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Rule 194.6. Certain Responses Not Admissible (1999)

TEXT

A response to requests under Rule 194.2(c) and (d) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.

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

Notes and Comments

Comments to 1999 change:

1. Disclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request, without preparation of a lengthy inquiry, and without objection or assertion of work product. In those extremely rare cases when information ordinarily discoverable should be protected, such as when revealing a person's residence might result in harm to the person, a party may move for protection. A party may assert any applicable privileges other than work product. Otherwise, to fail to respond fully to a request for disclosure would be an abuse of the discovery process.

2. Rule 194.2(c) and (d) permit a party further inquiry into another's legal theories and factual claims than is often provided in notice pleadings. Socalled "contention interrogatories" are used for the same purpose. Such interrogatories are not properly used to require a party to marshal evidence or brief legal issues. Paragraphs (c) and (d) are intended to require disclosure of a party's basic assertions, whether in prosecution of claims or in defense. Thus, for example, a plaintiff would be required to disclose that he or she claimed damages suffered in a car wreck caused by defendant's negligence in speeding, and would be required to state how loss of past earnings and future earning capacity was calculated, but would not be required to state the speed at which defendant was allegedly driving. Paragraph (d) does not require a party, either a plaintiff or a defendant, to state a method of calculating non-economic damages, such as for mental anguish. In the same example, defendant would be required to disclose his or her denial of the speeding allegation and any basis for contesting the damage calculations.

3. Responses under Rule 194.2(c) and (d) that have been amended or supplemented are inadmissible and cannot be used for impeachment, but other evidence of changes in position is not likewise barred.

Technical corrections:

1. Rule 194.2(g) is modified as follows: "any indemnity and insuring agreements described in Rule 192.3(f)".

2. Rule 194.2(h) is modified as follows: "any settlement agreements described in Rule 192.3(g)".

3. Rule 194.2(i) is modified as follows: "any witness state­ments described in Rule 192.3(h)".

4. The penultimate sentence in comment 1 to Rule 194 is modified as follows: "A party may assert any applicable privileges other than work product using the procedures of Rule 193.3 applicable to other written discovery."