Senior Texas lawyers despair, the last vestiges of the “trial by ambush” era are being swept away like the Imperial Senate.

It looks like changes to the discovery rules are coming to Texas in 2019. Some of the changes will be significant improvements, while others will be less consequential tweaks. But there is one proposed change that is just a bad idea: limiting each side to only 25 requests for production of documents. More about that later.

The Discovery Subcommittee of the Texas Supreme Court Advisory Committee has been working on changes to the discovery rules for a few years now. I wrote about this two years ago in Proposed Changes to Texas Discovery Rules Threaten Law Firm Revenue. As I wrote then, the two biggest changes are requiring Federal-style initial disclosures and making communications with testifying experts undiscoverable.

These changes struck me as basically a good idea, with the potential to reduce gamesmanship and litigation expense. I say “reduce” because you’re never going to eliminate gamesmanship from discovery. This is litigation, after all. Plus, one man’s “gamesmanship” is another man’s proper use of the rules to protect his client’s interests.

In any case, the changes I wrote about—and others—may be coming soon. On February 11, 2019, the Discovery Subcommittee transmitted its recommended rewrite of the Texas discovery rules to the Supreme Court Advisory Committee.

I’ve only got five minutes, so I won’t try to cover all the changes, but here are some highlights:

• Rule 190.4 would require a Federal-style initial conference followed by a discovery control plan and docket control order. I often find the initial conference a waste of time—it’s too early to address all those issues—but it’s relatively harmless.
• Rule 192.4(b) would change “the burden or expense of the proposed discovery outweighs its likely benefit” to “the discovery sought is not proportional to the needs of the case.” In other words, the proposal writes proportionality into the rule, although proportionality is already implicit.
• Rule 193.2(a) targets “prophylactic” objections: “An objection must state whether any responsive materials are being withheld on the basis of the objection.” This sounds like a good rule, but expect it to be routinely ignored.
• Rule 194 would now require Federal-style initial disclosures. Unless otherwise agreed or ordered, both sides would have to serve them within 30 days after the defendant’s answer. For Texas practice, this completes the decades-long shift in philosophy from “trial by ambush” to putting your cards on the table from the start. Also, like the federal rule, the new rule would allow “a description by category and location” in lieu of actually producing the documents—I’ve never understood the point of this.
• Rule 195.5(a)(4) would expand the scope of expert disclosures to be closer to Federal Rule 26.
• Rule 195.5(c) would generally exempt communications with testifying experts from discovery (like the Federal rules–notice a pattern?). Overall, this is a good change for reasons I explained in my “Proposed Changes” post.
• Rule 199.1(b) would add total hour limits for depositions (50 hours for a typical case).
• Proposals for addressing ESI and spoliation are still being discussed.
• Rule 196.1(c) would provide: “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 15 requests for production or for inspection in a Level 1 case or 25 requests for production or for inspection in Level 2 or Level 3 cases, including discrete subparts.” [record scratch]

Wait, what?! You’re telling me in a typical case I only get to serve 25 requests for production?

If you’re not a lawyer, or if you’re a lawyer who doesn’t litigate, that probably doesn’t sound unreasonable. But trust me, 25 requests for production is not a lot.

I’ve been practicing business litigation in Texas for over 20 years. That’s not as long as most of the people on the Supreme Court Advisory Committee, but it’s still a pretty good run. I don’t think I’ve ever had a case of even the slightest complexity where each side served fewer than 25 requests for production.

My fellow litigators understand that you don’t know what you’re going to get when you serve that first broad set of requests for production. And you usually don’t know what the real factual disputes are until you get some substantive documents from the other side and take one or two depositions.

That’s not all. It’s hard enough to get the documents to prove your claim or defense when the other guy is cooperating. When opposing counsel is actively trying to obstruct your efforts to get the documents you need, it’s even harder. For example, I had a fairly simple non-compete case where I had to serve about a dozen sets of requests for production because the opposing party was so slippery.

Surely I’m not alone. I’m a little surprised that the highly experienced litigators on the Supreme Court Advisory Committee would endorse a 25-request limit. I’d be curious to know how many of them have ever had a business lawsuit where 25 requests for production were adequate.

