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Discovery in Texas - Investigate and Prepare for Trial

What is discovery?

Discovery is the legal process that allows each side of a lawsuit to ask the other side for information that is related to the case. During discovery, both parties are required to show the other side evidence they plan to use during trial. The discovery process 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.

Getting the information you feel like you need or protecting the private information you do not want to share, may depend on how well you can argue the relevance, irrelevance, privilege and non-privileged nature of the information to a 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.
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.
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”, please read the Texas Rules of Civil Procedure 215.

Types of Discovery

Please see information on the various types of discovery below. 

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 Rule 198.

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 Rule 194.

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 Rule 196.

Interrogatories

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 Rule 197.

Depositions

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 Rules 199-203.

Mental or Physical Examinations

Mental or Physical Examinations are not very common and generally require a court order showing that the judge believes 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 Rule 204.