-
PAPER MACHE 33, ORIGAMI & DRAFTING DISCOVERY:CREATIVITY WITH
PAPER
PAUL N. GOLDMorgan & Weisbrod
6800 West Loop South, #450Bellaire, Texas 77401
(713) 838-0003(713) 838-9911 (fax)
ADVANCED EVIDENCE AND DISCOVERY COURSE 1998Houston * November
12-13, 1998
D
-
WRITER’S NOTE: This article was originally published in 1990 for
theState Bar Litigation Seminar and is re-printed here without any
updatingor revisions. While the references may be dated, the
substance of the paperis still probably useful and instructive with
regard to effective discoverydrafting techniques. The author
strongly recommends that practitionersupdate any case law cited
herein before relying on it.
-
Paper Mache33, Origami & Drafting Discovery D-i
Table of Contents
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 1
II. DISCOVERY STRATEGY AND SCHEDULING ORDERS . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 1A. Overview . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . 1B. Discovery
Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . 1C. Scheduling
Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. DEFINITIONS AND INSTRUCTIONS . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 3B. Instructions . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 3C. Definitions . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 3D. Agreements . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 4
IV. REQUESTS FOR ADMISSION . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 4A. Drafting Considerations . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4B.
Relevancy and Scope . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4C.
Tactical Considerations . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5D.
Responding and Objecting to Requests for Admission. . . . . . . . .
. . . . . . . . . . . . . . . . . 7
V. REQUESTS FOR PRODUCTION . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 7B. Requesting Documents and Things . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7C.
Responding to Requests for Production . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 10D. Sanctions. . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . 14
VI. INTERROGATORIES . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 15A. Introduction . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 15B. Timing . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 15C. Number of Answers . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 17D. Composite Information . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 17E. Option to Produce Records . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18F. Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 19G. Tactical Considerations: Specific Interrogatories . . .
. . . . . . . . . . . . . . . . . . . . . . . . . 20H. Rule 215:
Sanctions/Interrogatories . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 23
VII. SUPPLEMENTATION . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 23A. In Writing . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 23B. Formality . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 23C. Duty . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 23
VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 23
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 24
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 28
APPENDIX C . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 37
APPENDIX D . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 41
APPENDIX E . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 48
-
Paper Mache33, Origami & Drafting Discovery D-1
PAPER MACHE33, ORIGAMI AND DRAFTING DISCOVERY:CREATIVITY WITH
PAPER
I. INTRODUCTION II. DISCOVERY STRATEGY ANDGood drafting
techniques can be as important as
discovery itself. The information that is obtainedthrough
discovery will often be no more clear orspecific than the request
in response to which it is Scheduling orders, while not
technicallyproduced. Specificity and clarity are mandatory, if the
discovery devices, can be a very critical aspect of theinformation
and responses are to be useful at trial. It discovery process. An
order that is carefully plannedis important for the litigants to
understand what is and drafted will enhance and enforce the
discoverybeing asked and answered so that the litigation strategy
and timing that a trial attorney desires toprogresses expeditiously
and meaningfully. More implement. In this regard the importance of
aimportantly, however, since written discovery requests discovery
strategy cannot be over-emphasized.and responses may be read at
trial, the jury must Before undertaking discovery in a case the
trialunderstand what has been requested and produced. attorney
should give considerable thought to what areHow well the discovery
has been drafted could very going to be the key issues, terminology
and evidencewell be outcome-determinative. in the case. It is
important to form this understanding
Much of the growing concern about discovery as early and as
clearly as practicable so that in draftingabuse has focused upon
the problems and the discovery requests or responses these central
themesgamesmanship encountered in written discovery and and terms
can be consistently emphasized andwhat can be done about it. The
Texas Supreme Court repeated.has recently taken aim at requests for
production,emphasizing that overbroad and nonspecific requestsmay
fail to meet muster. Loftin v. Martin, 776S.W.2d 145 (Tex. 1985).
Its next step should be totarget evasive, nonspecific responses. On
a differentfront, interest is growing in the concept of
patterndiscovery requests as a way of eliminating thetremendous
amount of time and judicial resourceswasted on resolving
sophisticated disputes oversemantics.1
Throughout this paper I will try to emphasize thatartful and
conscientious drafting of discovery requestsand responses is an
invaluable aspect of a successfullitigation and trial strategy.
Whenever appropriate, Iwill try to illustrate the concepts being
discussed with by what facts are concealed. See, Jampole
v.examples. These examples often will be taken directlyfrom my own
practice and have not been certified orapproved by the bench, the
bar or any other legal -- orfor that matter, illegal -- group. They
may, in fact, besubject to valid objections. I offer them here not
asforms to be blindly adopted and fed into a wordprocessor, but
merely as starting points for creativethought and drafting.
SCHEDULING ORDERS
A. Overview
B. Discovery StrategyA well-thought-out discovery strategy
is
fundamental to obtaining meaningful discovery in anefficient and
effective manner. Often the timing of adiscovery request can be as
significant as the requestitself. The various discovery devices are
designed toaugment each other, and a successful discoverystrategy
will attempt to exploit this concept.
The guiding principal in seeking discovery shouldalways be to
obtain information that will lead toadmissible evidence at trial.
The ultimate goal thatevery discovery strategy should seek to
achieve is theresolution of the dispute by what the facts reveal,
not
Touchy, 673 S.W.2d 569 (Tex. 1984). Arbitrarilyengaging
discovery merely as an end in itself iswasteful and ineffective.
Even worse is the tactic oftrying to bludgeon an opponent into
submission withonerous discovery requests merely to harass
orintimidate, or of attempting to entrap an opponent intomaking a
technical mistake which might cause him toforfeit some vital proof.
While craft, thoroughnessand tenacity are laudable, gamesmanship is
not.
C. Scheduling Orders
1. Even though most trial attorneys recognize andoften advocate
the importance of a planned anddisciplined approach to pre-trial
preparation, few of usare successful in sticking with such a game
plan. The
The State Bar of Texas Administration of Justice1
Committee has created a subcommittee to look into
thedesirability and feasibility of such an approach.
-
D-2 Advanced Evidence and Discovery Course, 1998
successful trial attorney understands, however, that no c. A
discovery schedule;matter how well crafted a strategy is, it has to
beflexible and, when necessary, must adjust to * * *unanticipated
circumstances. A scheduling order is avery useful tool in helping
to shape and effectuate h. The exchange of a list of directsuch a
strategy. witnesses, other than rebuttal or impeaching
The scheduling order forces the trial attorney to witnesses the
necessity of whose testimonymake decisions about what he needs, the
order in cannot reasonably be called to testify atwhich things need
to be obtained and most trial, stating their address and
telephoneimportantly, when information should be obtained and
number, and the subject of the testimony ofwhen it must be
divulged. A common thread running each such witness;through the
reported discovery cases is that attorneysoften times get into
predicaments because they are i. The exchange of a list of
expertunprepared and end up reacting to discovery requests
witnesses who will be called to testify atrather than responding to
them in a deliberate manner trial, stating their address and
telephonein conformance with a theme or strategy. A number, and the
subject of the testimony2
scheduling order can help remedy this problem. and opinions that
will be proffered by each
2. A sample proposed scheduling order is attachedas APPENDIX
A.
3. Rule 166c, which is often overlooked byattorneys, allows
parties to modify the rules ofprocedure to the needs of their
particular case. Byconferring early in the litigation about the
parties'respective short-term and long-term goals, agreementscan be
reached regarding, for instance, timing ofcontention
interrogatories, numbers of interrogatories,order and scheduling of
depositions, manner ofproducing documents, designating and
obtainingreports and/or depositions of expert witnesses. 6. The
Texas Supreme Court, in Mackie v.
4. Trial courts have the discretion to enterscheduling orders to
control the manner and timing ofdiscovery, particularly with regard
to designation andproduction of expert witnesses for
deposition.Werner v. Miller, 579 S.W.2d 455, (Tex. 1979);Loftin v.
Martin, 776 S.W.2d 145 (Tex. 1989);Green v. Lerner, 786 S.W.2d 486
(Tex.App.--Houston [1st Dist.] 1990, n.w.h.).
5. Rule 166 Tex.R.Civ.Proc. has recently undergonesignificant
revision, effective September 1, 1990,granting the trial judge
considerably broad discretionto require parties to appear at
pre-trial conference toconsider, amongst other things:
* * *
3
expert witness;
* * *
1. The marking and exchanging of allexhibits that any party may
use at trial andstipulation to the authenticity andadmissibility of
exhibits to be used at trial;
The rule goes on to authorize and require the trialjudge to
"make an order that recites the action taken atthe pre-trial
conference . . ."
Koslow, 34 Tex.Sup.Ct.J.27 (October 10, 1990), hasheld that
striking pleadings and rendering a defaultjudgment are sanctions
available to a trial court for thefailure of litigants to engage in
an attorney or partyconference or failure to submit a joint
pre-trial statusreport, as ordered by the court. Mackie, supra at
30.4
7. Keep in mind that some counties have specificlocal rules that
require that all discovery be completedwithin a certain time before
trial. ("All parties shall5
complete discovery not less than seven (7) days priorto the date
said case is set for trial unless otherwiseordered on motion
previously filed." Dallas County
See, Babineaux v. Babineaux, 761 S.W.2d 102, 1032
(Tex.App.--Beaumont 1988, no writ). ("The failure of alitigant
to utilize diligently the rules of civil procedure fordiscovery
purposes will not authorize the granting of a Rule 3a Tex.R.Civ.P.
was specifically amended in 1990motion for continuance.") to
provide in subsection 2 that "no time period provided by
Compare the phrase "will be called" with the3
phraseology in Rules 166b2(e)(l) and 166b(6)(b), whichonly talk
about experts who might be called or which aparty expects to
call.
