislation this year. Also as significant as tort reform has been the shift in the makeup of the Texas Supreme Court to a conservative court dominated by Republican justices. Recently, Justice Deborah Hankinson, Greg Abbott, and James A. Baker, all originally appointed by Governor Bush, have become a less conservative block and have gained a majority for more moderate decisions in some instances. However, no one believes that the Texas Supreme Court will, by any means, swing back to its pro-plaintiff philosophy which garnered the attention of the 60 Minutes program several years ago. Accordingly, while the court may not be as predictable in delivering pro-defense opinions, it should continue to reflect conservative to moderate viewpoints in most of its rulings. Bob Ruckman The New Texas Discovery Rules (cont d from p. 2) tained and requests for disclosure has been added as an additional form of discovery. The general standard governing the permissible subject matter of discovery under the former rules is unchanged. Rule governs the limitations on scope of discovery. A court may limit the scope of discovery if the discovery sought is unreasonably cumulative or duplicative, is obtainable from other source that is more convenient, or the burden of the proposed discovery outweighs its likely benefit. In In Re Alford Chevrolet-Geo, 997 S.W.2d 173, 182 (Tex. 1999), the Texas Supreme Court applied this standard to the scope of discovery prior to class certification. According to the Court, factors to consider in determining the scope of precertification discovery include the importance, benefit, burden, expense, and time needed to produce the proposed discovery. Id. Other factors include whether the individual claims are large enough to be worth pursuing if the class is not certified, and if so, whether the proposed discovery would relate to those individual claims. Id. Work product is defined for the first time in Rule (Please see The New Texas Discovery Rules on p.8) JW Flyer 4 SUMMER 1998

5 J J Gatekeeper Or Fact Finder? (cont d from p. 1) trative, and that other factors could argue in favor of admissibility. Nevertheless, the Court held that the other factors were insufficient to indicate that the testimony was reliable. The Court affirmed its earlier order declaring the testimony inadmissible and also affirmed the summary judgment. The Eleventh Circuit reversed. It held that the Supreme Court in Daubert explicitly limited its holding to cover only the scientific context, and that Daubert only applied where an expert relies on the application of scientific principles, but did not apply when the expert relied on skill or experience based observation. It concluded that the trial court erred by applying Daubert, and remanded the case for further consideration under Rule 702 of the Federal Rules of Evidence. The Supreme Court granted certiorari in light of the uncertainty in the lower Courts about whether, or how, Daubert applied to testimony that might be characterized as based not upon scientific knowledge, but rather upon technical or other specialized knowledge. The Court in Kumho Tire first held that Daubert applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. The Court further clarified its holding in Daubert by stating that a trial court may consider one or more of the specific factors mentioned by Daubert when doing so will help determine that testimony s reliability. However, the Court held that the Daubert reliability test is flexible, and Daubert s list of specific factors neither necessarily nor exclusively applies to all experts in every case. Rather, the district court has broad latitude when it decides how to determine the reliability and admissibility of expert testimony. Thus, on appeal, a decision by a trial court on the reliability and admissibility of expert testimony is governed by the abuse of discretion standard. The Court emphasized that the list of factors in Daubert was meant to be helpful, not definitive, and those factors do not necessarily apply even in every instance in which the reliability of scientific testimony is challenged. For example, the lack of peer Rather, the district court has broad latitude when it decides how to determine the reliability and admissibility of expert testimony. review does not necessarily render scientific or other expert testimony unreliable. The Court concluded that the trial court did not abuse its discretion in finding that none of the Daubert factors indicated that the expert s testimony was reliable, and that the trial court s analysis revealed no countervailing factors operating in favor of admissibility which could outweigh those identified in Daubert. Thus, Kumho Tire clarifies and expands Daubert in the following respects: (1) Daubert applies to all types of expert testimony sought to be admitted. (2) The factors set forth in Daubert are neither exclusive nor necessarily applicable in all cases. The trial court may consider the Daubert factors in assessing the reliability of experts, and may consider other factors as well. Trial courts are given broad flexibility and discretion in assessing the reliability of expert testimony. Thus, the significance of a trial judges s influence on the outcome of a case by his or her assessment of expert testimony is nothing if not underscored by Kumho Tire, and after this decision, it likely will be difficult to have a trial judge s ruling on the admissibility of expert testimony reversed on appeal. The Texas Supreme Court Expands and Clarifies Robinson The Texas Supreme Court actually beat the United States Supreme Court to the punch with regard to the applicability of a Daubert-type standard to nonscientific expert testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). The Texas Supreme Court had adopted a Daubert-type (Please see Gatekeeper or Fact Finder on p.6) JW Flyer 4 SUMMER 1998

