Initial Disclosures (194)
As of January 1, 2021, Houston Lawyers are now faced with an adjustment of new rules in discovery. One major change is what was formerly known as Rule 194 Request for Disclosure. Under the old rules, the information sought was requested, under the new rules now Houston divorce lawyers are required to disclose the information. And if the change itself were not enough, the Initial Disclosures require a bit more information than the former Request for Disclosure.
For instance, prior to this change electronic discovery was sought through a Request for Production. Now, the new rules require the production of Electronically Stored Information (“ESI”) unless it is to be used for the sole purpose of impeachment. Specifically, the portion of the Initial disclosure is as follows:
“A copy or a description by category and location – of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses unless the use would be solely for impeachment.”
In a suit for divorce or annulment, a party without waiting for a request, must provide a copy of real estate documents, documents pertaining to any pension, retirement, profit-sharing, or other employee benefit plan including the most recent account statement for any plan, and all insurance policies, and the most recent bank statements from any financial institution.
But wait, there is more. If child support or spousal support is an issue, then inclusive within the initial disclosure the lawyers are required to provide all policies statements and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child(ren) or spouse, previous two years of tax returns, or W-2, 1099, and Schedule K-1 and the two most recent paycheck stubs.
Most Houston Lawyers are asking themselves, when is this due? The answer to that question is 30 days after the first answer or general appearance is made by the other party, unless agreed to by the parties or ordered by the Court.
Testifying Experts (194.3)
There has been a slight adjustment to the testifying experts. In the former Request for Disclosure, about 99% of the time this was question number 6 in the Request for Disclosure. With this change, it is the same basic information, however, there have been some additions to this as well. By the way, this is an independent document of the initial disclosures.
The changes include providing a list of all publications authored in the last 10 years. Additionally, lawyers are now to provide all other cases in which the expert has testified in the previous 4 years whether that be testifying at trial or by deposition. The exception is, if you are the responding party’s attorney and the attorney is testifying to attorney’s fees.
It should be noted that, as with most everything concerning communications, communications between the party’s lawyer and the testifying expert witness are protected from discovery, but within the realm of communications, regardless as to the form, communications relating to compensation for the expert’s study or testimony is discoverable; the facts or data that the party’s lawyer provided and the that the expert is considered in forming the opinions to be expressed; or the assumptions that the party’s attorney provided and that the expert relied on in forming the opinions expressed.
Finally, any drafts no matter the form are protected from discovery.
Pretrial Disclosure (194.4)
This is a new implemented change to the Texas Rules of Civil Procedure. In short, what the pretrial disclosure is, it is a list of your witnesses including the contact information for them (name, address, and telephone number). Now just for clarity lawyers, by witnesses, I do not mean just the witnesses that lawyers have listed on the Initial Disclosures, I mean this list includes even those witnesses that lawyers anticipate calling if the need arises.
The part of the disclosure is the identification of documents or other exhibits, including summaries of other evidence separately identifying those items the party expects to offer and those it may offer if the need arises.
Now for the lingering question, when does this after to be completed? Unless court ordered otherwise, the pretrial disclosure must be made at least 30 days before trial.
Levels of Discovery
For those that are not lawyers, there are 3 levels of discovery. Prior to the changes in the Texas Rules of Civil Procedures, divorce attorneys commonly pled Level 2. With the new rules, divorce attorneys now have the option of pleading discovery as Level 1.
What are the qualifications of pleading Level 1? For divorce cases, which are now inclusive to Level 1, it is any suit for divorce not involving children. Additionally, the value of the marital estate cannot be greater than $250,000.
The discovery period for Level 1 cases are roughly 6 months. The discovery period begins when the initial disclosures are due and continues until 180 days after the date the initial disclosure are due.
In Level 1 cases, the magic number is 15. Each party gets 15 Requests for Production, 15 Interrogatories, and 15 Requests for Admissions. Take note lawyers, that each discrete subpart a request for production is considered a separate request for production. This also holds true for a request for admission and of course, interrogatories.
A word of caution to lawyers, if a Level 1 suit is removed and designated as a Level 2, then the discovery period reopens. What does that mean? Well, basically, discovery starts all over – this also includes depositions. Any person previously deposed may be re-deposed. On a motion of any party, the court should continue the trial date if necessary, to permit the completion of the discovery.
Not a lot of changes to this level. The discovery period begins when the first initial disclosures are due, as opposed to when the suit is filed and continue until 30 days before the date set for trial.
On a final note, pursuant to Tex. R. Civ. P. Rule 192.2, a party cannot serve discovery on another party until after the initial disclosures are due.