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IN THE SUPREME COURT OF TEXAS
Misc. Docket No. 98-9196

FINAL APPROVAL OF REVISIONS TO THE TEXAS RULES OF CIVIL PROCEDURE

ORDERED that:

1. The revisions to the Texas Rules of Civil Procedure promulgated by Order in Misc. Docket No. 98-9136, dated August 4, 1998, 61 Tex. Bar. J. 752 (Sept. 1998), and Rule 215 are modified to reflect public comments and are adopted as attached.

2. The notes and comments appended to these revisions, unlike some other notes and comments in the rules, are intended to inform the construction and application of these rules by both courts and practitioners.

3. Rules 166b, 166c, 167, 167a, 168, 169, 176, 177, 177a, 178, 179, 187, 188, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, and 737 are repealed, and Rule 215 is amended, effective January 1, 1999.

4. Rules 176, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, and 215, and the headings in Section 9 are adopted as attached, effective as follows:

5. The application of these revised rules in pending cases, as provided by paragraph 3 of this Order, must be subject to Rule 1 of the Rules of Civil Procedure, must be consistent with the purposes of the revised rules to streamline discovery procedures and to reduce costs and delays associated with discovery practice, and must be without undue prejudice to any person on account of the transition from the prior rules.

6. In accordance with Section 22.004(c) of the Texas Government Code, a statute is repealed as follows: Tex. Bus. & Com. Code ¤ 17.57, to the extent that it conflicts with Rule 176.3(a).

7. The Clerk is directed promptly to file a certified copy of this Order with the Secretary of State and to cause a copy of this Order to be mailed to each registered member of the State Bar of Texas by publication in the Texas Bar Journal.

SIGNED AND ENTERED this 9th day of November, 1998.

Thomas R. Phillips, Chief Justice
Raul A. Gonzalez, Justice
Nathan L. Hecht, Justice
Craig T. Enoch, Justice
Rose Spector, Justice
Priscilla R. Owen, Justice
James A. Baker, Justice
Greg Abbott, Justice
Deborah G. Hankinson, Justice

 

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SECTION 9. EVIDENCE AND DISCOVERY

Explanatory Statement Accompanying the 1999 Amendments to the Rules of Civil Procedure Governing Discovery

The rules pertaining to discovery have been substantively revised and reorganized to clarify and streamline discovery procedures and to reduce costs and delays associated with discovery practice. The notes and comments appended to the rules, unlike most other notes and comments in the Rules of Civil Procedure, are intended to inform their construction and application by both courts and practitioners.

Discovery in civil cases is founded on the principle that justice is best served when litigants may obtain information not in their possession to prosecute and defend claims. Discovery provides access to that information, but at a price. Recent years' experience has shown that discovery may be misused to deny justice to parties by driving up the costs of litigation until it is unaffordable and stalling resolution of cases. As any litigant on a budget knows, the benefits to be gained by discovery in a particular case must be weighed against its costs. The rules of procedure must provide both adequate access to information and effective means of curbing discovery when appropriate to preserve litigation as a viable, affordable, and expeditious dispute resolution mechanism.

These revisions recognize the importance of discovery as well as the necessity for reasonable limits. The scope of discovery, always broad, is unchanged. All the forms of discovery under the prior rules are retained, and a new one - disclosure - is added. Disclosure is not required unless requested and thus does not burden cases in which it is not sought. When requested, it provides ready access to basic information without objection. At the same time, the necessity of a discovery control plan in each case, whether by rule or by order, is intended to focus courts and parties on both the need for discovery and its costs in each case. The Level 1 plan allows a party seeking recovery of no more than $50,000 to insist that discovery be minimal. The Level 2 plan will provide adequate discovery in most cases, and Level 3 is available for cases needing special attention. No single set of rules can address so diverse and changing a practice as discovery, and thus the rules maintain the ability of parties by agreement and courts by order to tailor discovery to individual cases.

Presentation of objections and assertions of privilege are streamlined under these rules. A party who objects to only part of a discovery request must usually comply with the rest of the request. Assertions of privilege are not to be made prophylactically against the threat of waiver, but only when information is actually withheld. Documents produced in discovery are now presumed to be authentic for use against the party producing them, thus avoiding the cost of proving authentication when there is no dispute. Procedures for oral depositions are revised to encourage focused examination by imposing time limits and to discourage colloquy between counsel.

An important aspect of these revisions has been the regrouping of provisions in a more logical sequence and the elimination of archaic and confusing language.

