Discovery

Question 1

DISCOVERY CONTROL PLANS

Answer 1

• Every case must be governed by a discovery control plan; A π must allege in the 1st paragraph whether discovery is intended to be conducted under L1, L2, or L3.
  
  • This is merely a notice requirement, and does not actually control the applicable discovery level. The case will be put in L2 unless the π makes the allegations that put the case in L1, or the ct orders the case into L3.

Question 2

Level 1 (Expedited actions and divorces involving $50k or less) (190.2)

Answer 2

• Applicability: L1 applies to
  
  • Any suit governed by the expedited actions process in TRCP 169; &
  • Suits for divorce, not involving children, with $0-$50,000 marital estate
• Exceptions
  
  • Parties agree to apply Level 2
  • Court orders plan under Level 3
  • Party files a pleading or amended pleading that seeks other relief
    
    • May not be filed without leave of court less than 45 days before the date set for trial
    • Leave only granted if good cause for filing the pleading outweighs any prejudice to an opposing party
• Limitations imposed by L1
  
  • Discovery Period
    
    • The DP opens when the suit is filed, and runs for 180 days after the date the first request for discovery of any kind is served on a party.
  • Total time for Oral Depositions
    
    • Each party gets up to 6 hours to examine and cross-examine all witnesses in oral depositions.
    • Parties may agree to expand to 10 hours, but not more except by court order
  • Interrogatories
    
    • No more than 15 written interrogatories, excluding those that ask a party to identify or authenticate a specific document
    • Each discrete sub-part is considered a separate interrogatory
  • Requests for Production
    
    • No more than 15 written requests for production.
    • Each discrete sub-part is a separate request
  • Requests for Admission
    
    • No more than 15 requests for admission.
    • Each discrete subpart is a separate request
  • Requests for Disclosure
    
    • In addition to the content subject to disclosure under Rule 194.2, a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. A request for disclosure made pursuant to this paragraph is not considered a request for production.
• Reopening Discovery
  
  • If a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.

Question 3

Level 2 (Default) (190.3)

Answer 3

• Applicability – Default rule
• Limitations
  
  • Discovery Period - The discovery period begins when the suit is filed, and continues until
    
    • Family Code – 30 days before the date set for trial
    • In Other Cases, the earlier of:
      
      • 30 days before date set for trial; or
      • 9 months after the earlier of the date of first oral deposition or due date in first response to written discovery.
  • Time for Oral Depositions
    
    • Each side may have no more than 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts designated by those parties, and persons who are subject to those parties’ control.
    • “Side” refers to all the litigants with generally common interests in the litigation.
    • If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated.
    • The court may modify the deposition hours and must do so when a side or party would be given an unfair advantage.
  • Interrogatories
    
    • No more than 25 written interrogatories, excluding those requesting identification of specific documents, but including discrete subparts.

Question 4

Level 3 (by ct order) (190.4)

Answer 4

• Applicability
  
  • The ct must, on a party’s motion, or may, on its own initiative, order that discovery be conducted in accordance with a plan tailored to the circumstances of a specific suit
  • The parties may submit an agreed order for court’s consideration
  • The Court should act on motion or agreed order as promptly as reasonably as possible
• Limitations
  
  • The plan implemented by the ct can modify any limitation on time or amount of discovery set forth in the applicable rules. The limitations of L1 or L2 still apply unless otherwise changed by the ct.
  • The cts plan must include
    
    • A Date for trial or conference to determine trial setting;
    • A Discovery period during which either all discovery must be conducted or all discovery requests must be sent;
    • Appropriate limits on the amount of discovery; and
    • Deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.

Question 5

Scope: Relevance of material sought

Answer 5

Rule 192.3 allows parties to seek discovery:

“regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. The information sought need not be admissible in evidence so long as it appears reasonably calculated to lead to the discovery of admissible evidence”

Question 6

General statements of scope

Answer 6

• “In making the [discoverable] determination, the ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. For this reason, discovery is not limited to information that will be admissible at trial. To increase the likelihood that all relevant evidence will be disclosed & brought b/f the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to the discovery of material evidence.”
• Reasonable discovery necessarily requires some sense of proportion. (I.e. Extremely large discovery requests were found inappropriate where the AIC was only 13k)
• Discovery may not be used for “fishing” expeditions
• Generally, scope of discovery is in discretion of trial judge

Question 7

Examples of scope applications

Answer 7

Automobile Defects

• In considering a design defect—products liability case, evidence of design defects in similar products (i.e. similarly designed vehicles) is discoverable.

