I. INTRODUCTION
In the most recent issue of the Advisory, Part I of this article discussed some of the changes which new Rules 191 and 192 will bring to our discovery practice on January 1, 1999. The revised Texas Rules of Civil Procedure regarding discovery, which have not undergone wholesale revision in 15 years, will take effect on that date. The scope of the changes is broad, as revealed by taking a look at a partial list of the rules being repealed effective January 1, 1999: 166b, 167, 167(a), 168, 169, 200, 201 and 202. Many, myself included, have questioned the wisdom and necessity of such sweeping changes. (See, e.g., "Confronting the Discovery Beast," Texas Lawyer, February 19, 1996). The changes are too pervasive to describe completely in one short article. However, the changes are coming, regardless of the opinions of many of us who thought that the various changes would create more problems than they would solve. To be prepared, all Texas litigators should study the revised rules set forth in the December, 1998 Texas Bar Journal, which were adopted by Order of the Supreme Court on November 9, 1998. In this segment of the article, I will describe briefly a few of the changes that differ most significantly from current practice, specifically in regard to Rules 190 (discovery schedules), 195 (experts), and 199 (deposition deportment).
II. DISCOVERY CONTROL PLANS & TIME LIMITS ON DISCOVERY
The centerpiece of the reforms is new Rule 190. Rule 190 compels every case to be "governed by a discovery control plan." Each lawsuit filed in Texas on or after January 1, 1999 must contain an allegation in the first numbered paragraph of the original petition whether discovery is to be conducted under "Level 1, 2 or 3" of new Rule 190.
Rule 190.2 defines Level 1 cases as those cases in which all plaintiffs affirmatively plead that they seek only monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest and attorney’s fees, or divorce cases involving no children and a marital estate worth no more than $50,000. In Level 1 cases, each party is allotted a total of 6 hours to take all oral deposition testimony. The parties can agree to expand this limit up to 10 hours. Each party can serve on any other party no more than 25 interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. In a Level 1 case, all discovery must be completed during the discovery period, which is defined as beginning when the suit is filed and continuing until 30 days before the date set for trial.
Level 2 cases are all those cases which are not Level 1 and which also do not have a discovery control plan making them Level 3 cases. In Level 2 cases, all discovery must be completed during the discovery period, which begins when suit is filed and continues until: (a) 30 days before the date set for trial, in cases under the Family Code; or (b) in other Level 2 cases, the earlier of (i) 30 days before trial, or (ii) 9 months after the earlier of two dates, one being the first oral deposition or the other being the due date of the first response to written discovery. It is this "9-month provision" under Level 2 that is likely to cause a lot of consternation. Most litigators can count on a very few fingers the cases in which all discovery was completed within 9 months. Moreover, note that the 9-month discovery period is not tied to the trial date. In a Level 2 case, one might be compelled to finish all discovery a year before the trial setting.
In a Level 2 case, "each side" has a maximum of 50 hours in oral depositions to examine and cross-examine parties on the opposing side and experts designated by those parties and persons who are subject to those parties’ control. Rule 190.3(2) defines a "side" as being all of the litigants with generally common interests in the litigation. Additionally, if one side designates more than two experts, the opposing side gets an additional 6 hours of total deposition time for each additional expert designated.
Finally, Level 3 cases are those cases governed by a "discovery control plan" under new Rule 190.4. Under Rule 190.4, "the court must, on a party’s motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit." This rule has the potential for more scheduling flexibility and contemplates that in almost all Level 3 cases, the court simply will be signing an agreed discovery control plan submitted by the parties.
In content, a discovery control plan may address any issue concerning discovery and may change any limitations on the time for, or amount of, discovery. A Level 3 discovery control plan must include the following: (1) a trial date or trial scheduling conference date; (2) a discovery period during which all discovery either must be conducted or all requests sent for the case or phase of a case; (3) appropriate limits on the amount of discovery; and (4) deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.
Under new Rule 190.5, the court may modify a discovery control plan (Levels 1, 2 or 3) at any time and "must do so when the interest of justice requires." Rule 190.5 says that the court must allow additional discovery related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, when the pleadings or responses were made either after the deadline for completion of discovery "or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters" and the adverse party would be unfairly prejudiced without additional discovery. However, under Rule 190.2(b), amended or supplemental pleadings that would transform a case from Level 1 to Level 2 or 3 "may not be filed without leave of court less than 45 days before the date set for trial," and leave will be granted only if good cause to file the pleading outweighs any prejudice to an opposing party.
