Discovery. Thea Whalen. Executive Director, TJCTC

Transcription

1 Discovery Thea Whalen Executive Director, TJCTC Copyright All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 directors blvd, Suite 530, Austin, TX, What is discovery? Compulsory disclosure, at a party's request, of information that relates to the litigation. Black s Law Dictionary

2 What does that mean? Parties in law suits are entitled to know the information that the other side is going to use: What witnesses do they have? What documents do they have? Do they have other items, like pictures, videos, etc.? The Purpose of Discovery To allow parties to obtain full knowledge of the issues and facts of the lawsuit before trial. West v Solita, 536 SW2d 240 (Tex. 1978) The objective of Texas discovery rules is to prevent trial by ambush Gutierrez v Dallas ISD, 729 SW2d 691 (Tex.1987)

3 Pre Trial Discovery This is the process that takes place AFTER a law suit is filed, but BEFORE a judgment is issued. Pre Trial Discovery Discovery is permitted, but is limited to what the judge considers reasonable and necessary TRCP (a)

4 Pre Trial Discovery The court is the gatekeeper any requests has to be by written motion and approved by the court The motion must be served on the responding party Unless a hearing is requested, the judge may rule on the motion without a hearing TRCP (a) Pre Trial Discovery A party cannot serve the discovery unless the judge issues a signed order approving the request A party s failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party's discovery expenses TRCP (a)

5 This is different from other courts Other courts do NOT require the court's approval first Those courts will not even really know the discovery is going on Types of Discovery Request for Disclosure Request for Admissions Interrogatories Request for Production Depositions

6 Request for Disclosure Texas Rules of Civil Procedure Rule 194 A copy on your tables OR Rules and Forms Rules and Standards Texas Rules of Civil Procedure

7 Request for Disclosure Specific requests or questions stated verbatim in the Rules of Civil procedure Approved by the Supreme Court You would not need to decide it if is reasonable and necessary The approved topics are listed (a) (l) Plaintiff request the court have Defendant answer Request for Disclosure (g) about any insurance agreements that may cover the lawsuit. You should: 1. Strike it 2. Allow it

8 Best Practice Allow it because: It s already been approved by the Supreme Court It is reasonable and necessary Request for Disclosure TRCP 194 No objection for Requests for Disclosure The procedure for RFD is designed to afford parties basic discovery without objection These specific requests are stated exactly in the Rules of Civil procedure and are questions approved by the Supreme Court It s the only kind of discovery where the exact questions are listed in the Rules of Procedure

9 Plaintiff request the court have Defendant answer RFD (f) about expert witnesses. There should not be an expert in this type of case. 1. Strike It 2. Allow It Best Practice Allow because: It s already been approved by the Supreme Court Even though you don t think there would be any experts in this type of case, there may be. If not, all the D has to do is say: None.

10 Request for Admissions Texas Rules of Civil Procedure Rule 194.2

11 Resources TJCTC Deskbooks Civil Procedure Requests for Admission Narrow questions to get the party to admit or deny a fact Not meant to lead to additional evidence Mainly to eliminate issues where there is no disagreement

12 Requests for Admission Written requests that the other party admit the truth of any matter within the scope of discovery. Each matter for which an admission is requested must be stated separately. Texas Rules of Civil Procedure Requests for Admission When are you most likely to see these? Debt Claim cases

13 Requests for Admission If do not object, must admit or deny the fact stated Failure to respond constitutes admitting the fact Texas Rules of Civil Procedure But remember, you must approve these first. So what are some things to consider? Requests for Admission Requests for Admission were never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense. Stelly v. Papania,927 S.W.2d 620 (Tex.,1996). Do not need to be signed under oath Guzman v Carnevsle, 964 sw2d 311 (Tex.App Corpus Christi 1998, no pet.)

14 [a]dmit that you were negligent and thereby caused the Plaintiff damages, as alleged in his live pleading. LRT Record Servs., Inc. v. Archer, No CV, 2001 WL , (Tex.App. Dallas Mar. 7, 2001, no pet.) An RFA, like the one above case, is improper because it is sweepingly broad. Such an improper request for an admission may not result in a deemed admission. Thus, sweepingly broad requests for admission may not result in deemed admissions and will not support summary judgment. Powell v. City of McKinney, 711 S.W.2d 69, 71 (Tex.App. Dallas 1986, writ ref'd n.r.e.) Improper Requests Summary judgment based upon failure to respond to request to admit [plaintiffs] no longer wish to pursue their cause of action in the above styled and numbered cause In re Estate of Herring, 970 S.W.2d 583, 589 (Tex.App. Corpus Christi 1998, no pet.)

15 Improper Requests admit or deny that each allegation made in the Amended Original Petition filed in this case is true Trial court properly allowed withdrawal of request for admission that each allegation made in the petition was true. Birdo v. Holbrook, 775 S.W.2d 411, 413 (Tex.App. Fort Worth 1989, writ denied)). Can Withdraw an Answer to an RFA The party shows good cause for the withdrawal or amendment; and 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. Texas Rules of Civil Procedure 198 Withdrawing Requests for Admissions

16 Can Withdraw an Answer to an RFA We certainly agree that pro se litigants are not exempt from the rules of procedure But when a rule itself turns on an actor's state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that [the Defendant]did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains. Wheeler v. Green, 157 SW 3d 439 (Tex. 2005). Admit that a written contract exists. 1. This request should NOT be approved 2. This request SHOULD be approved

17 Best Practices Probably approved. It is a statement of fact as allowed per TRCP It is not prohibiting the party from a defense or claim It is not sweeping Might be sweeping if it said, admit you breached the contract. Create an RFA for the following: Debt claim case where an assignee of a credit card account filed a petition that the Defendant owed $3500 at the time of the last payment made on the account.

