The evolution of modern civil litigation demands a sophisticated approach to discovery objections that balances legitimate protection of client interests with proportionality and efficiency. The Supreme Court of Texas has fundamentally reshaped discovery practice over the past quarter century, emphasizing that while discovery remains broad in scope, “the simple fact that requested information is discoverable ... does not mean that discovery must be had.”1 This evolution requires practitioners to develop nuanced strategies for both making and responding to discovery objections.
MODERN DISCOVERY PRACTICEThe fundamental purpose of discovery remains unchanged—seeking truth so that disputes are decided by revealed rather than concealed facts.2 However, the explosion of electronically stored information and increasing litigation costs have transformed the discovery landscape. What once might have involved reviewing boxes of paper documents now requires analyzing terabytes of data across multiple electronic platforms and formats.
Modern discovery practice requires courts to undertake a careful proportionality analysis weighing the needs of the case, amount in controversy, parties’ resources, importance of the issues, and burden of production.3 These factors cannot be considered in isolation, but rather must be evaluated holistically within the context of each specific case. Counsel must develop and articulate coherent theories explaining how these factors interact in their particular case, supported by specific evidence rather than generalized assertions.4
THE ROLE OF PROPORTIONALITYProportionality has become the cornerstone of modern discovery practice. Courts must actively limit discovery when burden or expense outweighs likely benefit, applying the factors articulated by the Supreme Court of Texas in a practical, real- world context.5
While the amount in controversy provides an important reference point, it’s not determinative. Even in high-value cases, courts should restrict disproportionate discovery that offers minimal benefit to resolving key issues. The Supreme Court of Texas has made it clear that “[d]iscovery is a tool to make the trial process more focused, not a weapon to make it more expensive.”6 Conversely, when discovery is crucial to resolving central disputes, significant burden might be justified even in smaller cases.7 The key is conducting a case-specific analysis that considers all relevant factors.8
Courts must also carefully weigh parties’ relative resources. While an international corporation might easily absorb substantial discovery costs, the same expense could cripple a small business or individual. However, this consideration cuts both ways—wealthy parties cannot use their resources to impose unreasonable burdens, nor can parties with limited means completely avoid legitimate discovery obligations.9
The importance of the issues at stake deserves particular attention. Cases involving significant public policy concerns, constitutional rights, or precedential value may call for more extensive discovery than routine commercial disputes.10 Courts must view discovery burdens through the lens of the litigation’s broader importance to society, not just the parties involved.11
THE FRAMEWORK FOR PROPER OBJECTIONSAll objections to written discovery must have “a good faith factual and legal basis” when made.12 This requires more than boilerplate objections, and practitioners must carefully analyze each request and articulate specific grounds for objections, supported by evidence.13 The responding party bears the burden of establishing why requested discovery exceeds permissible bounds.14
The once-common practice of including “general objections” at the beginning of discovery responses is now recognized as improper and ineffective.15 Each objection must explain precisely why the particular request is objectionable and provide supporting evidence where appropriate.16
Similarly problematic is the practice of responding “subject to” objections. This approach creates uncertainty about what information has actually been withheld and why.17 Instead of this ambiguous practice, practitioners should either object to the entirety of a request or clearly delineate which portions are objectionable and exactly what information is or will be provided.18 This clarity serves both opposing counsel and the court while protecting the responding party’s interests.
The handling of privilege assertions has also evolved significantly. Rather than simply objecting on privilege grounds, which is improper, Texas Rules of Civil Procedure Rule 193.3 requires a detailed withholding statement identifying specific privileges asserted and describing the nature of the withheld information.19 This might include, for example, listing the date, author, and recipients of privileged communications, along with a description sufficient to understand the basis for the privilege claim without revealing privileged content.
COMMON OBJECTIONS AND REQUIRED SUPPORTRelevance and ScopeRelevance objections, while still viable when properly supported, require careful articulation given discovery’s broad scope.20 Practitioners must demonstrate why requested information falls outside permissible discovery while considering proportionality principles.21 This demonstration requires more than conclusory statements about relevance—it demands specific explanation of why the requested information bears no relationship to the claims and defenses at issue.
