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Rule 190.5. Modification of Discovery Control Plan (1999).

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.

Amended by order of Nov. 9, 1998, eff. Jan. 1, 1999.

Notes and Comments

Comments to 1999 change:

1. SEE Technical Correction below – Original language reads as follows This rule establishes three tiers of discovery plans and requires that every case be in one at all times. Whether a case is in Level 1 is determined by the pleadings. To be in Level 3, the court must order a specific plan for the case, either on a party's motion or on the court's own initiative. The plan may be one agreed to by the parties and submitted as an agreed order. A Level 3 plan may simply adopt Level 1 or Level 2 restrictions. Separate Level 3 plans for phases of the case may be appropriate. Until a Level 3 plan is ordered, a case that is not in Level 1 is in Level 2. The initial pleading required by Rule 190.1 is merely to notify the court and other parties of the plaintiff's intention; it does not bind the court or other parties. A plaintiff's failure to state in the initial pleading that the case should be in Level 1 does not waive application of Rule 190.2

2. SEE Technical Correction below – Original language reads as follows. 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.

3. "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 information that is not logically or factually related to the primary interrogatory. The number of sets of interrogatories is no longer limited to two.

4. 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. The court may order a deadline for sending discovery requests in lieu of or in addition to a deadline for completing discovery.

5. 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.

6. 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 P1 and P2 sue D1, 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. D 1 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 D 1 and others for 50 hours.

7. 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.

8. For purposes of defining discovery periods, "trial" does not include summary judgment.

Technical Corrections:

1. Rule 190.3(b)(1)(B)(i) is modified as follows: "30 days before the date set for trial".

2.Comment 1 to Rule 190 is modified as follows: "This rule establishes three tiers of discovery plans and requires that every case be in one at all times. A case is in Level 1 if it is pleaded by the plaintiff so as to invoke application of Level 1, as provided by Rule 190.2(a). If a plaintiff does not or cannot plead the case in compliance with Rule 190.2(a) so as to invoke the application of Level 1, the case is automatically in Level 2. A case remains in Level 1 or Level 2, as determined by the pleadings, unless and until it is moved to Level 3. To be in Level 3, the court must order a specific plan for the case, either on a party's motion or on the court's own initiative. The plan may be one agreed to by the parties and submitted as an agreed order. A Level 3 plan may simply adopt Level 1 or Level 2 restrictions. Separate Level 3 plans for phases of the case may be appropriate. The initial pleading required by Rule 190.1 is merely to notify the court and other parties of the plaintiff's intention; it does not determine the applicable discovery level or bind the court or other parties. Thus, a plaintiff's failure to state in the initial plead­ing that the case should be in Level 1, as provided in Rule 190.1, does not alone make the case subject to Level 2 because the discovery level is determined by Rule 190.2. Likewise, a plaintiff's statement in the initial paragraph of the petition that the case is to be governed by Level 3 does not make Level 3 applicable, as a case can be in Level 3 only by court order. A plaintiff's failure to plead as required by Rule 190.1 is subject to special exception."

3. The last two sentences of comment 2 to Rule 190 are modified as follows: "In a suit to which Rule 190.2 applies, the relief awarded cannot exceed the limitations of Level 1 because the purpose of the rule, unlike Rule 47, is to bind the pleader to a maximum claim. To this extent, the rule in Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), does not apply."