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Rule 167. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing (1981)

TEXT

The scope of discovery permitted herein is as provided by Rule 186a and subject to the protections of Rule 186b:

1. PROCEDURE: Any party may serve on any other party a REQUEST:

a) to produce and permit the party making the REQUEST, or someone acting on his behalf, to inspect, sample, test, photograph and/or copy, any designated documents (including papers, books, accounts, writings, drawings, graphs, charts, photographs, any insurance agreement under which any person or entity carrying on an insurance business may be liable to satisfy part or all of a judgment which may be rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment), recordings and other data compilations from which information can be obtained, translated, if necessary, by the respondent through appropriate devices into reasonably usable form, and to inspect, sample, test, photograph, or copy any tangible things which constitute or contain matters which are in the possession, custody or control of the party upon whom the request is served;

b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.

c) The REQUEST shall specify a reasonable time, place and manner for making the inspection and performing the related acts.

d) The party upon whom the REQUEST is served shall serve a written RESPONSE which shall state, with respect to each item or category of items, that inspection or other requested action will be permitted as requested, and he shall thereafter comply with the REQUEST, except only to the extent that he makes objections in writing to particular items, or categories of items, stating specific reasons why such discovery should not be allowed.

e) All parties to the action shall be provided with copies of each REQUEST and RESPONSE.

f) A party who produces documents for inspection shall produce them as they are kept in the usual course of business, or shall organize and label them to correspond with the categories in the request.

g) Testing or examination shall not extend to destruction or material alteration of an article without notice, hearing, and prior approval by the court.

2. TIME: No REQUEST may be served on a party until that party has filed a pleading or time therefor has elapsed. Thereafter, the REQUEST shall be filed with the Clerk and served upon every party to the action. The RESPONSE to any REQUEST made under this rule and objections, if any shall be served within 30 days after receipt of the REQUEST. The time for making a RESPONSE may be shortened or lengthened by the court upon a showing of good cause.

3. OBJECTION: If objection is made to a REQUEST or to a RESPONSE, either party may request a hearing. The court may order or deny production within the scope of this rule. If granted, the order shall specify the time, place, manner and other conditions for making the inspection, measurement or survey, and taking copies and photographs and may prescribe such terms and conditions as are just. If the court finds that a REQUEST is not within the scope of this rule or is unreasonably frivolous or a harrassment or that a RESPONSE is unreasonably frivolous or made for purpose of delay, then the court may tax the costs of the hearing, including a reasonable attorney's fee against the offending party.

4. NONPARTIES: The court may order a person, organizational entity, government agency or corporation not a party to the suit to produce in accordance with this rule. However, such order shall be made only after the filing of a motion setting forth with specific particularity the request, necessity therefor and after notice and hearing. All parties and the nonparty shall have the opportunity to assert objections at the hearing.

5. EXPERT REPORTS: If the discoverable factual observations, tests, supporting data, calculations, photographs or opinions of an expert witness have not been recorded or reduced to a tangible form, then the court, upon motion, hearing and for good cause may order such matters reduced to tangible form and produced.

6. STATEMENTS: Any person, whether or not a party, shall be entitled to obtain, upon written request, his own statement previously made concerning the subject matter of a lawsuit, which is in the possession, custody, or control of any party. For the purpose of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, and (b) a stenographic, mechanical, electrical or other type of recording, or any transcription thereof which is a substantial verbatim recital of a statement made by the person and contemporaneously recorded.

7. INJURY DAMAGES: Any party alleging physical or mental injury and damages arising from the occurrence which is the subject of the case shall be required, upon request, to produce, or furnish an authorization permitting the full disclosure of, medical records not theretofore furnished the movant and reasonably related to the injury or damages asserted. Copies of all medical records, reports, X-rays or other documentation so obtained shall be furnished without charge to all parties to the action as soon as possible after receipt by the movant, and if such information is to be used or offered in evidence upon trial, it shall be furnished not less than 14 days prior to trial, except as may be excused by a showing of good cause. Information so obtained is for use in the pending litigation and may not be disseminated except as may be reasonably required for the purpose of such litigation.

8. CONSTRUCTIVE POSSESSION: Possession, custody or control includes constructive possession whereby the Respondent has a right to compel the production of a matter or entrance from a third party (including an agency, authority or representative).

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The rule is entirely rewritten to provide for more precise procedures.

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).