|
615 N. Upper Broadway
Suite 1415
P.O. Box 1500 (78403)
Corpus Christi, TX 78401
Phone: 361-880-7500
Fax: 361-887-9507
|
Page two of two
< Back to main
< To Page One of Two
INDICES 2 (continued from part one)
-
-
-
-
195.1 Permissible
Discovery Tools.
-
195.2 Schedule
for Designating Experts.
-
195.3 Scheduling
Depositions.
-
195.5 Court-Ordered
Reports.
-
195.6 Amendment
and Supplementation.
-
195.7 Cost of Expert
Witnesses.
-
Notes and Comments
-
-
196.1 Request for
Production and Inspection to Parties.
-
196.2 Response
to Request for Production and Inspection.
-
196.3 Production.
-
196.4 Electronic
or Magnetic Data.
-
196.6 Expenses
of Production.
-
196.7 Request or
Motion for Entry Upon Property.
-
Notes and Comments
-
-
-
198.1 Request for
Admissions.
-
198.2 Response
to Requests for Admissions.
-
198.3 Effect of
Admissions; Withdrawal or Amendment.
-
-
199.1 Oral Examination;
Alternative Methods of Conducting
or Recording.
-
199.2 Procedure
for Noticing Oral Deposition.
-
199.3 Compelling
Witness to Attend.
-
199.4 Objections
to Time and Place of Oral Deposition.
-
199.6 Hearing on
Objections.
-
Notes and Comments
< Back
to Part 1 of Judical Rules
< Back
to Introduction to Judicial Rules
|
-
-
200.1 Procedure
for Noticing Deposition Upon Written
Questions.
-
200.2 Compelling
Witness to Attend.
-
200.3 Questions
and Objections.
-
200.4 Conducting
the Deposition Upon Written Questions.
-
Notes and Comments
-
-
-
-
-
204.1 Motion and
Order Required.
-
204.2 Report of
Examining Physician or Psychologist.
-
204.3 Effect of
No Examination.
-
204.4 Cases Arising
Under Titles II or V, Family Code.
-
204.5 Definition.
-
-
-
215.1 Motion for
Sanctions or Order Compelling Discovery.
-
215.2 Failure to
Comply with Order or with Discovery
Request.
-
215.3 Abuse of
Discovery Process in Seeking, Making,
or Resisting Discovery.
-
215.4 Failure to
Comply with Rule 198.
-
215.5 Failure of
Party or Witness to Attend or to
Serve Subpoena; Expenses.
-
Notes and Comment
|
RULE 194. REQUESTS
FOR DISCLOSURE
194.1
Request. A party may obtain disclosure
from another party of the information or
material listed in Rule 194.2 by serving
the other party - no later than 30 days before
the end of any applicable discovery period
- the following request: "Pursuant to Rule
194, you are requested to disclose, within
30 days of service of this request, the information
or material described in Rule [state rule,
e.g., 194.2, or 194.2(a), (c), and (f), or
194.2(d)-(g)]."
Back
to Rule 194 Menue
194.2 Content. A
party may request disclosure of any or
all of the following: (a) the correct names
of the parties to the lawsuit; (b) the
name, address, and telephone number of
any potential parties; (c) the legal theories
and, in general, the factual bases of the
responding party's claims or defenses (the
responding party need not marshal all evidence
that may be offered at trial); (d) the
amount and any method of calculating economic
damages; (e) the name, address, and telephone
number of persons having knowledge of relevant
facts, and a brief statement of each identified
person's connection with the case;
(f)
for any testifying expert:
(1) the
expert's name, address, and telephone number;
(2) the subject matter on which the expert
will testify; (3) the general substance of
the expert's mental impressions and opinions
and a brief summary of the basis for them,
or if the expert is not retained by, employed
by, or otherwise subject to the control of
the responding party, documents reflecting
such information;
(4) if
the expert is retained by, employed by, or
otherwise subject to the control of the responding
party:
(A) 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 the expert's
testimony; and
(B) the
expert's current resume and bibliography;
(g)
any discoverable indemnity and insuring agreements;
(h) any discoverable settlement agreements;
(i) any discoverable witness statements; (j)
in a suit alleging physical or mental injury
and damages from the occurrence that is the
subject of the case, 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; (k) in a suit
alleging physical or mental injury and damages
from the occurrence that is the subject of
the case, all medical records and bills obtained
by the responding party by virtue of an authorization
furnished by the requesting party.
Back
to Rule 194 Menue
194.3
Response. The responding party must serve
a written response on the requesting party
within 30 days after service of the request,
except that: (a) a defendant served with
a request before the defendant's answer is
due need not respond until 50 days after
service of the request, and (b) a response
to a request under Rule 194.2(f) is governed
by Rule 195.
Back
to Rule 194 Menue
194.4
Production. Copies of documents and other
tangible items ordinarily must be served
with the response. But if the responsive
documents are voluminous, the response must
state a reasonable time and place for the
production of documents. The responding party
must produce the documents at the time and
place stated, unless otherwise agreed by
the parties or ordered by the court, and
must provide the requesting party a reasonable
opportunity to inspect them. 194.5 No Objection
or Assertion of Work Product. No objection
or assertion of work product is permitted
to a request under this rule.
Back
to Rule 194 Menue
194.6
Certain Responses Not Admissible. 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.
Back
to Rule 194 Menue
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. So-called "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.
Back
to Rule 194 Menue> Back
to Top
>RULE
195. DISCOVERY REGARDING TESTIFYING EXPERT
WITNESSES
>
195.1
Permissible Discovery Tools. A party
may request another party to designate and
disclose information concerning testifying
expert witnesses only through a request for
disclosure under Rule 194 and through depositions
and reports as permitted by this rule.
Back
to Rule 195 Menue
195.2 Schedule
for Designating Experts. Unless otherwise
ordered by the court, a party must designate
experts - that is, furnish information
requested under Rule 194.2(f) - by the
later of the following two dates: 30 days
after the request is served, or(a) with
regard to all experts testifying for a
party seeking affirmative relief, 90 days
before the end of the discovery period;
(b) with regard to all other experts, 60
days before the end of the discovery period.
Back
to Rule 195 Menue
195.3
Scheduling Depositions.
(a)
Experts for party seeking affirmative relief.
A party seeking affirmative relief must make
an expert retained by, employed by, or otherwise
in the control of the party available for deposition
as follows:
>
(1) If
no report furnished. If a report of the expert's
factual observations, tests, supporting data,
calculations, photographs, and opinions is
not produced when the expert is designated,
then the party must make the expert available
for deposition reasonably promptly after
the expert is designated. If the deposition
cannot - due to the actions of the tendering
party - reasonably be concluded more than
15 days before the deadline for designating
other experts, that deadline must be extended
for other experts testifying on the same
subject.
(2)
I f report furnished. If a report of the expert's
factual observations, tests, supporting data,
calculations, photographs, and opinions is
produced when the expert is designated, then
the party need not make the expert available
for deposition until reasonably promptly after
all other experts have been designated.
(b)
Other experts. A party not seeking affirmative
relief must make an expert retained by, employed
by, or otherwise in the control of the party
available for deposition reasonably promptly
after the expert is designated and the experts
testifying on the same subject for the party
seeking affirmative relief have been deposed.
195.4 Oral Deposition. In addition to disclosure
under Rule 194, a party may obtain discovery
concerning the subject matter on which the
expert is expected to testify, the expert's
mental impressions and opinions, the facts
known to the expert (regardless of when the
factual information was acquired) that relate
to or form the basis of the testifying expert's
mental impressions and opinions, and other
discoverable matters, including documents not
produced in disclosure, only by oral deposition
of the expert and by a report prepared by the
expert under this rule.
Back
to Rule 195 Menue
195.5
Court-Ordered Reports. If the discoverable
factual observations, tests, supporting data,
calculations, photographs, or opinions of
an expert have not been recorded and reduced
to tangible form, the court may order these
matters reduced to tangible form and produced
in addition to the deposition.
Back
to Rule 195 Menue
195.6
Amendment and Supplementation. A party's
duty to amend and supplement written discovery
regarding a testifying expert is governed
by Rule 193.5. If an expert witness is retained
by, employed by, or otherwise under the control
of a party, that party must also supplement
the expert's deposition testimony or written
report, but only with regard to the expert's
mental impressions or opinions and the basis
for them.
