This post on Initial Disclosures is the first 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
Initial Disclosures
In civil litigation, discovery refers to the process where parties in a lawsuit exchange relevant facts and information about a case. Because the parties must know all the facts of the case to properly litigate a matter, standard disclosures require sharing all documents and information. Sharing these documents forces both parties to realistically assess their claims and their potential success in court.
To ensure that each side shares necessary information, Texas Rule 194 outlines what exact information must be included in initial disclosures. Below is the required information that litigants have a duty to disclose:
194.1 Duty to Disclose; Production.
(a) Duty to Disclose. Except as exempted by Rule 194.2(d) or as otherwise agreed by the parties or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties the information or material described in Rule 194.2, 194.3, and 194.4.
(b) Production. Copies of documents and other tangible items ordinarily must be served with the response. But if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court and must provide the requesting party a reasonable opportunity to inspect them.
194.2 Initial Disclosures.
(a) Time for Initial Disclosures. A party must make the initial disclosures at or within 30 days after the filing of the first answer unless a different time is set by the parties' agreement or court order. A party that is first served or otherwise joined after the filing of the first answer must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties' agreement or court order.
(b) Content. Without awaiting a discovery request, a party must provide to the other parties:
(1) the correct names of the parties to the lawsuit;
(2) the name, address, and telephone number of any potential parties;
(3) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial);
(4) the amount and any method of calculating economic damages;
(5) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case;
(6) a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment;
(7) any indemnity and insuring agreements described in Rule 192.3(f);
(8) any settlement agreements described in Rule 192.3(g);
(9) any witness statements described in Rule 192.3(h);
(10) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
(11) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and
(12) the name, address, and telephone number of any person who may be designated as a responsible third party.
(c) Content in Certain Suits Under the Family Code.
(1) In a suit for divorce, annulment, or to declare a marriage void, a party must, without awaiting a discovery request, provide to the other party the following, for the past two years or since the date of marriage, whichever is less:
(A) all deed and lien information on any real property owned and all lease information on any real property leased;
(B) all statements for any pension plan, retirement plan, profit-sharing plan, employee benefit plan, and individual retirement plan;
(C) all statements or policies for each current life, casualty, liability, and health insurance policy; and
(D) all statements pertaining to any account at a financial institution, including banks, savings and loans institutions, credit unions, and brokerage firms.
(2) In a suit in which child or spousal support is at issue, a party must, without awaiting a discovery request, provide to the other party:
(A) information regarding all policies, statements, and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child or the spouse;
(B) the party's income tax returns for the previous two years or, if no return has been filed, the party's Form W-2, Form 1099, and Schedule K-1 for such years; and
(C) the party's two most recent payroll check stubs.
(d) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure, but a court may order the parties to make particular disclosures and set the time for disclosure:
(1) an action for review on an administrative record;
(2) a forfeiture action arising from a state statute; and
(3) a petition for habeas corpus;
(4) an action under the Family Code filed by or against the Title IV-D agency in a Title IV-D case;
(5) a child protection action under Subtitle E, Title 5 of the Family Code;
(6) a protective order action under Title 4 of the Texas Family Code;
(7) other actions involving domestic violence; and
(8) an action on appeal from a justice court.
194.3 Testifying Expert Disclosures.
In addition to the disclosures required by Rule 194.2, a party must disclose to the other parties testifying expert information as provided by Rule 195.
194.4 Pretrial Disclosures.
(a) In General. In addition to the disclosures required by Rule 194.2 and 194.3, a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
(1) the name and, if not previously provided, the address, and telephone number of each witness-separately identifying those the party expects to present and those it may call if the need arises;
(2) an identification of each document or other exhibits, including summaries of other evidence-separately identifying those items the party expects to offer and those it may offer if the need arises.
(b)Time for Pretrial Disclosures. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.
(c) Proceedings Exempt from Pretrial Disclosure. An action arising under the Family Code filed by or against the Title IV-D agency in a Title IV-D case is exempt from pretrial disclosure, but a court may order the parties to make particular disclosures and set the time for disclosure.
194.5 No Objection or Assertion of Work Product.
No objection or assertion of work product is permitted to a disclosure under this rule.
194.6 Certain Responses Not Admissible.
A disclosure under Rule 194.2(b)(3) and (4) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.
Tex. R. Civ. P. 194
Rules about disclosing information during discovery are strict and complex, and failing to follow those rules can have serious repercussions. Hiring a lawyer who is knowledgeable about the requirements and details of discovery will help a litigant avoid the difficulties that result from not disclosing documents appropriately.
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