Asbestos Litigation

• Just asking for any documents relevant to this particular case would be ok, but asking for any documents written by the company’s safety director over a 10 year period would be too broad.

Premises Liability

• Interrogatory— “too broad” examles:
  
  • “Describe by date and offense type any criminal conduct that occurred in the K mark store or parking lot w/in the last 7 yrs.” (This was a kidnapping & rape case, thus “any criminal conduct” was too broad.)
  • “List all criminal activities at all property owned, leased or managed by K mart…”
  • “Have there been other incidents at K mart stores where a person was abducted and raped?” (Professor says that this one is arguable. You could definitely ask if there have been any other rape & abductions at this store; or other incidents of “bodily assault” at this store).

Question 8

Documents & Tangible things

Answer 8

A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person’s possession, custody, or control.

Question 9

Persons with Knowledge of relevant facts

Answer 9

A party may obtain discovery of 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. A person has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not have admissible information or personal knowledge of the facts.

Question 10

Statements of persons with knowledge of relevant facts

Answer 10

A party may obtain discovery of the statement of any person with knowledge of relevant facts–a “witness statement”– regardless of when the statement was made. A witness statement is (1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such a recording. Notes taken during a conversation or interview with a witness are not a witness statement.

Question 11

Potential Parties

Answer 11

A party may obtain discovery of the name, address, & phone # of any potential party

Question 12

Contentions

Answer 12

A party may obtain discovery of any other party’s legal contentions and the factual basis for those contentions.

Question 13

Trial Witnesses

Answer 13

A party may obtain discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.

Question 14

Discoverability of Indemnity and Insurance agreements

Answer 14

• Only insurance policies “under which any person may be liable to satisfy part or all of a judgment” are discoverable. BUT they need not be produced until the π shows that they are applicable to a potential judgment. (pp.293)
  
  • Discoverable, even though they may not be admissible at trial
• Discoverability of I & I agms encourages early settlement because it lets plaintiff know whether defendant’s liability is covered by insurance, and the limits of any policy covering the claim at issue in the lawsuit
• Insurance companies have the duty to reasonably settle a claim within policy limits

Question 15

Discoverability of settlement agreements

Answer 15

• Also discoverable even though generally not admissible at trial
• It is Important for a ∆ to discover settlement agms whereby a π has entered into partial settlements in the pending case b/c by reason of the settlement, the π may be required to credit some amount against any judgment entered against a non-settling ∆

Question 16

How is the scope of discovery limited?

Answer 16

on motion or sua suponte if:

• The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive or
• The burden or producing the discovery outweighs its potential benefit, taking into account
  
  • Needs of the case
  • Amount in controversy
  • Parties’ resources
  • The importance of the issues at stake in the litigation
  • The importance of the proposed discovery in resolving the issues.
• Courts may also limit discovery Pending resolution of threshold issues like venue, JX, forum non conveniens, official immunity, & pending class determinations.

Question 17

DISCOVERY AGREEMENTS

Answer 17

• Except where specifically prohibited, the parties may modify the rules pertaining to discovery by agreement (or by ct order for good cause).
• An agreement is enforceable only when it complies with rule 11, or as it affects an oral deposition, if made a part of the record of the deposition. To be enforceable, an agm must be
  
  • In writing
  • Signed
  • Filed with the papers as part of the record (unless made in open court and entered of record, or made orally during the record of a deposition).
    
    • The agm need not be filed until after the dispute (as to the agm) arises), but b/f it is sought to be enforced.

Question 18

Permissible forms of discovery

Answer 18

1. Requests for disclosure
2. Requests for production and inspection of documents & tangible things
3. Requests & motions for entry upon & examination of real property
4. Interrogatories to a party
5. Requests for admission
6. Oral or written depositions
7. Motions for mental or physical examinations

Question 19

Forms of Discovery: Sequence

Answer 19

The permissible forms of discovery can be combined in the same document & can be used in any order or sequence.

Question 20

Forms of Discovery: Serving Discovery

Answer 20

D must be served using regular service methods under TRCP 21. D is not usually filed with the clerk, but must be sent to all parties, including those to whom the request is not directly related.

