Texas Civil Discovery Rules and Procedures

Texas civil discovery is governed by the Texas Rules of Civil Procedure (Tex. R. Civ. P.), which establish a comprehensive framework balancing broad information-gathering rights with practical limitations and proportionality considerations. Understanding these rules is critical for effective case management and avoiding costly sanctions.

Mandatory Initial Disclosures

Unlike federal practice under Federal Rule of Civil Procedure 26(a), Texas does not require mandatory initial disclosures absent a court order or rule adopted by the parties. Tex. R. Civ. P. 192.1(a) permits parties to agree to voluntary disclosures, but no automatic disclosure obligation exists.

However, parties may agree in writing to follow a discovery plan, and courts may order initial disclosures. When disclosures are required by agreement or court order, parties must typically provide:

Contact information for potential witnesses

Copies or descriptions of relevant documents

Calculation of damages

Insurance agreements

Expert witness identities and expected testimony summaries

The absence of mandatory disclosure requirements means Texas litigators must be more proactive in serving discovery requests early to obtain information that would be automatically provided in federal court.

Interrogatories

Interrogatories are written questions requiring written responses under oath. Tex. R. Civ. P. 197 governs their use.

Numerical Limits:

Standard limit: 25 interrogatories in total, including subparts (Tex. R. Civ. P. 197.2(a))

Subparts to a single interrogatory count toward the 25-interrogatory limit

A party may serve additional interrogatories only with written agreement of the parties or court permission

Parties unable to comply should request additional interrogatories early in discovery rather than risk objections based on the limit.

Format Requirements:

Each interrogatory must be numbered consecutively

Must be clear and concise

Cannot be burdensome or repetitive

Must not call for legal conclusions (Tex. R. Civ. P. 197.1(a))

Time to Respond:

30 days after service, or within 50 days if served with the lawsuit summons (Tex. R. Civ. P. 197.2(d))

Extensions may be granted by written agreement or court order

Objections:

Must state specific grounds (Tex. R. Civ. P. 193.2)

Common objections include: overbroad, burdensome, not reasonably calculated to lead to discoverable information, calls for legal conclusions, protected by privilege

Responding party must answer non-objectionable portions even if some portions are objectionable

Objections that do not state specific grounds waive the objection

Requests for Production of Documents

Tex. R. Civ. P. 196 governs document requests, also called "requests for production" or "document requests."

Scope and Format:

Requests must describe items with reasonable particularity

May request documents, electronically stored information (ESI), and tangible things in the party's possession, custody, or control

No numerical limit on document requests (unlike interrogatories)

Must specify the time, place, and manner of production

Time to Respond:

30 days after service, or 50 days if served with the summons (Tex. R. Civ. P. 196.2(a))

Extensions by written agreement or court order

Electronically Stored Information (ESI):
Texas courts increasingly address ESI discovery. Key considerations include:

Parties must discuss ESI protocols during initial case management discussions

Form of production should be addressed: native format, PDF, TIFF, or other

Requesting party may specify format; producing party may object if burden is undue

Requests for "all emails," "all documents," or "all ESI" may be deemed overbroad without reasonable limitations

Producing party must provide responsive ESI in the format in which it is ordinarily maintained, unless another format is specified

Objections and Assertions:

Objections must be specific and state grounds

Producing party may assert that requested information is not reasonably available due to undue burden or cost (Tex. R. Civ. P. 196.2(b))

If asserting this objection, producing party must state the source and nature of the information, why it is not available, and what information is available

Waiver of objections occurs if not timely stated

Requests for Admission

Tex. R. Civ. P. 198 governs requests for admission, which seek to establish facts, apply law to facts, and authenticate documents.

Numerical Limits:

No specific numerical limit on requests for admission

However, requests must not be burdensome or oppressive

Court may limit repetitive or duplicative requests

Time to Respond:

30 days after service, or 50 days if served with the summons (Tex. R. Civ. P. 198.2(a))

Extensions by written agreement or court order

Deemed Admissions:
This is a critical aspect of Texas discovery:

If a request for admission is not timely answered and no extension is in place, the matter is deemed admitted (Tex. R. Civ. P. 198.2(c))

Deemed admissions are conclusively established unless the court permits withdrawal or amendment (Tex. R. Civ. P. 198.3)

Court permission to withdraw or amend is granted only if doing so would promote presentation of the merits and would not prejudice the requesting party

Failure to respond to a single request for admission can have devastating consequences, eliminating the need to prove that fact at trial

Objections:

Must state specific grounds

Common objections include: calls for legal conclusion, invades attorney-client privilege, compound, vague

Answering party may qualify answers (e.g., "admit except as to...")