Privacy and ConfidentialityModern business litigation often involves highly sensitive commercial information, from trade secrets to competitive pricing data to customer information; however, confidentiality concerns rarely justify wholesale discovery refusal.22 Even when documents contain sensitive information, the responding party must demonstrate why a protective order would not adequately address these concerns.23 The Supreme Court of Texas emphasized this principle in In re K & L Auto Crushers, LLC, noting that modern protective orders can effectively safeguard legitimate confidentiality interests while facilitating necessary discovery.24 This heightens the importance of early negotiation of comprehensive protective orders that can accommodate varying levels of confidentiality protection.25
Overbreadth and Undue BurdenClaims of undue burden require specific supporting evidence rather than conclusory allegations.26 Instead of merely stating that responding would be burdensome, counsel should provide evidence of the actual time, expense, and technical challenges involved in responding to the discovery request.27 This might include declarations from IT personnel about system limitations, cost estimates from vendors for data extraction and processing, or specific examples of why particular requests would require unreasonable effort given the needs of the case and resources of the parties.28 This level of specificity allows courts to meaningfully evaluate objections rather than trying to guess at their merit.
Marshaling Evidence and Equal AvailabilityWhile proportionality considerations now require a responding party to provide reasonably specific and supported objections, some historically common objections are simply no longer recognized as being appropriate. The once common practice of objecting to production requests seeking “all,” “every” or “each” document because the responding party would be required to marshal its evidence is almost always improper.29 The Texas Rules of Civil Procedure do not permit such an objection to an appropriately tailored request for production.30 Further, the practice of evading discovery requests by asserting the requesting party already has the information, or that it is equally available to them, is not permitted under Texas law.31 As one court of appeals observed, “[n]ot only do such requests ensure that the parties have the same basic documents, [but] requiring your opponent to produce certain documents enables the party seeking discovery to activate the automatic authentication rights provided by Rule 193.7.”32
PRACTICAL STRATEGIC CONSIDERATIONSSuccess in discovery requires thorough early case assessment, examining likely information sources, technical limitations, preservation obligations, and potential burden issues.33 This assessment should inform development of a comprehensive discovery strategy that anticipates and addresses potential objections before they arise. After all, objecting to everything undermines credibility and wastes resources that could be better spent on significant issues.34
Early engagement with IT personnel and records custodians often reveals practical limitations that shape appropriate objections. Understanding the client’s information architecture, retention practices, and search capabilities enables counsel to articulate specific, credible objections rather than generalized complaints about burden or expense. This understanding also facilitates meaningful discussions with opposing counsel about search terms, custodians, and time frames.
Practitioners should consider alternative approaches to resolve discovery challenges. Sampling protocols can test burden and relevance assumptions. Phased discovery focusing on the most important sources first often proves more efficient than broad initial requests. Advanced analytics may reduce the burden, while cost-sharing arrangements can address resource disparities.35
Modern protective orders serve as essential tools in facilitating appropriate discovery. These orders should establish comprehensive protocols addressing confidentiality levels, handling requirements, designation challenges, and technical security requirements. The Supreme Court of Texas emphasizes that protective orders should enable rather than restrict discovery by ensuring appropriate safeguards.36
LOOKING FORWARDAs technology evolves, discovery practices must adapt. Emerging technologies like artificial intelligence and machine learning present both opportunities and challenges for discovery practice. While these tools can enhance efficiency, they also raise new questions about preservation obligations, search methodology, and quality control.
Courts increasingly expect parties to leverage available technology to reduce discovery burdens. Understanding technological capabilities and limitations becomes crucial to articulating credible objections. Practitioners must stay current not only with legal developments but also with technological advances that impact discovery practices.
Successful practitioners must develop expertise in efficiently managing electronic discovery while maintaining appropriate safeguards for client information. Equally important is developing cooperative relationships with opposing counsel— the complexity of modern discovery demands collaboration rather than constant confrontation.37
The fundamental goal remains obtaining information necessary to resolve disputes fairly and efficiently. By understanding and properly applying these principles, attorneys can protect client interests while maintaining professional credibility and advancing the administration of justice.38 This balanced approach serves both individual clients and the broader interests of the justice system by promoting efficient, effective discovery practice.
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