The Texas Supreme Court Amends the Texas Rules of Civil Procedure
Houston, TX – The Texas Supreme Court significantly amended the Texas Rules of Civil Procedure to expedite more cases to trial and minimize discovery through mandated “required” disclosures. We anticipate that the amended Rules will cause many Texas state-court practitioners to adjust their practice, revise routine strategies, and implement new procedures to adapt to an unfamiliar landscape in Texas litigation. However, it will be business as usual at McDowell Hetherington. That is because we believe that effective litigation involves planning for trial on day 1 (no matter the amount at issue), minimizing unnecessary discovery fights, and evaluating cases early (so clients can assess risk). Thus, the new rules, which require greater front-end work by Texas state-court practitioners, are nothing new for MH.
More “Expedited” Actions
The Texas Supreme Court greatly expanded the number of “expedited actions.” Currently, “expedited actions” are cases seeking monetary relief of $50,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. Because “expedited actions” threshold included fees, interest, and costs, many contract actions, where fees are recoverable, were excluded. However, under the amendments, effective January 1, 2021, expedited actions in Texas now include those cases seeking monetary relief less than $250,000, excluding attorney’s fees, interest, statutory or punitive damages, penalties, and costs.
For those unfamiliar with “expedited actions,” these cases fall under the Level 1 discovery rules, unless the parties agree otherwise. Level 1 is a rocket docket with limited discovery (15 Requests for Production, 15 Interrogatories, and now 20 hours of total deposition time—up from 6 hours) with a six-month discovery period. Trial must be set within 90 days after the close of discovery (with the possibility of two continuances not to exceed 60 days).
For cases filed on or after the beginning of the coming year, disclosures will be unrecognizable to the Requests for Disclosure that have been around for over two decades. To align more with a federal counterpart—Federal Rule of Civil Procedure 26—Rule 194 Requests for Disclosure are not just revamped but renamed: “Required Disclosures.” As the name change denotes, TRCP 194 will soon require parties to disclose basic discovery automatically, without awaiting any specific request. These disclosures will be due within 30 days after the first answer is filed, absent an agreement by the parties or court order. Similarly, a party served or, otherwise, joined after the first answer is filed must make the initial disclosures within 30 days of being served or joined. Parties will also be required to produce documents with their disclosures—unless the production is voluminous, in which case the party must state a time and place for production.
The revamped “Required Disclosures” are far more expansive too. First, parties will have to provide a computation of each category of their asserted damages and make available the documents or other evidentiary material underlying the computation, “including materials bearing on the nature and extent of injuries suffered . . . .” Defendants will welcome the change, as Plaintiff can no longer delay providing damages-related information, including computations and damages models. Second, parties will be required to provide a copy—or a description by category and location—of all documents in its possession, custody, or control that the party may use to support its claims or defenses—a tall task within the first thirty days. Third, initial disclosures will no longer require parties to provide expert-related information, which is now addressed by a separate rule (discussed below).
Lastly, the Texas Supreme Court is adding teeth to this rule—emphasizing that they are as they are so named: required, and no party can serve its own discovery until after the required disclosures are due, unless otherwise agreed to by the parties or ordered by the court.
Mandatory and More Detailed Expert Disclosures
Amended TRCP 195.2 requires parties seeking affirmative relief to designate experts 90 days before the end of the discovery period and further mandates that other experts be designated 60 days ahead of the close of discovery. While much of the content is the same, the revised rule closely mirrors Federal Rule of Civil Procedure 26(a)(2)(B). Parties will now provide the current disclosure information for testifying experts—unsolicited, with additional information required to be given for retained experts, including: (i) the expert’s qualifications, including a list of all publications authored in the previous 10 years; (ii) a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; and (iii) a statement of the compensation to be paid for the expert’s study and testimony in the case.
Date Certain for Pre-Trial Disclosures
Parties will soon be required to file at least 30 days prior to trial contact information about witnesses and identifying information about exhibits and documents that it may present at trial. Further, parties will additionally have to distinguish specifically the witnesses and items that it expects to present at trial from those that the party may call or use only if the need arises.