Texas discovery rules make case research daunting task

By Marilyn Tennissen | Oct 18, 2007

Dr. Jay T. Segarra made millions testifying as an expert in asbestos and silicosis cases around the country, including lawsuits in Jefferson and Orange counties. Recently Dr. Segarra's diagnostic techniques came into question when defendants in a large asbestos case in Philadelphia asked that his testimony be banned from proceedings.

That raised the question about Segarra's work in Southeast Texas.

But finding out if Segarra, or other doctors for that matter, was used as a diagnostician or gave expert testimony in local cases is a daunting task thanks to Texas' Rules of Civil Procedure.

Since 1999, parties are not required to have pre-trial discovery submitted to the case file as public record. Jefferson and Orange counties have also adopted local rules that limit the amount of discovery to be filed.

One of the main revisions is that most discovery, which includes medical records, deposition transcripts and answers to interrogatories, no longer have to be kept in case files.

Limiting the filing of discovery was a "response to the storage problems currently being encountered by Texas court clerks," the Texas Supreme Court said.

"The 1999 revisions were designed to achieve three principal goals," wrote Texas Supreme Court Justice Nathan Hecht, in A Guide to the 1999 Texas Discovery Rules Revisions. "First, the revisions impose limits on the volume of discovery in an attempt to curb abuses and reduce cost and delay. Second, the rules also seek to modernize and streamline current discovery practice by eliminating many wasteful procedures and improving others. Finally, the revisions reorganize and reword a number of the current discovery rules – some of which derive their language from statutes enacted over a century ago – in an effort to improve clarity, accessibility and understanding."

Hecht, and co-author of the guide Robert Pemberton, rules attorney for the Supreme Court of Texas, said that while the changes are significant, they do not "reinvent the wheel."

For centuries, there were no formal procedures by which parties to litigation could obtain testimony or other evidence prior to trial.

Federal rules were adopted in 1938 to allow several forms of pretrial discovery, which was a "revolutionary development. "

In the 1970s, however, it became apparent that unrestricted discovery could be used to undermine the cause of justice if litigants with resources and motive to do so could drive up the cost of litigation, effectively pricing their opponents out of court and delaying disposition, Hecht wrote. In addition, technological changes greatly increased the volume of documents and the things that can be discoverable in a lawsuit.

The federal courts slowly began instituting measures to control discovery. The guide mentions that the Eastern District of Texas implemented a discovery "tracking" system under which discovery is limited or regulated according to the size or nature of the case and the amount of discovery that is or should be required. The statewide revisions made in 1999 adopted a three-tiered discovery control plan.

But one of the main revisions, as the guide states, is that "Most discovery is no longer to be filed," as a "response to the storage problems currently being encountered by Texas court clerks."

However the rules allow for parties to file discovery in support or opposition of a motion, for other use in court proceedings or for use on appeal. Parties are required to retain discovery during the pendency of the case and any related appellate proceeding begun within six months after judgment is signed.

The revisions to the state rules began when the Task Force on Discovery, comprised of three dozen lawyers, judges and academics from around the state, was formed in 1991. The Task Force reported its findings to the Supreme Court Advisory Committee. The SCAC then spent four years studying discovery in Texas courts and in 1997 recommended discovery rules revisions. After review, additional comments and several drafts, the new rules were adopted in 1999.

While the state was in the midst of revamping the rules, Jefferson County was in the midst of an overload of asbestos litigation and had its own Emergency Rule for Filing Discovery and Materials in Civil Cases in the District Courts of Jefferson County approved by the Texas Supreme Court.

Local Rule 7 was adopted Aug. 19, 1997, in Jefferson County and had a five-year expiration date. However the rules are still posted on the District Clerk's Web page as the local rule for filing discovery.

"Because of the expense to private litigants and to the public involved in the filing and storage of discovery and other materials, the following procedures apply effective --- in the District Courts of Jefferson County in lieu of the Texas Rules of Civil Procedure," the rules state. "Requests for production or inspection and responses, interrogatories and answers, notices of depositions and business records will be served but not filed with the district clerk."

Parties are required to file a copy of the letter of transmittal to the opposing and other attorneys identifying the discovery materials. The transmittal letters can be found in the case files and in the E-file system in the District Clerk's office, but the materials themselves are not attached.

There are some exceptions, including allowing the trial court to order that the materials be filed. Also a party may file portions of materials related to a request for relief or some other discovery dispute, for the determination of a motion for summary judgment or any other pretrial motion and a party may file materials for proceedings in appellate court.

The party responsible for the service of the materials will retain the original or an exact copy while the case and appellate proceedings are pending and for five years after.

The local rules say that the originals or exact copies are considered public records as if they were filed with the clerk and are available to any person on reasonable notice and under reasonable circumstances.

The local rules were signed by Leonard Giblin, Charles Carver, Skip Hulett, Ron Walker, James Mehaffy, Gary Sanderson, Milton Shuffield and Donald Floyd.

Orange County has similar local rules, and in Dec. 15, 2004, amended the rules relating to business records.

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