Back
to Rule 195 Menue
195.7
Cost of Expert Witnesses. When a party
takes the oral deposition of an expert witness
retained by the opposing party, all reasonable
fees charged by the expert for time spent
in preparing for, giving, reviewing, and
correcting the deposition must be paid by
the party that retained the expert.
Back
to Rule 195 Menue
Notes
and Comments Comments to 1999 change:
1. This rule does not limit the permissible
methods of discovery concerning consulting
experts whose mental impressions or opinions
have been reviewed by a testifying expert.
See Rule 192.3(e). Information concerning
purely consulting experts, of course, is
not discoverable. 2. This rule and Rule 194
do not address depositions of testifying
experts who are not retained by, employed
by, or otherwise subject to the control of
the responding party, nor the production
of the materials identified in Rule 192.3(e)(5)
and (6) relating to such experts. Parties
may obtain this discovery, however, through
Rules 176 and 205. 3. In scheduling the designations
and depositions of expert witnesses, the
rule attempts to minimize unfair surprise
and undue expense. A party seeking affirmative
relief must either produce an expert's report
or tender the expert for deposition before
an opposing party is required to designate
experts. A party who does not wish to incur
the expense of a report may simply tender
the expert for deposition, but a party who
wishes an expert to have the benefit of an
opposing party's expert's opinions before
being deposed may trigger designation by
providing a report. Rule 191.1 permits a
trial court, for good cause, to modify the
order or deadlines for designating and deposing
experts and the allocation of fees and expenses.
Back
to Rule 195 Menue> Back
to Top
>RULE
196. REQUESTS FOR PRODUCTION AND INSPECTION
TO PARTIES; REQUESTS AND MOTIONS FOR ENTRY
UPON PROPERTY
>
196.1
Request for Production and Inspection to
Parties. (a) Request. A party may serve
on another party - no later than 30 days
before the end of the discovery period -
a request for production or for inspection,
to inspect, sample, test, photograph and
copy documents or tangible things within
the scope of discovery. (b) Contents of request.
The request must specify the items to be
produced or inspected, either by individual
item or by category, and describe with reasonable
particularity each item and category. The
request must specify a reasonable time (on
or after the date on which the response is
due) and place for production. If the requesting
party will sample or test the requested items,
the means, manner and procedure for testing
or sampling must be described with sufficient
specificity to inform the producing party
of the means, manner, and procedure for testing
or sampling.
(c)
Requests for production of medical or mental
health records regarding nonparties.
>
(1) Service
of request on nonparty. If a party requests
another party to produce medical or mental
health records regarding a nonparty, the
requesting party must serve the nonparty
with the request for production under Rule
21a.
(2) Exceptions.
A party is not required to serve the request
for production on a nonparty whose medical
records are sought if:
(A) the
nonparty signs a release of the records
that is effective as to the requesting
party; (B) the identity of the nonparty
whose records are sought will not directly
or indirectly be disclosed by production
of the records; or
(C) the
court, upon a showing of good cause by
the party seeking the records, orders that
service is not required.
(3) Confidentiality.
Nothing in this rule excuses compliance with
laws concerning the confidentiality of medical
or mental health records.
Back
to Rule 196 Menue
196.2
Response to Request for Production and Inspection. (a)
Time for response. The responding party must
serve a written response on the requesting
party within 30 days after service of the
request, except that a defendant served with
a request before the defendant's answer is
due need not respond until 50 days after
service of the request.
(b)
Content of response. With respect to each item
or category of items, the responding party
must state objections and assert privileges
as required by these rules, and state, as appropriate,
that:
(1) production,
inspection, or other requested action will
be permitted as requested; (2) the requested
items are being served on the requesting
party with the response; (3) production,
inspection, or other requested action will
take place at a specified time and place,
if the responding party is objecting to the
time and place of production; or
(4) no
items have been identified - after a diligent
search - that are responsive to the request.
Back
to Rule 196 Menue
196.3
Production. (a) Time and place of production.
Subject to any objections stated in the response,
the responding party must produce the requested
documents or tangible things within the person's
possession, custody or control at either
the time and place requested or the time
and place stated in the response, unless
otherwise agreed by the parties or ordered
by the court, and must provide the requesting
party a reasonable opportunity to inspect
them. (b) Copies. The responding party may
produce copies in lieu of originals unless
a question is raised as to the authenticity
of the original or in the circumstances it
would be unfair to produce copies in lieu
of originals. If originals are produced,
the responding party is entitled to retain
the originals while the requesting party
inspects and copies them. (c) Organization.
The responding party must either produce
documents and tangible things as they are
kept in the usual course of business or organize
and label them to correspond with the categories
in the request.
Back
to Rule 196 Menue
196.4
Electronic or Magnetic Data. To obtain
discovery of data or information that exists
in electronic or magnetic form, the requesting
party must specifically request production
of electronic or magnetic data and specify
the form in which the requesting party wants
it produced. The responding party must produce
the electronic or magnetic data that is responsive
to the request and is reasonably available
to the responding party in its ordinary course
of business. If the responding party cannot
- through reasonable efforts - retrieve the
data or information requested or produce
it in the form requested, the responding
party must state an objection complying with
these rules. If the court orders the responding
party to comply with the request, the court
must also order that the requesting party
pay the reasonable expenses of any extraordinary
steps required to retrieve and produce the
information. 196.5 Destruction or Alteration.
Testing, sampling or examination of an item
may not destroy or materially alter an item
unless previously authorized by the court.
Back
to Rule 196 Menue
196.6
Expenses of Production. Unless otherwise
ordered by the court for good cause, the
expense of producing items will be borne
by the responding party and the expense of
inspecting, sampling, testing, photographing,
and copying items produced will be borne
by the requesting party.
Back
to Rule 196 Menue
196.7
Request or Motion for Entry Upon Property.
(a)
Request or motion. A party may gain entry on
designated land or other property to inspect,
measure, survey, photograph, test, or sample
the property or any designated object or operation
thereon by serving - no later than the earlier
of 30 days before the end of the discovery
period or 30 days before trial -
(1) a request
on all parties if the land or property belongs
to a party, or
(2) a motion
and notice of hearing on all parties and
the nonparty if the land or property belongs
to a nonparty. If the identity or address
of the nonparty is unknown and cannot be
obtained through reasonable diligence, the
court must permit service by means other
than those specified in Rule 21a that are
reasonably calculated to give the nonparty
notice of the motion and hearing.
(b)
Time, place, and other conditions. The request
for entry upon a party's property, or the order
for entry upon a nonparty's property, must
state the time, place, manner, conditions,
and scope of the inspection, and must specifically
describe any desired means, manner, and procedure
for testing or sampling, and the person or
persons by whom the inspection, testing, or
sampling is to be made.
(c)
Response to request for entry.
(1) Time
to respond. The responding party must serve
a written response on the requesting party
within 30 days after service of the request,
except that a defendant served with a request
before the defendant's answer is due need
not respond until 50 days after service of
the request.
(2) Content
of response. The responding party must state
objections and assert privileges as required
by these rules, and state, as appropriate,
that:
(A) entry
or other requested action will be permitted
as requested; (B) entry or other requested
action will take place at a specified time
and place, if the responding party is objecting
to the time and place of production; or
(C) entry
or other requested action cannot be permitted
for reasons stated in the response.
(d) Requirements
for order for entry on nonparty's property.
An order for entry on a nonparty's property
may issue only for good cause shown and only
if the land, property, or object thereon as
to which discovery is sought is relevant to
the subject matter of the action.
Back
to Rule 196 Menue
Notes
and Comments Comments to 1999 change:
1. "Document and tangible things" are defined
in Rule 192.3(b). 2. A party requesting sampling
or testing must describe the procedure with
sufficient specificity to enable the responding
party to make any appropriate objections.
3. A party requesting production of magnetic
or electronic data must specifically request
the data, specify the form in which it wants
the data produced, and specify any extraordinary
steps for retrieval and translation. Unless
ordered otherwise, the responding party need
only produce the data reasonably available
in the ordinary course of business in reasonably
usable form. 4. The rule clarifies how the
expenses of production are to be allocated
absent a court order to the contrary. 5.