Decided under the pre-1990 amendments.4
5
these rules may be altered by local rules."
-
Paper Mache33, Origami & Drafting Discovery D-3
Local Rules 1.15.) Therefore, it is a good practice at regard to
the number of responses requested or thatthe outset of a case to
inquire whether the court has certain requests that may be deferred
because they areany standing scheduling orders or guidelines.
premature, or to obtain extensions of time for filing
III. DEFINITIONS AND INSTRUCTIONS
A. Introduction
1. Believe it or not, but there was actually a time can be
particularly helpful in making morewhen trial attorneys did not
precede every set of understandable a discovery request containing
thediscovery requests with a five page set of arcane word or phrase
and should be utilized.instructions and definitions. The advent of
these nowubiquitous instructions and definitions coincided with 2.
When requests for production are being served onattempts by the
courts to limit the number of discovery a non-party, definitions of
terms -- such as "therequests that could be served. While
definitions and parties," "the occurrence in question," "the
product ininstructions can serve a useful purpose, they are often
question," and "the date in question" -- can go a longmisused as
ammunition of abuse. way toward putting the inquiry into a
meaningful
2. A sample set of definitions and instructions is responses
with less delay.contained in APPENDIX D.
B. Instructions
1. It is senseless to give instructions in a set ofdiscovery
going to a party. The party and his attorneyare presumed to know
the law. Setting out the rules6
in the preface to the questions merely takes up space.Further,
if the instructions impose requirementsdifferent than the rules,
they are probably of no effect.This author is aware of no rule or
case that states thata party can unilaterally alter the rules of
procedures tosuit his own purposes, or that the responding party
canwaive an objection to such a tactic by not timelyobjecting.
Indeed, it can be inferred from other rulesthat unilateral,
unauthorized attempts to modify the a. For instance, in Loftin v.
Martin, 776rules need not be considered. Instructions that make
S.W.2d 145 (Tex. 1989), the Texas Supreme Court7
an ordinary set of interrogatories burdensome might held that a
request for all documents relevant to aeven justify the imposition
of sanctions. See, particular issue in the lawsuit was vulnerable
to theDiversified Products Corp. v. Sport Center Co., 42F.R.D. 3, 4
(D. Md. 1967).
2. Notwithstanding the above-stated limitations, itcan be
helpful at the beginning of the set of discoveryrequests to set out
proposals for identifying andattempting to voluntarily resolve
potentialdisagreements and disputes concerning the requests.This
approach can be used to obtain agreements with definition. Cf.,
Mole v. Millard, 762 S.W.2d 251
responses and objections.
C. Definitions
1. Definitions of technical terms and terms of art
context, which will probably result in more direct
3. There is the occasional problem that arises whenthe parties
disagree about the definition of a term. Insuch circumstances, the
responding party shouldprobably specially except to the definition
andpreferably offer an alternative definition forconsideration. If
the dispute cannot be resolvedinformally, court resolution should
probably be soughtbecause, if there is uncertainty about the
questionduring discovery, there is predictably going to beconfusion
and disagreement about the answer at trial.
4. An interesting question is how broadly a partycan define a
generic term before it becomes vulnerableitself to the objection of
being overbroad.
objection of being overbroad. The court pointed outthat the
request did not focus on a particular type orcategory of documents.
Could the attorney haveovercome this deficiency by merely defining
the term"document" to include every conceivable type item?The
answer is probably "no" because, while specificdocuments might in
fact be mentioned in thedefinition, the request is in no way
narrowed by the
(Tex.App.--Houston [1st Dist.] 1988) (orig. proc.).b. In County
of Dallas v. Harrison, 759
S.W.2d 530 (Tex.App.--Dallas 1988, no writ), it washeld that a
request for production of photographs didnot include videotapes.
Consider whether the use ofdefinitions might have saved the
request, if the requesthad been for all "photographic films and
prints" anddefined this term to include photographs, slides,
The Texas Supreme Court has recently held that a party6
is under no obligation to remind his opponent of his dutiesunder
the Texas Rules of Civil Procedure. See, Sharp v.Broadway National
Bank, 784 S.W.2d 669 (Tex. 1990).
See, Rules 3a and 166c.7
-
D-4 Advanced Evidence and Discovery Course, 1998
videotapes, movie film and electronically or digitally 2. The
following requests were held to bestored photographic materials.
permissible in a Jones Act case, under the 1984
D. Agreements
1. Rule 166c provides that, unless the court orders @ The
plaintiff was not injured on board theotherwise, the parties may by
written agreement F/V Jason Wade.modify the procedures for how
discovery is conducted.
2. It is important that, if in response to instructions Jason
Wade was seaworthy.or proposals set out in a set of discovery the
rules aremodified (e.g., an extension of the response deadline), @
The F/V Jason Wade's owners, operators,the agreement be expressly
set out in writing, signed captain and crew were not negligent on
orby all parties and filed with the court. about September 4,
1984.8
3. Precision is important in drafting suchagreements. For
instance, if an extension of time isagreed to for discovery
responses, it should be madeclear that such agreement does or does
not pertain toobjections.
IV. REQUESTS FOR ADMISSION
A. Drafting ConsiderationsThere is no other type of request more
difficult to
draft than a good request for admission. Overbroadrequests,
constructed with disjunctive or conjunctivephrases, will accomplish
nothing. A similar outcome,unfortunately, is also predictable if
the request is toospecific. To compound the drafting conundrum,
therequest must be drafted in such a way that, if admitted,the
admission has some understandable meaning to ajury.9
B. Relevancy and Scope
1. Under amended Rule 169(1), requests foradmissions may relate
to any matter discoverableunder Tex.R.Civ.P. 166b. Further, Rule
166bprovides that it is not ground for objection that arequest
propounded pursuant to Rule 169 relates tostatements or opinions of
fact or of the application oflaw to fact or mixed questions of law
and fact or thatthe documents referred to in a request may not
beadmissible at trial. Tex.R.Civ.P. 166b(2)(a).
amendments allowing inquiry into opinions andcontentions:
@ On or about September 4, 1984, the F/V
See, Laycox v. Jaroma, Inc., 709 S.W.2d 2, 3-4(Tex.App.--Corpus
Christi 1986, writ ref'd n.r.e.); see,also, Shaw v. National County
Mutual FireInsurance Co., 723 S.W.2d 236 (Tex.App.--Houston[1st
Dist.] 1986, no writ).
3. A party is not required to admit or deny a pureproposition of
law or facts of which he has noreasonable means of knowing. Gaynier
v. Ginsberg,715 S.W.2d 749 (Tex.App.--Dallas 1986, writ
ref'dn.r.e.). A party cannot be forced to admit theauthenticity of
a physician's records or that suchrecords pertained to the patient.
Some of the morespecific holdings in the case are as follows:
a. Where a request asks a party to admit tohaving made a
statement, an answer that therespondent cannot recall is complete
and sufficient.
b. A party cannot be forced to admit aproposition of law; i.e.,
that a statement concerned theparty's state of mind, at the time it
was made.
4. More often than not the problem the trial judgewill have with
a request for admission is not whetherit is relevant, but whether
the device is being properlyused. This is pretty much a discretion
call, since thereis very little, if any, guidance in this regard
from thecase authorities and the rule. Some trial attorneys
andjudges adopt a pragmatic approach in attempting tolimit the
applicability of requests for admission,expressing the attitude
that requests for admissionshould really be limited merely to
proving thegenuineness of documents and that other discoverydevices
should be used for ferreting out factualdisputes, opinions and
contentions. This approach,however, is needlessly restrictive and
finds no supportin the rule or the case authorities. The scope
ofdiscovery under Rule 169 is as broad as that under anyother
discovery device; and there is nothing in therules that limits its
application, save for the examplescited above.
Rule 11 Tex.R.Civ.P. See, Valley Industries, Inc. v.8
Cook, 767 S.W.2d 458 (Tex.App.--Dallas 1988, err.denied).
While requests for admission do not have to be read to9
a jury to be admissible, nothing prevents them from beingread,
and it can oftentimes be effective to do so.
