Recent amendments to the Texas Rules of Civil Procedure (TRCP) will significantly impact Texas discovery, expert disclosures and litigation practice. Generally, the amendments further align the TRCP with the Federal Rules of Civil Procedure and the Texas Government Code. Outlined below are the key updates, which became effective Jan. 1, 2021, and apply to civil cases filed on or after that date.
- Initial, Expert and Pretrial Disclosures Automatically Required. Throughout the amendments governing discovery, references to “requests for” disclosures were replaced or supplemented to note that initial, expert and pretrial disclosures are now automatically required.
- Rule 194.2 ─ Initial Disclosures For most civil suits, a party must make initial disclosures within 30 days after the filing of the first answer or — if first served or otherwise joined after the first answer was filed — 30 days after being served or joined, unless otherwise agreed by the parties or abrogated by court order.In addition to the disclosures previously enumerated, a party’s required initial disclosures must also include: (i) a computation of each category of damages claimed, and all non-privileged evidentiary material on which the computation is based; and (ii) a copy or description of all documents, by category and location, that the responding party has in its possession, custody or control, and may use to support its claims or defenses.
- For most civil suits, a party must make initial disclosures within 30 days after the filing of the first answer or — if first served or otherwise joined after the first answer was filed — 30 days after being served or joined, unless otherwise agreed by the parties or abrogated by court order.
- In addition to the disclosures previously enumerated, a party’s required initial disclosures must also include: (i) a computation of each category of damages claimed, and all non-privileged evidentiary material on which the computation is based; and (ii) a copy or description of all documents, by category and location, that the responding party has in its possession, custody or control, and may use to support its claims or defenses.
- Rules 194.3 and 195 ─ Expert Disclosures Unless otherwise ordered by the court, parties seeking affirmative relief must designate experts 90 days before the end of the discovery period. All other experts must be designated 60 days before the end of the discovery period.With respect to retained testifying experts, the requisite disclosures must now include: (i) the expert’s qualifications, including a list of publications authored by the expert in the last 10 years; (ii) a list of all other cases during the previous four years in which the expert testified as an expert; and (iii) a statement of the compensation to be paid for the expert’s study and testimony in the case.
- Unless otherwise ordered by the court, parties seeking affirmative relief must designate experts 90 days before the end of the discovery period. All other experts must be designated 60 days before the end of the discovery period.
- With respect to retained testifying experts, the requisite disclosures must now include: (i) the expert’s qualifications, including a list of publications authored by the expert in the last 10 years; (ii) a list of all other cases during the previous four years in which the expert testified as an expert; and (iii) a statement of the compensation to be paid for the expert’s study and testimony in the case.
- Rule 194.4 ─ Pretrial Disclosures Unless otherwise ordered, pretrial disclosures must be made at least 30 days before trial and must be provided to the other parties and promptly filed.The requisite pretrial disclosures must include: (1) the name, address and telephone number of each witness; and (ii) an identification of each document or other exhibits, including summaries of other evidence. As to both, the party must separately identify the witnesses or items the party expects to offer and those it may offer if the need arises.
- Unless otherwise ordered, pretrial disclosures must be made at least 30 days before trial and must be provided to the other parties and promptly filed.
- The requisite pretrial disclosures must include: (1) the name, address and telephone number of each witness; and (ii) an identification of each document or other exhibits, including summaries of other evidence. As to both, the party must separately identify the witnesses or items the party expects to offer and those it may offer if the need arises.
- Discovery Period Determined by Due Date of Initial Disclosures. Under the amended Level 1 and Level 2 Discovery Control Plans, as set forth in Rules 190.2 and 190.3, the respective discovery periods commence when initial disclosures are due. Under Level 1, the discovery period continues for 180 days from the date the initial disclosures are due. Under Level 2, the discovery period continues until the earlier of 30 days before the date set for trial or nine months after the initial disclosures are due. Further, with respect to the timing and sequence of discovery, amended Rule 192.2 provides that “unless otherwise agreed to by the parties or ordered by the Court, a party cannot serve discovery until after the initial disclosures are due.”
- Expedited Actions: Amount in Controversy Increased to $250,000. The statutory limit of lawsuits governed by Rule 169 increased from an aggregate $100,000 or less, including all damages, penalties, costs, expenses, interest and fees, to now encompass “suits in which all claimants … seek only monetary relief aggregating $250,000 or less excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs.” Accordingly, any action with an amount in controversy of up to $250,000, not including interest, fees and costs, will be governed by the expedited action process. This increase is also reflected in the amendments to Rule 47, which provides the requisite statements of relief to be included in a party’s original pleading, and Rule 190.2, which outlines the applicable Level 1 Discovery Control Plan.
- Additional Time for Oral Depositions. Under Discovery Control Plan Level 1, the total time for oral depositions is now 20 hours for each party.