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Rule 190.5. Modification of Discovery Control Plan (Aug. 1998)

TEXT

The court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:

(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:

(1) the pleadings or responses were made after the deadline for completion of discovery or so near­ly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and

(2) the adverse party would be unfairly prejudiced without such additional discovery;

(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.

Aug. 4, 1998, eff. Jan. 1, 1999

Notes and Comments

Comments to 1999 change:

1. Rule 190.2 does not apply to suits for injunctive relief or divorces involving children. The requirement of an affirmative pleading of limited relief (e.g.: "Plaintiff affirmatively pleads that he seeks only monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest and attorneys' fees") does not conflict with other pleading requirements, such as Rule 47 and Tex. Rev. Civ. Stat. Ann. art. 4590i, § 5.01. In a suit to which Rule 190.2 applies, the relief awarded cannot exceed the relief pleaded because the purpose of the rule, unlike Rule 47, is to bind the pleader to a maximum claim. Thus, the rule in Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), does not apply.

2. "Discrete subparts" of interrogatories are counted as single interrogatories, but not every separate factual inquiry is a discrete subpart. See Fed. R. Civ. P. 33(a). While not susceptible of precise definition, see Braden v. Downey, 811 S.W.2d 922, 927-928 (Tex. 1991), a "discrete subpart" is, in general, one that calls for inforIl1ation that is not logically or factually related to the primary interrogatory.

3. As other rules make clear, unless otherwise ordered or agreed, parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period.

4. Use of forms of discovery other than depositions and interrogatories, such as requests for disclosure, admissions, or production of documents, are not restricted in Levels 1 and 2. But depositions on written questions cannot be used to circumvent the limits on interrogatories.

5. The concept of "side" in Rule 190.3(b)(2) borrows from Rule 233, which governs the allocation of peremptory strikes, and from Fed. R. Civ. P. 30(a)(2). In most cases there are only two sides - plaintiffs and defendants. In complex cases, however, there may be more than two sides, such as when defendants have sued third parties not named by plaintiffs, or when defendants have sued each other. As an example, if PI and P2 sue Dl, D2, and D3, and D1 sues D2 and D3, Ps would together be entitled to depose Ds and others permitted by the rule (i.e., Ds' experts and persons subject to Ds' control) for 50 hours, and Ds would together be entitled to depose Ps and others for 50 hours. D1 would also be entitled to depose D2 and D3 and others for 50 hours on matters in controversy among them, and D2 and D3 would together be entitled to depose Dl and others for 50 hours.

6. Any matter listed in Rule 166 may be addressed in an order issued under Rule 190.4. A pretrial order under Rule 166 may be used in individual cases regardless of the discovery level.

AMENDMENTS