-
Paper Mache33, Origami & Drafting Discovery D-5
C. Tactical Considerations
1. Despite the broad scope of inquiry under Rule requests for
admission to eliminate the potential for169, it is permissible
(although strongly discouraged), being surprised at trial.subject
to the provisions of Rule 215(4), to deny a a. Assuming a litigant
sends an interrogatoryrequest merely to put the matter in issue at
trial. It is asking for all individuals with knowledge of
facts10
not, therefore, uncommon for a responding party to relevant to
the subject matter of the lawsuit and thedeny matters that even
seemingly appear undeniable. responding party responds with few or
no individuals,To combat this tactic, interrogatories and requests
for requests may be sent the responding party to admitproduction
may be used in conjunction with the that it has listed all
individuals with knowledge ofrequests for admission to obtain more
complete relevant facts and that the individuals it has listed
areinformation. the only ones that it is aware of with such
knowledge.
a. If the respondent denies a request, a b. The responding party
always has the abilitycorresponding interrogatory should request
that he to request leave to amend a response; but, where nostate
all facts he knows or believes to exist relevant to showing has to
be made to supplement the above-such denial. mentioned
interrogatory answer, the responding party
b. Another interrogatory should request all would have to prove
good cause and no prejudice toindividuals with knowledge of facts
relevant to such the opposing party before it should be allowed
todenial. amend the response to the request for admission. See,
c. An interrogatory should be propounded for Rule 169(2).the
identification of all types and categories of c. The above example
works equally well withdocuments and things relevant to such
denial, followed documents that are identified or produced in
responseby a request for production for all such items. to
interrogatories or requests for production.
2. Rule 169, effective September 1, 1990, now 4. Requests for
admission may also be used topermits service of requests for
admission at any time require greater completeness or
responsiveness in"after the commencement of the action."
Presumably, responding to other forms of discovery. For
example,this means that a plaintiff may now serve requests for
recently I was engaged in a products liability case withadmission
with his original petition. a large manufacturer that had been
involved in other
a. It is probably doubtful that as a matter of similar cases for
over a decade. Over the course ofroutine the plaintiff will elicit
many substantive that time, it had generated in excess of
500,000concessions by serving requests with the petition;
documents, all of which it alleged had been placed inhowever, there
could be instances, such a claim its "reading room" for inspection
by plaintiff'sinvolving unliquidated damages, when requests with
attorneys. The defendant proceeded to answer allthe petition are
served and a defendant defaults, where interrogatories and requests
for production by sayingthe plaintiff might be in a position to
request that the that the answers or documents could be found in
therequests be deemed admitted and avoid having to put "reading
room." Rule 168(2)(b) allows a party to referon evidence of damages
at the default hearing. See, a litigant to business records in
answer to anLaycox v. Jaroma, 709 S.W.2d 2, (Tex.App.--Corpus
Christi 1986, writ ref'd n.r.e.).
b. A more practical benefit of serving requestsfor admission
with the petition would be the effectiveelimination of general
denial practice. By servingrequests for admission, asking the
defendant to admiteach of the plaintiff's allegations, the
defendant wouldbe forced to admit or deny each specific
allegation.This might be useful in narrowing issues,
particularlyregarding whether the right defendant has been
servedand whether venue is proper.
3. Combining the broad scope of discovery with thegoal of
narrowing issues, a trial attorney can draft
interrogatory, provided "the burden of deriving orascertaining
the answer is substantially the same forthe party serving the
interrogatory as for the partyserved." I reasoned that, if I could
demonstrate thatthe burden was not "substantially the same," I
couldthen force the defendant to have to narratively respondto my
requests. Accordingly, I sent the defendant adetailed set of
requests, asking whether the defendanthad computerized retrieval
capability with which itcould identify and retrieve documents in
the readingroom. The defendant after three successful motion11
to compel hearings finally unequivocally admitted therequests.
From that point forward it was no longerpermitted to respond to a
request or interrogatory by For instance, under Rule 215(4)(c) a
party may move10
for expenses incurred in making proof when an opponentfails to
admit a request.
See, APPENDIX B.11
-
D-6 Advanced Evidence and Discovery Course, 1998
stating the answer or document could be found in the"reading
room." See, also, American Bankers Ins. medical expenses which the
plaintiffsCo. of Florida v. Caruth, 786 S.W.2d 427(Tex.App.--Dallas
1990, n.w.h.).
5. Requests may be used to expose weaknesses inan opponent's
case or defense. For instance, considera case in which the
plaintiff has alleged $50,000 inmedical expenses as a result of the
occurrence. Thefollowing requests may be used to expose how
thedefendant intends to defend against the allegation,while at the
same time potentially forcing thedefendant to admit the point:
o Admit that the defendant is aware offacts relevant to the
plaintiff'sallegation that he has incurred $50,00012
in reasonable medical expenses formedical services that were
necessary toprovide the plaintiff for the injuries hehas alleged to
have sustained as a resultof the occurrence in question.13
o Admit that the defendant is aware of noindividuals with
knowledge of factsrelevant to the plaintiff's allegation thathe has
incurred $50,000 in reasonablemedical bills for medical services
thatwere necessary to provide proper care tothe plaintiff for the
injuries he hasalleged to have sustained as a result ofthe
occurrence in question.
o Admit that the defendant is aware of nodocuments relevant to
or containinginformation relevant to the plaintiff'sallegation that
he has incurred $50,000in reasonable medical bills that
werenecessary to provide proper care to theplaintiff for the
injuries he has alleged tohave sustained as a result of
theoccurrence in question.14
o Admit with regard to the $50,000 in
alleges to have incurred as a result of theoccurrence in
question that: (answereach subpart separately)
o The expenses were incurred by theplaintiff.
o The expenses were reasonable atthe time they were
incurred.
o The expenses were for medicalservices which were necessary
toprovide the plaintiff proper care forthe injuries he has alleged
to havesustained as a result of theoccurrence in question.15
6. Requests may be drafted to eliminate a claim ordefense even
though the opposing party refuses tostipulate the point. For
instance, if the defendant isalleging unavoidable accident, this
means that neitherparty to the lawsuit was responsible for
theoccurrence. A defendant will generally plead this asan
alternative defense, which is proper andnoncommittal. However, if
the defendant is servedwith requests asking it to admit that the
plaintiff wasnegligent and that the plaintiff's negligence was
aproximate cause of the occurrence, the defendant isfaced with a
difficult dilemma. It can either admit therequests, in which case
its defense of unavoidableaccident is eliminated, or it can deny
the requestswhich will eliminate a defense of
comparativenegligence.
7. Admissions may be used to prove a Motion forSummary Judgment.
See, Laycox v. Jaroma, supra.In the crash of Delta 1141 litigation,
Delta Air Linesoffered to stipulate liability in return for the
plaintiffsagreeing to drop their claims for punitive damages.Many
of the plaintiffs did not consider this acceptable,
I generally try to use the term "alleged" in my requests12
to avoid the evasive response that the defendant denies
theplaintiff sustained an injury because of the
defendant'snegligence.
If the defendant admits that it is aware of facts, then an13
interrogatory can be sent or a deposition question posed to be
outside the opponent's knowledge. Gaynier v.asking of which
specific facts the defendant is aware.
By using negative and positive requests, different goals show a
basis for producing rebuttal evidence on this issue14
are achieved. If the opponent admits that he is aware of at
trial.individuals with knowledge of facts and has not timely
supplemented answers to interrogatories naming them,
suchindividuals may be potentially stricken. If he admits heknows
of no individuals, he would then have to prove goodcause and no
prejudice to be able to later amend.
Question whether these requests could arguably be said15
Ginsberg, 715 S.W.2d 749 (Tex.App.--Dallas 1986, writref'd
n.r.e.). If so, the opponent may be hard pressed to
-
Paper Mache33, Origami & Drafting Discovery D-7
since the stipulation did not go far enough. Instead, 5.
Evasive, self-serving statements, inappropriatelythe plaintiffs
sent Delta requests for admissions asking used to qualify a
response, may be stricken and resultit to admit responsibility and
the violation of variousstandards. These requests resulted in
obtainingadmissions from Delta which then served as the basisof
successful motions for summary judgment. See,APPENDIX C
attached.
8. Requests for admission may and should be usedto confirm the
authenticity of certain documents or toverify that all the
documents a party has produced inresponse to a previous request for
productionconstitute a complete response. When using thisdevice,
however, be sure to attach the documents inquestion, unless they
have been previously producedand marked as exhibits, in which case
the exhibitnumbers may be used instead for reference. See,
Rule169(1) Tex.R.Civ.P.
D. Responding and Objecting to Requests forAdmission.
1. It is not ground for objection that a request foradmission
propounded pursuant to Rule 169 related tostatements or opinions of
fact or the application of lawto fact or mixed questions of law and
fact of that thedocuments referred to in a request may not
beadmissible at trial. Tex.R.Civ.P. 166b(2)(a).16
2. If an objection to a request for admission islodged, the
reason must be stated and the objectionmust be served within the
time provided for responses.Tex.R.Civ.P. 169(i).
3. Admissions qualified with the phrase, "to the bestknowledge
and belief," are subject to being deemedadmitted. McIntyre v.
Sawicki, 353 S.W.2d 953(Tex.Civ.App.--Eastland 1962, writ ref'd
n.r.e.).
4. A request may be deemed admitted when a denialis found not to
have been made in good faith or fails tofairly meet the substance
of the request. U.S. Fire request is served. (Emphasis
added.)Insurance Co. v. Maness, 775 S.W.2d (Tex.App--Houston [1st
Dist.] 1989, writ ref'd).
in the admission being deemed admitted. Lowe v.Employers Cas.
Co., 479 S.W.2d 383(Tex.Civ.App.--Fort Worth 1972, no writ).
6. A "preliminary statement" preceding a response,even if not
stricken, will be held to be inadmissible ashearsay at trial.
Morehead v. Morehead, 741S.W.2d 381, 382 (Tex. 1988).
