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Texas Discovery: A Guide to Taking and Resisting Discovery Under the Texas Rules of Civil Procedure

Standing Order with Automatic Update Service

Robert K. Wise, Kennon Wooten


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Discovery is the largest cost in most civil actions—as much as ninety percent in complex cases! It also can be the most frustrating part of trial. The key is properly drafting, and responding to, written discovery.

NEW THIS YEAR: Texas Written Discovery has been expanded to include all types of Discovery and includes a new Co-Author, Kennon Wooten.  There are new chapters covering Depositions, Expert Testimony and Physical and Mental Examinations.  There is also a new, robust section on Electronic Discovery. Robert Wise is a founding member of Lillard Wise Szygenda PLLC and his practice centers on trial and appellate litigation.

Robert Wise is a founding member of Lillard Wise Szygenda PLLC and his practice centers on trial and appellate litigation. Mr. Wise is an accomplished writer, having taught legal writing at the Dedman School of Law of Southern Methodist University. Kennon Wooten is a partner at Scott Douglass & McConnico LLP in Austin, Texas and served as the Rules Attorney for the Supreme Court of Texas.



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  • Availability: Available
  • Brand: Texas Lawyer
  • Product Type: Books
  • Edition: 2019
  • Page Count: 984
  • ISBN: 978-1-62881-502-3
  • Pub#/SKU#: TXDIS19
  • Pub Date: 08/28/2018

Author Image
  • Robert K. Wise
ROBERT K. WISE
Mr. Wise is a founding member of Lillard Wise Szygenda PLLC. Since completing his clerkship for the Hon. Paul C. Weick of the U.S. Court of Appeals for the Sixth Circuit, he has practiced law in Dallas, Texas, for more than thirty years. A former equity partner in the international law firm of Hunton & Williams LLP, Mr. Wise left Hunton to form Lillard Wise Szygenda, a boutique litigation firm focused on providing elite representation at economical rates. Mr. Wise’s practice centers on trial and appellate litigation. He has tried more than thirty lawsuits and arbitrations and has argued more than thirty appeals in both Texas and federal appellate courts. His practice areas include: complex commercial litigation involving contract, misrepresentation, and breach of fiduciary duty claims, primarily in the energy, construction, banking, and real estate industries; construction-defects litigation; accounting-malpractice defense; and complex insurance-coverage claims.

Mr. Wise also is an accomplished writer, having taught legal writing at the Dedman School of Law of
Southern Methodist University for five years and having published a number of law review articles on a variety of topics. Some of Mr. Wise’s trial and appellate accomplishments include:

Obtained zero liability judgment after seven-day bench trial in deceptive-advertising action brought by the FTC against three debt-settlement companies and their officers and directors in which the FTC sought more than $58 million dollars in damages. See FTC v. Financial Freedom Processing, Inc., et al., No. 3:10-CV-2446-N (N.D. Tex. Mar. 12, 2012).
Obtained $2.5 million summary judgment award on railway’s indemnity claim against feed mill operator related to railroad crossing accident. See Kan. City So. Ry. v. Pilgrim’s Pride Corp., 2010 U.S. Dist. LEXIS 30260 (W.D. La. Mar. 29, 2010).
Clarified the law on the proper calculation of administrative penalties under Section 15.023 of the Public Utility Regulatory Act. See PUC Docket No. 37634, Agreed Notice of Violation and Settlement Agreement Relating to Luminant Energy Company LLC’s Violation Of PURA § 39.151(j) and PUC Subst. R. 25.503(f)(2), Relating to Failure to Adhere to ERCOT Protocol 6.10.5.4(1) Concerning Load Acting as Resource Service Requirements, Order on Certified Issue at 3 (Feb. 25, 2010)
Successfully defended a major electric generating company in an administrative proceeding seeking the largest fine ($171 million) ever imposed by the Public Utility Commission of Texas
Obtained favorable jury verdict in million dollar breach of contract and fraud action brought against a major midstream natural gas company
Successfully prosecuted a multi-million dollar claim for defective design and construction of one the world’s state of- the art, largest, and most expensive aggregate processing plants
Successfully defended a leading pre-stressed concrete pipe manufacturer against a multi-million dollar claim that the pipe supplied for a major water transmission pipeline was defective
Successfully represented several other pipe manufacturers in many multi-million dollar cases alleging design and manufacturing defects in pre-stressed concrete water pipe
Tried two multi-million dollar arbitrations seeking reimbursement under Directors’ & Officers’ liability insurance policies
Clarified Texas law on standing to sue accounting firms for negligent misrepresentation. See Compass Bank v. King, Griffin & Adamson, P.C., No. 3:01-CIV-2028-N, 2003 WL 22077721 (N.D. Tex. Sept. 5, 2003), aff’d, 388 F.3d 504 (5th Cir. 2004); Abrams Ctr. Nat’l Bank v. Farmer Fuqua & Huff, P.C., 225 S.W.3d 171 (Tex. App.–El Paso 2005)
Represented a large natural gas company in many contract disputes resulting in recoveries and/or contract savings valued at more than one billion dollars
Successfully tried and handled many complex commercial disputes for a variety of corporate clients, including obtaining a favorable jury verdict against Enron after a six-week jury trial
Successfully handled ERISA class action for major electric utility
Obtained a $2,000,000 million jury verdict in a wrongful discharge and defamation action
Successfully handled derivate litigation for major electric utility
Successfully prosecuted antitrust and fraud claims involving coal leases worth billions of dollars for a major electric utility
Argued appeals in the U.S. Courts of Appeals for the Third, Fifth Ninth, and D.C. Circuits and most Texas courts of appeals. Published opinions in appeals handled by Mr. Wise include: CQ Inc. v. TXU Mining Co., 565 F.3d 268 (5th Cir. 2009); Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574 (3d Cir. 2005); Friberg v. Kan. City So. Ry., 267 F.3d 439 (5th Cir. 2001); Abrams Ctr. Nat’l Bank v. Farmer Fuqua & Huff, P.C., 225 S.W.3d 171 (Tex. App.–El Paso 2005, no pet.); Larue v. Genescreen, Inc., 957 S.W.2d 958 (Tex. App.– Beaumont 1997). Professional and Civic Affiliations
Member, State Bar of Texas
Member, Dallas Bar Association, Chairman and Vice Chairman, Legal-Ethics Committee
Member, American Bar Association Publications and Speeches
Author, Administrative Penalties against Electricity Market Participants under the Texas Public Utility Regulatory Act, 62 Baylor L. Rev. 788 (2010)
Co-Author, First Refusal Rights under Texas Law, 62 Baylor L. Rev. 433 (2010)
Co-Author, Of Lies and Disclaimers―Contracting Around Fraud under Texas Law, 41 St. Mary’s L.J. 119 (2009)
Principal Author, Negligent Misrepresentation in Texas: The Misunderstood Tort, 40 Tex. Tech L. Rev. 845 (2008)
Author, Mediation in Texas: Can the Judge Really Make Me Do That?, 47 S. Tex. Law Rev. 849 (2006)
Author, Demand Futility in Shareholder-Derivative Litigation under Texas Law, 28 Tex. Tech L. Rev. 59 (1997)
Author, The Lawyer-Witness Rule: A Comparison of a Lawyer's Ability to be Both Witness and an Advocate under the Texas Code of Professional Responsibility and the Texas Disciplinary Rules of Professional Conduct, 31 S. Tex. L. Rev. 651 (1990)
Author, Note, Binding Interest Arbitration in the Public Sector: Is it Constitutional?, 18 Wm. & Mary L. Rev. 787 (1977)
Speaker, Dallas Bar Association clinics on various subjects Education, Honors, and Miscellaneous
J.D., William & Mary School of Law, Editor, William & Mary Law Review, 1977
B.A., Marietta College, magna cum laude, 1974
Clerk, Hon. Paul C. Weick, Judge of U.S. Court of Appeals for the Sixth Circuit
Legal Writing Instructor at Dedman School of Law of Southern Methodist University
Named a “Texas Super Lawyer” in 2011 and 2012.
Named “Litigator of the Week” in March 25, 2012 edition of the Texas Lawyer for beating the FTC in FTC v. Financial Freedom Processing, Inc., et al.
Member, College of the State Bar of Texas (2009-2010)
Member, Pro Bono College of the State Bar of Texas (2009-2010)



