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Rule 167. Discovery and Production of Documents and Things for Inspection, Copying or Photographing (1984)

TEXT

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 or tangible things which constitute or contain matters within the scope of Rule 166b which are in the possession, custody or control of the party upon whom the request is served; or

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 within the scope of Rule 166b.

c. The REQUEST shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. 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 served 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 thirty days after service of the REQUEST. The time for making a RESPONSE may be shortened or lengthened by the court upon a showing of good cause.

3. Order. 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 discovery as provided in Rule 166b in accordance with paragraph 1 of Rule 215. If production is ordered, 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.

4. Nonparties. The court may order a person, organizational entity, governmental 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.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: Portions of the former rule are deleted and have been incorporated into revised Rule 166b, except for the last sentence of section 3 concerning unreasonable requests or responses. Discovery abuse is dealt with in revised Rule 215. The addition to the rule in paragraph l(c) provides that a request may identify the items requested by "category" but with "reasonable particularity." This language is adapted from current federal rule 34, upon which the 1981 revisions to Texas Rule 167 were largely modeled. The other changes in Rule 167 serve to conform it to revised Rule 166b.

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).