NEW TEXAS RULES OF DISCOVERY
A SUMMARY

• Background and Purpose of New Rules
• Transition to New Rules
• Discovery Control Plans
• Scope of Discovery
• Disclosure
• Oral Depositions
• Depositions upon Written Questions
• Depositions Before Suit or to Investigate Claims
• Depositions in Foreign Jurisdictions for Use in Texas; Depositions in Texas for Use in Foreign Proceedings
• Interrogatories
• Document Requests
• Requests for Admission
• Physical and Mental Examinations
• Objecting to Written Discovery
• Privilege
• Attorney Work Product
• Experts
• Subpoenas
• Appendix: Request for Disclosure Letter (Form) A-1

Introductory Musings

The law is a curious creature. Typically it moves by stops and starts sometimes trailing badly popular culture, morality, mores and technological advance. At other times seemingly leaping well in advance of and sometimes almost out of touch with the surrounding context. But by and large the law tends to level out and every once in a while needs to reinvent itself. Such an event of reinvention surrounded the early attempts to include in the rules of civil procedure such things as depositions, interrogatories and request for admissions. The purpose of these rules was to provide an avenue to give the parties litigant access to all of the facts and thus allowing a level playing field for the parties to present facts for resolution by the judge and jury. The inventive and sometimes contentious minds of lawyers combined with the leaps of technology, word processing, computers, copying machines, fax machines, email, vmail, etc. have often reduced the rules of discovery to a trap for the unwary and an impossibly expensive abyss into which many a litigant and their lawyers have fallen. It is to deal with this latter phenomenon that the Texas Supreme Court together with a selected group of outstanding practitioners has attempted to refashion the Texas Rules of Discovery and hopefully to streamline the process allowing parties access to the courts and the ability to reach a decision on their grievance without staggering expense and a barrage of discovery requests, depositions, etc. etc.

Knowing whether or not the new rules will achieve these admirable results awaits the turning of the clock and the gaining of experience with the rules, but they do hold the promise of better days.

For the practitioner of construction law and resolution of construction disputes relief from the discovery briar patch is particularly welcome. As we all know, construction disputes are rarely over discreet events and are more usually over a series of events stretching over a period of time supported and rebutted by a myriad of documents buried in all conceivable nooks and crannies only to be ferreted out and organized and reorganized and tabulated and recalculated by a plethora of consultants, experts, and of course, construction lawyers. It is therefore our recommendation that the new rules and preparing of cases pursuant to the new rules be approached with a sense of optimism and determination to use these rules as a tool for facilitating access to the courts and in some small measure recivilizing our learned profession.

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