The obligation of parties to produce documents
within their possession, custody or control
is explained in Rule 192.3(b). 6. Parties
may request production and inspection of
documents and tangible things from nonparties
under Rule 205.3. 7. Rule 196.3(b) is based
on Tex. R. Evid. 1003. 8. Rule 196.1(c) is
merely a notice requirement and does not
expand the scope of discovery of a nonparty's
medical records.
Back
to Rule 196 Menue> Back
to Top
>RULE
197. INTERROGATORIES TO PARTIES
197.1
Interrogatories. A party may serve on
another party - no later than 30 days before
the end of the discovery period - written
interrogatories to inquire about any matter
within the scope of discovery except matters
covered by Rule 195. An interrogatory may
inquire whether a party makes a specific
legal or factual contention and may ask the
responding party to state the legal theories
and to describe in general the factual bases
for the party's claims or defenses, but interrogatories
may not be used to require the responding
party to marshal all of its available proof
or the proof the party intends to offer at
trial.
Back
to Rule 197 Menue
197.2
Response to Interrogatories. (a) Time
for response. The responding party must serve
a written response on the requesting party
within 30 days after service of the interrogatories,
except that a defendant served with interrogatories
before the defendant's answer is due need
not respond until 50 days after service of
the interrogatories. (b) Content of response.
A response must include the party's answers
to the interrogatories and may include objections
and assertions of privilege as required under
these rules. (c) Option to produce records.
If the answer to an interrogatory may be
derived or ascertained from public records,
from the responding party's business records,
or from a compilation, abstract or summary
of the responding party's business records,
and the burden of deriving or ascertaining
the answer is substantially the same for
the requesting party as for the responding
party, the responding party may answer the
interrogatory by specifying and, if applicable,
producing the records or compilation, abstract
or summary of the records. The records from
which the answer may be derived or ascertained
must be specified in sufficient detail to
permit the requesting party to locate and
identify them as readily as can the responding
party. If the responding party has specified
business records, the responding party must
state a reasonable time and place for examination
of the documents. The responding party must
produce the documents at the time and place
stated, unless otherwise agreed by the parties
or ordered by the court, and must provide
the requesting party a reasonable opportunity
to inspect them.
(d) Verification
required; exceptions. A responding party must
sign the answers under oath except that:
>
(1) when
answers are based on information obtained
from other persons, the party may so state,
and
(2) a party
need not sign answers to interrogatories
about persons with knowledge of relevant
facts, trial witnesses, and legal contentions.
Back
to Rule 197 Menue
197.3
Use. Answers to interrogatories may be
used only against the responding party. An
answer to an interrogatory inquiring about
matters described in Rule 194.2(c) and (d)
that has been amended or supplemented is
not admissible and may not be used for impeachment.
Back
to Rule 197 Menue
Notes
and Comments Comments to 1999 change:
1. Interrogatories about specific legal or
factual assertions - such as, whether a party
claims a breach of implied warranty, or when
a party contends that limitations began to
run - are proper, but interrogatories that
ask a party to state all legal and factual
assertions are improper. As with requests
for disclosure, interrogatories may be used
to ascertain basic legal and factual claims
and defenses but may not be used to force
a party to marshal evidence. Use of the answers
to such interrogatories is limited, just
as the use of similar disclosures under Rule
194.6 is. 2. Rule 191's requirement that
a party's attorney sign all discovery responses
and objections applies to interrogatory responses
and objections. In addition, the responding
party must sign some interrogatory answers
under oath, as specified by the rule. Answers
in amended and supplemental responses must
be signed by the party under oath only if
the original answers were required to be
signed under oath. The failure to sign or
verify answers is only a formal defect that
does not otherwise impair the answers unless
the party refuses to sign or verify the answers
after the defect is pointed out.
Back
to Rule 197 Menue> Back
to Top
>RULE
198. REQUESTS FOR ADMISSIONS
>
198.1
Request for Admissions. A party may serve
on another party - no later than 30 days
before the end of the discovery period -
written requests that the other party admit
the truth of any matter within the scope
of discovery, including statements of opinion
or of fact or of the application of law to
fact, or the genuineness of any documents
served with the request or otherwise made
available for inspection and copying. Each
matter for which an admission is requested
must be stated separately.
Back
to Rule 198 Menue
198.2
Response to Requests for Admissions. (a)
Time for response. The responding party must
serve a written response on the requesting
party within 30 days after service of the
request, except that a defendant served with
a request before the defendant's answer is
due need not respond until 50 days after
service of the request. (b) Content of response.
Unless the responding party states an objection
or asserts a privilege, the responding party
must specifically admit or deny the request
or explain in detail the reasons that the
responding party cannot admit or deny the
request. A response must fairly meet the
substance of the request. The responding
party may qualify an answer, or deny a request
in part, only when good faith requires. Lack
of information or knowledge is not a proper
response unless the responding party states
that a reasonable inquiry was made but that
the information known or easily obtainable
is insufficient to enable the responding
party to admit or deny. An assertion that
the request presents an issue for trial is
not a proper response. (c) Effect of failure
to respond. If a response is not timely served,
the request is considered admitted without
the necessity of a court order.
Back
to Rule 198 Menue
198.3
Effect of Admissions; Withdrawal or Amendment. Any
admission made by a party under this rule
may be used solely in the pending action
and not in any other proceeding. A matter
admitted under this rule is conclusively
established as to the party making the admission
unless the court permits the party to withdraw
or amend the admission. The court may permit
the party to withdraw or amend the admission
if: (a) the party shows good cause for the
withdrawal or amendment; and(b) the court
finds that the parties relying upon the responses
and deemed admissions will not be unduly
prejudiced and that the presentation of the
merits of the action will be subserved by
permitting the party to amend or withdraw
the admission.
Back
to Rule 198 Menue> Back
to Top
>RULE
199. DEPOSITIONS UPON ORAL EXAMINATION
>
199.1
Oral Examination; Alternative Methods of
Conducting or Recording. (a) Generally.
A party may take the testimony of any person
or entity by deposition on oral examination
before any officer authorized by law to take
depositions. The testimony, objections, and
any other statements during the deposition
must be recorded at the time they are given
or made. (b) Depositions by telephone or
other remote electronic means. A party may
take an oral deposition by telephone or other
remote electronic means if the party gives
reasonable prior written notice of intent
to do so. For the purposes of these rules,
an oral deposition taken by telephone or
other remote electronic means is considered
as having been taken in the district and
at the place where the witness is located
when answering the questions. The officer
taking the deposition may be located with
the party noticing the deposition instead
of with the witness if the witness is placed
under oath by a person who is present with
the witness and authorized to administer
oaths in that jurisdiction. (c) Nonstenographic
recording. Any party may cause a deposition
upon oral examination to be recorded by other
than stenographic means, including videotape
recording. The party requesting the nonstenographic
recording will be responsible for obtaining
a person authorized by law to administer
the oath and for assuring that the recording
will be intelligible, accurate, and trustworthy.
At least five days prior to the deposition,
the party must serve on the witness and all
parties a notice, either in the notice of
deposition or separately, that the deposition
will be recorded by other than stenographic
means. This notice must state the method
of nonstenographic recording to be used and
whether the deposition will also be recorded
stenographically. Any other party may then
serve written notice designating another
method of recording in addition to the method
specified, at the expense of such other party
unless the court orders otherwise.
Back
to Rule 199 Menue
199.2
Procedure for Noticing Oral Deposition. (a)
Time to notice deposition. A notice of intent
to take an oral deposition must be served
on the witness and all parties a reasonable
time before the deposition is taken. An oral
deposition may be taken outside the discovery
period only by agreement of the parties or
with leave of court.
(b) Content
of notice.
>>
(1) Identity
of witness; organizations. The notice must
state the name of the witness, which may
be either an individual or a public or private
corporation, partnership, association, governmental
agency, or other organization. If an organization
is named as the witness, the notice must
describe with reasonable particularity the
matters on which examination is requested.
In response, the organization named in the
notice must - a reasonable time before the
deposition - designate one or more individuals
to testify on its behalf and set forth, for
each individual designated, the matters on
which the individual will testify. Each individual
designated must testify as to matters that
are known or reasonably available to the
organization. This subdivision does not preclude
taking a deposition by any other procedure
authorized by these rules.
