Texas Supreme Court Approves Changes to Texas Rules of Civil Procedure
The Supreme Court of Texas appears to be aligning the Texas Rules of Civil Procedure more closely with the Federal Rules of Civil Procedure by adopting amendments to several key rules. The new rules serve to broaden the scope and applicability of expedited action procedures, with the stated attempt of lowering discovery costs for such lawsuits. The rules also provide changes to the initial disclosure requirements and timing of discovery in all cases. This article addresses the key amendments approved by the Supreme Court for civil lawsuits, which take effect on January 1, 2021 and apply only to cases filed on or after that date.1
Amount in Controversy
The expedited actions procedures, which set limits to the amount of discovery that can be conducted in cases where the amount of money in controversy is below a certain value, currently apply to cases under $100,000. The newly amended expedited action procedures have increased that threshold and will now automatically apply to lawsuits in which claimants seek monetary relief aggregating $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs.2
The discovery period in expedited actions has been drastically narrowed and will now start when initial disclosures are due and end 180 days after that date. Each party is now allowed 20 hours of total oral deposition time, an increase from the 6 hours currently allowed, but the trial court can modify this limit to avoid a party gaining an unfair advantage.
In their comments to the amendments pertaining to expedited actions, the Supreme Court stated that their intent is to implement relevant portions of the Texas Government Code—Section 22.004(h-1) of the Texas Government Code calls for “rules to promote the prompt, efficient, and cost-effective resolution of civil actions”—by balancing the need for lowering discovery costs against the complexity of the lawsuits.
INITIAL DISCLOSURE REQUIREMENTS AND TIMING OF DISCOVERY
The Supreme Court also adopted amendments that affect how discovery is conducted in all civil cases. Parties must now comply with compulsory initial disclosure requirements and, unless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery until after initial disclosures are due.
Because parties are prohibited from serving discovery until after initial disclosures are due, counsel may now benefit from the additional frame-of-reference when drafting their discovery requests. Conversely, this new amendment may be viewed as an unnecessary delay to parties who are accustomed to state court litigation and want to get a quick handle on issues that fall outside of the scope of the initial disclosures.
Requests for Disclosures under Rule 194 will now be known as Required Disclosures. The Texas Supreme Court noted that the amendment was based on Federal Rule of Civil Procedure 26(a) to require disclosure of basic discovery automatically, without awaiting a discovery request. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures. Similarly, the failure of one party to make its disclosures does not excuse the other party of its obligation to provide same.
The content of the initial disclosures is similar to the material listed for Requests for Disclosures under the current version of the rule with the exception that testifying experts are now excluded from initial disclosures and addressed by a new, separate rule discussed below. In addition to the information required under the current rules, parties must now also disclose a computation of each category of damages and copies—or a description by category and location— of documents in support of such computation as well as any documents they may use to support their claims or defenses.
Timing of Required Disclosures
Barring an agreement or court order, all parties must make their initial disclosures within 30 days after the first answer is filed. Parties that are served or joined after the first answer is filed must make the initial disclosures within 30 days of being served or joined.
Parties must now file identifying information about witnesses, documents, and exhibits that they may present at trial, other than solely for impeachment purposes, at least 30 days before trial unless the court orders otherwise. The parties are to separately identify the witnesses and items that they expect to be present or offered versus those that they may call or use only if the need arises.
DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES
Schedule for Designating Experts
Except as otherwise ordered by the court, parties seeking affirmative relief must designate experts 90 days before the end of the discovery period. All other experts must be designated 60 days before the end of the discovery period. The Supreme Court removed the current language pertaining to designations occurring by the later of the above dates or 30 days after a request is served.
Expert Disclosures and Reports
The material from the previous Requests for Disclosures pertaining to experts has been moved to Rule 195.5, with a couple of additions based on Federal Rule 26(a)(2)(B). Without awaiting a discovery request, parties must now provide the current disclosure information for testifying experts. In addition, for retained experts, parties must now provide (i) the expert’s qualifications, including a list of all publications authored in the previous 10 years, (ii) a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition, and (iii) a statement of the compensation to be paid for the expert’s study and testimony in the case. This additional information will permit counsel to more thoroughly prepare for rebutting expert testimony and deposing experts.
The amended rules will certainly generate questions moving into 2021. It is crucial that Texas attorneys become familiar with the expedited actions process, as an increasing number of lawsuits will fall within the amended limits. While intended to promote the prompt, efficient, and cost-effective resolution of civil lawsuits, Plaintiffs may now be hesitant to plead into the amended expedited action rule for fear of being governed by expedited timelines and verdict limits.
With the broadened scope of expedited actions under these amendments, it remains to be seen if courts will have capacity to set and call to trial the increased case volume—especially in light of the backlog of cases the courts will have due to COVID-19.
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1 There are other amendments that affect suits brought under the Family Code that will not be analyzed or discussed in this article.
2 The former Rule 169(a)(2) stated that the expedited actions process did not apply to medical liability claims or claims brought under the Family Code, Property Code, or Tax Code. But the Supreme Court’s amendment removed this exclusion.