Question 21

Forms of Discovery: Certificate

Answer 21

every request & response must be signed by the LR or the pro se; certifies that the information is requested after reasonable inquiry and has a good faith factual & legal basis.

Question 22

Forms of Discovery: Self-authentication

Answer 22

a party’s production of a doc in response to written discovery authenticates that doc for use a/g the producing party.

Question 23

Written Discovery: Requests for Disclosure

Answer 23

• This is a simple form request whereby a party can obtain from another one or more of the items listed below. The responding party must provide the info w/in the time for response (typically 30 days). This is intended to provide cheap, simple, and basic discovery information w/o hindrance or delay.
• No objection or assertion of work product is permitted.
• Items discoverable under this procedure:

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. [specific content relating to] any testifying expert:
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;
12. the name, address, and telephone number of any person who may be designated as a responsible third party.

Question 24

Requests for Production

Answer 24

• 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.
• L1 & 2 impose no limits on the number of requests that can be served upon another party, but a ct can limit it under L3.
• Notice to nonparties: when a party requests another to produce medical or mental health records of a nonparty, that person must be notified unless they have signed a release.
• Specificity of request: Things must be requested by item or category of items, & must be described with “reasonable particularity.” Fishing expeditions are to be avoided.
• Time, place, and circumstances for production: The requesting party states the initial time/place for production. If the other objects, he must specify an alternate time/place, and comply.
• Response: Responding entails two acts:
  
  • Making a written response to each request that notifies the other party whether they will comply w/the request or not; &
  • Producing the documents & things.
• Production: Things are produced as kept in the usual course of business or organized to correspond w/the categories in the request.
• Destruction or Alteration: Testing, sampling or examination of an item may not destroy or materially alter an item unless previously authorized by the court.
• 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.
• Requests for entry upon property: Much like the requests for documents and other things, the request must state the time, place, and other conditions for the entry, & the response may present objections or assert privileges, and must state whether the party will permit entry as requested at a different time, or not at all.
• Electronic 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.

Question 25

Interrogators (TRCP 197)

Answer 25

* INTs are directed to a party and answered by that party in writing & under oath. They may inquire into any discoverable matter other than matters concerning testifying experts under TRCP 195. * *Limitation on number*: No more than 25 written interrogatories, excluding those that ask a party to identify or authenticate a document * Each “discrete subpart” is considered a separate interrogatory * There is no limit to the number of “sets” of interrogatories. Thus the 25 INTs may be sent in as many as 25 “sets.” * *Contentions*: Parties can use contention INTs; those asking whether a party makes a specific legal or factual contention, or that ask the responding party to state the legal theories & describe in general the factual basis for the parties claims or defenses. * *Response to INTs*: The typical response provides a written answer to the question asked. But a response may specify records from which an answer may be derived if the burden of deriving the answer is substantially the same for either party. * *Use of INT answers*: A party may use the answers directly only a/g the responding party at a hearing or trial. Thus a party cannot use its own INT answer to prove controverted issues. In a multi-party case, one party may use answers to another party’s INTs a/g the responding party, thus obviating the need for redundant INTs w/identical questions and answers.

Question 26

Requests for Admission (TRCP 198)

Answer 26

* RFA’s are written requests asking the party to admit or deny certain matters. They are not limited under L1 or L2, but could be under L3. * The requests may address any matter w/in the scope of discovery, including statements of fact, opinions, application of law to fact, and the genuineness of documents. * RFAs are not effective a/g the state for agency issues. * *Responses*: The response must either admit or deny the request, or state in detail the reasons why the responding party can neither admit or deny the request. The response may not claim a lack of info to respond unless the response states that “a reasonable inquiry was made but that the info know or easily obtainable is insufficient to enable to responding party to admit or deny.” It is not proper to say that the matter presents an “issue for trial.” Sanctions are available if a party’s response does not comply w/rule 198 or if a party fails to admit w/o justification. * *Failure to Respond to requests for admission*: if a response is not timely served, the request is automatically deemed admitted w/o the necessity of a ct order. The “deemed admission” is a sanction for the failure to timely respond to the request. * *Use of admissions*: An admission is not to be taken lightly. An admitted matter is “conclusively established” in the pending action as to the party making it, unless the ct allows the withdrawal or amendment. Although the requests are not normally filed, a party seeking to rely on admissions at a hearing or trial should file a copy of the requests w/the clerk and bring them to the courts attention.

