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Rule 191. Modifying Discovery Procedures And Limitations; Conference Requirement; Signing Disclosures, Discovery Requests, Responses, And Objections; Filing Requirements (Nov1998)

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191.1 Modification of Procedures. Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause. An agreement of the parties is enforceable if it complies with Rule 11 or, as it affects an oral deposition, if it is made a part of the record of the deposition.

191.2 Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.

191.3 Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections.

(a) Signature required. Every disclosure, discovery request, notice, response, and objection must be signed:

(1) by an attorney, if the party is represented by an attorney, and must show the attorney's State Bar of Texas identification number, address, telephone number, and fax number, if any; or

(2) by the party, if the party is not represented by an attorney, and must show the party's address, telephone number, and fax number, if any.

(b) Effect of signature on disclosure. The signature of an attorney or party on a disclosure constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

(c) Effect of signature on discovery request, notice, response, or objection. The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's know ledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:

(1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(2) has a good faith factual basis;

(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(d) Effect of failure to sign. If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed.

(e) Sanctions. If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.

191.4 Filing of Discovery Materials.

(a) Discovery materials not to be filed. The following discovery materials must not be filed:

(1) discovery requests, deposition notices, and subpoenas required to be served only on parties;

(2) responses and objections to discovery requests and deposition notices, regardless on whom the requests or notices were served;

(3) documents and tangible things produced in discovery; and

(4) statements prepared in compliance with Rule 193.3(b) or (d).

(b) Discovery materials to be filed. The following dis­covery materials must be filed:

(1) discovery requests, deposition notices, and subpoenas required to be served on nonparties;

(2) motions and responses to motions pertaining to discovery matters; and

(3) agreements concerning discovery matters, to the extent necessary to comply with Rule 11.

(c) Exceptions. Notwithstanding paragraph (a) –

(1) the court may order discovery materials to be filed;

(2) a person may file discovery materials in support of or in opposition to a motion or for other use in a court proceeding; and

(3) a person may file discovery materials necessary for a proceeding in an appellate court.

(d) Retention requirement for persons. Any person required to serve discovery materials not required to be filed must retain the original or exact copy of the materials during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court.

(e) Retention requirement for courts. The clerk of the court shall retain and dispose of deposition transcripts and depositions upon written questions as directed by the Supreme Court.

191.5 Service of Discovery Materials. Every disclosure, discovery request, notice, response, and objection required to be served on a party or person must be served on all parties of record.

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

Notes and Comments

Comments to 1999 change:

1. Rule 191.1 preserves the ability of parties by agreement and trial courts by order to adapt discovery to different circumstances. That ability is broad but not unbounded. Parties cannot merely by agreement modify a court order without the court's concurrence. Trial courts cannot simply "opt out" of these rules by form orders or approve or order a discovery control plan that does not contain the matters specified in Rule 190.4, but trial courts may use standard or form orders for pro­viding discovery plans, scheduling, and other pretrial matters. In individual instances, courts may order, or parties may agree, to use discovery methods other than those prescribed in these rules if appropriate. Because the general rule is stated here, it is not repeated in each context in which it applies. Thus, for example, parties can agree to enlarge or shorten the time permitted for a deposition and to change the manner in which a deposition is conducted, notwithstanding Rule 199.5, although parties could not agree to be abusive toward a witness.

2. Rule 191.2 expressly states the obligation of parties and their attorneys to cooperate in conducting discovery.

3. The requirement that discovery requests, notices, responses, and objections be signed also applies to documents used to satisfy the purposes of such instruments. An example is a statement that privileged material or information has been withheld, which may be separate from a response to the dis­covery request but is nevertheless part of the response.