What is discovery?
Discovery is the legal process that lets each side of a lawsuit ask the other side for information that is related to the case.
During discovery, both parties must show the other side evidence they plan to use during trial.
Discovery is meant to encourage parties to settle their disputes before court, help each side prepare their case based on fair access to information, and prevent unfair surprise in court.
Can I really get any information I want through discovery?
The discovery process is governed by the Texas Rules of Civil Procedure. These rules say that parties to a case are entitled to any information that is “relevant” to the case as long as it is not “privileged” information. Discovery rules are meant to give fairly broad access to information.
If you are going through the discovery process on your own you should study the legal terms “relevance” and “privilege” until you understand them very well. These words represent legal concepts that may be argued during the discovery process.
You may have to persuade a judge you should (1) get the information you feel like you need, or (2) protect information that you think should stay private. You must learn the concepts of relevance, irrelevance, privileged, and nonprivileged information. That way, you can make a well-reasoned argument to the judge.
How long do I have to complete discovery?
The discovery period depends on what type of discovery plan your case falls under. For example for Level 2 discovery, the most common type, discovery begins when the suit is filed and continues until 30 days before the trial is set, in family law cases.
Do I need to file my discovery requests with the clerk?
Generally, you do not need to file your discovery requests with the clerk unless you are serving them on people who are not parties to the case. Do not file your Required Initial Disclosures in Texas Civil Cases with the clerk.
However, you will be required to sign your requests to certify that you have studied the rules of civil procedure and are making your requests according to those rules. Your signature also certifies that you are not making the request for any improper purpose such as harassment, delaying litigation, or unreasonably burdening the other side.
Required Initial Disclosures
For suits filed after January 1, 2021, Texas Rule of Civil Procedure 194.2 requires that each party provide “required disclosures” to the other parties in writing—without waiting for a formal request. This means you have to disclose certain information as soon as someone involved in the lawsuit (typically the defendant) files an answer, waiver of service, or countersuit. The parties can agree otherwise.
These required disclosures provide a description of the evidence you currently have in your possession to support your claims, including a list of your potential witnesses and a list of documents that support your claims and defenses. You must carefully read Rule 194.2.
Learn more: Required Initial Disclosures in Texas Civil Cases. TexasLawHelp also made a Required Initial Disclosures form available. And, you can watch this video, "Initial Dislosures," produced by Lone Star Legal Aid.
You cannot carry out discovery (the types listed below in this article) until after the initial disclosures are due, unless you and your opponent agree, or the court orders, otherwise. You and the other party may agree in writing to waive initial disclosures. Forms to waive the initial disclosures by a Rule 11 agreement are available on TexasLawHelp.
Help with Your Required Initial Disclosures
Lone Star Legal Aid created a tool that can help you with initial disclosures. It asks you about your case to help you fill out and print the right forms. This useful tool helps you navigate the initial disclosures process.
When you use this tool, you will have the option to create an account and save your answers. Feel free to do so. However, do not go back and change your answers. Changing your answers may result in your getting the wrong documents.
If you need to change your answers, refresh the tool and start over from the very beginning. Make sure that no old answers appear when you start over, even if you plan to enter much of the same information.
Access the tool here: Texas Disclosures Assistance Interview
Requests for Disclosure
Requests for Disclosure ask for basic information about the party and the allegations or contentions that the party is making. Examples include the legal name of the parties to the lawsuit, the legal theories and factual basis for the party’s claims or defense, the names and contact information of people with relevant information about the case. For more information about other rules that apply to this type of discovery, read Texas Rule of Civil Procedure 194.
For civil lawsuits filed on or after January 1, 2021, parties will have a duty to disclose information automatically. A "request for disclosure" is not a discovery tool for suits filed after January 1, 2021.
Requests for Admissions
Requests for Admissions allow the party to ask the other side to admit or deny facts that relate to the case. Requests for Admission must be in writing, and each request has to be listed separately in the document. Generally, these requests cannot ask the other side to “admit” something that is a pure conclusion of law. If one side is unable or has an objection to answering the questions, he or she must explain why. For more information about other rules that apply to this type of discovery, read Texas Rules of Civil Procedure, Rule 198.
Request for Production, Inspection or Entry
Request for Production, Inspection or Entry are requests to produce or allow examination of physical things such as documents, electronic files, emails, text messages, photographs, personal or real property that the other side has control of. This type of request must specify a reasonable time and place for the item to be produced. For more information about other rules that apply to this type of discovery, read Texas Rules of Civil Procedure, Rule 196.
Interrogatories are written questions between parties. The party who receives the interrogatories is required to respond in writing, under oath. Under Level 2 discovery, each side is only allowed 25 written interrogatories that ask more than identifying information about a document. Additionally, the responding party may respond by telling the other side where the information can be found in public records instead of answering the question directly. For more information about other rules that apply to this type of discovery, read Texas Rule of Civil Procedure 197.
Depositions are interviews that can be conducted either orally (in person or by telephone) or in writing. Depositions do not have to be only between parties to the case, but can also be taken from witnesses with information about the case. Depositions are subject to many rules including: notice requirements, scope of questioning, location, and time limits. You should read these rules carefully before attempting to conduct a deposition. For more information about other rules that apply to this type of discovery, read Texas Rules of Civil Procedure 199 through 203.
Mental or Physical Examinations
Mental or physical examinations are not common. You generally need the judge to order such an examination. You have to persuade the judge that the examination is legally appropriate based on the facts of the case.
After the motion is filed, the person to be examined, and all parties to the case, must be formally served with notice of the hearing that will determine whether or not the order is granted. If granted, the order must be in writing and specify a time, place, manner, conditions and scope of the examinations. For more information about other rules that apply to this type of discovery, read Texas Rule of Civil Procedure 204.
What if someone doesn’t comply with a discovery request?
Abuse of the discovery process—either by asking for more than what you are entitled to or refusing to cooperate with requests—can result in sanctions from the court. For more information on what qualifies as “abuse,” read the Texas Rule of Civil Procedure 215.
You may also file a motion to compel.
What is a motion to compel?
A motion to compel is used to get the other side to act. Usually, this motion is used to get the other side to do something they are required to do. This motion is filed with the court. The court will force the other side to do something they are required to do.
You must contact the other side before filing the motion. There has to be evidence that you tried to contact the other side. You will want to keep a record of the things you did, including mail receipts, emails, call logs, and any method that you used to communicate with the other side to get the requested information.
When you request the motion to compel, you will have to show the court that you used your best efforts to get the information from the other side and they did not give it to you. Sometimes the court will schedule a hearing to decide if your motion will be granted. You should appear at this hearing to explain why you believe your motion should be granted.
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