Tag Archives: Litigation

Securing Discovery from a Texas Non-Party

Frequently Asked Questions.

Texas is one of the few states which has not adopted the Uniform Interstate Depositions and Discovery Act.  As such, out-of-state parties who wish to seek discovery from Texas individuals or entities must comply with a confusing set of rules found in the Texas Rules of Civil Procedure.  An important part of our practice is assisting lawyers from around the country serve and enforce such discovery requests.  Here are some of the questions we’re routinely asked regarding out-of-state discovery.  There are unique features to every situation and particular local rules which may result in a different answer than is given here, but this is intended to be a helpful primer for out-of-state lawyers who need to secure discovery from a Texas non-party.

 What types of discovery requests are allowed for non-parties?

Texas Rule of Civil Procedure 201.2 allows a party to an out-of-state proceeding to compel discovery from a Texas resident via an oral deposition or a deposition on written questions.  Both types of depositions can include document requests.  Texas courts will also allow out-of-state parties to compel discovery via a stand-alone document request.

Do I have to get permission from the out-of-state court before serving discovery on a Texas non-party?

Yes.  Texas requires the party seeking the discovery to obtain a “mandate, writ, or commission” from the out-of-state court requiring the specifically sought discovery (TRCP 201.2).

Do I need a Texas subpoena in order to serve discovery on a Texan non-party?

  1. Under Texas law, the subpoena is the instrument that compels a non-party to comply with discovery requests.  A Texas court will not enforce an out-of-state subpoena against a Texas citizen.

What are the requirements of a Texas subpoena?

Every subpoena must: (1) be issued in the name of the State of Texas; (2) state the style of the suit and its cause number; (3) state the court in which the suit is pending; (4) state the date on which the subpoena is issued; (5) identify the person to whom the subpoena is directed; (6) state the time, place, and nature of the action required by the person to whom the subpoena is directed; (7) identify the person at whose instance the subpoena is issued, and the party’s attorney of record; (8) state the text of the rule regarding contempt; and (9) be signed by the person issuing the subpoena (TRCP 176.1).

A Texas subpoena may only be issued by: (1) an attorney authorized to practice in the Texas; (2) a Texas court clerk; or (3) an officer authorized to take deposition in Texas. (TRCP 176.4)

Do I need to open an ancillary proceeding in a Texas court to serve a subpoena?

You don’t have to, but probably should to ensure compliance.  Opening an ancillary proceeding prior to service of the subpoena will secure a court to hear any objections to the subpoena, settle any potential disputes that arise during a deposition, and hear and rule on a motion to compel.

What are the notice requirements for a non-party subpoena?

Notice requirements depend on the type of discovery sought.  A notice of an oral deposition with or without a request for documents must be served a “reasonable time” before the deposition (TRCP 199.2(a)).  The subpoena accompanying the notice may be served at the same time as or after the notice is served (TRCP 205.2).

A notice of a deposition on written questions with or without a request for documents must be served at least 20 days before the deposition is taken (TRCP 200.1(a)).  The subpoena may be served at the same time as or after the notice is served (205.2).

A document request without a deposition must be served “a reasonable time” before the time provided for compliance (TRCP 205.3(a)).  The subpoena must be served 10 days after notice.  (TRCP 205.2).

Must a Texas subpoena be hand delivered?

  1. Texas law requires that a subpoena be served at any place in Texas by any sheriff, constable, or person who is not a party and is 18 year of age or older by delivering a copy of the subpoena to the witness and tendering any required fees (TRCP 176.5).

Are there fees associated with a Texas subpoena?

In certain circumstances. For instance, when a discovery subpoena requires a non-party to attend a deposition, the non-party is entitled to receive payment of one day’s witness fee ($10) at the time the subpoena is served (CPRC § 22.001).

Also, when a discovery subpoena seeking document is directed to a custodian of records, the custodian is entitled to $1.00 for the production and certification of the documents.  That payment is due at the time the subpoena is served (CPRC § 22.004).

If these required fees are not attached, the subpoena is legally defective.

How can I enforce the discovery subpoena?

If a non-party fails to comply with a valid and enforceable subpoena without adequate excuse, a court can hold the non-party in contempt and punish the non-party by fine or imprisonment (TRCP 176.8).  A Texas court can also compel the non-party to respond to the discovery subpoena.

Should I hire local counsel?

Local counsel can prove helpful in securing discovery from Texas non-parties, including: (1) ensuring that the subpoena is issued and served properly in accordance with Texas rules; (2) ensuring that all notice requirements are met; (3) assisting with problems as they arise, including enforcement issues; and (4) providing helpful local knowledge including the identities of reputable process servers and court reporters.