6 Gatekeeper or Fact Finder? (cont d from p.5) standard in assessing the reliability of scientific expert testimony in 1995 in E.I. du Pont de Nemours and Co. v. Robinson., 923 S.W. 2d 549 (Tex. 1995). After Robinson, lower courts struggled with the question of if or how Robinson applied to non-scientific expert testimony. Gammill involved a products liability suit alleging that a rear seat belt was defective, causing the death of an automobile passenger. The trial court disqualified two of the plaintiff s experts on the defectiveness of the seat belt and granted summary judgment to the defendants. The court of appeals affirmed the summary judgment and the trial court s disqualification of the seat belt experts. The Texas Supreme Court granted the plaintiff s application for writ or error and addressed the following questions: (1) whether opinions based on an expert s individual skill, experience or training, as opposed to scientific methodology were subject to Robinson; (2) whether Robinson only applies to novel science as opposed to established science. Thus, under Gammill a trial judge is given a significant amount of discretion in determining what is basically a factual, not a legal, question. The Court in Gammill held that the rules governing the admissibility of expert testimony apply to all scientific evidence, regardless of whether the evidence is considered novel or unconventional. The Court also held that all expert opinions, whether scientific or not, are subject to the same rules with regard to admissibility under Rule 702 of the Texas Rules of Evidence. The Court, however, recognized, as did the Supreme Court in Kumho Tire, that the considerations listed in Robinson and Daubert cannot always be used in assessing other kinds of expert testimony. The court noted that, Experience alone may provide a sufficient basis for an expert s testimony in some cases, but it cannot do so in every case. Gammill, 972 S.W.2d at 726. Indeed, the Court in Gammill held that the Robinson factors for assessing the reliability of scientific evidence could not be applied to the testimony offered by the Gammills experts. Nevertheless, the trial court still must determine that the Rule 702 In reviewing a trial court s ruling on expert testimony on appeal, an abuse of discretion standard is used. relevancy and reliability requirements are met. In reviewing a trial court s ruling on expert testimony on appeal, an abuse of discretion standard is used. The Court further expounded on the trial judge s role in evaluating the admissibility of expert testimony: We recognize that the trial court s task is sometimes a difficult one. The trial court is not to determine whether an expert s conclusions are correct, but only whether the analysis used to reach them is reliable. Gammill, 972 S.W.2d at 728. Thus, under Gammill a trial judge is given a significant amount of discretion in determining what is basically a factual, not a legal, question. Proponents of this approach argue that this prevents a jury from relying on unreliable junk science and expert hocus pocus in reaching its decision. Critics suggest that jurors, not judges, should determine factual questions relating to the reliability and credibility of expert s opinion. In any event, trial judges arguably have been given an even greater ability to influence the outcome of a case in carrying out their function under Gammill and Robinson. Billy R. McGill JW Flyer 6 SUMMER 1998

7 J J THE AVIATION MEDICAL (Cont d from P. 3)... the passenger must not be an employee or agent of the air carrier sistance, the passenger must not be an employee or agent of the air carrier, and the carrier must, in good faith, believe the passenger is a medically qualified individual. However, it is clear that: a carrier is still liable for the acts of its own agents or employees, a carrier is protected from liability for the acts or omissions of the passenger rendering assistance only if the carrier, in good faith, believes the passenger is medically qualified. Accordingly, Congress did not intend for the air carrier to be relieved of their duty of care owed to their passengers, and that carrier will continue to be liable in the event the crew fails to carry out its responsibility to the passengers with regard to addressing a medical emergency which may arise inflight. The Act also provides good Samaritan protection to medically qualified individuals who do respond The Act also provides good Samaritan protection to medically qualified individuals who do respond to an emergency. to an emergency. This is in response to a growing concern that physicians are reluctant to respond to requests for assistance because of the fear of liability. Unfortunately, many physicians today are not aware