You have to learn the rules of the game. And then you have to play better than anyone else.
– Sen. Dianne Feinstein
The Supreme Court of Texas issued an Order back in August 2020 setting forth various amendments to the Texas Rules of Civil Procedure. A portion of the amendments took effect on January 1, 2021, and apply to all cases filed on or after that date unless filed in justice court. The rules examined below reflect a desire to balance the need for lowering discovery costs against the complexity of and discovery needs in certain civil actions, including family law cases.
What do the rule changes mean for civil and family law cases moving forward? We’re glad you asked!
Rule 190.2 Expedited Actions and Divorces Involving $250,000 or Less
One of the most notable changes to the rules is the expansion of Level 1 discovery. Level 1 discovery previously governed expedited actions and divorces involving $50,000 or less. The rule change increasing that amount to $250,000 is significant as Level 1 discovery will now encompass a broader range of civil and family law cases. The comment to the amendments notes that the intent was to “promote the prompt, efficient, and cost-effective resolution of civil actions”.
Another important revision to note is the amount of time lawyers now have to examine and cross-examine witnesses in oral depositions. The old rule capped an attorney’s questioning at six (6) hours. However, the new rule allows for up to twenty (20) total hours to depose all witnesses. This is advantageous as it allows counsel a greater amount of time to either conduct more in-depth examinations or depose more witnesses than would typically be permitted under the time-constraints of the former rule.
In addition to these changes, the discovery period in Level 1, Level 2, and Level 3 cases now begins when initial disclosures are due. The discovery period previously commenced at the time the lawsuit was filed. This means that a party seeking affirmative relief can no longer attach a set of written discovery to its Original Petition unless the parties to the suit agree to conduct discovery before the due date for initial disclosures. See Tex. R. Civ. P. 192.2 (unless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery until after the initial disclosures are due). The discovery period extends until 180 days after the date that initial disclosures are due.
Lastly, the former Rule 190.2(b)(6) disclosures have been incorporated into the revised Rule 194 Required Disclosures discussed in greater detail below.
Rule 194 Required Disclosures
Rule 194 Requests for Disclosure are a thing of the past. The revised Rule 194 implemented required disclosures that order a responding party to provide specific information to the other side no later than thirty days after the date it files an answer or otherwise appears in the case. A party must disclose the information contained in Rules 194.2 (Initial Disclosures), 194.3 (Testifying Expert Disclosures), and 194.4 (Pretrial Disclosures), including:
- The correct names of the parties to the lawsuit
- The name, address, and telephone number of any potential parties;
- The legal theories and, in general, the factual bases of the responding party’s claims or defenses;
- A computation of each category of damages claims by the responding party;
- The name, address, and telephone number of persons having knowledge of relevant facts;
- A copy (or description by category and location) of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment;
- Any indemnity and insuring agreements described in Rule 192.3(f);
- Any settlement agreements described in Rule 192.3(g);
- Any witness statements described in Rule 192.3(h);
- In a suit alleging physical or mental injury and damages, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;
- In a suit alleging physical or mental injury and damages, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and
- The name, address, and telephone number of any person who may be designated as a responsible third party.
In addition, Rule 194.2(c) sets forth the content of required disclosures in family law cases. Under the new rule, a party must disclose:
- All documents pertaining to real estate;
- All documents pertaining to any pension, retirement, profit-sharing, or other employee benefit plan, including the most recent account statement for any plan;
- All documents pertaining to any life, casualty, liability, and health insurance; and
- The most recent statement pertaining to any account at a financial institution, including banks, savings and loan institutions, credit unions, and brokerage firms.
If the suit involves child or spousal support, a party must also disclose all policies, statements, and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child or the spouse; the party’s income tax returns for the previous two years or, if no return has been filed, the party’s Form W-2, Form 1099, and Schedule K-1 for such years; and the party’s two most recent payroll check stubs. These are mandatory disclosures that must be made without any prompting from the other side.
For parties seeking a divorce or otherwise involved in a family law matter, the rule revisions are very important. Often, it may take several weeks or months to gather the financial and property information necessary to resolve a family law dispute. However, the new rule does not allow for that time. Each party must be prepared to produce the requested information and supporting documents at the time the initial disclosures are due in order to comply with the new rules.
The comment to the Rule 194 revision reiterates a desire for the “prompt, efficient, and cost-effective resolution of civil actions” by requiring the disclosure of basic discovery automatically, without awaiting a discovery request. Under the rule, 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. In addition, a party may not refuse to provide the required information on the basis that the other party has failed to timely provide its own disclosures.
Rule 195 Discovery Regarding Testifying Expert Witnesses
Amended Rule 195.5(a) lists the disclosures for any testifying expert, which are now required without awaiting a discovery request. The revised Rule 195.5(a) also includes three new disclosures based on Federal Rule of Civil Procedure 26(a)(2)(B). The new disclosures are: the expert’s qualifications, including a list of all publications authored in the previous 10 years; 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 a statement of the compensation to be paid for the expert’s study and testimony in the case.
It’s a new year with new rules to follow. For a full copy of the Supreme Court of Texas’ Order Amending Texas Rules of Civil Procedure 47, 169, 190, 192, 193, 194, and 195, click here.