Depositions

Tex. R. Civ. P. 199 governs depositions, which are oral examinations under oath.

Numerical Limits:

Each party is limited to 10 depositions absent agreement or court order (Tex. R. Civ. P. 199.2(d))

Multiple parties represented by the same counsel count as one deposition

Depositions of parties are included in the 10-deposition limit

Duration Limits:

Unless otherwise agreed or ordered, depositions are limited to 6 hours of examination per deponent (Tex. R. Civ. P. 199.2(d))

Court may extend for good cause

Time for breaks and objections does not count toward the 6-hour limit in some interpretations

Notice Requirements:

Party taking deposition must serve written notice at least 14 days before deposition (Tex. R. Civ. P. 199.1(a))

Notice must specify the time, place, method (in-person, videoconference, telephone), and whether court reporter will be present

If deposition of non-party, subpoena must be served with reasonable notice (Tex. R. Civ. P. 199.1(b))

Who Can Be Deposed:

Any party (Tex. R. Civ. P. 199.2(a))

Any non-party with knowledge of relevant facts (requires subpoena; see below)

Designated representatives of organizational parties (Tex. R. Civ. P. 199.2(b))

Use at Trial:

Deposition testimony can be used at trial if witness is unavailable, to impeach testimony, or with agreement of parties

Court records the deposition by court reporter and/or video

Depositions are less frequently used as evidence at trial than in federal practice; Texas courts emphasize live testimony

Physical and Mental Examinations

Tex. R. Civ. P. 204 governs examinations of parties' physical and mental condition.

When Allowed:

Court may order examination only if:

- Condition is in controversy (Tex. R. Civ. P. 204.1(b))
- Petitioner demonstrates good cause for the examination
- Plaintiff's physical condition is at issue in personal injury case, defendant's condition is at issue in medical malpractice defense, mental condition is relevant

Who Can Request:

Any party may move for order; court must grant if good cause shown

Defendant in personal injury case involving plaintiff's physical condition

Plaintiff in medical malpractice case involving defendant physician's condition

Requirements:

Motion must specify the condition, the type of examination, and the identity of the examiner

Court order required (not by party agreement alone)

Examinee entitled to receive a copy of the examiner's report

Good Cause Standard:
Texas applies a fact-specific analysis; mere allegation of injury is insufficient; petitioner must demonstrate genuine dispute regarding extent or nature of injury.

Subpoenas for Non-Parties

Tex. R. Civ. P. 176 and 205 govern subpoenas to non-parties.

How to Issue:

Subpoena issued by attorney authorized to practice law in Texas or by court clerk

Must be signed by the attorney or an authorized person

No court order required (unlike some jurisdictions)

Geographic Limits:

Subpoena is effective anywhere within the state of Texas

For out-of-state production or testimony, must comply with Uniform Act to Secure Attendance of Witnesses from Without a State (Tex. Code Crim. Proc. art. 38.14)

Out-of-state non-parties may challenge subpoena on grounds of undue burden, inconvenience, or oppression

Notice and Compliance:

Subpoena must be served personally at least 10 days before return date (Tex. R. Civ. P. 176.3(a))

Must include notice of right to assert privilege and object to requests

Non-party may assert objections within 3 days of service (or before return date if later)

Production date must allow reasonable time for compliance

Failure to Comply:

Non-party failure to comply may result in contempt of court

Sanctions available if non-party neglects or refuses to obey

Expert Discovery

Tex. R. Civ. P. 192.3 and 192.4 address expert witness discovery.

Disclosure Requirements and Timing:

Party must identify expert witnesses with written report or description of expected testimony

In litigation without court-ordered discovery plan, no mandatory timing for expert disclosure

Many courts impose expert disclosure dates 60-90 days before trial

Report must contain:

- Expert's name, address, qualifications, and mental impressions
- Basis for opinions
- Documents and materials considered
- Compensation arrangement
- Expected testimony (substance of opinions)

Deposing Experts:

Expert depositions count against the 10-deposition limit (Tex. R. Civ. P. 199.2(d))

Expert with written report may be deposed 7 days before trial without resetting expert discovery deadlines

Expert without written report may be deposed at any time

Deposition may exceed 6-hour limit for complex cases by agreement or court order

Exchanging Reports:

Parties should exchange expert reports simultaneously or in sequence by agreement or court order

Non-compliance may result in exclusion of expert testimony

Scope of Discovery

What is Discoverable:

All matter relevant to the subject matter of the pending action (Tex. R. Civ. P. 192.3(a))