The court must also allow additional discovery under Rule 190.5 "regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than 3 months after the discovery period ends." Evidently, this provision is aimed at curing the problem created by the arbitrary 9-month limit on discovery, i.e., when one might be compelled to finish discovery months or years before the trial date.
Note these further points about new Rule 190 and the "discovery control plan" system: (1) Level 1 does not apply to suits for injunctive relief or divorces involving children. Very importantly, in a Level 1 case, the relief awarded cannot exceed the relief pleaded because the purpose of the rule is to bind the pleader to a maximum claim; (2) unless otherwise ordered or agreed, parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period.
As a practical matter, I expect most litigators will opt to enter into an agreed discovery control plan under Level 3 rather than subject themselves to the arbitrariness of the Level 2 discovery limits. Of course, many cases are already subject to agreed scheduling orders that address many of the matters that will be required to be addressed by a discovery control plan under Rule 190. In sum, I believe the net effect will be to "federalize" Texas discovery practice further because our state court cases will come to be governed mostly by detailed scheduling orders as our federal court cases are already.
III. NEW RULES REGARDING EXPERTS AND ORAL DEPOSITIONS
A. Identifying Experts and Presenting Experts for Deposition
New Rule 195 provides a schedule for designating experts and also addresses the scheduling of expert depositions. Basically, new Rule 195 encourages the production of a complete expert report at the time of designation. Otherwise, your opponent gets an opportunity to depose your expert before he has to designate experts. If a report is provided at the time of designation, then there is no requirement that the expert be produced for deposition "until reasonably promptly after all other experts have been designated."
A discovery control plan in a Level 3 case must address "designating expert witnesses," but there is no requirement in a Level 3 case that the discovery control plan address the depositions of expert witnesses. Accordingly, unless it would be desirable to allow the depositions of experts to be governed by new Rule 195, the Level 3 discovery control plan of Rule 190.4(b) needs to address the question.
B. New Rules About Lawyers’ Conduct In Depositions
In addition to the time limits imposed by the discovery control plan regime, the new rules attempt to confront the problem of "speaking objections" in depositions. New Rule 199.5 says that oral depositions must be conducted "in the same manner as if the testimony were being obtained in court during trial." There are admonitions to counsel to be cooperative and courteous to each other and the witness, and also to the witness not to be evasive or "unduly delay the examination." While a deposition is in progress, private conferences between the witness and his counsel are forbidden except for the purpose of deciding whether to assert a privilege. If the lawyers and the witnesses do not comply with this new rule, material from the deposition transcript "that reflect(s) upon the credibility of the witness or the testimony" may be admitted by the court into evidence at trial.
Objections to questions are restricted to "Objection, leading;" and "Objection, form." Objections to testimony are limited to "Objection, nonresponsive." Saying anything else waives these objections. Further, "argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing costs or other sanctions." The new rule requires "good faith" before an objection or instruction not to answer can be lodged.
The meaning of all these "touchy, feely" admonitions will have to be sorted out by the courts. Although the new rules may lead to more requests that depositions be overseen either by a judge or a court-appointed special master, perhaps the most likely and most immediate impact of the changes will be a lot of satellite litigation over the what the changes mean exactly. The official comments will not be of much help, as they confuse things even more. For example, Comment 4 of Rule 199.5 indicates that if a deposition question calls for speculation, calls for a narrative answer, or is vague, confusing or ambiguous (i.e., the kind of questions that usually lead to speaking objections), it can be the subject of an instruction not to answer!
IV. SUMMARY
Like it or not, the discovery rules with which we have all become familiar and comfortable will soon be gone. The new rules adopted November 9, 1998 contain many traps for the unwary. Special study should be given to Rules 190, 195, 199.5 discussed above, and also to Rules 191 and 192, explained previously in Part I of this article (published in Advisory Issue No. 3, prior to the November 9 rules adoption date). The Supreme Court website at www.supreme.courts.tx.us/rules/index.htm provides a Guide to the 1999 Texas Discovery Rules Revisions.
Ed. Note: TLIE greatly appreciates Mr. Dobson’s contribution of both this and the previous installment of his informative and timely article concerning important and imminent changes to the discovery process in Texas courts.
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