Maybe they’ve seen too many cases with an excessive number of requests for production. But there is already an inherent reasonableness limit. Let’s say a party has already served 75 requests for production in three separate sets and then serves a fourth set of 25 more requests. If those requests are unreasonable or duplicative of prior requests, then the responding party can file a motion for protective order asking the judge to limit the number of requests. I don’t think anyone doubts the trial court judge’s discretion to grant a motion like that.

If, on the other hand, those new requests are relevant to issues in the case, reasonably tailored, and not duplicative of prior requests, I say they should be allowed.

But we must reduce the cost of discovery, right?

I’m all for trying to contain the cost of discovery. But it’s not the number of requests for production that is driving up the cost of discovery. In my experience, it’s really two things: (1) emails, and (2) fighting over discovery.

The impact of emails on the cost of litigation is well known. That ship has sailed.

The other factor that makes discovery so expensive is when the lawyers can’t get along. It’s really the discovery battles that drive up the cost. These skirmishes are usually the result of requesting lawyers serving unreasonably broad requests and/or responding lawyers making a litany of unreasonable objections. The problem is then compounded when trial court judges don’t want to get their hands dirty.

These are the main factors that make discovery expensive, not the number of requests for production.

I don’t know how to fix these problems. But I do know that limiting parties to 25 requests for production isn’t going to make lawyers more cooperative, and it isn’t going to change the fact that reviewing and producing thousands of emails is expensive.

If anything, this new speed limit is likely to increase gamesmanship and battles over discovery. If you only get 25 requests, your incentive is to make them broad. That’s going to lead to more objections and more discovery motions. And don’t get me started on arguing about “discrete subparts”; we already know from interrogatories how much time lawyers can waste on that.

Proponents of the limit will point out that you won’t need as many requests for production because the other party has to produce their evidence as part of the new initial disclosures. That’s a fair point, but it doesn’t help me with getting the documents I need to prove my case.

In fairness to the proposal, I also have to point out the preamble: “Unless otherwise stipulated or ordered by the court . . .”

That’s a good safety valve. It leaves the parties free to agree on a greater number of requests for production, and I expect a lot of litigants—especially in complex cases—will avail themselves of that option. And even if the parties don’t agree, the judge can order a greater number of requests if a party offers a good reason.

So the proponents of this revision would say, listen dude (that’s what they call me), you’re overreacting.

But I still don’t think we should start with the presumption that 25 is a reasonable number of requests for production. When the parties can’t agree, some judges are likely to fall back on the number in the rules. So if we’re going to have a number, it should be a good number. Even better, let’s have no presumptive limit and just rely on an inherent limitation of reasonableness.

That was the decision the Texas Supreme Court effectively made when it adopted the “new” discovery rules back in 1999, when I was a new lawyer and Gary Cherone was singing for Van Halen. Those rules limited the number of interrogatories a party could serve but left the number of requests for production open-ended.

The Supreme Court Advisory Committee should do the same thing now. Most of the proposed changes look good. Just take out that 25-request limit.

And May the Force be With You.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He likes both David Lee Roth and Sammy Hagar. 

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

We earn our hourly fees the old-fashioned way

Anyone who has been involved in a business lawsuit knows that a lot of time and money is spent fighting over what documents each side must produce.

You send a request for production that includes variations on the theme of “please produce documents supporting your claim that my client did X.” Your adversaries object. You object to their objections. You “confer” with opposing counsel.

You file a motion to compel. They file a response. You go to a hearing where the judge says “I don’t have time for discovery disputes” and tells you to go out in the hall and work it out. Eventually, the judge rules.

After the hearing, you argue with opposing counsel with the wording of the order. You go back to court for the judge to resolve that dispute. The judge finally signs an order. A few weeks later the other side produces documents, but they don’t include all the documents you asked for. You file another motion.

While all this is happening, the other side requests documents from you. You object. Opposing counsel calls you and . . . well, you get the idea.

Does it have to be this hard?

When you serve a request for production of documents, you’re essentially looking for two kinds of documents: good documents and bad documents. Good documents—for the opposing side—are the documents they are going to use to prove their case. Bad documents are the ones you’re going to use against them to prove your case.

