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Rule 167. Discovery and Production of Documents and Things for for Inspection, Copying, or Photographing (1957)

TEXT

Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to such limitations of the kind provided in Rule 186b as the court may impose, the court in which an action is pending may order any party to produce and permit the inspection and copying or photographing by or on behalf of the moving party, of any designated documents, papers (except written statements of witnesses), books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; or order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation thereon which may be material to any matter involved in the action. The order shall specify the time, place and manner of making the inspection, measurement or survey and taking the copies and photographs and may prescribe such terms and conditions as are just, provided that the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.

Amended by order of March 19, 1957, eff. Sept. 1, 1957: Provision is added authorizing entry on land of party for inspecting, surveying, etc.

ADVISORY OPINIONS

(No. 47-b) Question: Is it possible to construe Rule 170 to mean that a court could not tax costs for· failure to comply with Rule 169 unless it should appear that party had also failed to comply with Rule 167?

Answer: We think it sufficiently clear from Rule 170 that the power of the court to tax costs for failure to comply with Rule 169 is not dependent upon a finding that the party has also failed to comply with Rule 167. Federal Rule 37-b and c is the source of Rule 170. The meaning of Rule 170 would be clearer if the last two sentences of subdivision c were written in separate paragraphs as was Federal Rule 37 -b and c. This matter will be reported for clarification if deemed necessary.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

Question: Assuming that a passenger is injured on a common carrier, and after the injury, but before the injured passenger leaves the conveyance, the conductor or person in charge of, the conveyance secured the name of certain persons on the conveyance who witnessed the accident, can such injured passenger as plaintiff file a motion under Rule 167 and require the defendant carrier to disclose the names of such witnesses?

Answer: In our opinion, the answer is No. The source of Rule 167 is Federal Rule 34, but the Federal Rule does not contain the proviso:

-- provided that the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence of transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.

In our opinion, the proviso above quoted prevents the plaintiff from securing such information under the Rule and because of the proviso, the decisions under the Federal Rules contrary to this opinion would not be in point.

In our opinion, the injury had occurred prior to the time the names of the witnesses were secured even though they were secured while the plaintiff was still a passenger.

9 Tex. B.J. 319 (1946).