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Discovery II: What are requests for disclosure?

13 August 2011

If you are involved in a lawsuit, or have a case pending, you may find yourself wondering what requests for disclosure are. Can the opposing side ask you anything, and do you have to answer everything they ask? How much time do you have in which to answer? What happens if you do not answer? Today I delve into these and other questions in Part II of the discovery process as we examine Requests for Disclosure.

(Please see Part I in this series: “What is discovery, and what are interrogatories?“) For additional helpful background information, please see “A primer on all the different types of courts.”)

I will be covering Texas rules since that is what I am most familiar with, but I’ve written before that states generally enact the same or very similar rules as the Federal Rules of Civil Procedure. It’s likely that your state’s rules are similar to the rules I’m writing about here, but you can always Google your state’s rules of civil procedure, and I’ll bet they will be available for free on the Internet! Use this article as a general guide, then do some fact-checking on your specific state.

As a matter of form, however, I should mention that in the case of requests for disclosure, under federal rules certain disclosures are automatic and do not have to be formally requested. If your case is in federal court, click on the link above to the federal rules, then click Roman numeral V – “Disclosures and Discovery,” then click R. 26 “General Provisions Governing Discovery.” There you will see, under R.26(a)(1) the list of items required to be disclosed without a discovery request. See also R.37 “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.” While I cannot cover every single possibility in this article, and it’s always best to consult with an attorney regarding your specific problem, I can nonetheless offer you the basics. So here we go!

Under the Texas Rules of Civil Procedure, we find Requests for Disclosure under R.194 (keep in mind federal cases will be covered under federal rules, while state cases will be covered under state rules. Additionally, don’t forget to look up local rules! For example, here are some local rules for a Harris County court.) 

I know reading that stuff can be like reading Greek for the average Joe or Jane, so let’s simplify. Requests for disclosure are written requests for information to/from opposing parties to a lawsuit. They take the look of a formal pleading, ie they contain a “header” listing the parties (called the “style,” the court, the cause or case number, and the title, which in this case would be “REQUESTS FOR DISCLOSURE,” or “PLAINTIFF’S REQUEST FOR DISCLOSURE TO _________.” The title is typically in all caps, bold, and underlined. You can see an example here. In this example, the requests for disclosure were filed with the Original Complaint (or called Original Petition). You can file your requests for disclosure this way, or propound them later (more on this in a minute). Now, using this example, if you look to Paragraph 12 of the complaint, you’ll see it’s titled “12. Request for Disclosure.” In this particular case, the state is formally making their request – and if the requests are served with the Original Petition, the opposing party has 50 days to answer (if served separately, they have 30 days). What is being requested? See in the complaint it lists the Texas Rules “194.2(a), (b), (c), (e), (f), and (i).” If you go back to your Texas Rules, you will see exactly what is – and what can be – requested. That’s all there is to it if you serve the requests with the original complaint. The attorneys will know exactly what the rule numbers refer to as it is all codified exactly in the Rules. If you are pro se, NOW you know, too! (Incidentally, you may file your requests for disclosure, if you are the one being sued, with your Original Answer, but it is not required. Often, whether or not to do so is a question of strategy.)

But wait, you said they could be served separately? Yes, and they will still take the same format (ie look like a pleading), only this time the title would be something like “PLAINTIFF’S FIRST REQUESTS FOR DISCLOSURE,” or “DEFENDANT’S FIRST REQUESTS FOR DISCLOSURE TO_____.” And, in Harris County, you will NOT generally file these with the court unless there is a problem. (Courts prefer parties work out their own discovery issues to save the Court’s time and lessen paperwork for everyone; in the case of Original Petitions, they of course MUST be filed with the Court, so their hitchhiker gets filed as well in this event.) This request may be filed any time after the original suit is filed, and they can be served only on another party to the suit. You should always specify in your request the time limit for answering. Typically, you’ll give the opposing party 30 days, and it MUST be at least that many (ie you may allow more time to answer, but not less).

So what can we ask the opposing side to disclose? If you look under your Texas Rule 194.2, you will see things listed such as:

•Correct party names;

•Potential parties;

•Contentions;

•Damages (for eg. You can ask the opposing side what they plan to ask for damages; that is, a specific amount and the calculation used to reach that figure);

•Fact witnesses;

•Testifying experts;

•Medical records (in a suit alleging injury and seeking damages from said injury); and

•Any responsible third party.

You may serve requests for disclosure and simply state something like “ ——– is requested to disclose to ——, within 30 days of this service, the information and material described in Texas Rules of Civil Procedure R.194.2(a) – (i).” Simple as that! (Again, if you look at that rule at the link provided above, you will see what is permissible for one to request to be disclosed.) The request MUST be in writing, and must be signed by an attorney (or yourself if you are pro se). Each response must be answered separately. Usually, space is left on the propounding document for the opposing side to answer. Most often, if more time is needed to answer the requests, it is worked out between the parties amicably, but always make sure any such agreement is in writing and signed by both parties. (This is formally called a “Rule 11 Agreement.” Why? See Rule 11 in your Texas Rules of Civil Procedure!) Unlike interrogatories–which are answered under oath–disclosures do not need to be notarized, and no objections can be made. While interrogatories are the most common discovery device, requests for disclosure are usually the first. Generally speaking, TRCP 192.3 covers the permissible scope of discovery and states:

192.3 Scope of Discovery. (a) In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. [Emphasis mine.]

(Caveat: Rule 11 Agreements DO have to filed with the court to become enforceable, and must be signed by all parties.)

Phew! I hope you have enjoyed this installment of our discovery road trip. Next up: Discovery III: Requests for Admissions.

Note: I am not an attorney. If you need legal advice, you should consult an attorney licensed to practice law in your state.

**And always remember to check your local rules from the court in which your case has been assigned!

For more info:

Federal Rules of Civil Procedure

Texas Rules of Civil Procedure (PDF)

Texas Rules of Evidence

Texas Rules of Appellate Procedure

Texas Discovery rules articles and updates

Happy discovering!!

Litigation 101: How to file a lawsuit

You can find particular judges’ and courts’ web-sites in Harris County here.

Or just Google for your state, county, or particular judge’s website. You might be surprised how much information you can find there. You may also call the clerks to ask questions; just keep in mind court clerks are very busy, so it would behoove you to be on your best manners when making inquiries.

Coming up next:

Discovery III: What are Requests for Admissions?

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Sami K. Hartsfield, ACP is a freelance writer, insurance defense paralegal, and NALA Advanced Certified Paralegal living in downtown Houston. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. A glutton for acquiring new knowldedge–in addition to her national advanced paralegal certification–she has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com

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