(2) Time
and place. The notice must state a reasonable
time and place for the oral deposition. The
place may be in:
(A) the
county of the witness's residence; (B)
the county where the witness is employed
or regularly transacts business in person;
(C) the county of suit, if the witness
is a party or a person designated by a
party under Rule 199.2(b)(1); (D) the county
where the witness was served with the subpoena,
or within 150 miles of the place of service,
if the witness is not a resident of Texas
or is a transient person; or
(E) subject
to the foregoing, at any other convenient
place directed by the court in which the
cause is pending.
(3) Alternative
means of conducting and recording. The notice
must state whether the deposition is to be
taken by telephone or other remote electronic
means and identify the means. If the deposition
is to be recorded by nonstenographic means,
the notice may include the notice required
by Rule 199.1(c). (4) Additional attendees.
The notice may include the notice concerning
additional attendees required by Rule 199.5(a)(3).
(5) Request
for production of documents. A notice may
include a request that the witness produce
at the deposition documents or tangible things
within the scope of discovery and within
the witness's possession, custody, or control.
If the witness is a nonparty, the request
must comply with Rule 205 and the designation
of materials required to be identified in
the subpoena must be attached to, or included
in, the notice. The nonparty's response to
the request is governed by Rules 176 and
205. When the witness is a party or subject
to the control of a party, document requests
under this subdivision are governed by Rules
193 and 196.
Back
to Rule 199 Menue
199.3
Compelling Witness to Attend. A party
may compel the witness to attend the oral
deposition by serving the witness with a
subpoena under Rule 176. If the witness is
a party or is retained by, employed by, or
otherwise subject to the control of a party,
however, service of the notice of oral deposition
upon the party's attorney has the same effect
as a subpoena served on the witness.
Back
to Rule 199 Menue
199.4
Objections to Time and Place of Oral Deposition. A
party or witness may object to the time and
place designated for an oral deposition by
motion for protective order or by motion
to quash the notice of deposition. If the
motion is filed by the third business day
after service of the notice of deposition,
an objection to the time and place of a deposition
stays the oral deposition until the motion
can be determined. 199.5 Examination, Objection,
and Conduct During Oral Depositions.
(a) Attendance.
(1) Witness.
The witness must remain in attendance from
day to day until the deposition is begun
and completed. (2) Attendance by party. A
party may attend an oral deposition in person,
even if the deposition is taken by telephone
or other remote electronic means. If a deposition
is taken by telephone or other remote electronic
means, the party noticing the deposition
must make arrangements for all persons to
attend by the same means. If the party noticing
the deposition appears in person, any other
party may appear by telephone or other remote
electronic means if that party makes the
necessary arrangements with the deposition
officer and the party noticing the deposition.
(3) Other
attendees. If any party intends to have in
attendance any persons other than the witness,
parties, spouses of parties, counsel, employees
of counsel, and the officer taking the oral
deposition, that party must give reasonable
notice to all parties, either in the notice
of deposition or separately, of the identity
of the other persons.
(b) Oath;
examination. Every person whose deposition
is taken by oral examination must first be
placed under oath. The parties may examine
and cross-examine the witness. Any party, in
lieu of participating in the examination, may
serve written questions in a sealed envelope
on the party noticing the oral deposition,
who must deliver them to the deposition officer,
who must open the envelope and propound them
to the witness. (c) Time limitation. No side
may examine or cross-examine an individual
witness for more than six hours. Breaks during
depositions do not count against this limitation.
(d) Conduct during the oral deposition; conferences.
The oral deposition must be conducted in the
same manner as if the testimony were being
obtained in court during trial. Counsel should
cooperate with and be courteous to each other
and to the witness. The witness should not
be evasive and should not unduly delay the
examination. Private conferences between the
witness and the witness's attorney during the
actual taking of the deposition are improper
except for the purpose of determining whether
a privilege should be asserted. Private conferences
may be held, however, during agreed recesses
and adjournments. If the lawyers and witnesses
do not comply with this rule, the court may
allow in evidence at trial statements, objections,
discussions, and other occurrences during the
oral deposition that reflect upon the credibility
of the witness or the testimony. (e) Objections.
Objections to questions during the oral deposition
are limited to "Objection, leading" and "Objection,
form." Objections to testimony during the oral
deposition are limited to "Objection, nonresponsive." These
objections are waived if not stated as phrased
during the oral deposition. All other objections
need not be made or recorded during the oral
deposition to be later raised with the court.
The objecting party must give a clear and concise
explanation of an objection if requested by
the party taking the oral deposition, or the
objection is waived. Argumentative or suggestive
objections or explanations waive objection
and may be grounds for terminating the oral
deposition or assessing costs or other sanctions.
The officer taking the oral deposition will
not rule on objections but must record them
for ruling by the court. The officer taking
the oral deposition must not fail to record
testimony because an objection has been made.
(f) Instructions not to answer. An attorney
may instruct a witness not to answer a question
during an oral deposition only if necessary
to preserve a privilege, comply with a court
order or these rules, protect a witness from
an abusive question or one for which any answer
would be misleading, or secure a ruling pursuant
to paragraph (g). The attorney instructing
the witness not to answer must give a concise,
nonargumentative, nonsuggestive explanation
of the grounds for the instruction if requested
by the party who asked the question. (g) Suspending
the deposition. If the time limitations for
the deposition have expired or the deposition
is being conducted or defended in violation
of these rules, a party or witness may suspend
the oral deposition for the time necessary
to obtain a ruling. (h) Good faith required.
An attorney must not ask a question at an oral
deposition solely to harass or mislead the
witness, for any other improper purpose, or
without a good faith legal basis at the time.
An attorney must not object to a question at
an oral deposition, instruct the witness not
to answer a question, or suspend the deposition
unless there is a good faith factual and legal
basis for doing so at the time.
Back
to Rule 199 Menue
199.6
Hearing on Objections. Any party may,
at any reasonable time, request a hearing
on an objection or privilege asserted by
an instruction not to answer or suspension
of the deposition; provided the failure of
a party to obtain a ruling prior to trial
does not waive any objection or privilege.
The party seeking to avoid discovery must
present any evidence necessary to support
the objection or privilege either by testimony
at the hearing or by affidavits served on
opposing parties at least seven days before
the hearing. If the court determines that
an in camera review of some or all of the
requested discovery is necessary to rule,
answers to the deposition questions may be
made in camera, to be transcribed and sealed
in the event the privilege is sustained,
or made in an affidavit produced to the court
in a sealed wrapper.
Back
to Rule 199 Menue
Notes
and Comments Comments to 1999 change:
1. Rule 199.2(b)(5) incorporates the procedures
and limitations applicable to requests for
production or inspection under Rule 196,
including the 30-day deadline for responses,
as well as the procedures and duties imposed
by Rule 193. 2. For purposes of Rule 199.5(c),
each person designated by an organization
under Rule 199.2(b)(1) is a separate witness.
3. The requirement of Rule 199.5(d) that
depositions be conducted in the same manner
as if the testimony were being obtained in
court is a limit on the conduct of the lawyers
and witnesses in the deposition, not on the
scope of the interrogation permitted by Rule
192. 4. An objection to the form of a question
includes objections that the question calls
for speculation, calls for a narrative answer,
is vague, is confusing, or is ambiguous.
Ordinarily, a witness must answer a question
at a deposition subject to the objection.
An objection may therefore be inadequate
if a question incorporates such unfair assumptions
or is worded so that any answer would necessarily
be misleading. A witness should not be required
to answer whether he has yet ceased conduct
he denies ever doing, subject to an objection
to form (i.e., that the question is confusing
or assumes facts not in evidence) because
any answer would necessarily be misleading
on account of the way in which the question
is put. The witness may be instructed not
to answer. Abusive questions include questions
that inquire into matters clearly beyond
the scope of discovery or that are argumentative,
repetitious, or harassing.
Back
to Rule 199 Menue
> Back to
Top
>RULE
200. DEPOSITIONS UPON WRITTEN QUESTIONS
>
200.1
Procedure for Noticing Deposition Upon Written
Questions. (a) Who may be noticed; when.