of their new immunity under the Act. Note: A thorough review of the legal issues relating to inflight medical emergencies will be published in the winter edition of the SMU Air Law Journal. Bob Ruckman for those practicing aviation law is the provision for limitation of liability. Sec. 5(a) of the Act provides as follows: (a) Liability of air carriers. - - An air carrier shall not be liable for damages in any action brought in afederal or State court arising out of the performance of the air carrier in obtaining or attempting to obtain the assistance of a passenger in an in-flight medical emergency, or out of the acts or omissions of the passenger rendering the assistance, if the passenger is not an employee or agent of the carrier and the carrier in good faith believes that the passenger is a medically qualified individual. Thus an air carrier may enjoy immunity if the following occurs: the action must arise out of the carrier s obtaining or attempting to obtain the assistance of a passenger in an inflight medical emergency, or out of the acts or omissions of the passenger rendering as- JW Flyer 6 SUMMER 1998

8 The New Texas Discovery Rules (cont d from p. 4) Generally speaking, work product subsumes and replaces the attorney work product and party communications discovery exemptions under the former Discovery Rules. Work product comprises (1) materials prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party s representatives; or (2) communications made in anticipation of litigation or for trial between a party and the party s representatives, or among the party s representatives. In In Re Team Rule 193 significantly alters the former procedures governing responses to written discovery, interrogatories, requests for production, requests for admissions, and requests for entry on to property. To assert a privilege against written discovery, parties no longer assert objections but withhold the privileged materials from disclosure. Transport, Inc., 996 S.W.2d 256, (Tex. App.- Houston [14h Dist.] 1999, pet. denied), the Houston Court of Appeals discussed the interplay of Rule (work product) and Rule 192.3(h) (witness statements). According to the Court, a paragraph in a letter to defendant company s insurer, which was prepared by a company officer, amounted to a witness statement and not work product, and, thus, was discoverable in a warehouseman s personal injury lawsuit against the defendant company, even though the the company officer was not an eyewitness to the accident giving rise to the suit, where the company officer related the normal procedures for warehousemen and included them in a letter as a follow-up to an eyewitness s statement. The Court emphasized that a party may obtain discovery of witness statements from any person with knowledge of relevant facts, regardless of when the statement was made, and regardless of whether the person has personal knowledge. Id. Rule governs protective orders. It is essentially identical to former Rule 166b(7) of the Texas Rules of Civil Procedure, but with two modifications. First, a person seeking a protective order now has an affirmative duty to respond to the discovery request at issue to the extent protection is not sought unless it is unreasonable to do so before obtaining a ruling on the motion. Second, Rule clarifies that persons should not move for a protective order when an objection or assertion of privilege under other rules is appropriate. Rule 1 93 Responses and Objections to Written Discovery; Assertions of Privileges Rule 193 significantly alters the former procedures governing responses to written discovery, interrogatories, requests for production, requests for admissions, and requests for entry on to property. Under Rule 193, a party has an affirmative duty to respond to written discovery requests within the time periods required by the rules governing the form of written discovery. This applies even if the party objects or asserts a privilege against the request. When objecting, a party must state the extent to which they are refusing to comply with the request, and must comply with so much of the request as to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection. To assert a privilege against written discovery, parties no longer assert objections but withhold the privileged materials from disclosure. When withholding privileged materials or information, the responding party must state in either the response to (Please see The New Texas Discovery Rules on p. 9) JW Flyer 8 SUMMER 1998

