Texas Expedited Trial Rules: Discovery Under the Expedited Action Rules

This is the second post in a series discussing the new rules for Expedited Actions in Texas mandated by the 2011 Amendments to Texas Government Code § 22.004(h) and implemented through the Texas Rules of Civil Procedure, including amendments to Rules 47 and 190, and the addition of new Rule 169.

The new Expedited Action Rules adopted by the Texas Supreme Court have brought major revisions and limitations to discovery in cases which fall under them.  The changes have been incorporated into the Level 1 discovery control plan set forth in Rule 190.2 of the Texas Rules of Civil Procedure.  In an expedited action, now the discovery period is 180 days in length, and begins on the date the first request for discovery of any kind is served on a party under Rule 190.2(b)(1).  This can be contrasted with Level 2 discovery under Tex. R. Civ. 190.3(b)(1), because the time period is shorter than the 9 months allowed under Level 2, which begins on the earlier of the date of the first oral deposition or the due date of the first response to written discovery.  Discovery in expedited actions must progress quickly under Level 1, because Level 1 is specifically excluded from Rule 190.5 which allows litigants to modify the discovery control plan in cases outside of Level 1.

Although the forms of discovery have remained consistent for expedited actions (with the exception of an expansion of the request for disclosure practice, discussed below), significant limitations have been placed on the amount of discovery available in an expedited action.  The total time afforded a party to conduct oral depositions in an expedited action, including both direct and cross examination of witnesses, is six hours under Rule 190.2(b)(2).  The parties may agree to expand the limit up to 10 hours in total without court intervention, but not more than that except by court order.  The new rule does give a court power to modify the deposition hours so that no party is given an unfair advantage.  This provision suggests that a court may be allowed to “equalize” deposition hours in a multi-party expedited action, similar to the manner in which a court is allowed to equalize preemptory strikes in a jury trial.

Written discovery has been significantly limited for expedited actions as well.  Parties may only serve 15 interrogatories, excluding those asking a party to identify or authenticate specific documents, under Rule 190.2(b)(3).  Similarly, requests for production and requests for admissions are limited to 15 items each, under Rules 190.2(b)(4) and (5).  The one area in which expedited trial has expanded written discovery is with respect to requests for disclosure.  In addition to the content which is already subject to disclosure under Rule 194.2, a party to an expedited action, under Rule 190.2(b)(3), may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control, which it may use in support of its claims or defenses.

All of these limitations mean that litigants in an expedited action must economize in their use of written discovery and depositions.  Written discovery must be narrowly tailored to the major issues in the case.  Depositions must get straight to the point.  Getting proper discovery responses will also be paramount in expedited actions, and it will be interesting to see whether an attendant increase in discovery motions will accompany practice under the new Expedited Action Rules.  The next post in this series will consider changes which will be seen at trials of expedited actions.