A party may take the testimony of any person
or entity by deposition on written questions
before any person authorized by law to take
depositions on written questions. A notice
of intent to take the deposition must be
served on the witness and all parties at
least 20 days before the deposition is taken.
A deposition on written questions may be
taken outside the discovery period only by
agreement of the parties or with leave of
court. The party noticing the deposition
must also deliver to the deposition officer
a copy of the notice and of all written questions
to be asked during the deposition. (b) Content
of notice. The notice must comply with Rules
199.1 (b), 199.2(b), and 199.5(a)(3). If
the witness is an organization, the organization
must comply with the requirements of that
provision. The notice also may include a
request for production of documents as permitted
by Rule 199.2(b)(5), the provisions of which
will govern the request, service, and response.
Back
to Rule 200 Menue
200.2
Compelling Witness to Attend. A party
may compel the witness to attend the deposition
on written questions by serving the witness
with a subpoena under Rule 176. If the witness
is a party or is retained by, employed by,
or otherwise subject to the control of a
party, however, service of the deposition
notice upon the party's attorney has the
same effect as a subpoena served on the witness.
Back
to Rule 200 Menue
200.3
Questions and Objections. (a) Direct
questions. The direct questions to be propounded
to the witness must be attached to the notice.
(b) Objections and additional questions.
Within ten days after the notice and direct
questions are served, any party may object
to the direct questions and serve cross-questions
on all other parties. Within five days after
cross-questions are served, any party may
object to the cross-questions and serve redirect
questions on all other parties. Within three
days after redirect questions are served,
any party may object to the redirect questions
and serve recross questions on all other
parties. Objections to recross questions
must be served within five days after the
earlier of when recross questions are served
or the time of the deposition on written
questions. (c) Objections to form of questions.
Objections to the form of a question are
waived unless asserted in accordance with
this subdivision.
Back
to Rule 200 Menue
200.4
Conducting the Deposition Upon Written Questions. The
deposition officer must: take the deposition
on written questions at the time and place
designated; record the testimony of the witness
in response to the questions; and prepare,
certify, and deliver the deposition transcript
in accordance with Rule 203. The deposition
officer has authority when necessary to summon
and swear an interpreter to facilitate the
taking of the deposition.
Back
to Rule 200 Menue
Notes
and Comments Comments to 1999 change:
1. The procedures for asserting objections
during oral depositions under Rule 199.5(e)
do not apply to depositions on written questions.
2. Section 20.001 of the Civil Practice and
Remedies Code provides that a deposition
on written questions of a witness who is
alleged to reside or to be in this state
may be taken by a clerk of a district court,
a judge or clerk of a county court, or a
notary public of this state.
Back
to Rule 200 Menue
> Back to Top
>RULE
201. DEPOSITIONS IN FOREIGN JURISDICTIONS
FOR USE IN TEXAS PROCEEDINGS; DEPOSITIONS
IN TEXAS FOR USE IN FOREIGN PROCEEDINGS
>
201.1
Depositions in Foreign Jurisdictions for
Use in Texas Proceedings.
(a) Generally.
A party may take a deposition on oral examination
or written questions of any person or entity
located in another state or a foreign country
for use in proceedings in this State. The deposition
may be taken by:
>>
(1) notice;
(2) letter rogatory, letter of request, or
other such device; (3) agreement of the parties;
or
(4) court
order.
(b) By notice.
A party may take the deposition by notice in
accordance with these rules as if the deposition
were taken in this State, except that the deposition
officer may be a person authorized to administer
oaths in the place where the deposition is
taken.
(c) By letter
rogatory. On motion by a party, the court in
which an action is pending must issue a letter
rogatory on terms that are just and appropriate,
regardless of whether any other manner of obtaining
the deposition is impractical or inconvenient.
The letter must:
(1) be
addressed to the appropriate authority in
the jurisdiction in which the deposition
is to be taken; (2) request and authorize
that authority to summon the witness before
the authority at a time and place stated
in the letter for examination on oral or
written questions; and
(3) request
and authorize that authority to cause the
witness's testimony to be reduced to writing
and returned, together with any items marked
as exhibits, to the party requesting the
letter rogatory.
(d) By letter
of request or other such device. On motion
by a party, the court in which an action is
pending, or the clerk of that court, must issue
a letter of request or other such device in
accordance with an applicable treaty or international
convention on terms that are just and appropriate.
The letter or other device must be issued regardless
of whether any other manner of obtaining the
deposition is impractical or inconvenient.
The letter or other device must:
(1) be
in the form prescribed by the treaty or convention
under which it is issued, as presented by
the movant to the court or clerk; and
(2) must
state the time, place, and manner of the
examination of the witness.
(e) Objections
to form of letter rogatory, letter of request,
or other such device. In issuing a letter rogatory,
letter of request, or other such device, the
court must set a time for objecting to the
form of the device. A party must make any objection
to the form of the device in writing and serve
it on all other parties by the time set by
the court, or the objection is waived. (f)
Admissibility of evidence. Evidence obtained
in response to a letter rogatory, letter of
request, or other such device is not inadmissible
merely because it is not a verbatim transcript,
or the testimony was not taken under oath,
or for any similar departure from the requirements
for depositions taken within this State under
these rules. (g) Deposition by electronic means.
A deposition in another jurisdiction may be
taken by telephone, videoconference, teleconference,
or other electronic means under the provisions
of Rule 199.
Back
to Rule 201 Menue
201.2
Depositions in Texas for Use in Proceedings
in Foreign Jurisdictions. If a court
of record of any other state or foreign jurisdiction
issues a mandate, writ, or commission that
requires a witness's oral or written deposition
testimony in this State, the witness may
be compelled to appear and testify in the
same manner and by the same process used
for taking testimony in a proceeding pending
in this State. Notes
and Comments Comments to 1999 change:
1. Rule 201.1 sets forth procedures for obtaining
deposition testimony of a witness in another
state or foreign jurisdiction for use in
Texas court proceedings. It does not, however,
address whether any of the procedures listed
are, in fact, permitted or recognized by
the law of the state or foreign jurisdiction
where the witness is located. A party must
first determine what procedures are permitted
by the jurisdiction where the witness is
located before using this rule. 2. Section
20.001 of the Civil Practice and Remedies
Code provides a nonexclusive list of persons
who are qualified to take a written deposition
in Texas and who may take depositions (oral
or written) in another state or outside the
United States. 3. Rule 201.2 is based on
Section 20.002 of the Civil Practice and
Remedies Code.
Back
to Rule 201 Menue> Back
to Top
>RULE
202. DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE
CLAIMS
>
202.1
Generally. A person may petition the
court for an order authorizing the taking
of a deposition on oral examination or written
questions either: (a) to perpetuate or obtain
the person's own testimony or that of any
other person for use in an anticipated suit;
or (b) to investigate a potential claim or
suit.
Back
to Rule 202 Menue
202.2 Petition. The
petition must: (a) be verified; (
b) be filed
in a proper court of any county:
>
(1) where
venue of the anticipated suit may lie, if
suit is anticipated; or
(2) where
the witness resides, if no suit is yet anticipated;
(c) be in
the name of the petitioner;
(d) state
either:
(1) that
the petitioner anticipates the institution
of a suit in which the petitioner may be
a party; or
(2) that
the petitioner seeks to investigate a potential
claim by or against petitioner;
(e) state
the subject matter of the anticipated action,
if any, and the petitioner's interest therein;
(f) if suit
is anticipated, either:
(1) state
the names of the persons petitioner expects
to have interests adverse to petitioner's
in the anticipated suit, and the addresses
and telephone numbers for such persons; or
(2) state
that the names, addresses, and telephone
numbers of persons petitioner expects to
have interests adverse to petitioner's in
the anticipated suit cannot be ascertained
through diligent inquiry, and describe those
persons;
(g) state
the names, addresses and telephone numbers
of the persons to be deposed, the substance
of the testimony that the petitioner expects
to elicit from each, and the petitioner's reasons
for desiring to obtain the testimony of each;
and (h) request an order authorizing the petitioner
to take the depositions of the persons named
in the petition.
