DRAFTING EFFECTIVE DISCOVERY ONE SIZE DOES NOT FIT ALL

Transcription

1 DRAFTING EFFECTIVE DISCOVERY ONE SIZE DOES NOT FIT ALL NATALIE L. WEBB KAY REDBURN* Co-author: BRANT M. WEBB The Webb Law Firm, P.C. Republic Center 325 N. St. Paul, Suite 4450 Dallas, Texas (214) (214) (fax) *Paralegal, not licensed to practice law Texas Advanced Paralegal Seminar October 4-6, 2017 Addison, Texas

2 ACKNOWLEDGMENTS The authors would like to thank the Honorable John K. Dietz and Larissa Sanchez Fields for the use of their article, Discovery Practice Tips: Discovery Update, presented at the 2015 Texas Bar College Summer School Course, Galveston Island, in preparation of this article. 1

3 TABLE OF CONTENTS I. INTRODUCTION... 3 II. THE PROBLEM WITH DISCOVERY: A (POTENTIAL) MONEY PIT... 3 III. SCOPE OF DISCOVERY... 4 A. EXAMPLES FROM THE SUPREME COURT OF TEXAS...4 B. EXAMPLES FROM THE TEXAS APPELLATE COURTS...4 C. EXPERT WITNESS DISCOVERY...5 IV. DRAFTING DISCOVERY REQUESTS... 5 A. INTERROGATORIES...6 B. REQUESTS FOR PRODUCTION...6 V. FINANCIAL INFORMATION... 7 VI. ELECTRONIC DISCOVERY... 8 A. PROPER PROCEDURE UNDER RULE VII. MEDICAL RECORDS AND AUTHORIZATION... 9 A. TEXAS RULES OF EVIDENCE...9 B. HOW TO CYA WHEN REQUESTING PHI...9 HIPAA RELEASES VIII. DEEMED ADMISSIONS IX. REMEMBER: ASK FOR WHAT YOU REALLY NEED APPENDIX A

4 Drafting Effective Discovery-One Size Does NOT Fit All I. INTRODUCTION Any family law attorney is familiar with the basic rules and procedures for drafting discovery requests, but most may not be familiar with some subtle nuances that can transform ordinary requests into outstanding ones. A judge's role in the discovery process is to use his or her discretion to reasonably control the limits of discovery such that it is more convenient, less burdensome, and less expensive while still allowing discovery that is tailored to the allegations in the case. An attorney can make a judge s role much easier by drafting discovery requests that are efficient and allow for access to necessary information while minimizing/withstanding scrutiny from the court or opposing counsel. More simply put: ask for what you really need. II. THE PROBLEM WITH DISCOVERY: A (POTENTIAL) MONEY PIT The ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984). Under the broad scope of permissible discovery set out in Rule 192 of the Texas Rules of Civil Procedure, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. Tex. R. Civ. P (a). Discoverable information is not limited to that which will be admissible at trial; it includes anything reasonably calculated to lead to the discovery of material evidence. Jampole, 673 S.W.2d at 573. However, the scope of discovery is limited by the legitimate interests of the opposing party, for example, to avoid overly-broad requests, harassment, or disclosure of privileged information. Id. In its statement accompanying the 1999 amendments to the Texas Rules of Civil procedure governing discovery, the Supreme Court of Texas explained that: Discovery in civil cases is founded on the principle that justice is best served when litigants may obtain information not in their possession to prosecute and defend claims. Discovery provides access to that information, 3 but at a price. Recent years experience has shown that discovery may be misused to deny justice to parties by driving up the costs of litigation until it is unaffordable and stalling resolution of cases. As any litigant on a budget knows, the benefits to be gained by discovery in a particular case must be weighed against its costs. The rules of procedure must provide both adequate access to information and effective means of curbing discovery when appropriate to preserve litigation as a viable, affordable, and expeditious dispute resolution mechanism. Now, nearly twenty years after the adoption of the new rules, wasteful discovery is still driving up the cost of litigation. Given the reforms of Congress and the Texas Legislature curtailing civil litigation, a fair reading today is that litigation is less viable, affordable, and expeditious as a dispute resolution mechanism today than when the new rules were promulgated. Why? a) The 90/10 Rule: It is not unreasonable to assume that 90% of the discovery obtained during the course of a family law case is not used in the litigation. Ask yourself (or any of your fellow colleagues), what percentage of written discovery and/or depositions have you used in trials or hearings in the last two years? If the answer is as much as 10% you are in minority; most often it s significantly less than that. Who pays for the 90% waste? Litigants and taxpayers who provide the court system. b) Neither the Bar nor the Bench has truly embraced the idea that we should curb discovery. In general, we continue to operate as if we are under the Texas Supreme Court s directive that the ultimate purpose of discovery is to seek the truth. Jampole, 673 S.W.2d at 573. We act as if that were the end all and be all of discovery guidelines. c) Spoiler alert: it s not. Not all discovery material discloses the truth. So much of the information discovered becomes just a clutter of noise and chatter in the quest for essential facts; nor is there any cost benefit analysis to this unbridled quest for truth. In every case there are some essential dynamite facts. These are very worthwhile. Then there are lesser facts of