V. REQUESTS FOR PRODUCTION
A. IntroductionDocuments and other visual or physical items
will usually be some of the most compelling andpersuasive
evidence at trial. This is because juriestend to believe what they
see. Documents and thingsgenerally are most persuasive when they
are offeredagainst the party who generated them. In this
respect,they can be the most damning of all admissions.Recognizing
the trial significance of physicalevidence, underscores the
significance of requests forproduction. What the jury sees will in
large part bedependent upon what the trial attorney has
obtainedthrough discovery. And what the trial attorney obtainswill
be a function of how well his requests are drafted.
B. Requesting Documents and Things
1. Scopea. Rule 167(1)(a) allows any party to request
another party:
[T]o produce and permit the party making therequest, or someone
acting on his behalf, toinspect, sample, test, photograph and/or
copy,any designated documents or tangible thingswhich constitute or
contain matters within thescope of Rule 166b which are in the
possession,custody or control of the party upon whom the
b. Scope Defined by Rule 166b.A party may request to have
produced any of the
documents and things designated in Rule 166b. Thisincludes:
. . . all documents (including papers, books,accounts, graphs,
charts, photographs, electronicor videotape recordings, and any
other datacompilations from which information can beobtained)...and
any other tangible things whichconstitute or contain matters
relevant to thesubject matter in the action.
Although Rule 166b(2)(a) provides that a party16
receiving an interrogatory requesting an opinion orcontention
may move for a protective order deferring ananswer until a later
time, there is no such provision for arequest for admission
directed to an opinion or contention.If faced with such a request
at the outset of a case, thisshould not stop a party from at least
trying to get such relief.
-
D-8 Advanced Evidence and Discovery Course, 1998
2. Breadth.a. The Texas Supreme Court, in Loftin v. It is one
thing to recognize that requests must be
Martin, 776 S.W.2d 145 (Tex. 1989), hasemphasized that, while
the scope of discovery underRule 167 remains quite broad, requests
for production examples in Loftin of what it considered to be amust
be drafted specifically. The request for proper, specific request.
All we know is that theproduction that was the center of attention
in Loftinwas as follows:
. . . all notes, records, memoranda, documentsand communications
made that the carriercontends support its allegations [that the
awardof the Industrial Accident Board was contrary tothe undisputed
evidence.]
The carrier objected to the request on the ground thatit was
vague, broad and unclear. The court agreedwith the carrier that the
request was vague, and found which protection is being sought.
Green v. Lerner,that, while the plaintiff was entitled to see the
evidence 786 S.W.2d 486 (Tex.App.--Houston [1st Dist.]against him,
he was required to formulate his request 1990, no writ).for
production with a certain degree of specificity.Supra at 403. It
can be inferred from the decision thatthe degree of specificity the
Court alludes to requiresidentifying a particular class or type of
document. achieved by preventing the requesting party fromSupra at
403. knowing what items are the subject of the request for
b. No Fishing.Justice Spears, writing for the majority of
the
court, pointed out that the 1966 General Commentaryto Rule 167
Tex.R.Civ.P. quoted with approval thefollowing from Steely and
Gayle, "Operation of theDiscovery Rules," 2 HoustonL. Rev. 222,
223, (1964):
Unlike interrogatories and depositions, Rule 167is not a fishing
rule. It cannot be used simply toexplore. You are permitted to fish
underdeposition procedures, but not under Rule 167.The Motion for
Discovery must be specific, mustestablish materiality, and must
recite preciselywhat is wanted. The Rule does not permitgeneral
inspection of the adversary's records.
Loftin, supra at 148.17
3. The Implications of Loftin v. Martin.
drafted with specificity; it is quite another to actuallydo it.
Unfortunately, the Supreme Court provided no
request that was at issue was found deficient becauseit did not
request a particular class or type ofdocument. What does that mean?
What, for instance,comprises a class of documents?
a. Class of Documents.(1) One recent case has held that, if
the
request for production is for a "category" ofdocuments and the
responding party objects toproducing certain documents because of a
claimedprivilege or exemption, it is not necessary for
theresponding party to specify the "particular items" for
(2) Comment: Although the Green holdingmight be a logical
interpretation of the rules, it isdifficult from a practical
standpoint to see what is
protection. Of course, if the Green holding isapproved, it is
just one more reason for draftingrequests as specifically as
possible.
b. Types of Documents.(1) It would seem that, if the Green
holding is indeed correct, the safest thing to do wouldbe to
request specific types of documents, wheneverfeasible. Requesting
specific documents, however, isnot without its risks.
(a) The perils of specificity arebrought home by the decision in
County of Dallas v.Harrison, 759 S.W.2d 530 (Tex.App.--Dallas
1988,no writ). In that case the Dallas Court of Appealsaddressed
the issue of whether photographs andvideotapes are in the same
category or in differentcategories under Rule 167(1)(c) in trying
to decidewhether a request for photographs includes a requestfor
videotapes. The court held that they are twoseparate items and
consequently a request for one isnot going to be considered a
request for the other.
(b) In Ramirez v. Volkswagen ofAmerica, Inc., 788 S.W.2d 700
(Tex.App.--CorpusChristi 1990, writ denied), the plaintiff
servedVolkswagen with the following request:
All written or other documentation, photographsand reports
including, but not limited to,documentation of testing, factual
observations,test, supporting data and calculations of the
area,persons and or vehicle and objects involved,
While every trial attorney who has ever received a17
request such as the one involved in Loftin will doubtlessapplaud
the result the court has reached, the court's analysisis somewhat
troubling. Justice Spears apparently based theholding on the
reasoning in an article written twenty-fiveyears ago when parties
had to demonstrate "good cause" andmateriality for a request for
production. The court fails toreconcile the present rule with the
prior rule requiringshowings of materiality and good cause.
Further, the courtfails to explain why requests for production
should betreated differently than any other discovery device.
-
Paper Mache33, Origami & Drafting Discovery D-9
either made before, at the time of or after (Tex.App.--El Paso
1989) (orig. proc.). I have begunthe time of the events in question
in your experimenting with the technique of usingpossession and/or
in the possession of your interrogatories to identify the specific
classes andexperts. types of documents I might want to initially
obtain.
During trial, Volkswagen offered into evidence sometests of a
"Volkswagen Type 2 vehicle," and theplaintiff objected because such
items had not beenpreviously produced in response to the above
request.The court admitted the evidence, observing that, whilethe
request for production was limited to "tests . . . ofthe vehicle .
. . involved," (Emphasis added by court.) seek.the offered evidence
related to a vehicle other than the (2) In the event this technique
is to beactual one involved. Ramirez, supra at 706.
(2) Recall that, earlier in the paper, underthe discussion about
definitions, the issue was raisedwhether the Loftin requirement of
specificity could beavoided merely by defining the term "documents"
toinclude everything that Rule 167 has defined it tomean. It is
uncertain whether the Texas SupremeCourt is going to allow
attorneys to meet thespecificity requirement it has promulgated by
merelydefining terms broadly. It is doubtful, since it wouldbe
difficult to reconcile such an approach with thephilosophy that
requests for production are not adevice for fishing. The more
likely interpretation thatwill be given Loftin is that a request
must be confinedto a particular type or class of document.
4. Potential Problems and Complying with Loftinv. Martin.
a. The practical problem posed by the Loftindecision,
particularly with regard to plaintiffs, is thatearly in discovery
it difficult to know what specifictypes of documents exist. This
problem can becomeeven more frustrating when the responding party
hasdeveloped unique identifying names and titles foritems, apart
from how they may be generically referredto in the industry. A
related problem is the "Rambo"tactic of a witness refusing (often
on advice ofcounsel) to answer a question until every term
isspecifically and precisely defined. By requiringspecificity
without providing examples for guidance,the Texas Supreme Court may
have unintentionallylent support to these practices. In an attempt
tolighten the burden of discovery and bring clarity to theprocess,
the Supreme Court may be opening Pandora'sbox just enough to
release the demons of sophistry andhypertechnicality, two creatures
which must beshackled and exiled if the primary objective of
theTexas Rules of Civil Procedure is to be achieved. See,Rule 1
Tex.R.Civ.P.
b. One approach to complying with Loftin isto use
interrogatories to identify what should besought. See, Limas v.
DeDelgado, 770 S.W.2d 953
An example of a set of interrogatories utilizing suchapproach is
set out as APPENDIX D.
(1) The above technique is particularlyuseful in a complex case,
such as a product liabilityclaim, and may not be necessary in a
simpler action,such as a motor vehicle collision, in which there
willbe little mystery about what pertinent documents to
utilized, prior to sending out the interrogatories, anagreement
with the responding party or an order of thecourt should be
obtained, allowing for the enlargementof the permissible number of
responses that may beelicited. It would stand to reason that if,
rather thansending out a burdensome "fishing net" set of
requestsfor production, a party were to utilize interrogatoriesso
that the responding party could merely identifywhat, if any, items
in its possession were specificallyresponsive, the court should be
inclined to give widelatitude to the number of "identification
interrogatory"responses that may be allowed.
5. Purpose.One of the purposes of the request/response
procedure is to substantially reduce court involvementin the
discovery process.
