Understanding the Discovery Process in Texas
A Guide to Understanding the Discovery Process in Texas State Court Litigation
If you have never been involved in a lawsuit before, it can be a lengthy and complicated process. The legal terminology used and the reasons for and timing of doing certain tasks may be confusing. This blog is to help you understanding what discovery is possible and why you need it.
There are several different phases of a lawsuit. One critical phase is called DISCOVERY. Discovery is the part of a lawsuit after a case is filed where the parties exchange information. Ideally, all relevant facts should be “discovered” so that the parties may assess their respective cases and move towards a resolution.
Discovery is usually THE LONGEST PHASE of a lawsuit.
Steps Involved In The Discovery Process
The discovery phase involves numerous steps taken by you and your attorney including the following two important steps:
- Answering (and requiring the opposing party to answer) WRITTEN DISCOVERY
- Taking DEPOSITIONS of the opposing party’s witnesses and defending you/your witness(es) depositions.
It can also be an expensive part of the process given all the tasks involved, especially if there are multiple parties, if one party countersues the other, how complicated the facts are, and whether there are a large number of documents relating to the case.
Types of Written Discovery in Texas Litigation
There are three general kinds of
WRITTEN DISCOVERY: interrogatories, requests for admission, and requests for production. Each of these types of requests will be addressed further below. This part of the discovery process is called “written discovery” because the responses are “in writing” or in the form of physical documents provided by one party to another.
In using written discovery to obtain documents and information for your case from the opposing party, your attorney will:
- Review the documents and facts you have provided relating to the case;
- Draft and send written discovery requests to the opposing party;
- Wait for responses/production of documents (typically thirty days unless otherwise ordered or extended by agreement);
- Review and assess the written responses for completeness and how they affect or relate to the case as a whole;
- Review documents produced by the opposing party;
- Determine whether additional or follow-up written discovery requests are needed;
- Possibly draft and file a motion to compel information with the Court if what is requested and needed is not provided;
- Discuss the motion to compel with opposing counsel;
- Argue the motion to compel in court if necessary;
- If the motion to compel is successful, review and assess the additional documents and information received from the opposing party;
- Decide what witness(es) to depose or whether to forego depositions;
- Draft and send notice(s) of deposition; and
- Organize, prepare for, and conduct deposition(s).
The opposing party in a lawsuit will also issue written discovery requests to you and conduct depositions of you/your witnesses. This will involve the following actions by you and your attorney:
- Receive written discovery requests;
- Begin drafting responses and any objections to the discovery requests;
- Discuss the discovery responses with you to obtain additional information and/or confirm accuracy;
- Gather all documents in your possession, custody, or control relating to the lawsuit;
- Review and organize client documents;
- Prepare relevant documents for production to opposing party (typically thirty days unless otherwise ordered or extended by agreement);
- Provide objections and responses to the opposing party and produce documents ;
- Review and respond to any complaints by the opposing party regarding your discovery responses or document production;
- Possibly defend against any motion to compel filed by the opposing party seeking additional information;
- Receive and review any deposition notices to you and/or other witnesses relating to the case; and
- Organize, prepare for, and conduct/defend the deposition(s).
Request for Interrogatories - The Answering of Questions
One of the most commonly used types of written discovery is interrogatories. Each party in the lawsuit has the right to ask specific questions of another party and receive responses in writing. These are called interrogatories. Some examples of interrogatories are:
- List all agreements or contracts of any kind entered into between you and Plaintiff.
- Describe all positions you held during your employment with Plaintiff’s company.
- List all banks in which you have had an account relating to your business in the past five years.
Interrogatories are important because answers to the questions asked can lock a party into a particular position or establish a set of facts for use in the case.
Parties can also answer interrogatories by producing documents and specifically identifying them by numbers called “Bates numbers.” In the first sample request above regarding agreements and contracts, instead of listing them, the answering party could provide a copy of each agreement or contract. Answers to interrogatories must be verified by the party answering them.