 

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A. EVIDENCE RULE 176. SUBPOENAS

176.1 Form 176.2 Required Actions 176.3 Limitations 176.4 Who May Issue. 176.5 Service

176.6 Response 176.7 Protection of Person from Undue Burden and Expense 176.8 Enforcement of Subpoena Notes and Comments

 

176.1 Form.

Every subpoena must be issued in the name of "The State of Texas" and must:

(a) state the style of the suit and its cause number;

(b) state the court in which the suit is pending;

(c) state the date on which the subpoena is issued;

(d) identify the person to whom the subpoena is directed;

(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;

(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;

(g) state the text of Rule 176.8(a); and (h) be signed by the person issuing the subpoena.

 

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176.2 Required Actions.

A subpoena must command the person to whom it is directed to do either or both of the following:

(a) attend and give testimony at a deposition, hearing, or trial;

(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.

 

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176.3 Limitations.

(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).

(b) Use for discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

 

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176.4 Who May Issue. A subpoena may be issued by:

(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;

(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or

(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.

 

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176.5 Service.

(a) Manner of service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.

(b) Proof of service. Proof of service must be made by filing either:

 

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176.6 Response.

(a) Compliance required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness.

(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.

(c) Production of documents or tangible things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.

(d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena - before the time specified for compliance - written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.

(e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.

(f) Trial subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).

 

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176.7 Protection of Person from Undue Burden and Expense.

A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.

 

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176.8 Enforcement of Subpoena.

(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.

(b) Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.

 

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Notes and Comments Comments to 1999 change:

1. This rule combines the former rules governing subpoenas for trial and discovery. When a subpoena is used for discovery, the protections from undue burden and expense apply, just as with any discovery.

2. Rule 176.3(b) prohibits the use of a subpoena to circumvent the discovery rules. Thus, for example, a deposition subpoena to a party is subject to the procedures of Rules 196, 199, and 200, and a deposition subpoena to a nonparty is subject to the procedures of Rule 205.

[No change in Rules 180-185.]

 

 

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B. DISCOVERY

RULE 190. DISCOVERY LIMITATIONS.

1 Discovery Control Plan Required.

Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule.

190.2 Discovery Control Plan - Suits Involving $50,000 or Less (Level 1) 190.3 Discovery Control Plan - By Rule (Level 2) 190.4 Discovery Control Plan - By Order (Level 3)

190.5 Modification of Discovery Control Plan 190.6 Certain Types of Discovery Excepted Notes and Comments

 

190.2 Discovery Control Plan - Suits Involving $50,000 or Less (Level 1).

(a) Application. This subdivision applies to:

(b) Exceptions. This subdivision does not apply if:

A pleading, amended pleading (including trial amendment), or supplemental pleading that renders this subdivision no longer applicable may not be filed without leave of court less than 45 days before the date set for trial. Leave may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.

(c) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:

(d) Reopening discovery. When the filing of a pleading or an amended or supplemental pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.

 

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190.3 Discovery Control Plan - By Rule (Level 2).

(a) Application. Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with this subdivision.

(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:

 

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190.4 Discovery Control Plan - By Order (Level 3).

(a) Application. The court must, on a party's motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party's motion or agreed order under this subdivision as promptly as reasonably possible.

(b) Limitations. The discovery control plan ordered by the court may address any issue concerning discovery or the matters listed in Rule 166, and may change any limitation on the time for or amount of discovery set forth in these rules. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule 190.3 apply unless specifically changed in the discovery control plan ordered by the court. The plan must include:

 

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190.5 Modification of Discovery Control Plan.

The court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:

(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:

(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.

 

 

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190.6 Certain Types of Discovery Excepted.

This rule's limitations on discovery do not apply to or include discovery conducted under Rule 202 ("Depositions Before Suit or to Investigate Claims"), or Rule 621a ("Discovery and Enforcement of Judgment"). But Rule 202 cannot be used to circumvent the limitations of this rule.

 

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Notes and Comments Comments to 1999 change:

1. This rule establishes three tiers of discovery plans and requires that every case be in one at all times. Whether a case is in Level 1 is determined by the pleadings. To be in Level 3, the court must order a specific plan for the case, either on a party's motion or on the court's own initiative. The plan may be one agreed to by the parties and submitted as an agreed order. A Level 3 plan may simply adopt Level 1 or Level 2 restrictions.

Separate Level 3 plans for phases of the case may be appropriate. Until a Level 3 plan is ordered, a case that is not in Level 1 is in Level 2. The initial pleading required by Rule 190.1 is merely to notify the court and other parties of the plaintiff's intention; it does not bind the court or other parties. A plaintiff's failure to state in the initial pleading that the case should be in Level 1 does not waive application of Rule 190.2.