Author Image
  • Kennon Wooten

Ms. Wooten

Ms.Wooten is a partner at Scott Douglass & McConnico LLP in Austin,Texas.  Before joining the firm, she clerked for former Chief Justice Wallace B. Jefferson of the Supreme Court of Texas, worked at Baker Botts LLP (in the trial, pharmaceutical, and appellate practice groups), and served as the Rules Attorney for the Supreme Court of Texas.  In her current practice, she represents a wide range of clients on both sides of the docket.  Her practice areas include complex commercial litigation, personal injury, products liability, professional malpractice, and general civil litigation and appeals.            

Ms.Wooten’s experience as Rules Attorney gave her a specialized understanding of local and statewide procedural rules in Texas. In that position, she responded to public inquiries regarding rules,assisted the Supreme Court of Texas with promulgating and amending rules, and worked with multiple committees and task forces to analyze and address issues confronting Texas litigants.  She continues to focus on rule-related matters in private practice.  She serves as the Vice-Chair of the State Bar of Texas Court Rules Committee and is a frequent writer and speaker on rule-related topics for CLEs.  She served on the Supreme Court of Texas Task Force for Rules in Expedited Actions in2011-2012 and now serves on the Texas Commission to Expand Civil Legal Services. 

Ms.Wooten is actively involved in the bar. She served as the President of the Austin Young Lawyers Association in 2012-2013.  In addition to serving on the State Bar Court Rules Committee, she serves on the Austin Bar Association Board of Directors, Editorial Board for The Advocate (a quarterly publication of the State Bar’s litigation section), and Board of Directors for the Texas Legal Services Center.  She also serves as Editor-in-Chief for Austin Lawyer.  In 2011, she received a Special Commendation of the Supreme Court of Texas and State Bar of Texas for her work as the Rules Attorney.  She has been named as a Texas Rising Star in 2008, 2009, and 2013-2016.


Chapter 1: Introduction

Chapter 2: Discovery’s Purpose and ­Discovery Control Plans and Limitations—Texas Rule 190

2-1 TEXT OF RULE 190
2-2 DISCOVERY’S PURPOSE
2-3 DISCOVERY-CONTROL PLANS

2-3:1 Level 1 Discovery-Control Plans

2-3:2 Level 2 Discovery-Control Plans

2-3:3 Level 3 Discovery-Control Plans

2-3:4 Choosing and Moving the Discovery Level and Modifying the Discovery-Control Plan


Chapter 3: Modifying Discovery Procedures; Conference Requirements; Signing Written-Discovery Requests; Responses and Objections; and Filing Requirements—Texas Rule 191
3-1 TEXT OF RULE 191
3-2 MODIFICATION: IN GENERAL

3-2:1 Modification by Parties

3-2:2 Modification by Court

3-3 CONFERENCE AND COOPERATION REQUIREMENTS

3-3:1 Consequences of Not Including a Certificate of Conference

3-3:2 Assessing Effort to Resolve Discovery Disputes

3-3:3 Consequences of Not Making a Reasonable Effort to Resolve Discovery Disputes

3-4 SIGNING AND CERTIFICATION REQUIREMENTS
3-5 FILING DISCOVERY MATERIALS
3-6 SERVICE OF DISCOVERY MATERIALS

Chapter 4: Permissible Discovery; Forms, Sequence and Scope of ­Discovery; and Protective ­Orders—Texas Rule 192
4-1 TEXT OF RULE 192
4-2 DISCOVERY TYPES AND SEQUENCE
4-3 DISCOVERY’S SCOPE

4-3:1 In General

4-3:2 Trial Witnesses

4-3:3 Income Tax Returns

4-3:4 Financial Information, Bank Records, Net-Worth Information

4-3:5 Impeachment Information

4-3:6 Discoverable Information Need Not Be Admissible at Trial

4-4 WORK PRODUCT

4-4:1 History of Work-Product Doctrine

4-4:2 Definition and Protection of “Work Product” under Work-Product Privilege

4-4:3 Exceptions to Work-Product Privilege

4-5 PROTECTIVE ORDERS

Chapter 5: Written Discovery: Response, Objection, Privilege Assertion; Amending or Supplementing Responses; Failure to Timely Respond; Presumption of Authenticity—Texas Rule 193
5-1 TEXT OF RULE 193
5-2 RESPONSES TO WRITTEN-DISCOVERY REQUESTS