18 Interrogatories Written questions with an answer under oath Supposed to be used to narrow the issues Can respond by objecting to the interrogatory Interrogatories A party may serve on another party written interrogatories to inquire about any matter within the scope of discovery. An interrogatory may 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. But 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 Texas Rules of Civil Procedure 197.1

19 Defendant to debt claim Plaintiff: Describe your procedure for providing Defendant with monthly statements. 1. Strike request 2. Allow request Best Practice Could argue both ways May seem overly burdensome to explain internal procedures. Could be very technical, depending on the records keeping system, especially if electronic. But also could be important for the D to understand how the P claims this account belongs to them. Especially if a assignee of debt claim. Would you limit the request in scope?

20 Create an Interrogatory for the following: A pick up truck was traveling northbound on a city street. While making a left turn, it was struck by a car traveling southbound on the same street. Requests for Production Party can make a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery The request 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. Texas Rules of Civil Procedure (a) & (b)

21 Requests for Production communication constitute electronic data In re Weekly Homes, LP 295 SW 3d 309 (Tex.2009) Party cannot be forced to prepare or create a document not in existence or kept in their normal course of business In re Colonial Pipeline Co., 968 SW2d 938 (Tex.1998) Defendant to debt claim Plaintiff: Produce the account agreement, including all amendments to this alleged agreement. 1. Strike this RFP 2. Allow this RFP

22 Best Practices Allow. It is a debt claim case, so the agreement would be a reasonable document for the Defendant to review. Also, if the Plaintiff cannot produce it, if that s the case, it does not mean they will automatically lose. Create a RFP for the following: A woman slipped and fell at a large chain retail store. She claims back pain and medical bills.

23 Depositions See handout!

24 Post Trial Discovery There is no requirement that these requests go through the court The requests may be made to the party directly as long as the requieting party gives them 30 days to respond The responding party may object prior to answering by asking for a hearing Post Trial Discovery These request seem very personal because the case is now post judgment and the plaintiff is trying to collect on the judgment. Therefore, the focus in discovery is, do you have money and where is it so I can recover on my judgment? Failure to respond can result in an order from the Court after a Motion to Compel. Failure to respond to that order can result in sanctions previously discussed, including contemp. We again urge caution in the use of any and all sanctions and do so thoughtfully

25 Let s look at some examples

26 Step 1: File Request and Serve on Other Parties A party may submit a discovery request at anytime that a case is filed, including with the filing The REQUEST must also be served on the opposing party Per the Discovery Rule 500.9(a) and Rule (a), Service of Papers other than Citation, which reads: every pleading, plea, motion, application to the court for an order, or other form of request, must be served on all other parties Step 2: Responding Party May Object A hearing may be requested by the responding party after receiving the Request for Discovery There is no timeframe stated in the rule as to how long the Court must wait for the responding party to request a hearing Reasonableness should be used Makes it harder to grant discovery requested with a case filing

27 Step 2: Responding Party May Object If a hearing is requested, the Court should set it, notice all parties, and hear any concerns This should alleviate the need for any further objections or Motions to Compel If the opposing party does not request a hearing, the Court may sign an order granting discovery without a hearing Step 3: Obtain Court Order Approving The Judge MUST issue a signed order approving discovery The Court has broad discretion in determining what to allow and what time frame to respond Can simply mark through sections not approved of and can attach to a signed order Can require the party to re do the discovery per the approved portions as an order and then sign How can you do this? Texas Rules of Civil Procedure (a)

28 Step 4: Serving the Approved Discovery Once there is an order approving discovery, the discovery may be served on the other parties via Rule (informal discovery) Remember, this rule states in what manner everything except a citation must be served on other parties, by: * Hand * Mail *Fax * (if both parties agree) Or another method approved by the Court There is no need to pay a Sheriff, Constable or process server to formally serve. A party may choose to do this, but it is not required of them. Step 5: Party to Respond A party has no obligation to respond to discovery that has not been approved by written order of the Court If they do not respond, it cannot be held against them because the discovery was improper If they do respond, the Court may choose to strike the invalid discovery request and exclude the information from the case This should prevent embedded discovery as it no longer has any effect

29 Step 6: Party Fails to Respond to Discovery If a party fails to respond to approved discovery, this should be brought to the Court s attention by a Motion to Compel and should be set for hearing should NOT be brought on the Court s own motion A Motion to Compel may also be brought for failure to adequately respond or failure to respond completely Texas Rules of Civil Procedure (c) The Court may, apply sanctions, including dismissal of the case or an order to pay the other party's discovery expenses Texas Rules of Civil Procedure 500.9(a) Motions to Compel May use Texas Rule of Civil Procedure as guidance Court order for reasonable expenses for having to bring a motion to compel, including attorney fees No more discovery by the disobedient party; Facts that were the subject of the discovery order shall be taken to be favorable to the claim of the party obtaining the order; Facts that were the subject of the discovery order not allowed into evidence Strike pleadings, dismiss with or without prejudice, or give a default judgment against the disobedient party Contempt

30 Sanctions for sanctions to be just, there must be a direct nexus among the offensive conduct, the offender, and the sanction imposed. A just sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party and the sanction should be visited upon the offender. Spohn Hosp v Mayor, 104 SW3d 878(Tex.2003). Thank You!