PAPER MACHE 3, ORIGAMI & DRAFTING DISCOVERY: CREATIVITY ... · Paper Mache 3, Origami & Drafting...

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."


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


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.


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


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


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.


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.


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


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


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.


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


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


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.


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


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.


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

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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


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

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