Interrogatories are important because answers to the QUESTIONS ASKED CAN LOCK A PARTY INTO A PARTICULAR POSITION or establish a set of facts for use in the case
Request for Admissions - The Admitting or Denying of Something
Requests for admission are just that – simple statements that the answering party must either ADMIT or DENY with very few objections. These can be useful to reduce the matters at issue. For example, in a case involving a contract, one party can ask the other to admit that the contract is valid or to confirm a party’s/person’s signature on a contract or document.
They can also be used to reduce disputes about documents. Using the same example, one party could ask the other to admit that a contract attached to the requests is an authentic copy of that contract.
Requests for Admissions can be HELPFUL TO CONFIRM WHAT MAY SEEM LIKE SIMPLE MATTERS but help to avoid any surprise later where a party might claim an important document is not authentic.
Requests for Production – The Asking for Documents
Simply put, “requests for production” means you are asking the other party to give you different categories and types of documents. In this electronic age, many times “documents” may only exist electronically. But to the extent there are paper documents or files, those can also be a source of discovery in response to requests for production. How difficult, expensive or time-consuming it is to gather and/or produce documents in response to requests for production will depend on how you personally or your business retain information.
Some basic examples of sources of documents are:
- Paper files in filing cabinets, safes, desks, or off-site storage of personal or business documents; and
- Electronically stored information on computers, phones, tablets, or storage devices (like hard drives or thumb drives), or social media messaging accounts.
Whether you are the requesting party or the answering party, the document production process in a lawsuit is not simple or quick. It must be taken very seriously. Clients must work closely with attorneys and make full disclosure of information to ensure compliance with the rules that apply to discovery.
Documents are typically the most important source of information in a lawsuit and that is why using REQUESTS FOR PRODUCTION as a form of written discovery is so critical and so common.
Depositions – A Recorded Question and Answer Session, Under Oath
Depositions can be very important in a case. A deposition is basically a question and answer session where a person’s testimony is recorded on video or by a court reporter stenographically. The court reporter will document all words spoken (and sometimes actions/sounds) for the “record.” The witness is under oath and under the penalty of perjury.
Depositions permit the parties the ability to ask questions of witnesses who may testify in a case and to learn their positions in advance – before the testify at trial. Credibility and how a witness will present when questioned affects the case and can guide the direction and next steps that need to be taken. They are also a good opportunity for a party to tell their side of the story in their own words. There are many circumstances where depositions should be taken, including for example:
- Where the underlying facts are heavily disputed;
- Cases involving alleged verbal agreements;
- To clarify or learn the meaning and purpose of documents in the case; or
- To identify possible additional sources of documents or information.
Depositions can be costly, requiring payment of hard costs for a Court reporter to attend and prepare the transcript of the deposition and/or the videographer for their recording/ editing the deposition. There is preparation time involved for both sides of the case in a deposition, either reviewing and preparing documents and questions for a witness OR preparing a client to be questioned in a deposition. The transcript will then have to be reviewed and clarified/corrected if necessary. If there are language issues including a witness whose first language is other than English, an interpreter may be necessary. This would need to be disclosed in advance and an interpreter arranged and paid. There can also be travel involved depending on the agreed location of the deposition.
Depositions permit you to TEST THE CREDIBILITY OF A WITNESS, usually on the opposing side of the case.
Motions to Compel – Asking the Court to Force the Opposing Party Provide Information
Motions to compel can come into play in a lawsuit during discovery. If one party refuses to provide information requested, the opposing party seeking the discovery may file a motion to compel. There is significant cost associated with filing a motion to compel. Your attorney must participate in a substantive conference with opposing counsel regarding the basis for the motion and need for the discovery being sought. If no agreement is reached, the motion must be drafted along with a proposed order, filed, set for hearing, and a notice of hearing drafted and filed. Your attorney will have to attend and argue/defend the motion to compel. There may also be follow-up activities depending on how the Court rules on the motion including producing and/or reviewing additional documents and information produced.
It is important for you and your counsel to focus on what documents and information you actually need to prove or defend your case.
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