Tex Civ Proc Chap - 9 & 10

Front 1

Parties and Actions

Capacity of Parties - Limited Partnership

108

Back 1

A limited partnership, in order to conduct business in TX, must registered w/Secretary State. If not registered, then NO capacity to sue.

Front 2

Parties and Actions

Capacity of Parties - Capacity v. Standing

109

Back 2

Both are required, but capacity is waivable.

A plf' has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy. A party must have both standing and capacity to bring a lawsuit. And while standing is an issue that cannot be waived, capcity can be waived.

Objection to capacity to sue must be by verified denial.

Front 3

Parties and Actions

Capacity of Parties - Joinder of Parties

110

Back 3

Tex. Rules of Civ. Proc 39

Per COOPER - it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.

EXCEPTION: partition litigation

Front 4

Parties and Actions

Capacity of Parties - Joinder of Parties - "Necessary Party"

111

Back 4

Means that a person's absence from suit will deprive the crt of SMJ. Not really a problem under these rules.

Front 5

Parties and Actions

Capacity of Parties - Joinder of Parties - Def' Can Bring 3rd Party

112

Back 5

Tex Rules Civ Proc 38

A def' can bring a 3rd party who:
(1) allegedly was primarily liable to the plf' so that the original def', though secondarily liable would be entitled to charge the 3rd party in judgment;
(2) who would be liable over to the def' for all or a part of the claim asserted by the plf'

Front 6

Parties and Actions

Joinder of Parties - Def' Can Bring 3rd Party - Crts Discretion

113

Back 6

Per Ruthart - Where the COA b/n the Plf and the Def are separate and distinct from defs' claim against 3rd party defs', the TC has broad discretion in determining consolidation.

Per Truehart - While leave of court is required for a 3rd party action not filed w/in 30 days after service of original answer, the plf' may waive the right to object, or may lose it bay laches (2 yrs later). TCs have broad discretion in matter such as party joinder.

Per Gamez - It is an abuse of discretion for a TC to award ad litem ("for the suit") fees for services performed AFTER resolution of conflict of interest which gave rise to the appointment.

Front 7

Parties and Actions

Joinder of Claims

114

Back 7

Tex Rules of Civ Proc 51

(a) a party is permitted to join in the same proceeding "as many claims either (legal or equitable) as she may have against an opposing party." Thus, it was proper, in the plf's action for condemnation for the def' assert a tort claim damages resulting from trespass.

Basically, no requirement that the claims arise out the same transaction or occurrence.

If the case only involves only 1 plf and 1 def then there can be no misjoinder of claims, for there is no req that teh claimsa rise out of the same trx or occurrence.

Front 8

Parties and Actions

Joinder of Claims - Mandatory Joinder of Counter Claims

115

Back 8

Tex Rules of Civ Proc 97(a)

(1) it is w/in the jurisdiction of the court
(2) it is NOT at the time of filing the answer the subject of a pending action;
(3) the action is mature and owned by the pleader at the time of the filing of the answer
(4) it arises out of the trx or occurrence that is the subject matter of the opposing party's claim;
(5) it is against an opposing party in the same capacity; AND
(6) it does not require for its adjudication the presence of 3rd parties over whom the court cannot acquire jurisdiction

Purpose: avoid piecemeal litigation

Front 9

Parties and Actions

Interpleader

115

Back 9

An interpleading party is entitled to maintain an interpleader suit if there exists a reasonable duty, either of fact or law, as to which of the rival claimants is entitled to the proceeds of the policy. If the interpleader's doubt is a reasonable one, and for that reason it in good faith declines to pay the named beneficiary, but admits liability and deposits the funds into court, it is liable only for the face amount of the policy.

An interpleader is not required to speculate as to whether returning the property released interpleader from liability to creditors.

An interpleader action is a complete defense to breach of K lawsuit and might be a complete defense to a tort suit if based on breach of k.

Front 10

Parties and Actions

Interpleader - Reqs

116

Back 10

Interpleading party must establish that the party:
(1) is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property (need only assume potential claims)
(2) Has not unreasonably delayed filing his action for interpleader; and
(3) Has unconditionally tendered the fund or property into the registry of the court

Front 11

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Misjoinder & Nonjoinder

118

Back 11

Tex Rules of Civ Proc 41: Misjoinder and Nonjoinder of Parties

Misjoinder is NOT grounds for dismissal. Parties may be dropped or added, claims may be served at any time before submission to jury.

