This post on Request for Production and Inspection is the second part of a seven-part series on forms of discovery in Texas. The topics are listed below:
Initial Disclosures
Request for Production and Inspection
Interrogatories
Request for Motion for Entry Upon Property
Admissions
Depositions
Subpoenas
Request for Production and Inspection
In civil litigation, discovery refers to the process where parties in a lawsuit exchange relevant facts and information about a case. During discovery a litigant may request access to relevant materials, such as documents, files, emails, and photographs. To have the opportunity to examine requested materials in person, the litigant must make a Request for Production and Inspection to the Parties, as outlined in Rule 196.
The request itself must identify specifically which items the other party must produce for inspection, as well as exactly where and when the items should be produced. If the information is electronic or digital, the request must also specify the exact information and the form for the information, for example whether a particular email should be printed or shared on a thumb drive.
The responding party may then agree to the request in full or may object to all or part of the request. However, in the interest of full disclosure, the responding party must either produce the items as requested or, if denying all or part of the request, state appropriate objections and/or applicable privileges. Rule 196 also addresses the logistics of presenting originals of documents. Below we provide the full text of Rule 196, which details what a Request for Production and Inspection entails:
196.1 Request for Production and Inspection to Parties.
(a) Request. A party may serve on another party--no later than 30 days before the end of the discovery period--a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery.
(b) Contents of request. The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. The request must specify a reasonable time (on or after the date on which the response is due) and place for production. If the requesting party will sample or test the requested items, the means, manner and procedure for testing or sampling must be described with sufficient specificity to inform the producing party of the means, manner, and procedure for testing or sampling.
(c) Requests for production of medical or mental health records regarding nonparties.
(1) Service of request on nonparty. If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production under Rule 21a.
(2) Exceptions. A party is not required to serve the request for production on a nonparty whose medical records are sought if:
(A) the nonparty signs a release of the records that is effective as to the requesting party;
(B) the identity of the nonparty whose records are sought will not directly or indirectly be disclosed by production of the records; or
(C) the court, upon a showing of good cause by the party seeking the records, orders that service is not required.
(3) Confidentiality. Nothing in this rule excuses compliance with laws concerning the confidentiality of medical or mental health records.
196.2 Response to Request for Production and Inspection.
(a) Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the request.
(b) Content of response. With respect to each item or category of items, the responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:
(1) production, inspection, or other requested action will be permitted as requested;
(2) the requested items are being served on the requesting party with the response;
(3) production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
(4) no items have been identified - after a diligent search - that are responsive to the request.
196.3 Production.
(a) Time and place of production. Subject to any objections stated in the response, the responding party must produce the requested documents or tangible things within the person's possession, custody or control at either the time and place requested or the time and place stated in the response, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.
(b) Copies. The responding party may produce copies in lieu of originals unless a question is raised as to the authenticity of the original or in the circumstances it would be unfair to produce copies in lieu of originals. If originals are produced, the responding party is entitled to retain the originals while the requesting party inspects and copies them.
(c) Organization. The responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.
196.4 Electronic or Magnetic Data.
To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts -retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.
196.5 Destruction or Alteration.
Testing, sampling or examination of an item may not destroy or materially alter an item unless previously authorized by the court.
196.6 Expenses of Production.
Unless otherwise ordered by the court for good cause, the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party.
196.7 Request of Motion for Entry Upon Property.
(a) Request or motion. A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon by serving - no later than 30 days before the end of any applicable discovery period –
(1) a request on all parties if the land or property belongs to a party, or
(2) a motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. If the identity or address of the nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service by means other than those specified in Rule 21a that are reasonably calculated to give the nonparty notice of the motion and hearing.
(b) Time, place, and other conditions. The request for entry upon a party's property, or the order for entry upon a nonparty's property, must state the time, place, manner, conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made.
(c) Response to request for entry.
(1) Time to respond. The responding party must serve a written response on the requesting party within 30 days after service of the request.
(2) Content of response. The responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:
(A) entry or other requested action will be permitted as requested;
(B) entry or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
(C) entry or other requested action cannot be permitted for reasons stated in the response.
(d) Requirements for order for entry on nonparty's property. An order for entry on a nonparty's property may issue only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action.
Tex. R. Civ. P. 196
Rules about production and inspection during the discovery process must be followed to ensure a party has the best chance of prevailing in litigation. Hiring an attorney who is knowledgeable about the requirements and details of discovery will help a litigant avoid the difficulties that result from not requesting or producing documents appropriately.
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