Back
to Rule 202 Menue
202.3 Notice and
Service. (a) Personal service on witnesses
and persons named. At least 15 days before
the date of the hearing on the petition,
the petitioner must serve the petition and
a notice of the hearing - in accordance with
Rule 21a - on all persons petitioner seeks
to depose and, if suit is anticipated, on
all persons petitioner expects to have interests
adverse to petitioner's in the anticipated
suit.
(b) Service
by publication on persons not named.
(1) Manner.
Unnamed persons described in the petition
whom the petitioner expects to have interests
adverse to petitioner's in the anticipated
suit, if any, may be served by publication
with the petition and notice of the hearing.
The notice must state the place for the hearing
and the time it will be held, which must
be more than 14 days after the first publication
of the notice. The petition and notice must
be published once each week for two consecutive
weeks in the newspaper of broadest circulation
in the county in which the petition is filed,
or if no such newspaper exists, in the newspaper
of broadest circulation in the nearest county
where a newspaper is published.
(2) Objection
to depositions taken on notice by publication.
Any interested party may move, in the proceeding
or by bill of review, to suppress any deposition,
in whole or in part, taken on notice by publication,
and may also attack or oppose the deposition
by any other means available.
(c) Service
in probate cases. A petition to take a deposition
in anticipation of an application for probate
of a will, and notice of the hearing on the
petition, may be served by posting as prescribed
by Section 33(f)(2) of the Probate Code. The
notice and petition must be directed to all
parties interested in the testator's estate
and must comply with the requirements of Section
33(c) of the Probate Code insofar as they may
be applicable. (d) Modification by order. As
justice or necessity may require, the court
may shorten or lengthen the notice periods
under this rule and may extend the notice period
to permit service on any expected adverse party.
Back
to Rule 202 Menue
202.4 Order.
(a) Required
findings. The court must order a deposition
to be taken if, but only if, it finds that:
(1) allowing
the petitioner to take the requested deposition
may prevent a failure or delay of justice
in an anticipated suit; or
(2) the
likely benefit of allowing the petitioner
to take the requested deposition to investigate
a potential claim outweighs the burden or
expense of the procedure.
(b) Contents.
The order must state whether a deposition will
be taken on oral examination or written questions.
The order may also state the time and place
at which a deposition will be taken. If the
order does not state the time and place at
which a deposition will be taken, the petitioner
must notice the deposition as required by Rules
199 or 200. The order must contain any protections
the court finds necessary or appropriate to
protect the witness or any person who may be
affected by the procedure.
Back
to Rule 202 Menue
202.5 Manner of
Taking and Use. Except as otherwise provided
in this rule, depositions authorized by this
rule are governed by the rules applicable
to depositions of nonparties in a pending
suit. The scope of discovery in depositions
authorized by this rule is the same as if
the anticipated suit or potential claim had
been filed. A court may restrict or prohibit
the use of a deposition taken under this
rule in a subsequent suit to protect a person
who was not served with notice of the deposition
from any unfair prejudice or to prevent abuse
of this rule.
Back
to Rule 202 Menue
Notes and Comments Comments
to 1999 change: 1. This rule applies to all
discovery before suit covered by former rules
governing depositions to perpetuate testimony
and bills of discovery. 2. A deposition taken
under this rule may be used in a subsequent
suit as permitted by the rules of evidence,
except that a court may restrict or prohibit
its use to prevent taking unfair advantage
of a witness or others. The bill of discovery
procedure, which Rule 202 incorporates, is
equitable in nature, and a court must not
permit it to be used inequitably.
Back
to Rule 202 Menue
> Back to Top
>RULE
203. SIGNING, CERTIFICATION AND USE OF ORAL
AND WRITTEN DEPOSITIONS
>
203.1
Signature and Changes. (a) Deposition
transcript to be provided to witness. The
deposition officer must provide the original
deposition transcript to the witness for
examination and signature. If the witness
is represented by an attorney at the deposition,
the deposition officer must provide the transcript
to the attorney instead of the witness. (b)
Changes by witness; signature. The witness
may change responses as reflected in the
deposition transcript by indicating the desired
changes, in writing, on a separate sheet
of paper, together with a statement of the
reasons for making the changes. No erasures
or obliterations of any kind may be made
to the original deposition transcript. The
witness must then sign the transcript under
oath and return it to the deposition officer.
If the witness does not return the transcript
to the deposition officer within 20 days
of the date the transcript was provided to
the witness or the witness's attorney, the
witness may be deemed to have waived the
right to make the changes.
(c) Exceptions.
The requirements of presentation and signature
under this subdivision do not apply:
>
(1) if
the witness and all parties waive the signature
requirement;
(2) to
depositions on written questions; or (3)
to nonstenographic recordings of oral depositions.
Back
to Rule 203 Menue
203.2
Certification. The deposition officer
must file with the court, serve on all parties,
and attach as part of the deposition transcript
or nonstenographic recording of an oral deposition
a certificate duly sworn by the officer stating:
(a) that the witness was duly sworn by the
officer and that the transcript or nonstenographic
recording of the oral deposition is a true
record of the testimony given by the witness;
(b) that the deposition transcript, if any,
was submitted to the witness or to the attorney
for the witness for examination and signature,
the date on which the transcript was submitted,
whether the witness returned the transcript,
and if so, the date on which it was returned.
(c) that changes, if any, made by the witness
are attached to the deposition transcript;
(d) that the deposition officer delivered
the deposition transcript or nonstenographic
recording of an oral deposition in accordance
with Rule 203.3; (e) the amount of time used
by each party at the deposition; (f) the
amount of the deposition officer's charges
for preparing the original deposition transcript,
which the clerk of the court must tax as
costs; and (g) that a copy of the certificate
was served on all parties and the date of
service.
Back
to Rule 203 Menue
203.3
Delivery.
(a) Endorsement;
to whom delivered. The deposition officer must
endorse the title of the action and "Deposition
of (name of witness)" on the original deposition
transcript (or a copy, if the original was
not returned) or the original nonstenographic
recording of an oral deposition, and must return:
(1) the
transcript to the party who asked the first
question appearing in the transcript, or
(2) the
recording to the party who requested it.
(b) Notice.
The deposition officer must serve notice of
delivery on all other parties. (c) Inspection
and copying; copies. The party receiving the
original deposition transcript or nonstenographic
recording must make it available upon reasonable
request for inspection and copying by any other
party. Any party or the witness is entitled
to obtain a copy of the deposition transcript
or nonstenographic recording from the deposition
officer upon payment of a reasonable fee.
Back
to Rule 203 Menue
203.4
Exhibits. At the request of a party,
the original documents and things produced
for inspection during the examination of
the witness must be marked for identification
by the deposition officer and annexed to
the deposition transcript or nonstenographic
recording. The person producing the materials
may produce copies instead of originals if
the party gives all other parties fair opportunity
at the deposition to compare the copies with
the originals. If the person offers originals
rather than copies, the deposition officer
must, after the conclusion of the deposition,
make copies to be attached to the original
deposition transcript or nonstenographic
recording, and then return the originals
to the person who produced them. The person
who produced the originals must preserve
them for hearing or trial and make them available
for inspection or copying by any other party
upon seven days' notice. Copies annexed to
the original deposition transcript or nonstenographic
recording may be used for all purposes.
Back
to Rule 203 Menue
203.5
Motion to Suppress. A party may object
to any errors and irregularities in the manner
in which the testimony is transcribed, signed,
delivered, or otherwise dealt with by the
deposition officer by filing a motion to
suppress all or part of the deposition. If
the deposition officer complies with Rule
203.3 at least one day before the case is
called to trial, with regard to a deposition
transcript, or 30 days before the case is
called to trial, with regard to a nonstenographic
recording, the party must file and serve
a motion to suppress before trial commences
to preserve the objections.
Back
to Rule 203 Menue
203.6
Use. (a) Nonstenographic recording; transcription.
A nonstenographic recording of an oral deposition,
or a written transcription of all or part
of such a recording, may be used to the same
extent as a deposition taken by stenographic
means. However, the court, for good cause
shown, may require that the party seeking
to use a nonstenographic recording or written
transcription first obtain a complete transcript
of the deposition recording from a certified
court reporter. The court reporter's transcription
must be made from the original or a certified
copy of the deposition recording. The court
reporter must, to the extent applicable,
comply with the provisions of this rule,
except that the court reporter must deliver
the original transcript to the attorney requesting
the transcript, and the court reporter's
certificate must include a statement that
the transcript is a true record of the nonstenographic
recording. The party to whom the court reporter
delivers the original transcript must make
the transcript available, upon reasonable
request, for inspection and copying by the
witness or any party.