5 consequence and so on until there are facts about a case that are of no consequence. III. SCOPE OF DISCOVERY Texas Rule of Civil Procedure 192.3(a) provides that a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action. Tex. R. Civ. P (a) (emphasis added). The comments to Rule 192 specify that the scope of discovery is confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute. Tex. R. Civ. P. 192, cmt. 1. What is relevant to the subject matter is to be broadly construed. In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014). These liberal bounds, however, have limits, and discovery requests must not be overbroad. Id. A request is not overbroad so long as it is reasonably tailored to include only matters relevant to the case. Id. (quoting Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding) (per curiam)). A. EXAMPLES FROM THE SUPREME COURT OF TEXAS -In re Nat l Lloyds Ins. Co., 449 S.W.3d 486, (Tex. 2014): Court granted insurer s petition for writ of mandamus and directed trial court to vacate discovery order compelling insurer to produce claim files of other insureds that were unrelated to plaintiff s claim. Scouring claim files in hopes of finding similarly situated claimants whose claims were evaluated differently from [Plaintiff s] is at best an impermissible fishing expedition. Plaintiff argued that the trial court did not abuse its discretion because the order was limited in time and geographic scope. However, the Court responded that such limits in and of themselves do not render the underlying information discoverable. -Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009): A trial court abuses its discretion when it denies discovery going to the heart of a party s case or when that denial severely compromises a party s ability to present a viable defense. (finding the trial court s denial of discovery in a products liability case an abuse of discretion, where denying car manufacturer right to conduct discovery prevented it from developing facts relevant to the presentation of its defense). -In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex. 2007): Discovery is a tool to make the trial process more focused, not a weapon to make it more expensive. -In re CSX Corp., 124 S.W.3rd 149, 153 (Tex. 2003): A central consideration in determining overbreadth of a discovery request is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information. -In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 at n. 1 (Tex. 1999): Court noted it had identified as overbroad requests encompassing time periods, products, or activities beyond those at issue in the case - in other words, matters of questionable relevancy to the case at hand. This kind of review can generally be done on close examination of the pleadings and specific claims and defenses made, and it is clear that the sheer volume of a discovery request does not in itself render the request irrelevant or overbroad as a matter of law. - In re Am. Optical Corp, 988 S.W.2nd 711, 713 (Tex. 1998) (per curiam): This Court has repeatedly emphasized that discovery may not be used as a fishing expedition. Rather, requests must be reasonably tailored to include only matters relevant to the case. -Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (per curiam): A specific request for discovery reasonably tailored to include only matters relevant to the case is not overbroad merely because the request may call for some information of doubtful relevance. Parties must have some latitude in fashioning proper discovery requests. The request in this case, however, is not close; it is well outside the bounds of proper discovery. It is not merely an impermissible fishing expedition; it is an effort to dredge the lake in hopes of finding a fish. (finding a discovery request for virtually all documents authored by an employee over his thirtyyear career as overly broad, where request was made without limitation as to time, place or subject matter; requesting party did not demonstrate how extraneous information was relevant to case). B. EXAMPLES FROM THE TEXAS APPELLATE COURTS Appellate courts continue to uphold this reasonably tailored approach. For example: -In re Indeco Sales, Inc., No CV, 2014 WL (Tex. App. Beaumont, October 30, 2014): Trial court did not abuse its discretion by granting an injured plaintiff s motion for protection as to discovery requests seeking, for example, any and all Facebook posts, messages or conversations sent or received since the date of an accident; the requests were not reasonably tailored and the trial court could have reasonably determined that the requests were overly broad and that the requested production was not properly limited in time and scope. -In re HEB Grocery Co., L.P., No CV, 2014 WL (Tex. App. Corpus Christi, Feb 18, 2014): Trial court did not abuse its discretion in compelling discovery of two incident reports, as the trial 4

