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Rule 192.7. Definitions (Aug. 1998)

TEXT

.As used in these rules:

(a) Written discovery means requests for disclosure, requests for production and inspection of documents and tangible things, interrogatories, and requests for admission.

(b) Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.

(c) A testifying expert is an expert who may be called to testify as an expert witness at trial.

(d) A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.

Added by order of Aug. 4, 1998, eff. Jan. 1, 1999.

Prior Amendments Future Amendments
  Nov. 9, 1998, eff. Jan. 1, 1999

 

Notes and Comments

Comments to 1999 change:

1. While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute. The rule must be read and applied in that context. See K-Mart v. Sanderson, 937 S.W.2d 429 (Tex. 1996) (per curiam); Dillard Dept. Stores v. Hall, 909 S.W. 2d 491 (Tex. 1997) (per curiam); Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995) (per curiam); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989).

2. The definition of documents and tangible things has been revised to clarify that things relevant to the subject matter of the action are within the scope of discovery regardless of their form.

3. Rule 192.3(c) makes discoverable a “brief statement of each identified person’s connection with the case.” This provision does not contemplate a narrative statement of the facts the person knows, but at most a few words describing the person’s identity as relevant to the lawsuit. For instance: "treat­ing physician," "eyewitness," "chief financial officer," "director," "plaintiff's mother and eyewitness to accident."

4. Rule 192.3(g) does not suggest that settlement agreements in other cases are relevant or irrelevant.

5. Rule 192.3(j) makes a party's legal and factual con­tentions discoverable but does not require more than a basic statement of those contentions and does not require a marshaling of evidence.

6. The sections in former Rule l66b concerning land and, medical records are not included in this rule. They remain within the scope of discovery and are discussed in other rules.

7. The court's power to limit discovery based on the needs and circumstances of the case is expressly stated in Rule 192.4. The provision is taken from Rule 26(b)(2) of the Federal Rules of Civil Procedure. Courts should limit discovery only to prevent unwarranted delay and expense. A court abuses its discretion in otherwise restricting a party’s access to information through discovery.

8. Work product is defined for the first time, and its exceptions stated. The exception indiscoverable but subjects them to the same rules concerning the scope of discovery, work product, and privileges applicable to other documents of tangible things.

AMENDMENTS

Nov. 9, 1998, eff. Jan. 1, 1999