(b) Same
proceeding. All or part of a deposition may
be used for any purpose in the same proceeding
in which it was taken. If the original is not
filed, a certified copy may be used. "Same
proceeding" includes a proceeding in a different
court but involving the same subject matter
and the same parties or their representatives
or successors in interest. A deposition is
admissible against a party joined after the
deposition was taken if:
(1) the
deposition is admissible pursuant to Rule
804(b)(1) of the Rules of Evidence, or
(2) that
party has had a reasonable opportunity to
redepose the witness and has failed to do
so.
(c) Different
proceeding. Depositions taken in different
proceedings may be used as permitted by the
Rules of Evidence.
Back
to Rule 203 Menue
> Back to Top
>RULE
204. PHYSICAL AND MENTAL EXAMINATIONS
>
204.1
Motion and Order Required.
(a) Motion.
A party may - no later than 30 days before
the end of any applicable discovery period
- move for an order compelling another party
to:
>
(1) submit
to a physical or mental examination by a
qualified physician or a mental examination
by a qualified psychologist; or
(2) produce
for such examination a person in the other
party's custody, conservatorship or legal
control.
(b) Service.
The motion and notice of hearing must be served
on the person to be examined and all parties.
(c) Requirements
for obtaining order. The court may issue an
order for examination only for good cause shown
and only in the following circumstances:
(1) when
the mental or physical condition (including
the blood group) of a party, or of a person
in the custody, conservatorship or under
the legal control of a party, is in controversy;
or
(2) except
as provided in Rule 204.4, an examination
by a psychologist may be ordered when the
party responding to the motion has designated
a psychologist as a testifying expert or
has disclosed a psychologist's records for
possible use at trial.
(d) Requirements
of order. The order must be in writing and
must specify the time, place, manner, conditions,
and scope of the examination and the person
or persons by whom it is to be made.
Back
to Rule 204 Menue
204.2
Report of Examining Physician or Psychologist. (a)
Right to report. Upon request of the person
ordered to be examined, the party causing
the examination to be made must deliver to
the person a copy of a detailed written report
of the examining physician or psychologist
setting out the findings, including results
of all tests made, diagnoses and conclusions,
together with like reports of all earlier
examinations of the same condition. After
delivery of the report, upon request of the
party causing the examination, the party
against whom the order is made must produce
a like report of any examination made before
or after the ordered examination of the same
condition, unless the person examined is
not a party and the party shows that the
party is unable to obtain it. The court on
motion may limit delivery of a report on
such terms as are just. If a physician or
psychologist fails or refuses to make a report
the court may exclude the testimony if offered
at the trial. (b) Agreements; relationship
to other rules. This subdivision applies
to examinations made by agreement of the
parties, unless the agreement expressly provides
otherwise. This subdivision does not preclude
discovery of a report of an examining physician
or psychologist or the taking of a deposition
of the physician or psychologist in accordance
with the provisions of any other rule.
Back
to Rule 204 Menue
204.3
Effect of No Examination. If no examination
is sought either by agreement or under this
subdivision, the party whose physical or
mental condition is in controversy must not
comment to the court or jury concerning the
party's willingness to submit to an examination,
or on the right or failure of any other party
to seek an examination.
Back
to Rule 204 Menue
204.4
Cases Arising Under Titles II or V, Family
Code. In cases arising under Family Code
Titles II or V, the court may - on its own
initiative or on motion of a party - appoint:
(a) one or more psychologists or psychiatrists
to make any and all appropriate mental examinations
of the children who are the subject of the
suit or of any other parties, and may make
such appointment irrespective of whether
a psychologist or psychiatrist has been designated
by any party as a testifying expert; (b)
one or more experts who are qualified in
paternity testing to take blood, body fluid,
or tissue samples to conduct paternity tests
as ordered by the court.
Back
to Rule 204 Menue
204.5
Definition. For the purpose of this rule,
a psychologist is a person licensed or certified
by a state or the District of Columbia as
a psychologist.
Back
to Rule 204 Menue> Back
to Top
>RULE
205. DISCOVERY FROM NONPARTIES
>
205.1
Forms of Discovery; Subpoena Requirement. A
party may compel discovery from a nonparty
- that is, a person who is not a party or
subject to a party's control - only by obtaining
a court order under Rules 196.7, 202, or
204, or by serving a subpoena compelling:
(a) an oral deposition; (b) a deposition
on written questions; (c) a request for production
of documents or tangible things, pursuant
to Rule 199.2(b)(5) or Rule 200.1(b), served
with a notice of deposition on oral examination
or written questions; and (d) a request for
production of documents under this rule.
Back
to Rule 205 Menue
205.2
Notice. A party seeking discovery by
subpoena from a nonparty must serve, on the
nonparty and all parties, a copy of the form
of notice required under the rules governing
the applicable form of discovery. This notice
must be served before or at the same time
that the subpoena is served.
Back
to Rule 205 Menue
205.3
Production of Documents Without Deposition. (a)
Notice; subpoena. A party may compel production
of documents from a nonparty by serving on
the nonparty and all parties - a reasonable
time before the response is due but no later
than 30 days before the end of any applicable
discovery period - the notice required in
Rule 205.2 and a subpoena compelling production
or inspection of documents or tangible things.
(b) Contents
of notice. The notice must state:
>
(1) the
name of the person from whom production or
inspection is sought to be compelled; (2)
a reasonable time and place for the production
or inspection; and
(3) the
items to be produced or inspected, either
by individual item or by category, describing
each item and category with reasonable particularity,
and, if applicable, describing the desired
testing and sampling with sufficient specificity
to inform the nonparty of the means, manner,
and procedure for testing or sampling.
(c) Requests
for production of medical or mental health
records of other nonparties. If a party requests
a nonparty to produce medical or mental health
records of another nonparty, the requesting
party must serve the nonparty whose records
are sought with the notice required under this
rule. This requirement does not apply under
the circumstances set forth in Rule 196.1(c)(2).
(d) Response. The nonparty must respond to
the notice and subpoena in accordance with
Rule 176.6. (e) Custody, inspection and copying.
The party obtaining the production must make
all materials produced available for inspection
by any other party on reasonable notice, and
must furnish copies to any party who requests
at that party's expense. (f) Cost of production.
A party requiring production of documents by
a nonparty must reimburse the nonparty's reasonable
costs of production.
Back
to Rule 205 Menue
Notes
and Comments Comments to 1999 change:
Under this rule, a party may subpoena production
of documents and tangible things from nonparties
without need for a motion or oral or written
deposition.
Back
to Rule 205 Menue> Back
to Top
>RULE
215. ABUSE OF DISCOVERY; SANCTIONS
>
215.1
Motion for Sanctions or Order Compelling
Discovery. A party, upon reasonable notice
to other parties and all other persons affected
thereby, may apply for sanctions or an order
compelling discovery as follows: (a) Appropriate
court. On matters relating to a deposition,
an application for an order to a party may
be made to the court in which the action
is pending, or to any district court in the
district where the deposition is being taken.
An application for an order to a deponent
who is not a party shall be made to the court
in the district where the deposition is being
taken. As to all other discovery matters,
an application for an order will be made
to the court in which the action is pending.
(b) Motion.
>
(1) If
a party or other deponent which is a corporation
or other entity fails to make a designation
under Rules 199.2(b)(1) or 200.1(b); or
(2) if
a party, or other deponent, or a person designated
to testify on behalf of a party or other
deponent fails:
(A) to
appear before the officer who is to take
his deposition, after being served with
a proper notice; or
(B) to
answer a question propounded or submitted
upon oral examination or upon written questions;
or
(A) to
serve answers or objections to interrogatories
submitted under Rule 197, after proper
service of the interrogatories; or (B)
to answer an interrogatory submitted under
Rule 197; or (C) to serve a written response
to a request for inspection submitted under
Rule 196, after proper service of the request;
or
(D) to
respond that discovery will be permitted
as requested or fails to permit discovery
as requested in response to a request for
inspection submitted under Rule 196; the
discovering party may move for an order
compelling a designation, an appearance,
an answer or answers, or inspection or
production in accordance with the request,
or apply to the court in which the action
is pending for the imposition of any sanction
authorized by Rule 215.2(b) without the
necessity of first having obtained a court
order compelling such discovery. When taking
a deposition on oral examination, the proponent
of the question may complete or adjourn
the examination before he applies for an
order. If the court denies the motion in
whole or in part, it may make such protective
order as it would have been empowered to
make on a motion pursuant to Rule 192.6.