6 court's order was narrowly tailored to limit discovery to a period of three years, to the specific store where the underlying injury occurred, to a specific area within that one store where the injury occurred, and to incidents concerning those that mirrored the specific type of incident at issue in the case. The appellate court further noted that the trial court reviewed the documents at issue in camera prior to making its determination regarding production. -In re Christus Health Southeast Texas, 399 S.W.3d 343 (Tex. App. Beaumont 2013, orig. proceeding): Trial court did not abuse its discretion by denying motion to compel because request was not limited in time to the records relevant to the time period in dispute and could have been more narrowly tailored; appellate court noted that while trial court could have narrowed request so that the information to be produced would have been relevant, the trial court did not abuse its discretion by not doing so; the court noted that the burden to propound discovery complying with the rules of discovery should be on the party propounding the discovery, not on the courts to redraft overly broad discovery. -In re Univar USA, Inc., 311 S.W.3d 183 (Tex. App. Beaumont 2010, no pet. h.) Trial court abused its discretion by permitting discovery into matters beyond the scope of discovery because document requests in subpoena duces tecum contained no date or geographical restrictions and were not limited to the subject matter of the pending action, quoting In re Mallinckrodt, Inc., 262 S.W.3d 469, 474 (Tex. App.- Beaumont 2008, orig. proceeding): When a party propounds overly broad requests, the trial court must either act to narrowly tailor the requests or sustain objections advancing the complaint that the requests are overly broad. C. EXPERT WITNESS DISCOVERY -In re Ford Motor Co., 427 S.W. 3d 396 (Tex. 2014): Texas Supreme Court held that plaintiff could not depose corporate representatives of each expert s employer in order to expose potential bias of the defendant s two testifying experts because the Rules do not permit such discovery. The Court reiterated that Rule 195 addresses the methods for obtaining such information, limiting testifying-expert discovery to that acquired through disclosures, expert reports, and oral depositions of expert witnesses. Finally, the Court noted that deposing an employer's representative was appropriate to narrowly seek information regarding the potential bias. In short, all discovery requests, whether interrogatories, admissions or requests for production, must be confined to the subject matter of the case, tailored to matters relevant to the case, and further tailored to avoid tenuous information. Discovery requests must be limited to the time, place, and subject matter of the case. Further, they should exclude tenuous information. The pleadings define the scope of discovery. IV. DRAFTING DISCOVERY REQUESTS Unfortunately for most of us, the following words and phrases are probably all too familiar when it comes to discovery requests: (1) any ; (2) any and all ; (3) every ; (4) each and every ; and (5) in any way regarding, relating or concerning While there are many other ways to artfully attempt to ask for everything - including but not limited to the kitchen sink - all these words and phrases have something in common: they do not tailor anything and are expansive rather than confining. Thus, they do exactly what the discovery rules tell us not to do. Think about the discovery you propound and think about your opponent s discovery. Chances are good that both are replete with either these exact phrases or some variation thereof. So why do we use these words?!? We, as attorneys, are likely afraid not to use them because we might miss something or might be perceived as less aggressive. We may believe that if we use them, the other side is magically compelled to give us the smoking gun. Do you really think that if the other side is attempting to hide information, that the use of these magic words will cause them to be forthcoming? What these phrases do instead is virtually guarantee that your discovery will be objected to as overly broad, unduly burdensome, and beyond the scope of discovery. This results in a discovery dispute, and - more often than not a hearing. As we all know, judges absolutely love discovery hearings. By their very use, discovery requests of this nature are not confined to the subject matter of the lawsuit and are not tailored to exclude tenuous information. Is it possible to draft a discovery request that is case specific, tailored to exclude tenuous information, and limited as to time, subject matter and place of the lawsuit? Yes - and you can do it. In fact, the Texas Rules of Civil Procedure require it: The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable 5

7 particularity each item or category. Tex. R. Civ. P (b) (emphasis added). A. INTERROGATORIES A party may serve on any other party written interrogatories to inquire about any matter within the scope of discovery except those matters regarding testifying expert witnesses. See Tex. R. Civ. P An interrogatory may also inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party s claims or defenses. Id. However, interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial. See id. (emphasis added). Unfortunately, the rule fails to provide guidance regarding what constitutes the marshalling of evidence. See Robert K. Wise, Ending Evasive Responses to Written Discovery: A Guide for Properly Responding (and Objecting) to Interrogatories and Document Requests Under the Texas Discovery Rules, 65 BAYLOR L. REV. 510, 517 (Spring 2013). An interrogatory asking the responding party to state all facts or every or each fact concerning a cause of action or defense may be improper. Id. In contrast, an interrogatory asking for the general bases or the material or principal facts concerning such a matter should be proper. Id. at Further, an interrogatory asking the responding party to identify all documents concerning or relating to or all persons with knowledge about a particular matter or subject is an identification, rather than a contention, that does not require evidence marshalling and generally is appropriate. Id. at 518. B. REQUESTS FOR PRODUCTION Requests for production may seek the inspection, sampling, testing, photographing, or copying of documents or tangible things within the scope of discovery. Tex. R. Civ. P (a) (emphasis added). The request, however, must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. Tex. R. Civ. P (b) (emphasis added). Reasonable particularity, however, is not susceptible of a precise definition. Wise, supra at 542. It depends on whether a reasonable person would know what documents or things are called for by the request. Id. The degree of specificity required depends on the requesting party s knowledge about the documents or things sought. Id. Further, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. Tex. R. Civ. P The responding party must then produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. Id. Texas Rule of Civil Procedure provides the consequences for a kitchen sink type of discovery request - (1) any ; (2) any and all ; (3) every ; (4) each and every ; and (5) in any way regarding, relating or concerning. Rule requires an attorney to sign all discovery requests and responses. Tex. R. Civ. P (a). By signing the pleading, an attorney certifies that to the best of the signer s knowledge, information, and belief, formed after reasonable inquiry, the request, notice, response, or objection: 1) is consistent with the rules of civil procedure and these discovery rules...; 2) has a good faith factual basis; 3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and 4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. See id. at 191.3(c). If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose an appropriate sanction as for a frivolous pleading or motion. See id. at 191.3(e). The next time you are drafting discovery or reviewing your opponent s discovery, keep an eye out for the magic words and phrases. Remember, specific requests are good; broad requests unlimited in scope are bad. The broad scope of discovery granted under Rule 192 gives attorneys freedom to be creative when drafting discovery requests. Although a form book or ProDoc may be used to quickly and easily draft discovery documents, these methods should serve as the floor, not the ceiling, of the drafter s creativity. Do not be afraid to include provisions in discovery requests that deviate from the standard language found in form books or ProDoc and are tailored to the facts of your specific case. Additionally, read your discovery requests with a critical eye imagine you just received them from opposing counsel and ask yourself how you would answer your own discovery requests. Hopefully this will help you avoid errors, such as duplicate requests. For example, a production request may contain both a 6