Broader than federal relevance standard; Texas uses "subject matter" test

Includes information bearing on any claim or defense

Not limited to evidence admissible at trial

Proportionality Considerations:

While Texas does not have a formal proportionality rule equivalent to Federal Rule 26(b)(1), courts may limit discovery on grounds of:

- Burden or expense outweighs likely benefit (Tex. R. Civ. P. 192.4(a))
- Information is not relevant to any party's claim or defense
- Information is repetitive or cumulative
- Undue burden on responding party

Limitations:

Not discoverable: mental impressions, conclusions, legal theories of attorney (work product doctrine)

Qualified immunity for information created in anticipation of litigation or for trial (Tex. R. Civ. P. 192.3(b))

Privileges and Work Product

Attorney-Client Privilege:

Tex. R. Civ. P. 192.3(b) protects attorney-client communications

Covers communications between attorney and client made in professional capacity for purpose of furnishing legal advice

Document must be prepared at direction of attorney for purpose of securing legal advice

Asserting privilege requires privilege log unless privilege holder can show privilege log itself would be harmful (rare)

Work Product Doctrine:

Tex. R. Civ. P. 192.3(b) protects mental impressions, conclusions, opinions, legal theories of attorney

Covers documents and materials prepared in anticipation of litigation or for trial

More protective than federal work product; does not require waiver through disclosure

However, expert work product may be discoverable in some circumstances

Privilege Log Requirements:

When asserting privilege over large document sets, privilege holder must provide log identifying:

- Document date
- Author and recipients
- Subject matter
- Type of privilege claimed

Log should be organized by privilege category

Court may require detailed log for claim categories with many documents

Inadvertent Disclosure:

If privileged document inadvertently produced, privilege holder may:

- Request return of document (Tex. R. Civ. P. 193.3(d))
- File motion to compel return
- Producing party may request protective order

Meet and Confer Requirements

Before Filing Motions:

Tex. R. Civ. P. 191.1 requires good faith effort to resolve discovery disputes before filing motion to compel

Parties must confer in person, by telephone, or by other reasonable means

Effort must be documented in motion to compel

Failure to confer in good faith may result in denial of motion or sanctions

Practical Steps:

Send detailed email or letter describing discovery dispute

Request telephone conference or in-person meeting

Document all efforts and communications

Allow reasonable time for response before filing motion

Discovery Cutoffs

Timing Relative to Trial:

Discovery typically closes 30 days before trial date unless extended by agreement or court order (Tex. R. Civ. P. 191.4)

Expert discovery may close later (commonly 7-14 days before trial)

Deadline established by court in case management order or scheduling order

Extensions common with consent or court permission

Motions to Compel Deadline:

If party fails to comply with discovery request, movant must file motion to compel before discovery period closes

Filing after discovery closes may be denied as untimely (though exceptions exist for bad faith concealment)

Protective Orders

How to Obtain:

Party seeking protection files motion for protective order (Tex. R. Civ. P. 192.6(b))

Must establish good cause for order

Court may grant in whole or in part

Good Cause Standard:

Trade secrets or confidential business information

Disclosure would cause undue burden or embarrassment

Information is sensitive (medical, financial, etc.)

Legitimate interest in limiting dissemination

Burden on responding party outweighs benefit to requesting party

Scope of Protective Orders:

May limit discovery to attorneys' eyes only

May designate information as "attorneys' eyes only" or "confidential"

May require non-disclosure agreements

May limit number of people who may see documents

May prohibit use of information except in litigation

Procedure:

Motion must be filed before or contemporaneously with response to discovery

Must serve requesting party and state reasons for protection

Some courts require in camera inspection of sensitive materials

Burden on responding party to show good cause for restriction

Motions to Compel

Procedure:

Party failing to respond or providing inadequate response may be compelled by motion to compel (Tex. R. Civ. P. 191.4)

Motion must include certification of good faith effort to resolve dispute (meet and confer)

May seek sanctions if bad faith or without substantial justification

Burden of Proof:

Movant bears burden of proving non-compliance or inadequacy of response

Movant must show how discovery request is relevant and not overbroad

Responding party bears burden of proving entitlement to objections claimed

Judicial Standard:

Trial court has discretion to grant or deny motion; reviewed on abuse of discretion standard

Court will compel unless responding party establishes valid basis for withholding information

Fees:

Prevailing party on motion to compel may recover court costs and reasonable attorney's fees (Tex. R. Civ. P. 191.4)

Not automatic; must request and prove reasonableness

Court determines what is "reasonable" based on complexity, time spent, expertise required

Sanctions for Discovery Abuse

Available Sanctions:
Texas courts have broad authority to impose sanctions for discovery violations (