6. Procedure.a. Instead of filing a motion for production,
the
procedure for the party seeking production is to file arequest
on another party, which specifies a reasonabletime, place and
manner for making the production orinspection, or performing the
related acts. EffectiveSeptember 1, 1990, the request must be filed
with thecourt and served upon every party to the action.
b. The party upon whom the request is servedhas thirty (30) days
in which to file a written responseand any objections to the
request. The time formaking the response may be lengthened or
shortenedby the court on a showing of good cause.
EffectiveSeptember 1, 1990, the response, but not necessarilythe
responsive documents, must be filed with the courtand served upon
every party to the action.
c. In Limas v. DeDelgado, 770 S.W.2d 953(Tex.App.--El Paso 1989)
(orig. proc.), interrogatorieswere served requesting that the
responding party:
. . . attach all reports and opinions of yourattorney or subject
to your control, from suchexpert witness or potential expert
witness you
-
D-10 Advanced Evidence and Discovery Course, 1998
expect to call at the trial of the above entitled and
maintenance performed on the machine in question fornumbered cause.
the months of June, July, and August 1988," the
The testimony of the responding expert witness was to this point
to locate any logs in response to thisallowed at trial although no
documents were attached request" or "no such logs were kept," or
"such logsto the answers to interrogatories. The court found no
were kept at one time but were destroyed in theabuse of discretion,
reasoning that the wrong ordinary course of business, in 1989, as
part of aprocedure was utilized in the attempt to procure the
longstanding document retention policy," or "we havedocuments and
that a request for production under been able to locate a requested
log only for the monthRule 167 should have been employed instead.
of August, 1988." Such an amendment would mean
d. Rule 167 allows a plaintiff to serve requests that written
responses would then provide meaningfulfor production with the
citation and original petition. information regarding what is in
the possession of theIn such instances, the party served with the
request respondent and what is not, what will be madewill have
fifty (50) days after service within which to available and what
will not.serve written responses and objections.
C. Responding to Requests for Production Until litigants are
required to respond to specific
1. Specificity.a. The Texas Supreme Court, in Loftin v.
Martin, only addressed the specificity required of arequest;
nothing was written regarding the specificityrequired of a
response. There is no question that anoverbroad request can be
frustrating and burdensome;however, equally frustrating and
dilatory is theunresponsive, nonspecific response.
b. Comment: One of the major frustrations the party served with
the request. Texhoma Stores,with requests for production is that
the requirementsfor the written response are so minimal as to make
thewritten response of virtually no value at all. Rule167(1)(d)
provides as follows:
The party upon whom the REQUEST is servedshall serve a written
RESPONSE which shallstate, with respect to each item or category
ofitems, that inspection or other requested actionwill be permitted
as requested . . .
The problem which all too frequently arises is that
theresponding party merely responds by saying "we willmake
available whatever documents and things are inour possession," or
"we will make the documents inour possession available for
inspection," or "we havedocuments responsive to the request, which
we willmake available for inspection." These type answers,while
arguably in compliance with the rule, provide nomeaningful
information that advances the ball. Therequesting party has to make
arrangements to inspectthe documents, and only then will he find
out what isand is not being produced.
The Texas Supreme Court should consideramending Rule 167(1)(d)
to require that the writtenresponse "fairly meet the substance of
the request"(See, Rule 169.), meaning that, if the request asks
for"all maintenance logs regarding preventative
response should state "the defendant has been unable
The requirement imposed by Loftin, thatrequests be specific,
solves only part of the problem.
requests with like specificity, delay and abuse willcontinue to
pervade the discovery process.
2. Possession.a. A party is required upon receipt of a
proper
request to produce for inspection and copyingdiscoverable
documents and things in its possession.The documents or things to
be produced or inspectedmust be within the possession, control or
custody of
Inc. v. Am. Cent. Ins. Co., 424 S.W.2d 466(Tex.App.--Dallas
1968, writ ref'd n.r.e.); In Re W.R. M., 534 S.W.2d 178
(Tex.App.--Eastland 1976, nowrit). The right of custody and
control, rather thanphysical possession or geographical
location,constitutes the most important consideration indetermining
the right of production. See, e.g., Sales,Pre-Trial Discovery in
Texas, 31 S.W.L.J. 1034(1979); Bifferator v. States Marine Corp.,
11F.R.D. 44, 46 (D.C. N.Y. 1951) (F.R.C.P. 34). Thedocuments or
other matters to be produced need not bewithin the jurisdictional
boundaries of the court. See,generally, Buckley v. Vidal, 50 F.R.D.
271 (D.C.N.Y. 1970) (F.R.C.P. 34); Cf., Hastings Oil Co. v.Texas
Co., 234 S.W.2d 389 (Tex. 1950); and Robbv. Gilmore, 302 S.W.2d 389
(Tex.App.--Fort Worth1957, no writ). By "control" of the party, it
is meantnot only that he directly controls or personallypossesses
the document or thing sought, but alsoincludes those items over
which he exercises indirectcontrol and thus has access to such
items. Documentsrelating to a foreign corporation that are in the
actualpossession of an American subsidiary have been heldto be
discoverable. Dobbins v. Kawasaki MotorCorp., USA, 362 F.Supp. 54
(D. Or. 1973); Reevesv. Pennsylvania R.R. Co., 80 F.Supp. 107 (D.
Del.1948). The opposing party's tax records arediscoverable
although not in the care or custody of the
-
Paper Mache33, Origami & Drafting Discovery D-11
party, since he does "control" them in the sense that he records
not theretofore furnished to the requestinghas the right to obtain
them. Mareska v. Marks, 362S.W.2d 299 (Tex. 1962). Further, it has
been held damages asserted." Recently, in Mutter v. Wood,that
material evidence, not otherwise privileged, which 744 S.W.2d 600
(Tex. 1988), the Texas Supremethe party has turned over to his
attorney is subject to Court held that the trial judge abused her
discretion bydiscovery. See, Ex Parte Knollenburg, 123 Tex.126, 62
S.W.2d 37 (1934); see, also, United States v.I.B.M. Corp., 60
F.R.D. 650 (D.C. N.Y. 1973).Actual ownership of the item is not
required; simplepossession is sufficient. United States v.
NationalBroadcasting Corp., 65 F.R.D. 415 (C.D. Cal.1974), appeal
dismissed, 95 S.Ct. 1668 (1976).
b. The 1988 amendments expanded theconcept of possession to
include "superior right tocompel." A party that has a superior
right to that ofthe requesting party to compel the production of
anitem from a third party (including an agency, authorityor
representative) is considered to have possession ofthe item.
3. Options.a. The party who produces documents is given
the option to produce them as they are kept in theusual course
of business or to organize and label themto correspond with the
categories in the request.
b. The responding party should avoid engagingin the abusive
tactic of producing massive piles ofpapers (the "boxcar
production") and the tactic ofscrambling or burying key documents
("shuffling thedeck"), rather than producing documents in
theiroriginal form or in an otherwise orderly state. Bothpractices
have been denounced and could be groundsfor sanctions. See,
American Bankers Ins. Co. ofFlorida v. Caruth, 786 S.W.2d 427
(Tex.App.--Dallas 1990, n.w.h.): and see, also, Kaminsky,"Proposed
Federal Discovery Rules for Complex CivilLitigation," 48 Fordham L.
Rev. 907, 974 (1980).
4. Destructive Testing.A new protective provision has been added
to
Texas Rule 167 which provides for notice, a hearing,and prior
approval by the court if the testing sought orthe examination of
the matters produced is likely tocause destruction or material
alteration of an article.See, Tex.R.Civ.P. 167(1)(g). In keeping
with theFederal Rules, broad discretionary powers rest in thetrial
court in the implementation of this and otherprovisions of the new
rule.
5. Authorizations.a. Medical Authorizations.Rule 166b(2)(h)
provides that any party alleging
physical or mental injury and damages "shall berequired, upon
request, to produce or furnish anauthorization permitting full
disclosure of medical
party, which are reasonably related to the injury or
requiring the plaintiffs to sign a medical
authorizationrequiring absolute and total waiver of
thepatient/physician privilege. The court observed thatthe
plaintiffs had properly requested that the physiciannot be
questioned out of their presence. (This hadbeen accomplished by
setting out this restriction in themedical authorization provided
by the plaintiff.) Thisopinion evidences strong disapproval of the
practice ofconducting ex parte communications with anopponent's
treating physician. It should be noted thatthe party is permitted
under this rule to produce therecords in lieu of furnishing a
medical authorization tothe opposing side. In Batson v. Ramsey, 762
S.W.2d717 (Tex.App.--Houston [1st Dist.] 1988, orig. proc.),the
relator complained that the medical authorizationhe was being
requested to sign was defective for thesame reasons as the one in
Mutter. The appellatecourt disagreed, holding that the
authorization wasrestricted to 1) records; 2) from a specific
doctor'soffice, and 3) relating to a specific condition (alcoholor
drug use by the relator). Batson, supra at 721.
b. Comment: While Rule 166b(2)(h) allowsfor the production of a
medical authorization from anyparty alleging physical or mental
injury, there is noprovision in our Rules of Procedure for
requiring anauthorization to produce any other types of recordssuch
as income tax returns, social security wageearning verifications,
employment or school records.But see, Martinez v. Rutledge, 492
S.W.2d 398(Tex.Civ.App.--Dallas 1979, err. ref'd 1980).