8 request for credit cards in the litigant s name and liabilities including credit cards. If the opposing party has business interests, do your best to confirm those businesses have credit cards associated with them prior to making a production request. Mix specific requests into your more general requests. If there is a specific document you want - a deed, for example - request that deed specifically amid your request for documents. You all but eliminate the possibility that your request will be too global, at least as to that specific item. And when you have unusual or unique items or information that you seek, don t simply rely on them being covered by a generic request - name them specifically. If there is a baseball card collection, or if you know a specific digital camera was used, be specific in your request. The Texas Family Law Practice Manual is an excellent resource, but it should serve as a starting point in effective discovery. It provides basic discovery requests at your fingertips, allowing you the time to add specifically tailored requests as your case permits. Discovery is a tool that allows you to learn about your opponent s case, but it can also serve to deliver messages about what you know that might affect the conduct of the case later on. It s a way you can file that no-fault petition while still signaling - by the use of pointed, specific requests - that you are prepared to go to the next level if necessary. And get input from your client regarding what he or she would like to have you ask for or about. Sometimes they will come up with a gem that will gather information you might have overlooked, or in terms of sending a message that you otherwise wouldn t have known enough to send, especially early on in the case. You know what your client has told you and you know generally what you need to prove, so ask yourself What would I ask for if I didn t have a form? Blend your answer into the form and you ll have discovery that is at once solid and inclusive as well as specifically tailored to your client s case. V. FINANCIAL INFORMATION In family law matters, tax returns are almost always part of any discovery requests. The Texas Supreme Court has held that tax returns are only discoverable if they are relevant and material to the issues presented in the lawsuit. Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995). Further, the Court expressed reluctance to allow uncontrolled and unnecessary discovery of federal income tax returns. See id. at Tax returns are treated differently than other types of financial records. In re Beeson, 378 S.W.3d 8, 12 7 (Tex. App. Houston [1st Dist.] 2011). That is because federal income tax returns are considered private and the protection of that privacy is of constitutional importance. Id. (citing Maresca v. Marks, 362 S.W.2d 299, 301 (Tex. 1962) (holding that trial court abused discretion by ordering entire income tax returns for individuals and corporations "without separation of the relevant and material parts from the irrelevant and immaterial parts")). If you find yourself in a situation where the other side is resistant to produce tax returns, be aware that relevancy is not assumed; be prepared to make a showing that the returns are relevant to a determination of the opposing party s financial position. Chamberlain v. Cherry, 818 S.W.2d 201, 206 (Tex. App. Amarillo 1991) (agreeing with the proposition that a tax return does not within itself show the general wealth and financial condition of the person filing the return; it shows income for the year in which the return is filed but does not disclose, as a financial statement does, the net worth of the party filing the return). Unlike when other types of financial records are sought after a resisting party objects to the production of tax returns, the burden shifts to the party seeking to obtain the documents to show that the tax returns are both relevant and material to the issues in the case. Id. (citing El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 779 (Tex. App. San Antonio 1994, no writ)). Federal income tax returns are not material if the same information can be obtained from another source. Id., citing In re Sullivan, 214 S.W.3d 622, (Tex. App. Austin 2006, orig. proceeding). Texas courts make a good faith effort to employ the most efficient and least intrusive methods to permit discovery of sensitive information by requiring the requesting party to meet their burden of showing that such documents are relevant and material. However, the resisting party must first timely assert the proper privilege. Failure to do so may result in the waiver of such privileges. See Valdez v. Progressive County Mut. Ins. Co., No CV, 2011 WL at *5 (Tex. App. San Antonio Dec. 14, 2011, no pet.) (holding that insured was obligated to comply with the orders compelling production of the tax returns; even if he had a valid Fifth Amendment or other constitutional privilege to refuse production of his tax returns, he waived those rights by failing to timely object in writing to the discovery request). So do you get the financial information you need? Go to the IRS website ( and download tax forms to your heart s content. Then, tailor your discovery request to each specific form (i.e., specific