Clients spend a lot of time and money essentially getting the other side to produce its good documents and its bad documents. And the proliferation of emails has made it worse.  The only ones left smiling are the law firm partners reviewing the billable hours for the month.

Couldn’t we simplify and just have a rule that says “each party must produce its good documents and its bad documents in 30 days upon request”?

Yes and no. A rule requiring a party to produce its bad documents—the documents that hurt its case—would just not be workable. But a rule requiring production of the documents a party plans to use to prove its case? That sounds sensible.

Federalization of the Texas Rules of Civil Procedure?

Texas may soon have just such a rule.  The Texas Supreme Court Advisory Committee is considering significant changes to the discovery rules in the Texas Rules of Civil Procedure.  One of those changes would require routine disclosure of the following:

Sound familiar, litigators?  This is of course what the Federal Rules of Civil Procedure already require in a party’s “initial disclosures.”

I’ve never understood the point of the alternative to provide a “description” of the documents.  I’m always tempted to respond “Plaintiff is in possession of white paper documents with black printing located in its computers and file cabinets.” Even a more reasonable description, such as “emails between the parties regarding the dispute at issue, located on Plaintiff’s email server,” is practically worthless.  If you see some value to this alternative, please tell me why.

But we must not carp too much. Overall, this change to the Texas Rules would cut the time lawyers spend arguing over requests for production that amount to saying “just give me the documents you’re going to use to prove your case.”

Some lawyers won’t like this. Those of a certain vintage will say, “Back in my day, the partners would hand you a file on Friday and say go try this case on Monday. It was trial by ambush. We never knew what documents the other side had, and we liked it!”

Does that sound old fashioned? Well, if you’re one of the lawyers saying “we used to have to serve dozens of requests for production and file a motion to compel, just to get the documents the other side planned to use,” you may sound the same way to the generation of lawyers coming up now.

Expert Texpert

Another proposed change to the Texas discovery rules could also save money, and also has a Federal flavor.

Currently, Texas lawyers have to be careful any time they communicate in writing with a hired expert witness, because those communications are discoverable. But this proposed rule would change that:

Sound familiar again? This would match a change made to the Federal Rules in 2010.

Some of you won’t like this. You smell a rat every time you see an expert designation. You want to see the emails where the lawyer tells the expert what to say. You fight for the first draft of the expert’s report so you can show he changed opinions under pressure from the client.

“What happened to transparency?” you say. If this rule change happens, the lawyer could practically write the report for the expert, and no one would ever know. The early drafts of the expert report will be like Donald Trump’s tax returns.

There is some merit to this critique, but I think it largely misses the mark. For one thing, telling the expert what to say probably doesn’t happen as often as people think.

It’s an old saw that hired experts will say whatever the hiring lawyer tells them to say. As a litigator who sometimes has to deal with difficult experts, my response is “I wish.” Try persuading a Ph.D. who charges $500/hour that he needs to tweak his methodology. Truth is, most experts who are good enough to be hired have too much pride to let a mere J.D. tell them what to say.

But there is a simpler problem with the critique of exempting attorney-expert communications from discovery. The reality is that under the current Texas rules you hardly ever get any good dirt on the expert anyway.

Litigators know their communications with testifying experts are discoverable, and they act accordingly. They’re not going to email the expert saying “I need you to change part of your report.” Lawyers often twist themselves in knots to make sure there are no documents showing the evolution of the expert’s opinions and report. They scold the expert if he even thinks of jotting down a few notes on a legal pad.

And therein lies the problem. Jumping through hoops to avoid leaving a paper trail of attorney-expert communications costs time and money. Do we really want a rule that incentivizes a lawyer to sit and look over the expert’s shoulder while he types revisions to his report? Better to save that time and let lawyers and experts email each other all they want, without fear of a it’s going to look.

This was basically the thinking when the corresponding Federal rule was changed. And on balance, that thinking was right.

Partners at big law firms may wonder how they are going to make up the billable hours lost because of these changes. But don’t worry. They’ll find a way.

*Update: On February 11, 2019, the Discovery Subcommittee transmitted its recommended rewrite of the discovery rules to the Supreme Court Advisory Committee. You can read the Subcommittee’s cover letter here. 

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.