6. Objections.a. Burdensome Requests.In many instances the issue
raised in a discovery
request for documents is not that the documents do notexist or
are irrelevant, but that it would be burdensomefor the responding
party to have to gather and producethe documents. The question has
been addressed inseveral recent cases dealing with the issue of
whetherprior similar claims are discoverable. There is anapparent
consensus in the decisions that informationregarding other similar
claims may be relevant anddiscoverable when there are allegations
of a continuingpattern or practice or unfair course of
dealing;18
however, there is less clarity regarding when a
Also, see, John Deere & Co. v. May, 773 S.W.2d18
369 (Tex.App.--Waco 1989), regarding admissibility ofprior
judgments on the issue of notice.
-
D-12 Advanced Evidence and Discovery Course, 1998
responding party has to actually produce documents inresponse to
the request. Scrivner v. Casseb, 754S.W.2d 354, 357 (Tex.App.--San
Antonio 1988, nowrit); Aztec Life Insurance Co. of Texas v.
Dellana, d. Expert Reports.667 S.W.2d 911 (Tex.App.--Austin 1984,
no writ); If a party wants an opponent's expert witness toand
Lunsman v. Spector, 761 S.W.2d 112, 114(Tex.App.--San Antonio 1988,
no writ).
(1) In Aztec, supra, an insurancecompany's own claim files were
held discoverable.
(2) However, in Scrivner, supra, therespondent City produced an
affidavit that othersimilar complaints were not indexed by the City
andthat it would be burdensome to produce thedocuments. The court
held that the actual pleadingsfrom other lawsuits were not required
to be producedbecause they could be obtained from public
records.
(3) In Lunsman, supra, an affidavit wasalso filed by the
respondent stating that the files of thelawsuits that were being
sought were located invarious offices throughout the country. The
court heldthat the plaintiffs were entitled to know of othersimilar
claims to establish an unfair course of dealingbut the request for
the actual pleadings was overlyburdensome.
b. Relevancy.The request should be narrowed to a relevant 772
S.W.2d 72 (Tex. 1989) (McKinney II).
time period. General Motors v. Lawrence, 651 Although Gutierrez
v. Dallas I.S.D., 729 S.W.2d 691S.W.2d 732 (Tex. 1983); however,
the request does (Tex. 1987), concerned improper interrogatories,
it is19
not have to be confined to the specific product or reasonable to
infer that, if a party sends an improperitems involved in the
litigation. Jampole v. Touchy,673 S.W.2d 569 (Tex. 1984); and
IndependentInsulating Glass/Southwest, Inc. v. Street, 722S.W.2d
798 (Tex.App.--Fort Worth 1987, writdism'd). The scope of discovery
does not have to beconfined to the pleadings. See, Stevenson v.
Melady,1 F.R.D. 329 (S.D. N.Y. 1940); and United States v.American
Tel. & Tel. Co., 461 F.Supp. 1314 (D.D.C. 1978); but cf.,
Lindsey v. O'Neill, 689 S.W.2d400, 402 (Tex. 1985) (holding that it
is not an abuseto limit discovery to the issues pleaded). The
scopemay even be broadened if gross negligence is alleged.General
Motors v. Lawrence, supra, (concurringopinion, Justice Ray).
c. Requests Are Confined to Existing Things.A Rule 167 request
for production cannot be
used to require a party to generate something that doesnot
exist; for example, a list of potential witnesses.
Loftin v. Martin, supra, at 146; McKinney v.National Union Fire
Insurance Company ofPittsburgh, Pa., 772 S.W.2d 72 (Tex. 1989).
reduce to tangible form his opinions and conclusions,it is not
enough to merely send a request forproduction. If the party does
not respond or objects,the requesting party must file a motion and
obtain acourt order. Loftin v. Martin, 776 S.W.2d 145
(Tex.1989).
e. Timeliness of Objections.After the date on which answers are
to be served,
objections are waived unless an extension of time hasbeen
obtained by agreement or order of the court orgood cause is shown
for the failure to object withinsuch period. Rule 166b(4)
[effective September 1,1990].
f. Improper Requests/Special Exceptions.It has been indicated by
members of the Texas
Supreme Court that the required procedural stepsnecessary for
preserving an objection to a request forproduction under Rule
166b(4) are activated only bya proper discovery request. McKinney
v. NationalUnion Fire Insurance Company of Pittsburgh Pa.,
request for production, the responding party mustspecially
except to it within the time period forresponding to the requests,
at the risk of waiving theobjection.20
6. Supplementation Requirement.Failure to timely supplement a
request for
production can result in the automatic exclusion of
theunproduced documents and things at trial. Lopez v.Foremost
Paving, Inc., 796 S.W.2d 473 (Tex.App.--San Antonio 1990, appl. for
writ filed); and Wilson v.Snead Site Preparation, Inc., 770 S.W.2d
840(Tex.App.--Houston [14th Dist.] 1989). Along thesesame lines, a
testifying expert's testimony could belimited or excluded for
failing to produce an orderedreport. Ramirez v. Volkswagen of
America, 788S.W.2d 700 (Tex.App.--Corpus Christi 1990,
writdenied).
7. Non-Parties.Rule 167(5) grants the court authority to
order
production from a person, organizational entity, In this regard,
it is recommended that the definitions of19
the request always contain the term "designated timeperiod." The
term should be defined to include a particulartime period unless
otherwise stated. See, APPENDIX D.
See, APPENDIX E.20
-
Paper Mache33, Origami & Drafting Discovery D-13
government agency, or corporation who is not a partyto the suit.
However, in order to achieve suchdiscovery, the movant must give
notice to all partiesplus the non-party and then file a motion
setting forthwith specific particularity the request and the
necessityfor such discovery. The court then has a hearing onthe
motion in which all parties and the non-party fromwhom discovery is
sought shall be given theopportunity to assert objections to the
motion fordiscovery. Tex. Education Agency v. Anthony, 700 matter
of this lawsuit. In this regard, theS.W.2d 192 (Tex. 1985). There
is no comparable term "reports" also encompasses allfederal rule
that permits production from a non-party. "learned treatises"
(works of scientificRule 34(c) Fed.R.Civ.P. provides, however, that
"this value in the field of the expert's area ofrule does not
preclude an independent action against a expertise) the expert has
reviewedperson not a party for production of documents and and/or
relied upon in forming histhings and permission to enter upon
land." opinions relevant to the subject matter of
8. Tactical Considerations: Specific Requests.In drafting
requests for specific documents and o All tests, photographs, movie
and/or
things, the best advice is to track the rules and case videotape
film, and/or image-recordingauthority as closely as possible. Also
-- although I films of any nature; diagrams; sketches;personally
have a very hard time following this advice graphs;
computer-assisted calculations-- try not to make the requests long
and complicated. and recreations; and/or models andSome attorneys
adhere to the belief that a request mock-ups generated by or
provided tocannot be comprised of more than one sentence. This the
expert relevant to his involvement inis wrong; requests should be
comprised of as many the instance case and/or relevant to
thesentences as it takes to make the request clear. testimony he
may give at trial.Sometimes it is helpful to add an explanation to
arequest, explaining the parameters and purpose for o For any
consulting expert whose workthem. The following examples are
offered to illustrate produce has been reviewed by an expertthese
concepts: who may testify on your behalf at trial,
a. Expert Reports.
o For each and every expert witness thatthe defendant has
employed -- speciallyor in the ordinary course of
business(including its agents, representatives,employees and
vice-principals) -- andwho may testify at trial in this
cause,please produce the following things in thedefendant's
"possession":
o The expert's current and completebiography or curriculum
vitae, includingall bibliographies of completed workswhich he has
authored or co-authored,or to which he has contributed, whetheror
not such works have been generallypublished.
o All "reports," including, but not limitedto, all drafts and
revisions of suchreports (whether on hard copy orelectronically
stored). The term
"report" as used herein includes alldocuments (memoranda,
notes,correspondence, charts and graphics)containing the expert's
factualobservations, as well as all opinions andall supporting data
or material which theexpert has reviewed and/or relied uponin
formulating his opinions and mentalimpressions relevant to the
subject
this lawsuit.
please similarly produce all the above-requested items.
b. Investigation.
o All investigative and/or incident"reports" generated by or on
behalf ofthe defendant prior to its being aware ofan outward
manifestation from theplaintiffs of an intent to bring the
instantlawsuit relevant to the following:
o The subject matter of the instant lawsuit;
o The "incident in question";
o The defendant's personnel (agents,representatives, officers
and employees)that were on the premises in question atthe time of
the incident;
o The policies, procedures, guidelinesand/or regulations that
were applicableto the activities taking place on the
-
D-14 Advanced Evidence and Discovery Course, 1998
premises in question at the time of or potential financial
impairment, pleasethe incident in question, which were produce all
written communicationsmaterial to the incident in question; from
the carrier(s) relevant to such
o Potential witnesses regarding theincident and/or the
circumstances that D. Sanctions.existed on the premises
immediatelyprior to, during and/or after the incident.
o In addition to the above "reports," the American Bankers Ins.
