Of all the methods of discovery permitted under the Texas Rules of Civil Procedure, Rule 194 Disclosures are often the most overlooked. Although this type of discovery is exchanged in virtually every civil matter, it is easy for attorneys to become formulaic in their approach to answering disclosure requests. Rule 194 provides parties with the framework for discoverable information under the Texas Rules.
Specifically, Rule 194.2(i) permits parties to request disclosure of “any witness statements described in Rule 192.3(h).” The Rules define witness statements as: “(1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such a recording.” Tex. R. Civ. P. 192.3(h).
At first blush, this provision appears to encompass traditional written accounts of an event, such as incident reports, statements provided to a governmental agency, or recorded accounts taken pursuant to an internal investigation. However, it is important for attorneys to consider other forms of statements which may not fall under the purview of those traditionally provided in response to disclosure requests. After all, if a party wishes to introduce such a statement at trial, it must have been disclosed to the other parties pursuant to Rule 194. See Tex. R. Civ. P. 193.6 (stating that, as a general rule, “[a] party who fails to make, amend, or supplement, a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness . . . who was not timely identified.”).
With this in mind, and with the influx of the use of social media and other forms of new technology, it is imperative that parties disclose any posting to Facebook, Twitter, Instagram, or other statement given on the internet in which the person making the statement can be identified. Similarly, parties need to disclose quotes given to the media, whether such statements be in written or recorded form. Should a party wish to offer these accounts into evidence at trial, they must be included in the party’s responses to Requests for Disclosure.
The implications of this are two-fold. Not only must an attorney cast a wide net on what courts may consider to be “witness” statements under the Texas Rules of Civil Procedure, but there are also lessons to be learned when counseling your clients. Texas attorneys must be diligent in reminding their clients that any post to social media or any statement given to the media regarding the subject matter of a lawsuit may come into evidence at trial. We have seen myriad examples of the negative implications of posting to social media without considering the potential consequences of making such a statement. Beyond public embarrassment and negative implications from the person’s employer, a simple Facebook post or tweet could have significant bearing on the evidence admitted in a litigation matter should a lawsuit ensue.