Question 27

Responding to Written Discovery: Duty to make a complete response

Answer 27

When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made. The responding party's answers, objections, and other responses must be preceded by the request to which they apply.

Question 28

Objection to written discovery

Answer 28

An objection to discovery is raised by a Rule 193.2 objection, or a Rule 192.6 motion for a protective order.

Question 29

193.2 Objection to Written response: Form/Content

Answer 29

A party must make any objection to written D in writing, either in the response or in a separate doc, w/in the time allowed for response. The Objector must state specifically the legal/factual basis for the objection & the extent to which they are refusing to comply.

Question 30

193.2 Obection to Written responses: Duty to make a partial Response

Answer 30

A party must still respond to any part of the request to which there is no objection, & state the extent to which they are refusing to comply. In effect, the responding party may “blue pencil” or rewrite the request so that it is not objectionable

Question 31

193.2 Objection to Written response: Unreasonable to Make Partial Response at all

Answer 31

In some circumstances it may be unreasonable to have to make a partial response. For example, some documents are organized in a way that requires the same search regardless of whether the party is responding to a temporally narrow or broad request. Under such circumstances, the party may wait to conduct the search until the parties (or the court, if necessary) resolve the scope issues. (i.e. The rules note that partial production is required unless that production would be burdensome and duplicative should the objection be overruled.)

Question 32

193.2 Objection to Written response: Objection to Entire Request

Answer 32

These are requests that are so clearly beyond the scope of discovery, or so broad as to be called a “fishing expedition” that no response is required; in this instance the party need only state their legal & factual basis for the objection.

Question 33

Objection to Time and Place of Production

Answer 33

* Does not relieve responding party of duty to respond * Requires responding party to state a reasonable date and time for complying with the request and comply accordingly without further request or order

Question 34

No formal objection is required to avoid waiver of privilege

Answer 34

a party should not object to a request for D on the privilege grounds, but should instead rely on 193.3 (“Asserting a Privilege”). A party who objects to production of privileged stuff does not waive the privilege, but must comply w/193.3 (How to properly assert a privilege) when the error is pointed out.

Question 35

192.6 Protective order for discovery

Answer 35

* Motion: a person from whom D is sought, & any other person affected by a D request may move w/in the time permitted for response for an order protecting that person from the D sought. A person should not use a protective order motion when the D sought is rejected based on privilege, but such a motion does not waive the privilege if incorrectly made. * Order: To protect the movant from undue burden, unnecessary expense, harassement or annoyance, or invasion of person, CNal, or property rights, the ct, in the interest of justice, may order that: * the requested D not be sought in whole or in part; * the extent or subject matter of D be limited; * the D no be undertaken at the time or place specified; * the D be undertake only by such method or upon such terms as directed by the ct; * the results of D be sealed or otherwise protected.

Question 36

Duty to amend/Supplement

Answer 36

Amendment: An objection or response to written discovery may be amended or supplemented to state an objection or basis that, at the time the objection or response initially was made, either was inapplicable or was unknown after reasonable inquiry. Supplementation: NEED ANSWER

Question 37

Privileges Preventing Discovery

Answer 37

* Rule 192.3(b) allows discovery of all relevant matters that are not privileged * Privilege: A legal rule that allows a party to refuse to disclose particular documents, communications, and other info. * There are several types of privileges, but this class focuses on work product, attorney-client, and trade secret.

Question 38

Attorney-Client

Answer 38

* The LR/C privilege of TRE 503 protects communications b/w a LR and C concerning any legal services, & therefore is not limited to litigation preparation. * The privilege is absolute, and is not subject to the exception for need & hardship, although it can be waived. * Its duration is perpetual. * Only protects the communication between attorney and client for the purpose of the pending legal matter. For this assessment, a “scope of employment” test is used. * Previously just protected CEOs but now protects employees too

