Since the Texas Supreme Court's 1988 Lunsford v. Morris decision, Plaintiffs claiming punitive damages have had the ability to obtain discovery about a Defendant's net worth. However, recent changes to the Texas Civil Practice and Remedies Code ("the Code") have made discovery of net worth more difficult for Plaintiffs and given Defendants a chance to fight back.
When a party to a lawsuit receives a discovery request, the receiving party usually responds by (1) producing the requested material, (2) objecting to the discovery request based on some legal or factual grounds, or (3) asserting that the material is privileged and producing a privilege log to the requesting party. Regardless of which of these actions the responding party takes, the requesting party is then aware of the existence (or nonexistence) of responsive materials. However, Texas Rules of Civil Procedure (TRCP) 193.3(c) allows for a responding party to remain completely silent about the existence of attorney communication made in anticipation of litigation. When utilized correctly, TRCP 193.3(c) is a powerful weapon behind which important-but-damaging information can be completely protected from the opposing party's prying eyes.