(c) Evasive
or incomplete answer. For purposes of this
subdivision an evasive or incomplete answer
is to be treated as a failure to answer. (d)
Disposition of motion to compel: award of expenses.
If the motion is granted, the court shall,
after opportunity for hearing, require a party
or deponent whose conduct necessitated the
motion or the party or attorney advising such
conduct or both of them to pay, at such time
as ordered by the court, the moving party the
reasonable expenses incurred in obtaining the
order, including attorney fees, unless the
court finds that the opposition to the motion
was substantially justified or that other circumstances
make an award of expenses unjust. Such an order
shall be subject to review on appeal from the
final judgment. If the motion is denied, the
court may, after opportunity for hearing, require
the moving party or attorney advising such
motion to pay to the party or deponent who
opposed the motion the reasonable expenses
incurred in opposing the motion, including
attorney fees, unless the court finds that
the making of the motion was substantially
justified or that other circumstances make
an award of expenses unjust. If the motion
is granted in part and denied in part, the
court may apportion the reasonable expenses
incurred in relation to the motion among the
parties and persons in a just manner. In determining
the amount of reasonable expenses, including
attorney fees, to be awarded in connection
with a motion, the trial court shall award
expenses which are reasonable in relation to
the amount of work reasonably expended in obtaining
an order compelling compliance or in opposing
a motion which is denied. (e) Providing person's
own statement. If a party fails to comply with
any person's written request for the person's
own statement as provided in Rule 192.3(h),
the person who made the request may move for
an order compelling compliance. If the motion
is granted, the movant may recover the expenses
incurred in obtaining the order, including
attorney fees, which are reasonable in relation
to the amount of work reasonably expended in
obtaining the order.
Back
to Rule 215 Menue
215.2
Failure to Comply with Order or with Discovery
Request. (a) Sanctions by court in district
where deposition is taken. If a deponent
fails to appear or to be sworn or to answer
a question after being directed to do so
by a district court in the district in which
the deposition is being taken, the failure
may be considered a contempt of that court.
(b) Sanctions
by court in which action is pending. If a party
or an officer, director, or managing agent
of a party or a person designated under Rules
199.2(b)(1) or 200.1(b) to testify on behalf
of a party fails to comply with proper discovery
requests or to obey an order to provide or
permit discovery, including an order made under
Rules 204 or 215.1, the court in which the
action is pending may, after notice and hearing,
make such orders in regard to the failure as
are just, and among others the following:
(1) an
order disallowing any further discovery of
any kind or of a particular kind by the disobedient
party; (2) an order charging all or any portion
of the expenses of discovery or taxable court
costs or both against the disobedient party
or the attorney advising him; (3) an order
that the matters regarding which the order
was made or any other designated facts shall
be taken to be established for the purposes
of the action in accordance with the claim
of the party obtaining the order; (4) an
order refusing to allow the disobedient party
to support or oppose designated claims or
defenses, or prohibiting him from introducing
designated matters in evidence; (5) an order
striking out pleadings or parts thereof,
or staying further proceedings until the
order is obeyed, or dismissing with or without
prejudice the action or proceedings or any
part thereof, or rendering a judgment by
default against the disobedient party; (6)
in lieu of any of the foregoing orders or
in addition thereto, an order treating as
a contempt of court the failure to obey any
orders except an order to submit to a physical
or mental examination; (7) when a party has
failed to comply with an order under Rule
204 requiring him to appear or produce another
for examination, such orders as are listed
in paragraphs (1), (2), (3), (4) or (5) of
this subdivision, unless the person failing
to comply shows that he is unable to appear
or to produce such person for examination.
(8) In
lieu of any of the foregoing orders or in
addition thereto, the court shall require
the party failing to obey the order or the
attorney advising him, or both, to pay, at
such time as ordered by the court, the reasonable
expenses, including attorney fees, caused
by the failure, unless the court finds that
the failure was substantially justified or
that other circumstances make an award of
expenses unjust. Such an order shall be subject
to review on appeal from the final judgment.
(c) Sanction
against nonparty for violation of Rules 196.7
or 205.3. If a nonparty fails to comply with
an order under Rules 196.7 or 205.3, the court
which made the order may treat the failure
to obey as contempt of court.
Back
to Rule 215 Menue
215.3
Abuse of Discovery Process in Seeking, Making,
or Resisting Discovery. If the court
finds a party is abusing the discovery process
in seeking, making or resisting discovery
or if the court finds that any interrogatory
or request for inspection or production is
unreasonably frivolous, oppressive, or harassing,
or that a response or answer is unreasonably
frivolous or made for purposes of delay,
then the court in which the action is pending
may, after notice and hearing, impose any
appropriate sanction authorized by paragraphs
(1), (2), (3), (4), (5), and (8) of Rule
215.2(b). Such order of sanction shall be
subject to review on appeal from the final
judgment.
Back
to Rule 215 Menue
215.4
Failure to Comply with Rule 198. (a)
Motion. A party who has requested an admission
under Rule 198 may move to determine the
sufficiency of the answer or objection. For
purposes of this subdivision an evasive or
incomplete answer may be treated as a failure
to answer. Unless the court determines that
an objection is justified, it shall order
that an answer be served. If the court determines
that an answer does not comply with the requirements
of Rule 198, it may order either that the
matter is admitted or that an amended answer
be served. The provisions of Rule 215.1(d)
apply to the award of expenses incurred in
relation to the motion. (b) Expenses on failure
to admit. If a party fails to admit the genuineness
of any document or the truth of any matter
as requested under Rule 198 and if the party
requesting the admissions thereafter proves
the genuineness of the document or the truth
of the matter, he may apply to the court
for an order requiring the other party to
pay him the reasonable expenses incurred
in making that proof, including reasonable
attorney fees. The court shall make the order
unless it finds that (1) the request was
held objectionable pursuant to Rule 193,
or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit
had a reasonable ground to believe that he
might prevail on the matter, or (4) there
was other good reason for the failure to
admit.
Back
to Rule 215 Menue
215.5
Failure of Party or Witness to Attend or
to Serve Subpoena; Expenses. (a) Failure
of party giving notice to attend. If the
party giving the notice of the taking of
an oral deposition fails to attend and proceed
therewith and another party attends in person
or by attorney pursuant to the notice, the
court may order the party giving the notice
to pay such other party the reasonable expenses
incurred by him and his attorney in attending,
including reasonable attorney fees. (b) Failure
of witness to attend. If a party gives notice
of the taking of an oral deposition of a
witness and the witness does not attend because
of the fault of the party giving the notice,
if another party attends in person or by
attorney because he expects the deposition
of that witness to be taken, the court may
order the party giving the notice to pay
such other party the reasonable expenses
incurred by him and his attorney in attending,
including reasonable attorney fees. 215.6
Exhibits to Motions and Responses. Motions
or responses made under this rule may have
exhibits attached including affidavits, discovery
pleadings, or any other documents.
Back
to Rule 215 Menue
Notes
and CommentsComments to 1999 change:
This references
in this rule to other discovery rules are changed
to reflect the revisions in those rules, and
former Rule 203 is added as Rule 215.5 in place
of the former provision, which is superseded
by Rule 193.6.
STRENGTH. INTEGRITY.
EXPERTISE.
Perry & Haas does not offer any guarantee of
case results.
Past success in litigation does not guarantee success in any new or future
lawsuit.
Our web site describes some of the cases that the attorneys of Perry & Haas have worked on in the past.
Our description of those cases is summary in nature.
You should be aware that the results obtained in each of the cases we have
worked on was dependent on the particular facts of each case. The results of
other cases will differ based on the different facts involved.
|
|