5-2:1 Reasonable Inquiry with Respect to Disclosures, Interrogatories, and Requests for Admission

5-2:2 Reasonable Inquiry With Respect to Production Requests

5-3 OBJECTIONS TO WRITTEN-DISCOVERY REQUESTS IN GENERAL

5-3:1 Proper and Improper Objections to Written-Discovery Requests

5-3:2 General and Subject-to Objections are Improper

5-3:3 Boilerplate Objections are Improper

5-3:4 Disproportionality Objections Are Proper

5-4 PRIVILEGE OBJECTIONS AND ASSERTIONS

5-4:1 In General

5-4:2 Exemption for Litigation Material

5-4:3 Inadvertent Production

5-5 HEARINGS AND RULINGS ON PRIVILEGE OBJECTIONS AND ASSERTIONS
5-6 AMENDMENT AND SUPPLEMENTATION
5-7 CONSEQUENCES OF FAILING TO TIMELY RESPOND, AMEND, OR SUPPLEMENT
5-8 PRESUMPTION OF AUTHENTICITY

Chapter 6: Requests for Disclosure–Texas Rule 194
6-1 TEXT OF RULE 194
6-2 REQUESTS FOR DISCLOSURE IN GENERAL
6-3 PROCEDURE

6-3:1 Form of Disclosure Requests

6-3:2 Time for Serving Disclosure Requests

6-3:3 Contents of a Disclosure Request

6-3:4 Responding to Disclosure Requests


Chapter 7: Expert Discovery—Texas Rule 195
7-1 TEXT OF TEXAS RULE 195
7-2 EXPERT DISCOVERY IN GENERAL
7-3 TYPES OF EXPERTS
7-4 DISCOVERY CONCERNING TESTIFYING EXPERTS

7-4:1 Expert-Disclosure Requests and Designating Experts

7-4:2 Depositions of Testifying Experts

7-4:3 Expert Reports of Testifying Experts

7-4:4 Inadvertent Disclosure of Privilege Materials to Testifying Experts

7-4:5 Discovery of an Expert’s Bias

7-4:6 Amending and Supplementing Testifying Expert Discovery

7-5 DISCOVERY CONCERNING CONSULTING EXPERTS

Chapter 8: Production Requests–Texas Rule 196
8-1 TEXT OF RULE 196
8-2 PRODUCTION REQUESTS IN GENERAL
8-3 NUMBER OF PRODUCTION REQUESTS
8-4 RESPONDING TO PRODUCTION REQUESTS

8-4:1 In General

8-4:2 Motion for Protective Order

8-4:3 Production or Inspection

8-5 OBJECTIONS

8-5:1 General, Subject-to, and Boilerplate Objections

8-5:2 Proportionality

8-5:3 Privilege

8-5:4 Scope Objections: Relevance and not Reasonably Calculated to Lead to the Discovery of Admissible Evidence

8-5:5 Overbreadth

8-5:6 Undue Burden or Unnecessary Expense

8-5:7 Vagueness, Ambiguity, or Lack of Specificity

8-5:8 Unreasonably Cumulative or Duplicative

8-5:9 Expert Opinion

8-5:10 Marshalling Evidence

8-5:11 Supernumerary Objections

8-5:12 The Requested Information or Material is in the Requesting Party’s or a Nonparty’s Possession