Front 12

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Intervenor's Pleadings

119

Back 12

Tex Rules of Civ Proc 60: Intervenor's Pleadings

Any party may intervene by filing a pleading and is subject to a motion to strike by any party opposing intervention.Q

Front 13

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Consolidation; Separate Trials

120

Back 13

Tex Rules of Civ Proc 174(a): Consolidation; Separate Trial

Crt may consolidate actions if they involve common questions of law or fact and consolidation is necessary to avoid unnecessary costs or delay.

Crt may order separate trials to avoid prejudice and inconvenience.

Front 14

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Intervention

121

Back 14

Any competent party can intervene, (leave of court is not required, but the intervention is proper if the intervenor could have brought the same action, or any part thereof, in its own name, or, if the action had been brought against it, it would be able to defeat recovery, or some party thereof. The interest may be legal or equitable).

Subject to being stricken by motion of a party, BUT, it is an abuse of discretion to strike when:
(1) the intervenor could have brought or defended the action, or a party of it, in the party's own name,
(2) the intervention will not complicate the case by an excessive multiplication of the issues; and
(3) the intervention is essential to effectively protect the intervenor's interest.

Front 15

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Severance

122

Back 15

A claim is properly severable if:
(1) the controversy involves more than one COA;
(2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; AND
(3) the severed claim IS NOT so interwoven with the remaining action that they involve the same facts and issues.

The controlling reasons for service are to do justice, avoid prejudice and further convenience.

The TC has BROAD discretion in deciding to severance.

TC abused discretion when it severs w/out meeting the reqs.

Front 16

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Severance vs. Separate Trial

123

Back 16

Separate Trial - when an issue is tried apart from other issues (judgment in one not final b/c it only hears one element of the case)

Severance - 2 complete and distinct COAs (each judgment is final and not related to the other)

Front 17

Parties and Actions

Intervention, Severance and Nonjoinder of Parties - Separate Trial

124

Back 17

General Rule - liability and damages MAY NOT be bifurcated into separate trials in personal injury cases. EXCEPTION - punitive damages cases (in such case there is a req for bifucated trials)

Crts suggest that severance would be proper in insurance suits where there was an offer of settlement on the entire K claim and a failure to sever would be an abuse of discretion.

The TC has NO discretion to deny separate trials when
(1) all of the facts and circumstances of the case unquestionably require a separte trial to prevent manifest injustice, AND
(2) there is no fact or circumstance supporting, or tending to support a contrary conclusion, AND
(3) the legal rights of the party will not be prejudiced

Front 18

Parties and Actions

Class Action

125

Back 18

The judgment in the case binds the entire class, and not just the named parties. Used for individuals whose claims are too small to make it economically viable to pursue them in indep actions.

No right to litigate a claim as a class action. A crt may certify a class action only if the plfs' satisfy the reqs for Rule 42.

Front 19

Discovery

Scope of Discovery

126

Back 19

Tex Rules of Civ Proc 192.3(a)

In general, a party may obtain discovery regarding any matter that is NOT privileged (and NOT exception under Rule 190) AND is relevant to the subject matter of the pending action... It is NOT grounds for objection that the information sought will be inadmissible at the trial if the info sought appears reasonably calculated to lead to the discovery of admissible evidence."

Presumption that the information is discoverable.

Shift from "good cause" to relevance".

Front 20

Discovery

Scope of Discovery - Relevance

127

Back 20

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action MORE probable (more likely than not) or less probable that it would be w/out the evidence (Rules of Evidence 401)

Any "relevant" matter; thus, there is no evidentiary threshold a litigant must cross before seeking discovery (Lunsford - net worth discoverable in punitive claim)

Front 21

Discovery

Alleging Level of Discovery - Level 1

128

Back 21

Tex Rules of Civ Proc 190.2

When: Level 1 applies to suits invovlving 50K or LESS, and suits for divorce where there is no children and the marital estate does not exceed 50K

Limits: Each party gets 6 hrs of depo time & no more than 25 roggs.

Discovery Period: Begins when the suit is filed and continues until 30 days before the trial date.