2. Rule 190.2 does not apply to suits for injunctive relief or divorces involving children. The requirement of an affirmative pleading of limited relief (e.g.: "Plaintiff affirmatively pleads that he seeks only monetary relief aggregating $50,000 or less, excluding costs, pre-judgment interest and attorneys' fees") does not conflict with other pleading requirements, such as Rule 47 and Tex. Rev. Civ. Stat. Ann. art. 4590i, ¤ 5.01. In a suit to which Rule 190.2 applies, the relief awarded cannot exceed the relief pleaded because the purpose of the rule, unlike Rule 47, is to bind the pleader to a maximum claim. Thus, the rule in Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), does not apply.

3. "Discrete subparts" of interrogatories are counted as single interrogatories, but not every separate factual inquiry is a discrete subpart. See Fed. R. Civ. P. 33(a). While not susceptible of precise definition, see Braden v. Downey, 811 S.W.2d 922, 927-928 (Tex. 1991), a "discrete subpart" is, in general, one that calls for information that is not logically or factually related to the primary interrogatory. The number of sets of interrogatories is no longer limited to two.

4. As other rules make clear, unless otherwise ordered or agreed, parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period. The court may order a deadline for sending discovery requests in lieu of or in addition to a deadline for completing discovery.

5. Use of forms of discovery other than depositions and interrogatories, such as requests for disclosure, admissions, or production of documents, are not restricted in Levels 1 and 2. But depositions on written questions cannot be used to circumvent the limits on interrogatories.

6. The concept of "side" in Rule 190.3(b)(2) borrows from Rule 233, which governs the allocation of peremptory strikes, and from Fed. R. Civ. P. 30(a)(2). In most cases there are only two sides - plaintiffs and defendants. In complex cases, however, there may be more than two sides, such as when defendants have sued third parties not named by plaintiffs, or when defendants have sued each other. As an example, if P1 and P2 sue D1, D2, and D3, and D1 sues D2 and D3, Ps would together be entitled to depose Ds and others permitted by the rule (i.e., Ds' experts and persons subject to Ds' control) for 50 hours, and Ds would together be entitled to depose Ps and others for 50 hours. D1 would also be entitled to depose D2 and D3 and others for 50 hours on matters in controversy among them, and D2 and D3 would together be entitled to depose D1 and others for 50 hours.

7. Any matter listed in Rule 166 may be addressed in an order issued under Rule 190.4. A pretrial order under Rule 166 may be used in individual cases regardless of the discovery level.

8. For purposes of defining discovery periods, "trial" does not include summary judgment.

 

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RULE 191. MODIFYING DISCOVERY PROCEDURES AND LIMITATIONS; CONFERENCE REQUIREMENT; SIGNING DISCLOSURES, DISCOVERY REQUESTS, RESPONSES, AND OBJECTIONS; FILING REQUIREMENTS

191.1 Modification of Procedures 191.2 Conference 191.3 Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections

191.4 Filing of Discovery Materials 191.5 Service of Discovery Materials Notes and Comments

 

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.

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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.

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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:

(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 knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:

(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.

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191.4 Filing of Discovery Materials.

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

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

(c) Exceptions. Notwithstanding paragraph (a)

(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.

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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.

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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.

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(1) the expert's name, address, and telephone number;

(2) the subject matter on which a testifying expert will testify;

(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;

(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;

(5) any bias of the witness;

(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;

(7) the expert's current resume and bibliography.

(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. Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

(1) Protection of core work product - attorney mental processes. Core work product - the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories - is not discoverable.

(2) Protection of other work product. Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.

(3) Incidental disclosure of attorney mental processes. It is not a violation of subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally discloses by inference attorney mental processes otherwise protected under subparagraph (1).

(4) Limiting disclosure of mental processes. If a court orders discovery of work product pursuant to subparagraph (2), the court must - insofar as possible - protect against disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable.

(1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions;

(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;

(3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;

(4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and

(5) any work product created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence.

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

(1) information or material responsive to the request has been withheld,

(2) the request to which the information or material relates, and

(3) the privilege or privileges asserted.

(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and

(2) asserts a specific privilege for each item or group of items withheld.

(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and

(2) concerning the litigation in which the discovery is requested.

(1) to the extent that the written discovery sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, and

(2) to the extent that the written discovery sought other information, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses.

(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or

(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.