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Rule 193.5. Amending or Supplementing Responses to Written Discovery (Aug. 1998)
(a) Duty to amend or supplement. If a party learns that the party's response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct, the party must amend or supplement the response:
(1) to the extent that the written discovery sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, and
(2) to the extent that the written discovery sought other information, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses.
(b) Time and form of amended or supplemental response. An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly. An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be verified by the party.
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. This rule imposes a duty upon parties to make a complete response to written discovery based upon all information reasonably available, subject to objections and privileges.
2. An objection to written discovery does not excuse the responding party from complying with the request to the extent no objection is made. But a party may object to a request for "all documents relevant to the lawsuit" as overly broad and not in compliance with the rule requiring specific requests for documents and refuse to comply with it entirely. See Loftin v. Martin, 776 S..W.2d 145 (Tex. 1989). A party may also object to a request for a litigation file on the ground that it is overly broad and on its face seeks only materials protected by privilege. See National Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993). A party who objects to production of documents from a remote time period should produce documents from a more recent period unless that production would be burdensome and duplicative should the objection be overruled.
3. This rule governs the presentation of all privileges and work product. It dispenses with objections to written discovery requests on the basis that responsive information or materials are protected by a specific privilege from discovery. Instead, the rule requires parties to state that information or materials have been withheld and to identify the privilege upon which the party relies. The statement should not be made prophylactically, but only when specific information and materials have been withheld. The party must amend or supplement the statement if additional privileged information or material is found subsequent to the initial response. A party need not state that material created by or for lawyers for the litigation has been withheld as it can be assumed that such material will be withheld from virtually any request on the grounds of attorney-client privilege or work product.
4. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex. R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992), to the extent the two conflict.
5. Any party can request a hearing in which the court will resolve issues brought up in objections or withholding statements. The party seeking to avoid discovery has the burden of proving the objection or privilege.
6. The self-authenticating provision is new. Authentication is, of course, but a condition precedent to admissibility and does not establish admissibility. See Tex. R. Evid. 901(a).
Nov. 9, 1998, eff. Jan. 1, 1999