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Changes to Discovery Rules

Ally Caskey, Kathryn J. Murphy | August 30, 2024

In the ever-evolving landscape of litigation in Texas, staying abreast of procedural changes is imperative for any trial attorney desiring to achieve successful outcomes for their clients. There have been significant recent changes to the discovery rules that went into effect September 1, 2021, and September 1, 2023. Understanding and navigating these rules is a strategic advantage that can impact the trajectory and resolution of cases. 

Cases Not Governed by the Family Code

Except for suits governed by the Family Code filed after September 1, 2023, and unless there is an exemption, agreement by the parties, or court order, for all cases filed on or after January 1, 2021, a party is subject to three types of mandatory disclosures – initial disclosures, testifying expert disclosures, and pretrial disclosures. Further, a party cannot serve discovery on another party until after the other party’s initial disclosures are due.

• Initial Disclosures – A party must provide initial disclosures within 30 days after the filing of the first answer or general appearance, unless the parties agree or there is a court order designating a different time. Like the old requests for disclosure, a party must provide to the other parties the items set forth in the statute, such as the legal theories and factual bases of that party’s claims or defenses and the name and contact information of persons who have knowledge of relevant facts. Significantly, the new rules require that the party provide a copy or a description of all exhibits that the party may use in court, unless the exhibit would be used solely for impeachment.
• Testifying Expert Disclosures – A party seeking affirmative relief must provide testifying expert information to the other party 90 days before the end of the discovery period, and a party not seeking affirmative relief must provide such information 60 days before the end of the discovery period. Additionally, the new rules that went into effect September 1, 2023, require disclosure of the expert’s qualifications to include all publications authored by the expert in the last 10 years, a list of cases in which the expert testified as an expert at trial or deposition (unless the expert is an attorney testifying to attorney’s fees), and a statement of the expert’s compensation. 
• Pretrial Disclosures – At least 30 days before trial, a party must provide to the other parties and file certain information about the evidence that the party may present at trial other than solely for impeachment. A party must provide the name and contact information of each witness, separately identifying the witnesses the party expects to call and the witnesses the party may call if the need arises, as well as an identification of each document or other exhibit, including summaries, separately identifying the exhibits the party expects to offer and those it may offer if the need arises.

Cases Governed by the Family Code

Effective September 1, 2023, required disclosures no longer apply to cases governed by the Family Code. In cases governed by the Family Code filed after September 1, 2023, parties can use requests for disclosure to obtain certain information from other parties and experts, and parties can serve discovery with the initial pleading. For family law cases filed prior to September 1, 2023, it is important to note that the discovery rules in effect September 1, 2021, will apply. 

Additionally, the new rules provide that a party may not assert a work product privilege to a request for disclosure. Further, a response to a request for disclosure that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment. 

For cases under the Family Code, a party may obtain information concerning testifying experts only through a request for disclosure, deposition, or report.

Protections from Discovery

For all civil cases, including cases governed by the Family Code, all communications between a party’s attorney and a testifying expert are now protected from discovery, except for communications that relate to the expert’s compensation, facts that the party’s attorney provided and that the expert considered in forming the expert’s opinions, or assumptions that the party’s attorney provided that the expert relied on in forming the expert’s opinions. 

Further, a draft expert report or draft disclosure is protected from discovery, regardless of the form in which the draft is recorded. 

Conclusion

Understanding and mastering the discovery rules is paramount to being an exceptional trial lawyer. By diligently adhering to discovery procedures and staying up to date with the new laws, attorneys can bolster their cases, safeguard their clients’ interests, and ultimately achieve favorable outcomes.

This article was originally featured in the Dallas Bar Association’s September 2024 Headnotes.

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