Question 39

Work Product Doctrine

Answer 39

* Strictly speaking, it is a protection from discovery rather than a “privilege”, but is treated the same way. * TRCP 192.5 Work Product is: * Material prepared or mental impressions developed in anticipation of litigation or for trial, by a party or his representative; & * Communications made in anticipation of litigation or for trial * “Anticipation of litigation” has a 2 pronged test, both of which must be met for the “product” to be protected. * Objective prong: Whether a reasonable person, based on the totality of the circumstances existing at the time of the investigation, would have anticipated litigation * “Imminence” of litigation is not necessary * The person does not have to show that the other party manifested an intent to sue. * Subjective prong: The party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation * Materials prepared solely in the ordinary course of business, and not in anticipation of litigation are not protected. * BUT if the investigation is conducted for dual purposes, e.g. safety and litigation, then protection can be had. * The TX approach has been referred to as the “investigative privilege”, as opposed to the federal work product doctrine. * What exactly is protected? * Core work product— includes a LR’s mental impressions, opinions, conclusions, or legal theories, is always protected. * Other work product—Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means (ex. dead witness statement)

Question 40

Work Product: Exception

Answer 40

* Even if prepared in anticipation of litigation, the following is not work product that is protected from discovery: 1. Information discoverable concerning experts, trial witnesses, witness statements, and contentions 2. Trial exhibits 3. Name, address, and phone number of any potential party or person with knowledge of relevant facts 4. Photos or electronic images of underlying facts or any sort intended to be offered into evidence

Question 41

Other General Things for Work Product

Answer 41

* Does not protect witness’ statements (but does protect the client’s statements to the attorney) * Protects attorney’s notes, memoranda, thoughts * Questions asked by attorney may be thoughts but * Witnesses’ answers are facts * FACTS are not protected from discovery * Lawyer’s Files * A party may not cloak a document with the attorney-client privilege simply by forwarding it to his or her attorney * File memorandum is not necessarily attorney work product, even though prepared by a lawyer * Federal courts have recognized that an attorney’s selection and ordering of documents within his file is protected * Duration of the privilege—the privilege is perpetual, so even if something is prepared in anticipation of litigation for the pending case, it is protected for purposes of other future cases as well. * Review the examples on pp. 308.

Question 42

Trade Secrets

Answer 42

* TRE 507: A person has a privilege, which may be claimed by the person or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. * When a party establishes that the requested information is a trade secret, the burden shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claim or defense * Guiding Principles * Trade secret information is generally discoverable when not allowing discovery would significantly impair a party’s ability to establish or rebut a material element of a claim or defense * Discovery is also necessary when the party seeking trade secret information could not knowledgably cross-examine opposing witnesses without it, or when the party’s experts would be unable to formulate opinions supported by an adequate factual foundation

Question 43

Need and Hardship Exception

Answer 43

* Exception allowing discovery of materials covered by privilege. Requires: * A showing that the party seeking discovery has substantial need of the materials and * Party is unable to obtain the substantial equivalent or the materials by other means or through another source.

Question 44

Waiver of Privileges - Offensive Use

Answer 44

* Party must be seeking affirmative relief (plaintiff in civil case) * Using privilege to protect outcome determinative information * Protected information is not otherwise available to defendant * Upon finding of offensive use * Plaintiff waives privilege or * Risks sanction from the trial court * Attorney-client privilege can be waived by offensive use * Exception to health care provider privileges * When the records sought to be discovered are relevant to the conditions at issue and * Condition is relied upon as part of a party’s claim or defense, meaning the condition itself is a fact that carries some legal significance

Question 45

Voluntary or Inadvertent Disclosure

Answer 45

Inadvertent production of privileged materials does not waive a claim of privilege if within 10 days of discovering of the accidental disclosure, the disclosing party identifies the information produced and states the privilege asserted

Question 46

Refreshing recollection (pp. 316)

Answer 46

* Privilege can be waived by using a privileged writing to “refresh recollection” * A movant has the right to examine the voir dire notes of the opponents LR when the LR relies on these notes while giving sworn or unsworn testimony in the hearing. Absent such reliance, the vore dire notes are privileged work product, and the movant may not examine them.