9 J J The New Texas Discovery Rules (cont d from p. 8) written discovery or a separate document that (1) information or material responsive to the written request has been withheld; (2) the request to which the information or material relates; and (3) the privileges asserted. Upon written request of the party seeking discovery, the responding party must, within Rule 193 also requires parties to object or assert privileges only to the extent that a good faith factual and legal basis for the objection or the claim of privilege exists. fifteen days, serve a response (1) specifying the nature of the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege; and (2) assert a specific privilege for each item or group of items withheld. These disclosures and identification requirements, however, do not apply to attorney-client communications withheld from disclosure that concern the litigation in which the discovery is requested. Rule 193 also requires parties to object or assert privileges only to the extent that a good faith factual and legal basis for the objection or the claim of privilege exists. Moreover, Rule 193.2(e) provides that any objection obscured by numerous unfounded objections is automatically waived unless the court excuses the waiver for good cause shown. Consistent with the previous rules, Rule 193.4(a) requires that the party making an objection or asserting a privilege must present evidence necessary to support that objection or privilege. In Re Continental Ins. Co., 990 S.W.2d 941, 943 (Tex. App.-Waco 1999), modified, 994 S.W.2d 423 (Tex. App.-Waco 1999, no pet.) (an exception to the rule which places the burden of proof on the party refusing to disclose information or protecting information is the apex deposition doctrine). Finally, Rule 193 liberalizes the former standards governing inadvertent disclosure by permitting parties who have inadvertently disclosed privileged information or materials to reclaim the privilege within ten days of discovering the disclosure. Rule 1 94 Requests For Disclosure Rule 194 establishes requests for disclosure as a new discovery tool whereby parties can obtain basic discoverable information without objection. Parties may also obtain the responding party s legal theories, the responding party s basic damages theories, and, in general, the factual basis of the responding party s claims or defenses. However, even though responding parties must describe their basic liability and damages contentions, they are not required to marshal evidence or brief legal issues. Rule 1 95 Discovery Regarding Testifying Expert The exclusive tools for obtaining discovery concerning testifying expert witnesses are disclosures, depositions Witnesses Rule 195 governs the methods for obtaining discovery regarding testifying expert witnesses. Rule 195 does not address, however, discovery of consulting experts whose opinions have been reviewed by testifying experts. The exclusive tools for obtaining discovery concerning testifying expert witnesses are disclosures, depositions and reports. As to any testifying expert, parties may obtain disclosure of the expert s name, address and telephone number, and the subject matter on which the expert will testify. If the expert is retained by, employed by, or otherwise subject to the control of the responding party, the requesting party also may obtain disclosure of the general substance of the expert s mental impressions, a brief summary of the basis for the expert s opin- (Please see The New Texas Discovery Rules on p. 10) JW Flyer 8 SUMMER 1998

10 The New Texas Discovery Rules (cont d from p. 9) ions, all documents and tangible things provided to, reviewed, or prepared by the expert in anticipation of his testimony, and the expert s current resume and bibliography. Rule establishes a schedule for responding to requests for disclosure concerning testifying experts. Rule establishes a schedule for depositions of testifying experts retained by, employed by, or otherwise subject to the control of the party. Finally, Rule specifies that where a party takes Rule clarifies the allocation of expenses of document discovery. Rule 197 includes a new provision addressing contention interrogatories which is similar to that in Rule 194. the oral deposition of an expert retained by, employed by, or otherwise under the control of a party, all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing and correcting the deposition must be paid by the party that retained the expert. Rule 1 96 Requests For Production; Requests and Motions For Entry Upon Property Rule is a new provision addressing discovery of electronic or magnetic data. Parties seeking discovery of such data must specify the form in which it should be produced, and the responding party must reply if the requested data and form is reasonably available to the responding party in its ordinary course of business. The responding party may object if it cannot retrieve the information or produce the information in the form requested. Rule clarifies the allocation of expenses of document discovery. Unless otherwise ordered by the court, the requesting party bears the expense of producing, inspecting, sampling, testing, photographing, and copying items. Rule 1 97 Interrogatories To Parties Rule 197 includes a new provision addressing contention interrogatories which is similar to that in Rule 194. The Notes and Comments to Rule 197 state that, Interrogatories about specific legal or factual assertions such as, whether a party claims a breach of implied warranty, or when a party contends that limitations began to run are proper, but interrogatories that ask a party to state all legal and factual assertions are improper. It is also improper to use interrogatories to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial. Rule 1 98 Requests For Admissions Rule 198 is a non-substantive recodification of former Rule 169. Rule 1 99 Depositions Upon Oral Examination Rule 199 clarifies the practice of taking oral depositions. Oral depositions are to be conducted in the same manner as if the testimony were being obtained in court at trial. Objections to questions during the deposition are limited to form or leading. Objections to testimony are limited to non-responsive. The witness attorney may also instruct the witness not to answer a question if it calls for privileged information, is abusive, or if any answer to the question would be misleading. The deposing party, however, may require the objecting party to give a short explanation of the basis for its objection or instruction to enable the deposing party to rephrase the question. Finally, Rule 199.5(c) limits each side to six hours to examine and cross-examine an individual witness in an oral deposition. Rule 200 Depositions Upon Written Questions (Please see The New Texas Discovery Rules on p. 11) JW Flyer 10 SUMMER 1998