Front 22

Discovery

Alleging Level of Discovery - Level 2

129

Back 22

Tex Rules of Civ Proc 190.3

When: Level 2 applies to all suits not controlled by Lev 1 or 3.

Limits: Each party is limited to 50 hrs of oral depos to examine and cross examine, but if one side designates more than two experts, the opposing side may have an additional six hours of depo time per expert. Crt may modify. Each party is limited to 25 roggs.

Discovery Period: Begins when suits if filed until 30 days before the trial date OR, the nine months after the earlier of the 1st depo or the dude date of the first response to written discovery.

Front 23

Discovery

Alleging Level of Discovery - Level 3

130

Back 23

Tex Rules of Civ Proc 190.4

When: the court must, on a party's motion, and may, on its own initiative, order that discovery be condictued in accordance w/a discovery control plan tailored to teh circumstnaces of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party's motion or agreed order under this subdivision as promptly as reasonably possible.

Limits: The plan MUST include (1) a trial date or for a conference to determine trial setting
(2) a disco period during which either ALL disco must be conducted or disco requests must be sent
(3) appropriate limits on the amt of disco
(4) for joining additional parties, amending/
supplementing pleadings, and designating expert witnesses

Front 24

Discovery

Alleging Level of Discovery - Limitations

131

Back 24

Tex Rule Civ Proc 192.4
(a) unquestionably cumulative or duplicative; or (b) burden or expense of discovery outweighs its likely benefits

Basically if a lawyer properly files a request for Discovery that is consistent w/Rule 191.3 (signed by lawyer not be, inter alia, burdensome) he should get it.

Front 25

Discovery

Types of Discovery - Interrogatories - General

132

Back 25

Tex Rules of Civ Proc 197.1

Questions relating to any matter w/the scope of discovery, except matters covered by Rule 195 (expert testimony)

30 days to respond and answering party can object based on vagueness/overbroad (ex - requesting all legal and factual assertions is improper) OR file privilege/exception.

If not objected, it's waived.

Roggs that are sworn can be used as sworn testimony to impeach.

Attorney CANNOT sign them, answers must be signed by the person making them (Braden).

Front 26

Discovery

Types of Discovery - Requests for Disclosure

132

Back 26

Tex Rules of Civ Proc 194.2(a)-(k)

Non-adversarial means of obtaining information generally sought in ordinary cases. Not automatic, but is available upon request.

Objections are not allowed & request should be made as soon as answer is rec'd.

Front 27

Discovery

Types of Discovery - Requests for Disclosure - What can you request?

133

Back 27

Tex Rules of Civ Proc 194.2

1. Parties to Suit
2. Names & Addresses of Potential Parties
3. All legal theories & factual bases for positions (do not have to have marshal evidence)
4. how to calculate economic damages
5. Name and telephone of people w/relevant knowledge and what they know
6. expert witnesses and stmt of their position
7. insurance
8. settlement agrmts
9. witness statements
10. medical bills

Front 28

Discovery

Types of Discovery - Requests for Admission

134

Back 28

Tex Rules of Civ Proc 198

Unless the responding party (RP) states an objection or asserts a privilege, the responding party MUST specifically ADMIT or DENY the request or explain in detail the reasons that the responding party cannot admit or deny the request.

Lack of info or knowledge IS NOT a proper response. (Rule 198.2(b))

Requests are unlimited and untimely response equates to an admission.

Front 29

Discovery

Types of Discovery - Requests for Admission - Withdrawal or Amendment of Admission

135

Back 29

A TC does not abuse its discretion by allowing a party to withdraw and amend its original answers to a request for admissions, when the moving party shows:
(1) good cause;
(2) that the party relying on the responses will not be unduly prejudiced; and
(3) that the withdrawal will serve the purpose of legitimate discovery and the merits of the case

A party can establish good cause by showing that its failure to answer was accidental, or the result of a mistake, rather than intentional or the result of conscious indifference (similar to Craddock standards)

Front 30

Discovery

Types of Discovery - Requests for Production

136

Back 30

Tex Rules Civ Proc 196b(2)(e)

Provides for discovery of facts known, mental impressions, experts' opinions and the subject matter on which the witness is expected TO TESTIFY.