Question 47

Obtaining privileged material outside the scope of discovery

Answer 47

* Factors to Consider When Opponent’s Privileged Materials are Obtained Outside the Normal Course of Discovery * Whether attorney knew or should have known that the material was privileged * The promptness with which the attorney notifies the opposing side that he or she has received its privileged information * The extent to which the attorney reviews and digests the privileged information * The significance of the privileged information (the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate that prejudice) * The extent to which movant may be at fault for the unauthorized disclosure * The extent to which the non-movant will suffer prejudice from the disqualification of his or her attorney

Question 48

Asserting a privilege by withholding (TRCP 193.3)

Answer 48

* A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response * Withholding statement: The objecting party must state – in the response (or an amended or supplemental response) or in a separate document that: * Information or material responsive to the request has been withheld; & * The request to which the information or material relates; & * The privilege asserted * When to make a withholding statement * Made only when actually responding to written discovery * Unnecessary if made to an entire request on grounds of scope or form, and the objecting party is refusing to comply with any part of the request * If objection made to part of a request but the objecting party is partially complying with the request, a withholding statement is required if party is withholding specific documents responsive to the part of the request to which the party is responding * Privilege Log: * After receiving withholding statement, the requesting party may ask the withholding party to prepare a privilege log describing the withheld material. The log must assert a specific privilege for each item or group of items withheld, and contain a sufficient description of the materials to enable other parties to assess the applicability of the privilege. * The PL must be provided within 15 days after the requesting party serves a request for it * Withholding party must assert a specific privilege for each item or group of items withheld and contain a sufficient description of the materials to enable other parties to assess the applicability of the privilege

Question 49

Asserting a privilege by objection

Answer 49

* The rules caution that the objection procedure should not be used to assert privileges. Nonetheless, a party that erroneously uses the objection procedure does not waive the privilege asserted, but must simply comply with 193.3 once the error is pointed out. * Rule 193.3(c) Litigation Materials Exempt from Withholding * Parties allowed to withhold from discovery privileged material that is obviously an attorney-client communication or work product, without making any claim of privilege through a withholding statement or privilege log * Withheld material or information must be in the form of a document or communication and it must be privileged * A lawyer or a lawyer’s representative must be a party to any communication withheld and any communication that is withheld must be the document “of a lawyer or a lawyer’s representative” * The communication or document must be made or prepared from the point at which the lawyer consults with the client concerning representing the client in the specific litigation and it must concern that litigation

Question 50

Hearing on Privilege Objections (TRCP 193.4)

Answer 50

Any party may at any reasonable time request a hearing on an objection or claim of privilege. The party making the objection or asserting the privilege must present any evidence necessary to support the objection or privilege. The evidence may be testimony presented at the hearing or affidavits served at least 7 days before the hearing. If the court determines that an in camera review of some or all of the requested discovery is necessary, that material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing.

Question 51

Ruling on Hearing Privileged Objections

Answer 51

To the extent the court sustains the objection or claim of privilege, the responding party has no further duty to respond to that request. To the extent the court overrules the objection or claim of privilege, the responding party must produce the requested material or information within 30 days after the court's ruling or at such time as the court orders. A party need not request a ruling on hat party's own objection or assertion of privilege to preserve the objection or privilege.

Question 52

Is mandamus relief proper for orders of disclosure of priveleged information?

Answer 52

Mandamus is proper when the TC erroneously orders the disclosure of privileged information b/c the TCs error cannot be corrected on appeal. (pp.337)

Question 53

Mandamus Review of TC’s ruling about the scope of discovery

Answer 53

* 3 Possibilities in which discovery review can be taken up by mandamus * A party will not have an adequate remedy by appeal when the appellate ct would not be able to cure the TCs discovery error. This occurs when the TC erroneously orders the disclosure of privileged info, which will materially affect the rights of the aggrieved party, such as documents covered by the A/C privilege, or trade secrets w/o adequate protections. * An appeal will not be an adequate remedy where the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the TCs discovery error. it is not enough to show merely the delay, inconvenience, or expense of an appeal. Rather, the LR must show the effective denial of a reasonable opportunity to develop the merits of the case, so that a trial would be a waste of judicial resources. * Remedy by appeal is also inadequate where the TC disallows discovery & the missing discovery cannot be made party of the appellate record, or the TC after proper request refuses to make it part of the record, & the reviewing ct is unable to evaluate the effect of the error.

Question 54

Order compelling discovery that is well outside the proper bounds is reviewable by mandamus

Answer 54

* If party unhappy with the trial court decision à Mandamus * Actual writ of mandamus is only used in cases of wild judges (Most judges are willing to follow higher court’s decision)