8-5:13 Fishing Expedition

8-5:14 The Responding Party’s Failure to Provide Discovery

8-5:15 Harassment

8-5:16 Invasion of Protected Rights

8-5:17 A Claim’s or Defense’s Invalidity

8-5:18 Confidentiality

8-6 ELECTRONIC DISCOVERY

8-6:1 Electronic Discovery Procedure

8-6:2 Parties’ Responsibility to Confer

8-6:3 Requests for Electronic Discovery

8-6:4 Responding to Requests for Electronic Discovery

8-6:5 Proportionality Inquiry and Case-by-Case Balancing Test

8-6:6 Objections and Hearing on Requests for Production of ESI

8-6:7 Access to Electronic-Storage Devices

8-6:8 Availability of Mandamus

8-7 REQUEST OR MOTION FOR ENTRY ON PROPERTY

8-7:1 The Request and Motion or Notice

8-7:2 The Scope of a Request for Entry on a Party’s Property

8-7:3 The Scope of an Order for Entry on a Nonparty’s Property

8-7:4 Response to a Request or Motion and Notice


Chapter 9: Interrogatories–Texas Rule 197
9-1 TEXT OF RULE 197
9-2 INTERROGATORIES IN GENERAL
9-3 INTERROGATORY TYPES
9-4 NUMBER OF INTERROGATORIES
9-5 INTERROGATORY RESPONSES

9-5:1 In General

9-5:2 Option to Produce Business Records

9-5:3 Objections

9-6 SIGNATURE AND VERIFICATION

Chapter 10: Requests for Admission–Texas Rule 198
10-1 TEXT OF RULE 198
10-2 REQUESTS FOR ADMISSION IN GENERAL

10-2:1 Form of Requests for Admissions

10-2:2 Scope of Requests for Admission

10-3 TYPES OF ADMISSIONS
10-4 NUMBER OF REQUESTS FOR ADMISSION
10-5 RESPONSES TO REQUESTS FOR ADMISSION

10-5:1 Admissions

10-5:2 Denials

10-5:3 Admitting or Denying in Part

10-5:4 Lack of Information

10-5:5 Motion for Protective Order

10-5:6 Move for (or Request) an Extension of Time to Respond

10-5:7 Privilege Assertions and Objections

10-5:8 Objections

10-5:9 Do Nothing

10-6 USE AND EFFECT OF ADMISSIONS

10-6:1 Persons Bound by Admissions

10-6:2 Who Can Use Admissions

10-6:3 Limitations on Use of Requests for Admission Against the State of Texas

10-6:4 Effect of Admissions and Denials

10-6:5 Use of Admissions or Denials in Other Proceedings

10-7 WITHDRAWAL, SUPPLEMENTATION, OR AMENDMENT OF RESPONSES TO REQUESTS FOR ADMISSION

10-7:1 Good Cause

10-7:2 Undue Prejudice

10-7:3 Merits Would be “Subserved”

10-7:4 Withdrawal of Merits-Preclusive Deemed Admissions

10-7:5 Use of Withdrawn or Amended Admissions

10-8 TESTING THE SUFFICIENCY OF ANSWERS, OBJECTIONS, AND PRIVILEGE ASSERTIONS TO REQUESTS FOR ADMISSION
10-9 EXPENSES FOR FAILURE TO ADMIT: THE “ADMIT-OR-PAY” RULE

Chapter 11: Depositions—Texas Rules 199-203
11-1 DEPOSITIONS IN GENERAL

11-1:1 Who Can Be Deposed

11-1:2 Depositions’ Scope

11-1:3 Expert Depositions

11-2 ORAL DEPOSITIONS—TEXAS RULE 199

11-2:1 Notes and Comments

11-2:2 Oral Depositions in General

11-2:3 The Deposition Notice

11-2:4 Compelling Attendance at the Deposition

11-2:5 Taking, Attending, and Participating in Oral Depositions

11-2:6 Recording the Deposition

11-2:7 Objections to the Time, Place, or Other Arrangements for a Deposition

11-2:8 The Deposition’s Conduct

11-2:9 Supplementing Oral Deposition Testimony

11-2:10 Second Depositions of a Witness already Deposed

11-3 DEPOSITIONS ON WRITTEN QUESTIONS—TEXAS RULE 200

11-3:1 Notes and Comments

11-3:2 In General

11-3:3 Notice of a Deposition on Written Questions

11-3:4 Compelling the Witness’s Attendance

11-3:5 Questions and Objections

11-3:6 Supplementing Deposition Testimony Upon Written Questions

11-4 DEPOSITIONS IN FOREIGN ­JURISDICTIONS FOR USE IN TEXAS ­PROCEEDINGS AND DEPOSITIONS IN TEXAS FOR USE IN FOREIGN PROCEEDINGS—TEXAS RULE 201

