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Rule 167. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing (1973)

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:

(1) To produce and permit the inspection and copying or photographing by or on behalf of the moving party of any of the following which are in his possession, custody or control: (a) any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action; and (b) any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment; and

(2) 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.

The identity and location of any potential party or witness may be obtained from any communication or other paper in the possession, custody or control of a party, and any party may be required to produce and permit the inspection and copying of the reports, including factual observations and opinions, of an expert who will be called as a witness. Provided, that the rights herein granted shall not extend to other written statements of witnesses or other written communications passing between agents or representatives or the employees of either party to the suit, or to other 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.

Any person, whether or not a party, shall be entitled to obtain, upon request, a copy of any statement he has previously made concerning the action or its subject matter and which is in the possession, custody or control of any party. If the request is refused, the person may move for a court order under this rule. The provisions of Rule 215a apply to the award of expenses incurred in relation to the motion. For the purpose of this paragraph, a statement previously made is (1) a written statement signed or otherwise adopted or approved by the person making it, or (2) a stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

Amended by order of Oct. 3, 1972, eff. Feb. 1, 1973: Language has been added and the proviso has been rewritten to permit discovery of certain insurance contracts, papers and other tangible things calculated to lead to the discovery of material evidence, the identity and location of any potential witness, and the reports of an expert who will be called as a witness. Provision is also made for a person to obtain a copy of any statement he has previously made concerning the action or its subject matter and which is in the possession of a party.

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).