9 schedules or a specific line(s) on Form 1040). That way you are specific and are not asking for sensitive, unnecessary material. Remember: specific requests are good; broad requests unlimited in scope are bad. The 14th Court of Appeals has provided additional guidance as to the proper scope of discovery on the issue of net worth: a) A party is not required to create documents that do not already exist. b) It is proper to ask a party to state his or her current net worth - i.e., the difference between total current assets and total current liabilities as determined in accordance with generally accepted accounting principles. c) It is proper to ask for the facts and methods used to calculate the party's net worth. d) Questioning beyond these areas is allowed only on leave of court upon a showing that you have reason to question that the information provided was incomplete or inaccurate. In re Jacobs, 300 S.W.3d 35, (Tex. App. Houston [14th Dist.] 2009, orig. proceeding). For a corporation, net worth may be shown by providing audited and certified annual reports with an affidavit of a person with knowledge who can certify the accuracy of the information. See Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992) (per curiam); see also In re House of Yahweh, 266 S.W.3d 668, 673 (Tex. App. Eastland 2008, orig. proceeding) (permissible net worth discovery is further limited to current net worth). When asking for tax related information, be sure to tailor the requests to fit the parties and their specific business interests. If you don t think you ll need K-1 forms, Form SSA-1099, Personal Earnings Benefit Estimate Statement (PEBES) or better yet, you don t even know what they are don t ask for them. Remember, you can ask for them later if necessary. NOTE: When responding to tax related discovery (or other discovery where sensitive data is an issue), be sure to redact social security numbers, bank account numbers, and other sensitive data (or at least all but the last 4 digits) - some of that information may be buried in schedules and the like. Further, in a situation where outside third parties (i.e., nonparties to the lawsuit) have interests in your client s businesses but you fail to redact their sensitive data, you open yourself up to exposure in the form of a potential HIPAA violation but more on that later. VI. ELECTRONIC DISCOVERY Texas Rule of Civil Procedure relates specifically to requests for production of data or information that exists in electronic or magnetic form. In re Weekley Homes, L.P., 295 S.W.3d 309, 314 (Tex. 2009). To obtain discovery of electronic data, a party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. Tex. R. Civ. P This specificity requirement ensures that requests for electronic information are clearly understood and disputes avoided. Weekley, 295 S.W.3d at 314. Discovery requests may be tailored to include online postings (including but not limited to those made via social media Facebook status updates, tweets, etc.), photos, videos, or other electronic data. Although the authors are not aware of any published opinions on the topic, an attorney who friends a party (or directs someone to friend a party) on a social networking site would likely be in violation of the Texas Disciplinary Rules of Professional Conduct. s and deleted e- mails stored in electronic or magnetic form (as opposed to being printed out) constitute electronic data; their characterization does not change when deleted from a party s inbox. Id. To ensure compliance with the rules and avoid confusion, parties seeking production of deleted s should expressly request them. Id. at 315. A. PROPER PROCEDURE UNDER RULE The Supreme Court of Texas summarized the proper procedure to request electronic discovery under Rule 196.4: (1) The party seeking to discover electronic information must make a specific request for that information and specify the form of production. Tex. R. Civ. P (2) The responding party must then produce any electronic information that is responsive to the request and is reasonably available to the responding party in the ordinary course of business. Id. (3) If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce in the form requested, the responding party must object on those grounds. Id. 8

