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Discovery – What Is It?

Discovery in Texas is about obtaining information about the lawsuit.

If you fail to answer discovery, your evidence may be barred from submission to the Court.

If you fail to answer discovery, you may lose your case.

Nobody likes answering Discovery.  Make it as painless as possible – help your lawyer and their staff do the job of answering discovery.

“Discovery” is the process in which the parties to litigation exchange information about each other and about their claims and defenses.  The discovery process is intended to speed up litigation and to foster settlements before trial.  It is usually, though not always, effective in achieving these objectives.  The idea is for the parties to learn as much as they can about each other’s claims and defenses before trial, in order to make a fully informed and intelligent assessment of the strengths and weaknesses of their case.  In the days before discovery became a formal part of the litigation process, parties would purposefully conceal important information and spring it into the open on the eve of trial, or even in the middle of trial.  Today, most of the real surprises during trials are seen only on TV dramas.  After engaging in discovery, all parties have a pretty good idea what each side expects to prove at the trial.

There are several different methods of obtaining information from other parties.  The most common tools are “requests for disclosures,” “interrogatories,” “requests for production,” “requests for admissions,” and “depositions.”  Soon after the parties have filed their initial pleadings, they will begin to serve each discovery.  Interrogatories are written questions which the parties are required to answer under oath (usually by signing their answers in the presence of a notary public).  “Requests for production” are usually requests for documents or other items of physical evidence, although requests for production can also be used to request scientific testing, to request the right to inspect evidence or property, or for various other purposes.  “Requests for admissions” ask a party to admit or deny certain facts.  Facts which are admitted by one party or another do not need to be proven at trial, and this can help speed up the litigation process.  “Depositions” involve the live questioning of parties and witnesses under oath.

Discovery in state court cases in Texas is similar to discovery in other state and federal courts, in the sense that the rules require very liberal exchanges of information.  Lots of information that is inadmissible in court, or that is probably inadmissible, is nonetheless discoverable under the Texas Rules of Civil Procedure.  When you review your interrogatories and requests for production for the first time, try not to be alarmed by the sheer quantity of information that is requested, or by the personal nature of some of the questions.

Because the rules are very liberal, interrogatories and requests for production are often phrased in very broad, sweeping language.  There are numerous grounds upon which a party may object to interrogatories and requests for production.  The most common objections are that the question or request is irrelevant, too broad, too vague, or too invasive of a party’s right of privacy.  In many instances the proper practice is to object and answer; by answering an interrogatory or responding to a request for production “subject to” an objection, the objection can be preserved to prevent subsequent use or disclosure of the information by the party obtaining it.

Sometimes you may be asked to give up information that is of a very private nature.  For example, all communications between a party and a romantic third party (“sexting” or email”).   Protecting your privacy is important to us, and it is important that you tell us about any personal information you would like us to try to protect against disclosure.  Any information you disclose to us is, of course, absolutely privileged and confidential.  If we know your concerns regarding your privacy rights, we will be in the best possible position either to protect your privacy rights or to give you sound legal advice regarding the need to disclose sensitive information.  The failure to disclose sensitive information to your attorney can be utterly fatal to your case – if the defendant, the judge or the jury finds out that you were not absolutely truthful and candid to your own lawyer, they will have grave doubts whether you’re being truthful to them about your claims.

The failure to answer discovery may subject a party to significant sanctions by the court.   That is – you may be ordered to pay the other sides attorney fees. It is a process where a party files a Motion to Compel to force the other party to answer the discovery.  Appearing before courts on discovery issues is not a good idea.

 After an initial sanction, the continued failure to answer discovery or properly respond may subject you to additional sanctions such as having your pleadings stricken.  If your pleadings are struck, you lose.

 The failure to answer and/or assist your attorney in answering discovery will cause you incur significant attorney’s fees. Instead of helping your attorney, you are causing your attorney to burn valuable time trying to answer incomplete and partial responses.

 The failure to answer discovery will cause you to (a) possibly not put on any witnesses, (b) not introduce documents that would have otherwise been relevant to your case.  This means, you lose.   I saw a case recently where a party did not answer their request for disclosures.  What does that mean?  Means they do not get to call any witnesses other than the party.  Means they don’t get to prevail on their pleadings.


Click here to learn more about the Texas discovery device – “Requests for Disclosure.” Click here to learn more about the Texas discovery device –  “interrogatories.” Click here to learn more about the Texas discovery device –  “requests for production.”