The Texas Supreme Court has recently issued an order amending the Texas Rules of Civil Procedure (“TRCP”). These amendments take effect on January 1, 2021. Through the Court’s comments in its order amending the rules, it seems that the Supreme Court of Texas is moving to more closely resemble the Federal Rules of Civil Procedure (“FRCP”).
The major amendments include changes to expedited actions and required disclosures.
Expedited Actions
Rule 169 of the TRCP applies to Expedited Actions. Now, the expedited actions process applies to suits in which all claimants affirmatively plead that they seek only monetary relief aggregating $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. The relief amount available increasing from the previous $100,000 limit.
The amendment also removes the Rule 169(a)(2) which stated that the expedited actions process does not apply to a suit in which a party has filed a claim under the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code. Thus, now the expedited action process is available to parties in civil suits governed by the Codes listed above.
Required Disclosures
Perhaps the biggest change from these amendments are changes made to what are now known as “requests for required disclosures” under Rule 194. The rule has shifted from listing what one party may request from the other, to specifically stating what each party must provide to the other, without any request being made. Rule 194(a) sets forth a duty to disclose without awaiting a discovery request, subject to limited exceptions.
Required Disclosures and are broken down into three specific categories: Initial Disclosures under 194.2, Testifying Expert Disclosures under 194.3, and Pretrial Disclosures under 194.4. They are each addressed below.
Initial Disclosures – Rule 194.2
Generally, initial disclosures will be due by the 30th day after the first answer is filed, For parties joined after the filing of the first answer, the initial disclosures must be made within 30 days of being served or joined.
The new initial disclosures require parties to provide identifying information on all current and potential parties to the lawsuit, legal theories and factual bases of claims, a computation of each category of damages claimed accompanied by all documents on which the computation is based, and a copy of all documents and things that the party may use unless it will be used solely for impeachment purposes.
While initial disclosures are required in most suits, some proceedings are exempt. Those proceedings include: (1) an action for review on an administrative record; (2) a forfeiture action arising from a state statute; and (3) a petition for habeas corpus.
Testifying Expert Disclosures – Rule 194.3 & Rule 195
Rule 194.3 now sets out that a party must also disclose testifying expert information as provided by Rule 195. According to rule 195.2 the designation of experts must be made by 90 days before the end of the discovery period for all testifying experts for a party seeking affirmative relief, and 60 days before the end of the discovery period for all other experts.
Rule 195.5 is amended to include Expert Disclosures and Reports. If an expert is subject to the control of the responding party, they will now have to produce (a) all things that have been provided to or by the expert in anticipation of testimony, (b) the expert’s current resume and bibliography, (c) the expert’s qualifications, including a list of all publications authored in the previous 10 years, (d) a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition, and (e) a statement of the compensation to be paid for the expert’s study and testimony in the case.
Pretrial Disclosures – Rule 194.4
The Court also amended rule 194.4 to require certain pretrial disclosures. These pretrial disclosures must be made at least 30 days before trial, unless otherwise ordered by the court. Effective January 1, 2020, a party must provide the other parties (1) the name, address, and telephone number of each witness, whether they are expected to be called or will only be called if the need arises; (2) an identification of each document or other exhibits, including a summary of other evidence.
With regard to all of the above-mentioned required disclosures, the Supreme Court of Texas made a comment in its Order amending the TRCP noting that a party is not excused from making its disclosures because has not fully investigated the case. As with written discovery, required disclosures must be timely amended or supplemented.
Takeaways:
- Expedited Actions are greatly expanded – meaning your case is more likely to qualify, lessening the expense of litigation.
- Initial Disclosures are due within 30 days of after being served as a party to a suit, this means that attorneys needs any and all documents and tangible things listed above that may be relevant to the litigation. There is no more waiting for specific discovery requests.
- If the case involves testifying experts, much more information regarding that expert’s background must be disclosed.
- At least 30 days before trial, information on any witnesses that may appear at trial must be provided and any exhibits that may be introduced at trial must be identified. This includes witnesses/exhibits that a party will only call/offer if the need arises during trial.
