Objection Because Information Is Unknown or Not in Possession of Responding Party

Request for Unknown or Unavailable Information

The focus of this series is the various issues which cause objections during the discovery process, outlined below:

Permissibility of Discovery Tool
Number of Interrogatories
Outside the Scope of Discovery
Lacks Specific Description within Request
Vagueness, Lacks Specificity, or Ambiguity of Request
Overly Broad
Information Obtainable from Another Source
Information Equally Available to the Other Party
Documents Already Produced
Request Creates Unnecessary Burden, Expense, or Made for Purposes of Harassment
Creation of Document not in Existence
Electronic and Magnetic Data
Personal, Constitutional or Property Rights
Inconvenient Time or Place
Information Unknown or Not in Possession of Responding Party
Persons with Knowledge of Relevant Facts
Premature Request
Request Seeks Admission of a Legal Proposition
Seeks Admission of Hearsay
Seeks Admission of a Matter of Opinion
Assertions of Privilege

Objection Because Information Is Unknown or Not in Possession of Responding Party

During the discovery process, a party is expected to produce information and evidence as requested by the opposing party. While some requested information may actually be harmful to a case, sharing that information serves the important purpose of weighing the strength and scope of each party’s case, often leading to an out of court settlement. In fact, a responding party must provide all information that is “reasonably available” as requested. TEX R. CIV. P. 193.1. At times, however, information is not available as requested, and when that happens, the responding party has a right to object to the request.

A proper objection might include the following language:

OBJECTION: Objection is made to this Request to the extent that it requires disclosure of information which the answering party does not know or possess, which is not in the answering party’s possession, custody or control, and/or which the answering party has not been able to obtain after due diligence.

Describing information as “reasonably available” is not quite as straightforward as it may seem. According to Rule 192.3(b), for example, a document is reasonably available if it is in a party’s “possession, custody, or control,” even if that information is not in someone’s physical possession. See In re Certain Underwriters at Lloyd’s London, 294 S.W.3d 891, 903 (Tex. App.—Beaumont 2009). Information is also “reasonably available” if the responding party is an “equal or superior” of the person in actual physical possession of the information since that relationship provides the responding party with “custody or control” of the information. In re Certain Underwriters, 294 S.W.3d at 903. In addition, if information that was at one point unavailable becomes somehow available, the responding party is expected to inform others of the  change in availability.

Whether or not information is reasonably available may seem like an easy issue to determine, but in fact it is not. While The Texas Rules of Civil Procedure provide guidelines to make such a request objectionable, at the same time guidelines exist so that the objection is not misused. Working with a knowledgeable lawyer skilled in litigation will reduce the confusion of trying to navigate what is inherently a difficult process.

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