11-4:1 Notes and Comments

11-4:2 In General

11-4:3 Depositions in Another State or Foreign Country for Use in a Texas Court Proceeding

11-4:4 Depositions in Texas for Use in Foreign Proceedings

11-5 DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS

11-5:1 Notes and Comments

11-5:2 In General

11-5:3 The Petition

11-5:4 Hearing and Standards for the Order

11-5:5 The Deposition’s Taking and Use

11-5:6 Appellate Review

11-6 SIGNING, CERTIFICATION AND USE OF ORAL DEPOSITIONS—TEXAS RULE 203

11-6:1 Presentment, Signature, and Changes

11-6:2 Certification

11-6:3 Delivery

11-6:4 Exhibits

11-6:5 Motions to Suppress

11-6:6 Using Depositions


Chapter 12: Physical and Mental Examinations—Texas Rule 204
12-1 TEXT OF RULE 204
12-2 MOTION AND ORDER REQUIRED

12-2:1 Motion to Compel Physical or Mental Examination

12-2:2 Order

12-3 REPORT OF EXAMINING PHYSICIAN OR PSYCHOLOGIST

12-3:1 Examined Person’s Right to Report

12-3:2 Examining Party’s Right to Report

12-3:3 Trial Court’s Discretion to Limit Delivery of Reports

12-3:4 Consequences of Failing or Refusing to Make Reports

12-4 EXAMINATION BY AGREEMENT
12-5 EFFECT OF NO EXAMINATION
12-6 ACTIONS ARISING UNDER TITLES II OR V, FAMILY CODE (NO MOTION REQUIRED)
12-7 ELIGIBLE EXAMINERS
12-8 EXAMINERS’ DERIVED JUDICIAL IMMUNITY
12-9 CHALLENGING ORDERS UNDER TEXAS RULE 204

Chapter 13: Discovery from Nonparties—Texas Rule 205
13-1 TEXT OF RULE 205

13-1:1 Notes and Comments

13-2 DISCOVERY FROM NONPARTIES IN GENERAL
13-3 WHO IS A NONPARTY?
13-4 NONPARTY PRODUCTION REQUESTS WITHOUT A DEPOSITION

13-4:1 Service of the Notice and Subpoena

13-4:2 The Notice’s Contents

13-4:3 The Subpoena

13-4:4 Response to the Notice and Subpoena

13-4:5 The Subpoena’s Enforcement

13-5 NONPARTY PRODUCTION REQUESTS WITH A DEPOSITION

13-5:1 Service of the Notice and Subpoena

13-5:2 The Notice’s and Subpoena’s Contents

13-5:3 The Subpoena

13-6 REQUESTS FOR MEDICAL OR MENTAL-HEALTH RECORDS REGARDING NONPARTIES
13-7 PROVIDING COPIES TO OTHER PARTIES
13-8 THE NONPARTY’S DOCUMENT ­PRODUCTION’S COSTS
13-9 NONPARTY DEPOSITIONS

Chapter 14: Sanctioning Discovery Abuse and Compelling Discovery—Texas Rule 215
14-1 TEXT OF RULE 215
14-2 MOTIONS FOR SANCTIONS OR ORDER COMPELLING DISCOVERY

14-2:1 Notice and Hearing Requirements

14-2:2 Where and What to File

14-2:3 Timeliness of Motions

14-2:4 Motion’s Grounds

14-2:5 Conference and Cooperation Requirements for Motions

14-2:6 Award of Reasonable Expenses, Including Attorney’s Fees

14-3 DISCOVERY SANCTIONS

14-3:1 General Objectives of and Limits on Discovery Sanctions

14-3:2 Heightened Standards Applicable to Death-Penalty Sanctions

14-3:3 Persons Who May Be Sanctioned—Parties, Attorneys, and Nonparties

14-3:4 Sanctionable Discovery Conduct

14-4 PERMISSIBLE DISCOVERY SANCTIONS

14-4:1 Sanctions Orders Specified in Texas Rule 215

14-4:2 A Trial Court’s Inherent Power to Impose Sanctions

14-4:3 Spoliation


Table of Cases
Index