Brian C. Brisco is an attorney in the Litigation Practice Group at Cantey Hanger LLP.


Texas Expedited Trial Rules: Removal from the Expedited Actions Process

This is the fourth and final 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.

In many cases, the amount of damages sought by a party may increase over time or with newly discovered evidence.  Moreover, often the complexity of a case has little to do with the ultimate amount in controversy, thus making a clear presentation at trial under the time constraints imposed by the new Expedited Action Rules nearly impossible.  Fortunately, the rules recognize these practicalities and provide some relief.

Rule 169(c) governs removal of a case from the expedited action process.  Under this rule, a court must remove a suit from the expedited action process when a party files a motion demonstrating good cause, or if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief allowed under Rule 169(a)(1).  Accordingly, if a plaintiff files an amended pleading seeking damages which exceed $100,000, or other relief such as equitable or injunctive relief, Rule 169(c) mandates that the court remove the case from the expedited action process.  Likewise, on a motion and showing of good cause by any party, the same result must occur.  The removal of a case from the expedited action process requires the court to reopen discovery under Rule 190.2(c).  From there, the case will be governed by Level 2 or Level 3 discovery procedures under Rules 190.3 or 190.4, whichever is applicable.  In addition, depositions may be reconvened as provided under those rules, and the trial court should continue any expedited action trial setting to accommodate completion of discovery.

Removal of a case from the expedited action process is somewhat peculiar in its treatment of counterclaims.  As discussed previously, Rule 169(a)(1), defining the application of the Expedited Action Rules, on its face precludes consideration of the value of a counterclaim in the calculation of the amount in controversy.  Thus it appears that a counterclaimant seeking removal of a case from the expedited trial process cannot rely on the amount in controversy, but must bring a motion showing good cause under Rule 169(c).  However, Comment 3 to Rule 169 provides that “[i]n determining whether there is good cause to remove the case from the process or extend the time limit for trial, the court should consider factors such as whether the damages sought by multiple claimants against the same defendant exceed in the aggregate the relief allowed under Rule 169(a)(1), whether a defendant has field a compulsory counterclaim in good faith that seeks relief other than that allowed under Rule 169(a)(1), the number of parties and witnesses, the complexity of the legal and factual issues, and whether an interpreter is necessary.”

So, while the rule itself precludes consideration of the amount in controversy, the comment to the rule allows that to be taken into consideration in the determination of good cause.  What effect this invitation to consider a compulsory counterclaim in the context of good cause will have on courts facing the issue remains to be seen.  However, one thing is clear, the mere filing of a counterclaim which exceeds the $100,000 threshold is insufficient under Rule 169(a)(1) to trigger an automatic removal from the process.

In conclusion, the new Expedited Action Rules, with their time limitations for discovery and trial, appear readily able to facilitate the legislature’s stated intent to “promote prompt, efficient and cost-effective resolution of civil actions” for cases in which the amount in controversy does not exceed $100,000.  The question of whether the new Expedited Action Rules will promote the interests of justice in affording a fair adjudication of claims and counterclaims subject to them is an open question.  Although the new rules place significant limitations on the litigation process, the Texas Supreme Court’s promulgation of guidelines such as those set forth in Comment 3 to Rule 169 evidences its recognition that not all cases may fit the mold of an expedited action regardless of the amount in controversy.  It will be interesting to observe the results as cases begin to move through the court system under these new rules.

Texas Expedited Trial Rules: Trials Under the Expedited Action Rules

This is the third 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.

As previously discussed, Rule 169(a)(1) provides that the expedited actions process will apply to a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney’s fees.  The amount of monetary recovery available to a party who prosecutes an expedited action is capped at $100,000, excluding post-judgment interest, under Rule 169(b).  Initial trial settings in expedited actions are governed by Rule 169(d)(2), and requires a court to set the case for trial within 90 days after the discovery period ends on any party’s request.  Under this rule, the court may continue the case twice, but not exceeding a total of 60 days from the initial trial setting.

Rule 169 provides significant time limits in trial on expedited actions.  Under Rule 169(d)(3), each side is allowed no more than 8 hours to complete its entire trial presentation, including jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments.  On a motion showing good cause, a court may extend each side’s presentation to a maximum of 12 hours.  The term “side” has the same definition as set forth in Rule 233, dealing with preemptory strikes, so that in a multi-defendant case, each party defendant, if interests are aligned with the other defendants, could be looking at putting on its entire case in something less than the full time allotted in the rule.

