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    Locke Lord QuickStudy: Texas Rules of Civil Procedure – 2020 Changes to the Discovery and Service Rules‎

    Locke Lord Publications

    In addition to its twenty-seven emergency orders regarding the Covid-19 state of ‎disaster, the Texas Supreme Court has issued a number of administrative orders this year ‎promulgating amendments to the Texas Rules of Civil Procedure.‎1 The new rules generally affect ‎both the Discovery2 and Service3 rules, and in large part bring the Texas Rules more in line with ‎their federal counterparts. Below are the amendments likely to be most relevant to state civil ‎district court practice in Texas:‎4 

    Rules 169 and 47 Expand Expedited Actions

    • The fast-track rules, including Level 1 Discovery, now apply to expedited cases ‎with amounts in controversy up to threshold of $250,000 (instead of $50,000)
    • Threshold amount now excludes interest, penalties, attorneys’ fees, and costs
    • Discovery in expedited actions must be completed in 180 following initial ‎disclosures deadline (also new)‎
    • Level 1 Discovery cases must be set for trial within 90 days after the close of discovery, with ‎the possibility of only two short continuances not to exceed 60 days in total
    • Rule 47 amended to require new relief statements consistent with Rule 169‎
    • Parties under Level 1 Discovery now have 20 hours of deposition time, instead of 6‎

     

    Rules 190 and 194 Require Initial Disclosures ‎

    • Mandatory disclosures will be due within 30 days after the first answer is filed (or ‎within 30 days of being joined if a party is served after the first answer is ‎filed) unless otherwise agreed or changed by court order
    • Included within the scope of required initial disclosures are documents that ‎may be used to support claims, defenses, and damages, unless the documents ‎are too voluminous in which case the disclosure must give a reasonable time and ‎place for production
    • Until the initial disclosures are due, no other discovery is allowed ‎
    • Damage calculations, “including materials bearing on the nature and extent of ‎injuries suffered,” must also be included in the initial disclosures
      Rule 195 Expands and Postpones Expert Discovery
    • Discovery about testifying expert witnesses is due 90 days before trial for parties ‎seeking affirmative relief and 60 days before trial for all others, instead of being ‎included in a party’s disclosures
    • No other discovery about experts is permitted except for the materials required by ‎expert disclosure and depositions ‎
    • Similar to the Federal Rules, expert disclosures must include the expert’s ‎qualifications, including a list of all publications authored in the previous 10 years, ‎a list of all other cases in which the expert has testified in the last 4 years, and the ‎amount the expert is being paid ‎

     

    Amended Rule 193.3(d) Broadens Snap-back Privilege Protection

    • When an inadvertent disclosure of privileged material is realized, now “any party ‎who has obtained the specific material or information,” not just the requesting ‎party, must return it
    • The information must be returned within 10 days or sooner if ordered by the court

     

    Deadlines for Pre-Trial Disclosures in Amended Rule 194‎

    • Contact and identifying information about witnesses and exhibits that may be ‎called to testify or used at trial must be exchanged
    • Parties must distinguish those witnesses and items that it expects to present at trial ‎from those that may be presented only if the need arises
    • Witness and exhibit disclosures must be exchanged 30 days before trial

     

    New Service Methods in Rules 106 and 116-17‎

    • Courts may authorize substituted service via “social media, email, or other ‎electronic technology [which] evidence shows will be reasonably effective to ‎give the defendant notice of the suit.”‎
    • Now lawsuits can be posted on Facebook, Instagram, Twitter, and any other social ‎media platforms available so long some type of evidence indicates the defendant ‎will learn of the case
    • Citation may be served by posting to a newly created “Public Information Internet ‎Website Publication”‎
    • Court clerk must publish the Citation, not the parties or their representatives
    • Citation must stay posted up on the new website for at least 28 days

     

    The new Discovery rules will apply to cases filed after January 1, 2021, but the Service rules take effect ‎this year. The service of citation website went into effect over the summer, and the social media service ‎rules go into effect on December 31, 2020. Whether or not these changes to the Discovery and Service ‎rules ultimately will bring about a more “prompt, efficient, and cost-effective resolution of civil actions,” ‎while preserving parties’ due process and other procedural rights, is unknown. One thing is all but ‎certain: The amended rules likely will raise questions about new processes and procedures, and Locke ‎Lord is available to answer any questions or provide additional feedback on any of the new rules.‎

     

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    1 All of the 2020 administrative orders of the Texas Supreme Court to date amending the TRCPs, plus the emergency ‎orders, may be found here.
    2 https://www.txcourts.gov/media/1449614/209101.pdf
    3 https://www.txcourts.gov/media/1449613/209103.pdf and https://www.txcourts.gov/media/1445513/209009.pdf
    4 Rule 277 was also amended and applies to family courts. https://www.txcourts.gov/media/1449351/209056.pdf

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