A request for production must seek AN ACTUAL DOC in existence. You cannot compel the creations of a document, unless you come w/in the exception set forth in 166b(2)(e)(4), which allows the trial crt to order the creation of a report.

Only applies to the testifying expert and NOT to the consulting expert.

Front 31

Discovery

Types of Discovery - Requests for Production - Excluding Documents

137

Back 31

Any party seeking to exclude documents from discovery must:
(1) specifically plead the particular privilege or immunity claimed; and
(2) provide evidence supporting such claim.

The trial court may, on request by a party or on its own, require an in-camera inspection.

Front 32

Discovery

Types of Discovery - Requests for Production - Attorney's Files

138

Back 32

A request for an "attorney's files," as opposed to a request for a specific document relevant to a pending lawsuit, is objectionable under the attorney work product rule.

HOWEVER - a document is not privileged simply b/c it is contained in an atty's files. In seeking to withhold specific documents from production, a party has the burden of demonstrating the applicability of a particular privilege, notwithstanding the location these documents in its atty's files.

Front 33

Discovery

Types of Discovery - Oral Deposition

139

Back 33

Tex Rules of Civ Proc 199 (for laypeople)

A pre-trial procedure allowing counsel for th parties to question, in person, any person, who has info w/in the scope of discovery.

Limited to 6 hours of depo w/any person.

Limited in types of objections.

Front 34

Discovery

Types of Discovery - Oral Deposition - Apex Deposition

140

Back 34

Primarily done to harass.

when a party seeks to depose a corporate president or other high level corporate official.
Process:
1. X gives Y's lawyer Notice of Intent to depose;
2. Y moves for Motion to Protect (Rule 192.6) PLUS signed affidavit by person swearing NOT to have any unique or superior knowledge.
3. Y must get a stay of depo, hearing and ruling OR ELSE must attend depo.
4. X must then try to prove that Y really does have unique to superior knowledge (not likely).
5. Assuming not-3, try "less intrusive" means of obtaining the info.
6. If cannot, after good faith effort, obtain the discovery through less intrusive means; then can depose Y.

Front 35

Discovery

Limitations on Discovery - Exemptions - Experts

141

Back 35

Tex Rule of Civ Proc 192.3 - Experts

In order to be deemed an "expert" by the court, must have been hired AFTER the incident. - EXCEPTION - employee who was NOT assigned to the area in which the incident occurred until AFTER the incident occurred. (Alexson)

Front 36

Discovery

Limitations on Discovery - Exemptions - Testifying Experts

142

Back 36

Expert who will present your/her expert opinion to the jury in the light most favorable to your client.

MUST identify in discovery that she is the expert testifying in the trial.

Opposing party can get (1) facts AND (2) opinion.

Front 37

Discovery

Limitations on Discovery - Exemptions - Consulting Experts

143

Back 37

Helps testifying expert w/the medical details/information (the genius w/the unfavorable personality)

Must identify in discovery, but also add that she's NOT testifying.

Opposing party can get (1) facts AND (2) opinion.

Front 38

Discovery

Limitations on Discovery - Exemptions - Consulting Only Experts

144

Back 38

Expert you employed that had an UNFAVORABLE opinion.

Provided this expert has NO first-hand knowledge of the case (never been to the scene).

Opposing party CAN ONLY GET FACTS.

Front 39

Discovery

Limitations on Discovery - Exemptions - Work Product

145

Back 39

Tex Rules of Civ Proc 192.5 - Work Product

Defines (a) "work product" as compromising (1) [core work product] material prepared or mental impressions developed in anticipation of litigation or for trial or for a party or a party's rep, including the party's attys, consultants, sureties, indemnitors, insurerers, or agents, or (2)[non-core] a communication made in ANTICIPATION OF LITIGATION or for trial between a party and the party's reps or among a party's reps.

Front 40

Discovery

Limitations on Discovery - Exemptions - Work Product: Rule 192.5(b)(1)

146

Back 40

States that "CORE WORK PRODUCT-- the work product of an atty or an atty's rep (law clerk, not paralegal) that contains the atty's or the atty's rep's mental impressions, opinions, conclusions, or legal theories IS NOT DISCOVERABLE.