Alternative dispute resolution is governed by Rule 169(d)(4).  Except where the parties have agreed not to engage in ADR, this provision allows a court to refer the case to ADR once, not later than 60 days before the initial trial setting, and the procedure cannot exceed a half day in duration, or exceed a total cost of twice the amount of the applicable civil filing fee in the court.  However, the parties may also agree to engage in ADR outside of the rule.  This gives a lot of flexibility to the litigants to attempt to resolve their claims, or to recognize the futility of settlement discussions, allowing them to focus on preparing for a short trial on the merits in their expedited action.

Finally, the procedures for challenging the methodology and qualifications of expert witnesses have changed significantly for expedited actions. Under Rule 169(d)(5), such challenges are limited to objecting to an expert’s testimony or work product used in a summary judgment proceeding under Rule 166(a), or during a trial on the merits.  Traditional motion practice in this area is precluded in an expedited action.  A litigant who has a firm belief that the opposing party’s expert is not qualified, or has used methodology which is unsound, may be forced to use valuable cross-examination time taking the witness on voir dire on these issues.

Obviously, trial practice in an expedited action will be significantly differently from that in other cases.  As with discovery and depositions, a party must put a premium on focus and efficiency in the trial presentation.  Direct and cross-examination of witnesses which are traditionally more time consuming, such as the named parties and experts, will need to be paired down to the most important points in order to meet the time limitations under the new Expedited Action Rules.  However, the Texas Supreme Court did not craft these rules as completely inflexible in all cases.  The final post in this series will examine methods afforded for removing a case from the expedited actions process, as well as other practice considerations.

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.

Texas Expedited Trial Rules: Background of Amendments

This is the first 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.

In May of 2011, the 82nd Legislature amended Texas Government Code § 22.004(h), to require the Texas Supreme Court to adopt rules “to promote the prompt, efficient, and cost effective resolution of civil actions” in which the amount in controversy, inclusive of all claims for damages of any kind (including actual and exemplary damages, penalties, attorney’s fees, expenses, costs or any other type of damage of any kind), does not exceed $100,000.  Following this mandate, the Texas Supreme Court issued Miscellaneous Docket No. 12-9191 on November 13, 2012, amending Rules 47 and 190 of the Texas Rules of Civil Procedure, and adopting new Rule 169, in order to accommodate the legislature’s directive.  This order was to be effective on March 1, 2013, but allowed for additional amendments to be made in response to comments received on or before February 1, 2013, by any interested party.  Having received and considered comments, on February 12, 2013 the court issued Miscellaneous Docket No. 13-9022 entitled “Final Approval of Rules for Dismissals and Expedited Actions,” incorporating amendments based on those comments.

As would be expected, the new rules for expedited actions involving cases under $100,000 brought with them key changes in procedure.  However, not all of these changes were limited to cases involving amounts in controversy under $100,000.  Indeed the new rules have changed all civil litigation in Texas, in some significant respects.  For example, in order to properly define for courts those cases which would proceed under the Expedited Action Rules, the Supreme Court amended Rule 47(c) to provide that each pleading setting forth an affirmative claim for relief in any case must contain a statement that the pleading party seeks:

(1)       only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest and attorney’s fees; or

(2)       monetary relief of $100,000 or less, and non-monetary relief; or

(3)       monetary relief over $100,000 but not more than $200,000; or

(4)       monetary relief of over $200,000 but not more than $1,000,000; or

(5)       monetary relief over $1,000,000….

This change to Rule 47(c) is significant, not only to define those cases which will proceed under the Expedited Action Rules, but to all litigants in Texas courts, because the amendments to Rule 47 also made compliance with subsection (c) a pre-condition to a litigant conducting any discovery in the suit.  As a practical matter, this means any Texas plaintiff (or counter-plaintiff or cross-plaintiff) who fails to comply with the requirements of Rule 47(c) in the petition can expect to be met with objections rather than responses from his opponents to any discovery which is due prior to the time that the plaintiff amends the petition to comply with the rule.

Although all cases will be affected by this change to Rule 47, the main features of the new Expedited Action Rules set forth in Rule 169 are directed at cases under the $100,000 threshold, with certain exceptions.  New Rule 169(a)(2) provides that medical liability cases are excluded, as are cases brought under the Family Code, Property Code and Tax Code.  One significant, and potentially problematic, aspect of Rule 169(a)(1) governing the application of the Expedited Action Rules is the fact that the value of a counterclaim is excluded from the calculation of the amount in controversy.  This means that in a two-way dispute where one party has a claim it values over $100,000 and the other has an opposing claim it values at under $100,000, a literal race to the courthouse may be the determining factor in whether the party with the larger claim will be forced to litigate it under the significant limitations presented by the Expedited Action Rules.  For cases proceeding under the new Expedited Action Rules, there are significant changes to discovery, deposition, trials and available recovery in these cases.  In the next installment in this series we will examine changes in discovery procedure in expedited actions.