Discovery is a formal exchange of information between the parties regarding the evidence and witnesses each side plans to present at trial. In Texas, the discovery process is meant to expedite litigation and encourage parties to reach a settlement before their trial date. Failure to answer discovery requests in a timely manner may lead to evidence exclusion and you may very well lose your case.
There are many intricacies and avenues of execution required by the Texas Rules of Civil Procedure. Such matters as they apply to family law are best handled by experienced family attorneys. If you are thinking about divorce or are ready to move forward with another family matter, contact the team at Scroggins Law Group (“SLG”), PLLC for a consultation today. We offer our initial consultations in person, via telephone, and through several video conferencing platforms such as Zoom or Teams. An experienced litigator from our firm would be happy to speak with you and answer any questions you have about your case. Our team will assist you in the smooth handling of this complex and complicated phase of litigation.
What is the purpose of discovery?
The purpose of discovery is to allow each side to learn the details of the case, assess strengths and weaknesses of the opposing party’s claims and defenses, and identify the issues they will have to prove at trial. Discovery is also intended to avoid the element of surprise that occurs with last-minute document dumps and new witnesses announced on the eve of trial.
Types of discovery
Discovery comes in different forms. In a Texas family law case, you likely will encounter:
- Required Disclosure – At the outset of a case, each party has the duty to disclose basic information about the case, including the identities of parties and witnesses, the legal theories upon which their claims or defenses are based, and the facts supporting them.
- Interrogatories – A party can serve written questions to any other party and the questions must be answered under oath.
- Requests for Admission – A party may ask the other party to admit or deny specific facts. If the party to whom the requests are directed does not respond, the requests can be deemed admitted, which means the party making the request may be able to enter the “deemed admissions” at trial.
- Request for Production of Documents – A request for production is a request to provide copies of relevant documents. The documents relevant to a divorce or child possession action can seem overwhelming and include extensive documents such as bank and credit card statements, pay stubs, tax returns, photographs, texts and emails, medical and psychological records and the child’s school records.
- Depositions – A deposition is a question and answer session where the deponent – the person answering the questions – is under oath. The deposition is taken in front of a court reporter and is frequently recorded by video as well.
Each type of discovery comes with strict rules and timelines that must be met. It is imperative that clients work with their attorneys to provide the information requested. SLG works hand in hand with it’s client to make the process as painless as possible. However, the process can be long and grueling. So, it is imperative to work with detailed, well-trained attorneys and paralegals who are specialists in the area of family law.
Levels of Discovery Control Plans in Texas
Rule 190 of the Texas Rules of Civil Procedure lays out the limitations to discovery, including the requirement of selecting the appropriate level of the “Discovery Control Plan.” Each of the three levels has its own applicability and limitations. In family litigation, Level One applies to “any suit for divorce not involving children in which a party pleads the value of the marital estate is more than zero but not more than $250,000.00.”
The limitations listed in the Discovery Control Plan Rule include the length of the discovery period, the number of deposition hours permitted, and the number of Requests contained within other discovery tools such as Interrogatories, Requests for Production, and Requests for Admissions.
Most family law cases are conducted under the Level 2 Control Plan. In family law cases conducted under a Level 2 Control Plan, the parties have more time to depose witnesses and can propound more Interrogatories than under Level 1. Where Level 1 cases permit no more than fifteen written Interrogatories, Level 2 cases are limited to no more than twenty-five. The Level 3 Control Plan is tailored to the needs of a specific case and implemented either by Motion or on the court’s own initiative. Under Level 3, the parties can agree to or ask the Court to implement more expansive discovery due to the complex nature of the matter and size of the marital estate.
The scope of discovery in Texas courts
Unless a court orders otherwise, parties may request any non-privileged information relevant to the claims and defenses in the case. Discovery may seem invasive, and it can be. Depending on the claims and whether child possession is at issue, any of the following may be fair items for request:
- Financial information like bank accounts, compensation, retirement accounts, and appraisals of property
- Communications like phone records, text messages, and social media accounts
- Medical history, including records related to mental health issues or substance abuse
- Personal relationships, including affairs
Discovery requires you to be open and honest, even when the answers make you uncomfortable. It’s important to have an attorney that you trust and who prepares you for this critical step of the litigation.
You may be served discovery requests that are overbroad or otherwise inappropriate. Upon objection by one party, the other may submit a Motion to Compel the production of the request. It will be up to the Judge to decide whether or not the question is within the scope of the litigation. Ignoring or evading discovery will not be looked on favorably by the Judge. An experienced lawyer will help you abide by the rules while shielding you from overreach.
Speak with a Texas family law attorney
Discovery is one of the many steps in family law litigation that needs to be undertaken with competence and experience. The attorneys at Scroggins Law Group have the expertise required to take our Texas clients through divorce and related family-related legal matters.
Mark L. Scroggins is Board-certified in family law by the Texas Board of Legal Specialization, He and the other attorneys at SLG have decades of practical experience to draw on, and are well versed in conducting discovery. Mark leads the team of talented family attorneys at Scroggins Law Group, PLLC. If you want respected, experienced, and passionate family law representation, call today or fill out our online form.
.Resources:
Casetext, Texas Rules of Civil Procedure Rule 190 – Discovery Limitations, https://casetext.com/rule/texas-court-rules/texas-rules-of-civil-procedure/part-ii-rules-of-practice-in-district-and-county-courts/section-9-evidence-and-discovery/disc overy/rule-190-discovery-limitations
Casetext, Texas Rules of Civil Procedure Rule 192 Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions, https://casetext.com/rule/texas-court-rules/texas-rules-of-civil-procedure/part-ii-rules-of-practice-in-district-and-county-courts/section-9-evidence-and-discovery/discovery/rule-192-permissible-discovery-forms-and-scope-work-product-protective-orders-definitions