Co. of Florida v. Caruth,following things generated (during the 786
S.W.2d 427 (Tex. App.--Dallas 1990, n.w.h.)same prescribed time
period) inconjunction with the above-referenced 2. Failure to
timely respond or supplement ainvestigations and/or investigation
response will result in the withheld evidence beingreports are
requested: all notes,memoranda, written
communications,electronically stored data andcommunications,
photographs, movies,videotapes, models, reenactments,audiotapes,
written statements and tests.
c. Insurance Policies.
o All insurance agreements and/or policies-- including, but not
limited to, primary,umbrella and excess policies (andincluding all
endorsements, schedulesand amendments) applicable to the
date,incident or claims in question (regardlessof whether on a
claim made oroccurrence basis) potentially obligatingthe insurance
carrier(s) to pay apotential judgment in this case for theclaims
asserted against the defendant.[It is requested that the defendant
makethe above documents available forinspection in their
original,unexpurgated form.]
o In the event the claim is being handledby the insurance
carrier(s) onreservation(s) of rights, please produceall
communications from the carrier(s)relevant to such
reservation(s).
o In the event the pertinent policies areaggregate policies and
the annualaggregates have been reduced, pleaseproduce all
settlement documents and/oragreements relevant to the payment
ofsuch claims, reducing such aggregates.
o In the event the carrier(s) of anypertinent policies have
given thedefendant notice of financial impairment
notice.
1. Production of meaningless documents that arenon-responsive to
a request may result in sanctions.
stricken. Wilson v. Snead Site Preparation, Inc.,770 S.W.2d 840
(Tex. App.--Houston [14th Dist.]1989).
VI. INTERROGATORIES
A. IntroductionInterrogatories are by far the most flexible
and
forgiving written discovery device for obtaininginformation. An
interrogatory may be drafted in sucha way as to obtain virtually
any type of information atrial attorney might want to obtain in
preparing fortrial. This is not to say, however, that
interrogatoriesdo not have limitations or that they should
beexclusively used to develop a case. The question,oftentimes, is
not whether the interrogatory can bedrafted to elicit particular
information, or how itshould be drafted, but whether an
interrogatory shouldbe the device used to seek the information.
The21
drawback to interrogatories is that, just as attorneysare the
ones that usually draft them, it is attorneys whousually prepare
the answers. Unfortunately, thismeans that, more often than not, a
well-craftedinterrogatory will merely inspire a well-crafted
(readthat, evasive or non-responsive) response. Despitethis
limitation, interrogatories are a useful discoverydevice that can
play an important role in advancing adiscovery and trial strategy.
Effective draftingtechniques will take these advantages
intoconsideration.
The main problem with interrogatories is that, no21
matter how well crafted, they tend to reveal the
attorney'sstrategy and thought process. This may sometimes
betactfully disadvantageous. Depositions are usually a betterdevice
for obtaining explanations. Interrogatories areexcellent for
obtaining factual data.
-
Paper Mache33, Origami & Drafting Discovery D-15
B. Timing
1. Request. same specificity considerations would similarly
applya. The First-Strike Capability. to other terms such as the
"incident" or "transaction"Rule 168 permits a plaintiff to serve in
question.
interrogatories with the original petition. In such an c.
Information to Be Sought in Early Requests.instance the responding
party has fifty (50) days from (1) Plaintiff.the date of service
within which to file responses and An early set of interrogatories,
served withobjections. There are perhaps a number of reasons the
petition or shortly after the defendant has filed anwhy plaintiffs
would want to send out interrogatories answer, can be useful in
answering importantwith their petition, a very good one being to
simply to questions so that the plaintiff knows he is on the
rightget it done. On a tactical level, however, serious track and
can establish some early discovery targets.thought should be given
to what the goal is in seeking Useful interrogatories in this
regard would be onesearly information. If the goal is merely to put
the that elicit whether the defendant has been properlydefendant on
the discovery defensive, then the strategy named and sued, the
financial ability of the defendantis at best a short-sighted one
because the defendant (assets and/or insurance) to pay a potential
judgment,can send out discovery -- which will have to be
individuals who are believed to have knowledge ofanswered by the
plaintiff before the defendant's facts regarding the lawsuit in
general or about specificanswers are due -- before its answer date.
In short, the issues, individuals employed by the defendant in
thetactic of being first, just to be first, is a petty weak
ordinary course of its operations who might havestrategy. expertise
in specific areas relevant to the issues in the
b. Limitations on Early Requests. case, and types and categories
of documents thatPoor timing of a request can sometimes impair its
might be relevant to or contain information relevant to
usefulness. If, for instance, a plaintiff serves only a
particular issues in the case.bare-bones petition accompanied by a
set of (2) Defendant.interrogatories requesting the defendant's
contentions, An early set of interrogatories sent out byit is
predictable that all that is going to be netted is a the defendant
should in a number of respects mirrorreturn set of objections and
requests for protection. the types of requests served by the
plaintiff. UsefulContention interrogatories at the inception of a
case interrogatories in this regard should attempt to identifyare
probably vulnerable to an objection that they are all the potential
plaintiffs and what special orpremature, and requests for
production that the quantifiable damages they are claiming, the
totalanswers be deferred until additional factual discovery amount
of damages the plaintiffs are seeking,has been completed.
individuals who may potentially have knowledge of22
(1) Rule 166b(2)(a) allows a party facts relevant to the
plaintiffs' allegations, otherreceiving a contention or opinion
interrogatory to seek entities with whom the plaintiffs have
entered intoan order from the court that such an interrogatory
agreements with regard to the occurrence giving rise to"need not be
answered until after designated discovery the lawsuit or the
lawsuit itself, and types andhas been completed or until a pretrial
conference or categories of documents in the plaintiffs'
possessionother later time." that contain information relevant to
the plaintiffs'
(2) It is also worth pointing out in this allegations.discussion
that asking a defendant in the first set of (3) Types and
Categories of Documents.interrogatories to admit that it
manufactured the After the Texas Supreme Court's ruling in"product
in question," without specifically identifyingthe product in a set
of definitions, is probably ahopeless endeavor. If such an
interrogatory is going tobe propounded, the term "product" should
be asprecisely defined as feasible, with as muchinformation as the
plaintiff has (serial number,incident reports, manuals,
photographs, etc.) being
attached to the definition as appendices andincorporated into
the definition by reference. The
Loftin v. Martin, 776 S.W.2d 145 (Tex. 1990), Ihave attempted to
refrain from sending out requestsfor production until after I have
sent outinterrogatories asking the respondent to identifypertinent
types and categories of documents.23
Basically, this approach results from a recognition
thatoftentimes the plaintiff does not know what types or
See, Rule 166b(2) and In Re Convergent An example of such a set
of interrogatories is attached22
Technologies Securities Litigation, 108 F.R.D. 328 (N.D. as
APPENDIX D. The rationale behind this approach isCal. 1985)
(interpreting Rule 33(b) Fed.R.Civ.P., which is discussed in detail
under the section on Requests forvirtually identical in wording to
Rule 166b regarding scope Production.of discovery extending to
opinions and contentions.)
23
-
D-16 Advanced Evidence and Discovery Course, 1998
categories of documents in the defendant's possession
demonstrate that they have attempted to informallyare relevant to
the issues in the case. Moreover, even resolve the matter, it is
suggested that as soon as thewhen he does, the defendant may have
unique names contention interrogatories are identified the
respondentor descriptions for such documents. In both cases, the
consider serving a response such as follows:plaintiff, if he sends
out a generic set of requests, isprobably going to be met with the
objection that therequests are overbroad and nonspecific. See,
Loftin, plaintiff agree to enter into a protective ordersupra. Once
I get back the answering party's agreement with regard to this
interrogatory,responses identifying the pertinent documents, I
permitting the defendant to defer answeringmerely send out a
request for production, attaching the the interrogatory until such
time as factualinterrogatory responses and asking the opposing
party discovery in the case has been completedto produce all such
documents in its possession. See, and/or until such time as
defendant's expertLimas v. DeDelgado, 770 S.W.2d 953
(Tex.App.--ElPaso 1989) (orig. proc.).
2. Responses:a. Interrogatories Served With the Petition.A
defendant has fifty (50) days from the date it
is served within which to serve responses, absent astipulated
agreed extension (read, written agreement)from the party serving
the interrogatories or an orderextending the time for responding,
entered in responseto a request for protection served by the
respondingparty within the original time period. See, Rule166b(4)
(effective September 4, 1990).
b. Normal Response Time.A party being served with
interrogatories
normally has thirty (30) days from the date theinterrogatories
are served within which to fileresponses, objections, requests for
protection ormotions seeking an extension of time. Failure to
serveobjections or requests within this time period arewaived
unless an extension has been obtained byagreement or order of the
court. Rule 166b(4)(effective September 4, 1990).
c. Request for Protection: InsufficientDiscovery.
In some instances, when a defendant is servedwith
interrogatories at the same time it is served withthe original
petition, it may have insufficientknowledge to understand what is
being alleged or Street, 703 S.W.2d 426 (Tex.App.--Fort Worth
1986,insufficient knowledge with which to adequately opinion
withdrawn on other grounds, 715 S.W.2dformulate a response,
particularly if the interrogatory 638), Lone Star filed a motion to
quash and foris asking for an opinion or contention. protective
order relative to a set of interrogatories
(1) Rule 166b(2)(a) provides that in such containing seventeen
(17) interrogatories and aa circumstance: number of subparts. The
appellate court observed that
. . . the court may order that such an interrogatoryneed not be
answered until after designateddiscovery has been completed or
until a pretrialconference or other later time.