10 (4) The parties should make reasonable efforts to resolve the dispute without court intervention. Tex. R. Civ. P (5) If the parties are unable to resolve the dispute, either party may request a hearing on the objection, Tex. R. Civ. P (a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost. Tex. R. Civ. P (b). (6) If the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed, again subject to Rule 192.4's discovery limitations. (7) If the benefits are shown to outweigh the burdens of production and the trial court orders production of information that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed. Tex. R. Civ. P (b). The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. Tex. R. Civ. P (8) Finally, when determining the means by which the sources should be searched and information produced, direct access to another party s electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion. Weekley, 295 S.W.3d at 322. VII. MEDICAL RECORDS AND AUTHORIZATION A. TEXAS RULES OF EVIDENCE The Texas Rules of Evidence protect from disclosure confidential communications between a physician and patient and records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician. Tex. R. Evid. 509(c)(1)-(2). However, a litigation exception to the physician-patient privilege applies when the patient's condition is a "part" of a claim or defense to which the substantive law assigns significance. TEX. R. EVID. 509(e)(4); see also R.K. v. Ramirez, 887 S.W.2d 836, (Tex. 1994). Ramirez is still the controlling case on the proper scope of discovery of medical and mental health issues: access to medical and mental health information will be afforded the non-patientparty only if the patient's condition itself is a fact that carries legal significance and only to the extent necessary to satisfy the discovery needs of the requesting party. Id. at 843. A claim for mental anguish damages or a defense of pre-existing condition are not sufficient to put a plaintiff's mental condition at issue such that discovery of medical records is appropriate. "[T]he condition itself must be of legal consequence to a party's claim or defense." Id. Even if discovery of medical records is appropriate, mere relevance is not sufficient. See id. at 843 (information communicated to a doctor may be relevant to the merits of an action, but in order to fall within the litigation exception to the privilege, the condition itself must be of legal consequence to a party's claim or defense); see also In re Drews, No CV, 2012 WL (Tex. App. Texarkana, October 12, 2012) (Appellate court found that plaintiff s pregnancy records were not of legal significance to the defendant doctor's asserted defense concerning his treatment of the plaintiff s ankle; therefore, the appellate court held that the trial court ordered the production of such medical records in contravention of Texas Rule of Evidence 509). An order for a blanket release of all mental health or medical records beyond the scope of the litigation is an abuse of discretion. See In re Williams, 2009 WL at *4-7 (Tex. App. Waco 2009, orig. proceeding). Thus, if a proposed medical release is too broad, you should object and seek protection. B. HOW TO CYA WHEN REQUESTING PHI As an attorney in the state of Texas, you are a covered entity pursuant to the relevant federal and/or state guidelines governing protected health information ( PHI ). As a covered entity, you must be extremely diligent when obtaining and disclosing PHI. In a family-law-relevant nutshell, PHI includes medical records, mental health records, drug and alcohol treatment records, and drug and alcohol testing and monitoring records. For a more comprehensive discussion on how handling PHI affects your day to day practice as a family law attorney, Sarah Darnell s article, The Use of HIPAA Protected Information in the Courtroom, In Discovery, In Cases, and Excluding the Information, is an excellent resource. When drafting discovery requests that include PHI, it is important to narrow the requests; failure to do so may result in obtaining a voluminous amount of 9

11 information that is not relevant to your case and that, as a covered entity, you are now obligated to protect and store. A good rule of thumb is to only request PHI that is absolutely essential to your litigation: if you do not need the information at the time of the request, do not ask for it in the first place. For example, refrain asking for any and all medical records from any treating professionals for an overly broad time period. Instead, take the time to narrow the request to include only the specific treating professionals and time periods relevant to your situation (i.e., John Doe s drug and alcohol rehabilitation records for the five months he went to outpatient rehab). While it may seem like a burdensome undertaking from the outset, the task is inconsequential when compared to the burden of storing and protecting from disclosure the PHI received from John s podiatrist regarding his bunion surgery information that likely has no relevance to your lawsuit. If you discover that you need additional information at a later date, you can request it at that time (i.e., propound an additional request for production specifically tailored to elicit only the necessary responsive information). HIPAA RELEASES The first step in asking for protected health information is to include appropriate HIPAA releases along with your requests. Another good rule of thumb is that a HIPAA release is required each time PHI is disclosed to a separate person or entity. This means the party from whom you are requesting the PHI must authorize each treating professional to release the information to you, to their attorney, and even to the court via separate releases. Good news! The Attorney General of Texas has drafted the authorization for you. According to the second page of their Authorization to Disclose Protected Health Information (attached hereto as Appendix A): The Attorney General of Texas has adopted a standard Authorization to Disclose Protected Health Information in accordance with Texas Health & Safety Code (d). This form is intended for use in complying with the requirements of the Health Insurance Portability and Accountability Act and Privacy Standards (HIPAA) and the Texas Medical Privacy Act (Texas Health & Safety Code, Chapter 181). Covered Entities may use this form or any other form that complies with HIPAA, the Texas Medical Privacy Act, and other applicable laws. 10 In the event an opposing party refuses to voluntarily execute necessary HIPAA releases, you ll need to file a motion to compel protected health information and ask the court to compel the party to execute them. However, a gentle explanation as to why the authorization is necessary and what might transpire upon refusal to voluntarily execute might go a long way towards resolving the issue. NOTE: Once you have either the executed HIPAA release or court order to properly obtain the requested protected health information, remember to include it along with the subpoena to the treating professional requesting the PHI. VIII. DEEMED ADMISSIONS Admissions are deemed admitted as a matter of law when no response is filed to a request for admissions. Tex. R. Civ. P (c). No hearing or motion is necessary. If a response is not timely served, the request is considered admitted without the necessity of a court order. Id. As you can imagine, a request for admissions that is reasonably tailored and asks for specific information would be golden in this scenario. Although there are no certainties in the law, you may have just achieved the closest thing to slam dunk in the discovery process. But wait there s more. Texas Rule of Civil Procedure permits for admissions to be withdrawn or amended upon: (1) a showing of good cause for the withdrawal or amendment; and (2) if the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission. Tex. R. Civ. P Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3rd 439, 442 (Tex. 2005). Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it. Id. at 443. IX. REMEMBER: ASK FOR WHAT YOU REALLY NEED When you are requesting discovery, remember to ask for what you really need. Additionally, remember that "relevant" and "reasonably calculated to lead to the discovery of admissible evidence are important and actually mean something. If you can't link your discovery to a claim in the petition or a defense in the