Front 41

Discovery

Limitations on Discovery - Exemptions - Work Product: Rule 192.5(b)(2)

147

Back 41

Provides that "ANY OTHER WORK PRODUCT (non-core work product) IS DISCOVERABLE only upon a showing that the party seeking discovery has SUBSTANTIAL NEED of the materials in the preparation of the party's case and that the party is UNABLE WITHOUT UNDUE HARDSHIP to obtain the substantial equivalent of the material by other means."

Basically, this is the investigation file, party communications (letter to 2nd party). Sole intent was to communicate but may include some mental impressions.

This work product is FREELY discoverable after trial.

Front 42

Discovery

Limitations on Discovery - Exemptions - Work Product: Rule 192.5(b)(3)

148

Back 42

Provides that "It is not a violation of subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally discloses by inference attorney mental processes otherwise protected under subparagraph (1).

Front 43

Discovery

Limitations on Discovery - Exemptions - Work Product: Rule 192.5(b)(4)

149

Back 43

"If a court orders discovery of work product pursuant to subparagraph (2), the court must-insofar as possible -- protect against disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable."

Front 44

Discovery

Limitations on Discovery - Exemptions - Work Product: Anticipation of Litigation

150

Back 44

Brotherton Test

(1) [objective prong] If a reasonable person would conclude from the severity of the accident, along w/the totality of the circumstances, that the investigating party was anticipating litigation; AND
(2)[Subjective prong] The party resisting discovery believes in good faith that there was a substantial chance that litigation would ensue and conducts the investigation for the purpose of preparing for such litigation

Front 45

Discovery

Limitations on Discovery - Exemptions - Privileges - Evidence Ch. 5

151

Back 45

Privilege (ex - atty/client) may be waived by offensive use. "A plf' cannot use one hand to seek affirmative relief in court and w/the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action".

TEST (to determine waiver):
1. Party must be seeking an affirmative relief (only real probable situation is atty's fees)
2. Info, if believed by a fact finder, would probably be outcome-determinative; AND
3. Disclosure of the information is the only way the opposing party can obtain it.

Front 46

Discovery

Limitations on Discovery - Exception to Items Prepared in Anticipation of Litigation

154

Back 46

Tex Rules of Civ Proc 192.5(c)

Even though these items are prepared in anticipation of litigation, they are excepted from the work product protection.
(1) Expert statements, trial witness statements, and legal and factual conclusions
(2) Trial exhibits ordered disclosed by the crt
(3) Name, address, telephone # of any potential party or person w/knowledge of relevant facts (192.3(f))
(4) Any photo or image of underlying facts or that a party intends to offer into evidence
(5) Any work product created under circumstances w/in an exception to atty/client privilege in R. Evid. 503(d) (AKA - there is no privilege of (a) in furtherance of a crime or fraud; (b) as to claimants through the same deceased client; (c) as to breach of duty by an atty or client; (d) as to a document attested by an atty; (e) as to joint clients)

Front 47

Discovery

Limitations on Discovery - Exception for party communication asserted NOT in anticipation of litigation

152

Back 47

FOR NON-CORE WORK PRODUCT: For party communication privileges to be privileged they must occurred during or in anticipation of the particular suit in which the privilege is asserted. Party communications NOT GENERATED in connection with or in anticipation of the particular suit or in anticipation of the claims made a part of the pending litigation in which the privilege is asserted are not privileged.

Front 48

Discovery

Limitations on Discovery - Atty/Client Privilege

153

Back 48

Tex.R.Civ.Evid. 503(b) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(1) between client & atty
(2) between lawyer and the lawyer's rep
(3) by client or lawyer to a lawyer representing another party in pending action and concerning a matter of common interest therein
(4) between rep of the client or between the client and a rep of the client; or
(5) among lawyers and their reps representing the same clients

Front 49

Discovery

Asserting Exemptions and Privileges - General Steps to Assertion

155

Back 49

(1) Answer the discovery and NOTE that certain info has been w/held and form what discovery request the info was held from
(2) Must disclose what privilege is being asserted
(3) Party, upon request, must provide a privilege log of all info w/held and the privilege asserted
(4) After asserting privilege, other party has the burden to request a hearing.
(5) Judge can have an in camera inspection of the info
(6) Regardless of whether a hearing is requested, the w/holding party CANNOT use the w/held info at trial.