(2) Given the admonition by the TexasSupreme Court that, prior
to being able to seek courtintervention on a discovery dispute, the
parties must
Response: Defendant requests that the
witnesses are designated and their opinionsdisclosed. Subject to
receiving a response tothis request, defendant objects to the
aboveinterrogatory on the basis that it is prematureand the
defendant has not as yet completedsufficient discovery to be able
to meaningfullyrespond to it.
Notwithstanding the above approach, unless anagreement is
obtained (in writing), a protective ordergranting such relief must
be obtained within the timeperiod for responding to the
interrogatory.
C. Number of Answers
1. The rule provides that, absent leave of court, nomore than
thirty (30) answers may be sought in oneset of interrogatories.
There is also the limitation thatno more than two sets of
interrogatories may be servedby a party to any other party, except
by agreement oras the court may permit after hearing upon
theshowing of good cause. Discretion is placed in thecourt for
reducing or enlarging the number ofinterrogatories or sets of
interrogatories. Many federaldistricts' local rules provide a
limitation of twenty (20)interrogatories.24
2. In Lone Star Life Insurance Company v.
Lone Star's motion, under the particular facts, was not
This rule has helped to eliminate the use of the long-24
form set of interrogatories with multiple
subsections.Significantly, the Supreme Court, in anticipation of
thedispute as to what constitutes one interrogatory, did notlimit
the number of questions as such, but rather limited thequestions so
as to not require more than thirty (30) answers.
-
Paper Mache33, Origami & Drafting Discovery D-17
frivolous and held that Rule 168(6) requires that the and agents
(including attorneys) having knowledgetrial judge hold a hearing on
a motion to quash or a of facts relevant to the subject matter of
the lawsuit, ormotion for protective order whenever a party seeking
even a particular issue in the lawsuit. However, andiscovery asks
questions which the recipient objects to additional or alternative
approach might be to ask aas calling for more than thirty (30)
answers. concluding interrogatory such as follows:
D. Composite Information Example:
1. One of the most important advantages ofinterroga-tories is
that they call for the party toanswer. In the case of a
corporation, association orpartnership, there may be more than one
individualwho has knowledge of pertinent information and noone
person is capable of answering all questions. Inresponding to
interrogatories, the organization mustgather all the pertinent
information and provide acomposite answer. Assuming that the above
example is held to be
2. Although there have been no holdings of the regarding
documents:Texas Supreme Court on the issue of compositeknowledge,
Rule 168 has been patterned after Rule 33Fed.R.Civ.P.; therefore,
it can be assumed that Texascourts would enforce the federal
courts' interpretationof Rule 33 Fed.R.Civ.P. that a corporate
party isrequired to answer interrogatories based upon
its"composite" knowledge. See, e.g., GeneralDynamics Corp. v. Selb
Manufacturing Co., 481 occurrence) in your "possession" relevant
toF.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S. and/or
containing information relevant to1162 (1974); 4A Moore, Federal
Practice, Sec. 33.26; each answer you have given to each of theand
Boyd, "Paper Discovery: Use of Interrogatories foregoing
interrogatories (setting out theand Requests for Admission,"
Advanced Civil respective interrogatory to which each suchDiscovery
for the 1980's (University of Houston Law document relates).Center,
1982).25
3. Oftentimes a party will want to learn more than
interrogatories to be quite controversial with opposingmerely the
composite knowledge of an organization; counsel, but generally
approved by trial judges. Theythey will want to identify who in the
organization is are derived from my attempts to correlate
importantmost knowledgeable on certain issues. The answer to
specific information with particular potentialthis question might
be finessed by asking about witnesses, while avoiding the objection
that I amindividuals, including employees, consulting experts
seeking to invade attorney work product and26
27
State the name, address and telephonenumber of each individual
with knowledge offacts relevant to the answers to the
foregoinginterrogatories you have given (setting out therespective
interrogatory answers as to whicheach such individual has knowledge
ofrelevant facts).
unobjectionable, an additional inquiry might be made
Example:
"Identify" each and every "document"(stating the title, if any,
and nature of thedocument, who generated it, to whom it
wasdesignated and the date of each such
a. Comment: I have found the above
communications protected by the attorney/clientprivilege in
asking the opposing party to "identifyeveryone who participated in
answering theseinterrogatories." The interrogatory does not
askspecifically what information was "communicated" byanyone,
merely which individual possesses knowledgeor relevant facts.
Further, the interrogatory does notask what documents "support"
contentions or whatwill be used at trial (both of which probably
bring
Caveat: Some writers in this field have noted that there25
remains some doubt as to whether a corporation mustdisclose the
identities of everyone assisting in thepreparation of answers
(United States v. National SteelCorp., 26 F.R.D. 599, 600 (S.D.
Tex. 1960)), or whetherit must reveal the source of particular
information. See,B&S Drilling Co. v. Halliburton Oil Well
CementingCo., 24 F.R.D. 1, 4-5 (S.D. Tex. 1959); see, also,
Haycockand Herr, "Interrogatories: Questions and Answers" 1 Rev.of
Lit. No. 3, 263 at 291-292 (Fall 1981).
Axelson v. McIlhany, 34 Tex.S.Ct.J. 56 (October 1989) (orig.
proc.).26
24, 1990).
Texas Dept. of Mental Health and Mental27
Retardation v. Davis, 775 S.W.2d 467 (Tex. App.--Austin
-
D-18 Advanced Evidence and Discovery Course, 1998
objectionable invasions of the attorney work product
compilations, abstracts or summaries.exemption), but merely what
documents are or contain (Emphasis added.)information relevant to
the answers. Such a request isboth "relevant" and specific to a
particular issue. 2. Threshold Considerations under Rule
168(2).
b. Caveat: The above request might bevulnerable to an objection
that, with regard todocuments, it is overbroad, notwithstanding it
is aninterrogatory and not a request for production. See,Loftin v.
Martin, 776 S.W.2d 145 (Tex. 1989). In anattempt to preempt and
draft around this objection, Ihave experimented with the following
interrogatory:
Example:
"Identify" (by the stating the title of thedocument, who
generated it, to whom it wassent and on what date) all types
andcategories of documents and things in "your""possession"
relevant to and/or containinginformation relevant to each answer
"you"have given to each of the foregoinginterrogatories
(identifying the respectiveinterrogatory to which each such type
orcategory of documents relates).
E. Option to Produce Records
1. Rule 168(2) provides an option to narrativelyanswering an
interrogatory, where it can be shown thatthe answer may be derived
or ascertained from: Rainbow Pioneer #44-18-04A v. Hawaii
Nevada
. . . public records; or c. It has been held that Rule 33(c) is
not an
from the business records of the party upon responded to more
readily and conveniently by writtenwhom the interrogatories have
been served, orfrom an examination, audit or inspection of
suchbusiness records; or
from a compilation, abstract or summary basedon such business
records;
and
"the burden of deriving or ascertaining theanswer is
substantially the same for the partyserving the interrogatory as
for the party served."
If the above requirements are satisfied: It issufficient answer
to such interrogatory to specifythe records from which the answer
may bederived or ascertained, and if applicable, toafford the party
serving the interrogatoryreasonable opportunity to examine, audit
orinspect such records and to make copies,
a. The answer must be capable of beingderived or ascertained
from the records.
b. The burden of ascertaining the answer is thesame for both
parties.
c. The records containing the information arespecified.
d. The specification of records provided shallinclude sufficient
detail to permit the interrogatingparty to locate and to identify,
as readily as can theparty served, the records from which the
answers maybe ascertained.
3. Federal Case Law.a. As with most of the recent amendments
to
the Texas Rules of Civil Procedure regarding scope ofdiscovery,
there have been few decisions dealing withthe mechanical
application of Rule 168(2). Since Rule168(2) is similar in wording
and intent to Fed.R.Civ.P.33(c), one can turn to the federal cases
for guidance.See, generally, Daiflon, Inc. v. Allied Chem.
Corp.,534 F.2d 221 (10th Cir.), cert. denied, 429 U.S. 889,97 S.Ct.
239 (1976).
b. Rule 33(c) was held not applicable wherethe responding party
did not specify where the answerscould be found in the records made
available.
Inv. Corp., 711 F.2d 902 (9th Cir. 1983).
available alternative if an interrogatory can be
answer. See, Compaquie Franchise D'Assurancev. Phillips
Petroleum Co., 105 F.R.D. 16 (S.D. N.Y.1984).
4. Texas Case Law.a. In Firestone Photographs v. Lemaster,
567 S.W.2d 273 (Tex.App.--Texarkana 1978, nowrit), a case
decided long before the 1988amendments, it was held that the trial
judge did notabuse his discretion in denying the defendant's
requestthat, in response to interrogatories, the plaintiff
berequired to travel to the defendant's offices in Ohioand inspect
the pertinent documents, where there wasno evidence preserved for
review demonstrating thatthe burden of inspecting and locating the
informationwould be substantially the same on both parties.Supra at
278. This would seem to suggest that theburden is on the responding
party to prove the
-
Paper Mache33, Origami &