12 answer, your request is likely beyond the proper scope of discovery. Refine your requests so that they are limited to the time, place and subject matter of the case. When drafting discovery requests: Again ASK FOR WHAT YOU REALLY NEED if the litigation involves a divorce with no children, you don t need to propound discovery regarding possession and access or child support if you do, it s an inefficient use of both your time and your client s resources Remember, specific requests are good; broad requests unlimited in scope are bad Review the pleadings as pleadings define the scope of discovery, make sure your pleadings are specific enough to support your discovery requests Think about the elements of your claims and defenses that you are going to have to prove and what evidence you will need to prove them Think about the best way to obtain that evidence through interrogatories, requests for production, requests for admissions, etc. When requesting protected health information, remember to include appropriate HIPAA releases When in doubt, look to the relevant rules for guidance 11

13 Appendix A 12

14 AUTHORIZATION TO DISCLOSE PROTECTED HEALTH INFORMATION Developed for Texas Health & Safety Code (d) effective June 2013 Please read this entire form before signing and complete all the sections that apply to your decisions relating to the disclosure of protected health information. Covered entities as that term is defined by HIPAA and Texas Health & Safety Code must obtain a signed authorization from the individual or the individual s legally authorized representative to electronically disclose that individual s protected health information. Authorization is not required for disclosures related to treatment, payment, health care operations, performing certain insurance functions, or as may be otherwise authorized by law. Covered entities may use this form or any other form that complies with HIPAA, the Texas Medical Privacy Act, and other applicable laws. Individuals cannot be denied treatment based on a failure to sign this authorization form, and a refusal to sign this form will not affect the payment, enrollment, or eligibility for benefits. NAME OF PATIENT OR INDIVIDUAL Jones Gerald Cody Last First Middle OTHER NAME(S) USED DATE OF BIRTH Month Day 6 8 Year 1980 ADDRESS CITY STATE ZIP PHONE ( ) ALT. PHONE ( ) ADDRESS (Optional): I AUTHORIZE THE FOLLOWING TO DISCLOSE THE INDIVIDUAL S PROTECTED HEALTH INFORMATION: Person/Organization Name Address City State Zip Code Phone ( ) Fax ( ) WHO CAN RECEIVE AND USE THE HEALTH INFORMATION? Person/Organization Name Address City State Zip Code Phone ( ) Fax ( ) REASON FOR DISCLOSURE (Choose only one option below) Treatment/Continuing Medical Care Personal Use Billing or Claims Insurance X Legal Purposes Disability Determination School Employment Other WHAT INFORMATION CAN BE DISCLOSED? Complete the following by indicating those items that you want disclosed. The signature of a minor patient is required for the release of some of these items. If all health information is to be released, then check only the first box. X All health information History/Physical Exam Past/Present Medications Lab Results Physician s Orders Patient Allergies Operation Reports Consultation Reports Progress Notes Discharge Summary Diagnostic Test Reports EKG/Cardiology Reports Pathology Reports Billing Information Radiology Reports & Images Other Your initials are required to release the following information: Mental Health Records (excluding psychotherapy notes) Genetic Information (including Genetic Test Results) Drug, Alcohol, or Substance Abuse Records HIV/AIDS Test Results/Treatment EFFECTIVE TIME PERIOD. This authorization is valid until the earlier of the occurrence of the death of the individual; the individual reaching the age of majority; or permission is withdrawn; or the following specific date (optional): Month Day Year RIGHT TO REVOKE: I understand that I can withdraw my permission at any time by giving written notice stating my intent to revoke this authorization to the person or organization named under WHO CAN RECEIVE AND USE THE HEALTH INFORMATION. I understand that prior actions taken in reliance on this authorization by entities that had permission to access my health information will not be affected. SIGNATURE AUTHORIZATION: I have read this form and agree to the uses and disclosures of the information as described. I understand that refusing to sign this form does not stop disclosure of health information that has occurred prior to revocation or that is otherwise permitted by law without my specific authorization or permission, including disclosures to covered entities as provided by Texas Health & Safety Code (c) and/or 45 C.F.R (a)(1). I understand that information disclosed pursuant to this authorization may be subject to re-disclosure by the recipient and may no longer be protected by federal or state privacy laws. SIGNATURE X Signature of Individual or Individual s Legally Authorized Representative DATE Printed Name of Legally Authorized Representative (if applicable): If representative, specify relationship to the individual: Parent of minor Guardian Other A minor individual s signature is required for the release of certain types of information, including for example, the release of information related to certain types of reproductive care, sexually transmitted diseases, and drug, alcohol or substance abuse, and mental health treatment (See, e.g., Tex. Fam. Code ). SIGNATURE X Signature of Minor Individual Page 1 of 2 DATE