Front 50

Discovery

Asserting Exemptions and Privileges - Asserting Work Product Privilege

156

Back 50

Asserting a work product privilege or exemption (core or non-core) requires the object party to present evidence to support the privilege.

EXCEPTION: TC has the discretion to determine relevance w/out hearing evidence on the asserted privileges.

Front 51

Discovery

Asserting Exemptions and Privileges - Burden of Proof

157

Back 51

Party asserting privilege/ exemption has burden to produce evidence to support w/affidavits or live testimony.

EXCEPTION: TC may find that the privilege is sufficient if it is relevant to the face of the document.

An affidavit DOES NOT represent that the facts disclosed is not sufficient - MUST RELATE.

Front 52

Discovery

Asserting Exemptions and Privileges - Late Objections are Waived

158

Back 52

Tex Rules of Civ Proc 193.6

Late objects waive the right to assert a privilege.

EXCEPTION: Late objections are not waived if due to good cause (similar to Craddock standards)

Time to File Objections Can be Extended by: (1) agrmt of parties (2) crt orders (3) good cause shown for failure to object

GOOD CAUSE is established when the failure to respond is accidental or the result of mistake, rather than intentional or the result of conscious indifference.

SO LONG as there no undue prejudice in withdrawing the admission (delay in trial).

Front 53

Discovery

Asserting Exemptions and Privileges - Relief from Improper Discovery Orders

159

Back 53

A remedy by appeal is inadequate merely b/c it might involve more delay or cost than mandamus.

But go get mandamus, you must follow the procedure for a Writ of Mandamus (Tex Appell Rules of Civil Proc 52.7) - Record Must include a court record/statement of facts
(1) Clear Abuse of Discretion
(a) Legal Mistake - A clear failure by the TC to analyze or apply teh law correctly will constitute an abuse of discretion; AND
(b) Factual Mistake - Can be an abuse but ONLY when th factual conclusion is limited to only 1 decision
(2) No Adequate remedy of Law
EXAMPLE: (1) Party ordered to disclose info (most likely) (2) Party's ability to present a viable claim or defense at trial is vitiated or severely compromised by the TC's discovery order (Rare) (3) The TC disallows discovery and the missing discovery cannot be made part of the appellate record OR the TC, after proper request, REFUSES to make it party of the record (RARE)

Front 54

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Designation of Experts

160

Back 54

A party must designate an expert as soon as practical, but not less than 30 days before trial.

The penalty for failure to designate an expert is exclusion of the expert's testimony, unless good cause has been found. TC has wide discretion in determining good cause.

Front 55

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Rebuttal Witness

161

Back 55

Tex Rules of Civ Proc 193.5

When it is decided before trial to call a person as a rebuttal witness, discovery should be supplemented, where proper inquiry has been made, to disclose the identity of the person.

Failure to disclose results in exclusion of testimony UNLESS good cause found. (193.6)

Front 56

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Amendment of Experts

161

Back 56

Governed by Rule 195.6

Party must amend/supplement any written or depo testimony of an expert when their opinion changes.

Front 57

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Request to Disclose Expert Info

162

Back 57

Tex Rules of Civ Proc 194.2(f)

A party may request another party to disclose many things, including:
(1) the expert's name, address, and telephone #
(2) the subject matter on which the expert will testify
(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to teh control of the responding party, documents reflecting such info;
(4) if the expert is retained by, employed by, otherwise subject to the control of the responding party
(A) all docs, tangible things, reports, models or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography

Good cause may exist when the need for the testimony could have been reasonably anticipated.

Front 58

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Request to Disclose Expert Info - Failure to Supplement Material change

163

Back 58

A party's failure to supplement discovery to disclose a material change in an expert's opinion may provide good cause for an adverse party's failure to designate rebuttal who become necessary only to counter the unanticipated testimony.

Front 59

quesDiscovery

Asserting Exemptions and Privileges - Failure to Comply w/Discovery and Related Problems of Discovery Abuse

Discovery Sanctions

164

Back 59

Discovery sanctions must be just. Two standards are used to determine whether a discovery sanction is just:
(1) a direct relationship MUST EXIST between the offensive conduct and the sanction imposed
(2) Just sanction MUST NOT be excessive.

If the party still fails to produce after sanctions, the crt may presume that an asserted claim or defense lacks merit and can dispose of it.