11 J J The New Texas Discovery Rules (cont d from p. 10) Rule 200 clarifies the procedures governing depositions upon written questions. Rule 200 incorporates the oral deposition rules governing notices, responses, depositions of organizations, and requests for production of documents. Rule 201 Depositions in Foreign Jurisdictions For Use in Texas Proceedings Rule is a non-substantive rewrite of former The Texas Supreme Court fashioned Rule 202 in an attempt to accommodate competing concerns of plaintiffs and defense lawyers regarding the extent to which plaintiffs should be permitted to obtain pre-suit or investigatory depositions without notice to potential parties. Rule 188 that is designed to clarify the procedures for obtaining oral or written depositions in foreign jurisdictions. Rule 202 Depositions Before Suits or to Investigate Claims The Texas Supreme Court fashioned Rule 202 in an attempt to accommodate competing concerns of plaintiffs and defense lawyers regarding the extent to which plaintiffs should be permitted to obtain presuit or investigatory depositions without notice to potential parties. Rule 202 expressly permits presuit investigatory depositions but limits the extent to which they can be used in a subsequent lawsuit if an eventual party did not receive notice of the deposition. Rule 203 Signing, Certification, and Use of Oral and Written Depositions Rule 203 consolidates and clarifies the former rules governing the signing and use of deposition transcripts. Under Rule 203, the court reporter must certify the amount of time that each party spent during the deposition so as to aid in the administration of the aggregate and per witness deposition time limits of Rules 190 and 199. Rule 204 Physical and Mental Examinations Rule 204 clarifies and broadens the circumstances under which physical and mental examinations may be ordered and the types of health care providers who can conduct such examinations. Rule 205 Discovery From Non-Parties Rule 205 is designed to clarify the procedures for obtaining discovery from non-parties. Rule 205 also establishes a new form of non-party discovery, requests for production of documents, by which a party can obtain documents without need for a motion or deposition. A party requesting production of documents from a non-party, however, must reimburse the non-party s reasonable cost of production. In conclusion, the most significant aspects of the 1999 revisions to the Discovery Rules include new provisions concerning work product, the adoption of requests for disclosure, the requirement that each case be covered by a discovery control plan, new rules concerning the discovery of experts, new procedures for the presentation of objections, and new procedures for the presentation of claims of privilege. Ryan Wirtz JW Flyer 10 SUMMER 1998

12 2000 CLE Schedule Jan , 2000 Embry Riddle Symposium 13th Annual Aviation Law/Insurance Symposium Adams Mark Hotel Daytona Beach, FL Speaker: Bob Ruckman Topic: In-Flight Medical Emergency: Update on the Aviation Medical Assistance Act of 1998 Contact:Cecile Hatfield (305) Jan. 31, 2000 American Bar Association Aviation s Second Century - Developments and Challenges in Law and Policy The Ritz-Carlton Pentagon City For hotel reservations, please call: (703) Feb. 2-6, 2000 Lawyer-Pilots Bar Association Marquis Resort, Palm Springs, CA For more information, please call: (301) Feb , 2000 SMU Air Law Symposium Hotel Intercontinental Addison, Texas For more information, please see: March 9-11, 2000 International Women in Aviation Conference Memphis Cook Convention Center Memphis, TN For more information, please call: (937) JW Flyer An Aviation Law Update JW Flyer is published periodically by the law firm of Jackson Walker L.L.P. to inform readers of recent developments in aviation law and related areas. It is not intended nor should it be used as a substitute for legal advice or opinions which can be rendered only when related to specific fact situations. This publication is not intended to create an attorney-client relationship or to indicate that such a relationship exists between Jackson Walker L.L.P. and the recipient of this publication, but merely as a courtesy to inform the recipient about developments in the law. For more information, please contact Bob Ruckman at (214) , David Moran at (214) , Katherine Staton at (214) , or Jim Struble at (214) Jackson Walker L.L.P. Austin Dallas Fort Worth (512) (214) (817) Member of Globalaw Houston (713) Richardson (972) San Angelo San Antonio (915) (210) JW Flyer 12 SUMMER 1998