15 Important Information AbOUT the AUTHORIZATION TO DISCLOSE PROTECTED Health Information Developed for Texas Health & Safety Code (d) effective June 2013 The Attorney General of Texas has adopted a standard Authorization to Disclose Protected Health Information in accordance with Texas Health & Safety Code (d). This form is intended for use in complying with the requirements of the Health Insurance Portability and Accountability Act and Privacy Standards (HIPAA) and the Texas Medical Privacy Act (Texas Health & Safety Code, Chapter 181). Covered Entities may use this form or any other form that complies with HIPAA, the Texas Medical Privacy Act, and other applicable laws. Covered entities, as that term is defined by HIPAA and Texas Health & Safety Code , must obtain a signed authorization from the individual or the individual s legally authorized representative to electronically disclose that individual s protected health information. Authorization is not required for disclosures related to treatment, payment, health care operations, performing certain insurance functions, or as may be otherwise authorized by law. (Tex. Health & Safety Code (b),(c), ; 45 C.F.R (a)(1); , and ). The authorization provided by use of the form means that the organization, entity or person authorized can disclose, communicate, or send the named individual s protected health information to the organization, entity or person identified on the form, including through the use of any electronic means. Definitions - In the form, the terms treatment, healthcare operations, psychotherapy notes, and protected health information are as defined in HIPAA (45 CFR ). Legally authorized representative as used in the form includes any person authorized to act on behalf of another individual. (Tex. Occ. Code (6); Tex. Health & Safety Code , ; and Tex. Probate Code 3(aa)). Health Information to be Released - If All Health Information is selected for release, health information includes, but is not limited to, all records and other information regarding health history, treatment, hospitalization, tests, and outpatient care, and also educational records that may contain health information. As indicated on the form, specific authorization is required for the release of information about certain sensitive conditions, including: Mental health records (excluding psychotherapy notes as defined in HIPAA at 45 CFR ). Drug, alcohol, or substance abuse records. Records or tests relating to HIV/AIDS. Genetic (inherited) diseases or tests (except as may be prohibited by 45 C.F.R ). Note on Release of Health Records - This form is not required for the permissible disclosure of an individual s protected health information to the individual or the individual s legally authorized representative. (45 C.F.R (a)(1)(i), ; Tex. Health & Safety Code ). If requesting a copy of the individual s health records with this form, state and federal law allows such access, unless such access is determined by the physician or mental health provider to be harmful to the individual s physical, mental or emotional health. (Tex. Health & Safety Code , (b); Tex. Occ. Code (a); 45 C.F.R (a)(1)). If a healthcare provider is specified in the Who Can Receive and Use The Health Information section of this form, then permission to receive protected health information also includes physicians, other health care providers (such as nurses and medical staff) who are involved in the individual s medical care at that entity s facility or that person s office, and health care providers who are covering or on call for the specified person or organization, and staff members or agents (such as business associates or qualified services organizations) who carry out activities and purposes permitted by law for that specified covered entity or person. If a covered entity other than a healthcare provider is specified, then permission to receive protected health information also includes that organization s staff or agents and subcontractors who carry out activities and purposes permitted by this form for that organization. Individuals may be entitled to restrict certain disclosures of protected health information related to services paid for in full by the individual (45 C.F.R (a)(1)(vi)). Authorizations for Sale or Marketing Purposes - If this authorization is being made for sale or marketing purposes and the covered entity will receive direct or indirect remuneration from a third party in connection with the use or disclosure of the individual s information for marketing, the authorization must clearly indicate to the individual that such remuneration is involved. (Tex. Health & Safety Code ,.153; 45 C.F.R (a)(3), (4)). Limitations of this form - This authorization form shall not be used for the disclosure of any health information as it relates to: (1) health benefits plan enrollment and/or related enrollment determinations (45 C.F.R (b)(4)(ii),.508(c)(2)(ii); (2) psychotherapy notes (45 C.F.R (b)(3)(ii); or for research purposes (45 C.F.R (b)(3)(i)). Use of this form does not exempt any entity from compliance with applicable federal or state laws or regulations regarding access, use or disclosure of health information or other sensitive personal information (e.g., 42 CFR Part 2, restricting use of information pertaining to drug/alcohol abuse and treatment), and does not entitle an entity or its employees, agents or assigns to any limitation of liability for acts or omissions in connection with the access, use, or disclosure of health information obtained through use of the form. Page 2 of 2 Charges - Some covered entities may charge a retrieval/processing fee and for copies of medical records. (Tex. Health & Safety Code ). Right to Receive Copy - The individual and/or the individual s legally authorized representative has a right to receive a copy of this authorization.