Back to Main Page / Back to List of Rules

Rule 170. Refusal to Make Discovery; Consequences (Mar1941)

TEXT

If any party or an officer or managing agent of a party refuses to obey an order made under Rule 167 the court may make such orders in regard to the refusal as are just, and among others, the following:

(a) an order that the matters regarding the character or description of the thing, or the contents of the paper, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony ;

(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. If a party, after being served with a request under Rule 169 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof. If in the course of such a hearing it shall appear to the satisfaction of the court that any party or his attorney is arbitrarily refusing to co-operate in disposing of questions of fact as to which there is no basis for bona fide controversy, the court shall tax all expenses of proving such facts, including reasonable attorney fees, against the party refusing to co-operate, subject to review upon appeal.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The parts of the original rule having to do with original Rule 168 are now omitted, this being done by changing the word "Rules" in the first sentence to read. "Rule"; by striking out and eliminating from such sentence the words and figures "and 168"; by striking out and eliminating the words "or the physical or mental condition of the party" appearing in subdivision (a) ; and by striking out and eliminating the words "or from introducing evidence of physical or mental condition" appearing in subdivision (b).

ADVISORY OPINIONS

Question: Do Rules 169 and 170 of the Texas Rules of Civil Procedure authorize a litigant to require admissions or denials of any relevant facts, even though such facts are not contained in any written documents concerning which discovery is sought?

Answer: "Under Rules 169 and 170 (c) any relevant matters of fact may be presented to the opposite party for ad­mission or denial, even though such mat­ters of fact are not related to any document."

5 Tex. B.J. 15 (1942) reprinted at 8 Tex. B.J. 6 (1945).

(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).