1. TEXAS DISCOVERY UPDATE
ROOTING FOR ACORNS
TEXAS DISCOVERY UPDATE
2016

2. SCOPE OF DISCOVERY UPDATE “I’D RATHER BE FISHING”
PART II
DISCOVERY TOOLS
PART I
SCOPE OF DISCOVERY UPDATE
2016
“I’D RATHER BE FISHING”

3. pgold@agtriallaw.com ACORNS PP

4. ALERT!

5. TEXAS SUPREME COURT WANTS TO AMEND THE DISCOVERY RULES . . .
AGAIN!

6. FEDERAL RULES WITH TEXAS INTERPRETATION ?

7. Carr v. State Farm Mutual Automobile Insurance, Company,
2015 WL
(N. D. Tex. Dall. Div. 2015)
Magistrate David Horan

8. HOT OFF THE PRESSES

9. SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc
SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc WL (Tex. App. Houst.14TH 2016)

10. Record must reveal that the TC considered lesser sanctions;
Rule does not authorize striking opinion in its entirety because of failure to produce an animation.
Plaintiffs did not assert Rule in its motion to strike.
Dissent: Order did not prevent D from creating animation on eve of trial.

11. MOTION TO LIMIT DISCOVERY UNDER RULE 192 REQUIRES EVIDENCE In Matter of Issuance of Subpoenas Depositions of Bennett, --- S.W.3d WL (Tex. App. – Houst.[ 14th ] 2016)

12. STANDING TO OBJECT TO DWQs SERVED ON THIRD PARTIES In re R. C. K
STANDING TO OBJECT TO DWQs SERVED ON THIRD PARTIES In re R.C.K., Not Reported in S.W.3d 2016 WL (2016)

13. OPINIONS OF FACT WITNESS NOT DESIGNATED AS TESTIFYING EXPERT STRICKEN Paschal v. Engel, Not Reported in S.W.3d 2016 WL (Tex. App. – Austin 2016)

14. MOTION TO WITHDRAW DEEMED ADMISSIONS, MERIT PRECLUSIVE ADMISSIONS- STANDARD OF REVIEW In re TT Fountains of Tomball, 2016 WL (Tex. App. Houst. 1st 2016)

15. DUE PROCESS REQUIRED The Wheeler court determined that, when requests for admission are merit preclusive, thereby raising due process concerns, the trial court is required to allow their withdrawal unless the party requesting withdrawal acted with “flagrant bad faith or callous disregard of the rules.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005)

16. DEFENSE MEDICAL EXAMINATIONS (DMEs) EVISCERATION OF LESS INTRUSIVE MEANS REQUIREMENT? In re H.E.B. Grocery Company, L.P., --- S.W.3d WL (Tex. 2016)

17. HEB’s defense hinges in large part on its challenges to the nature, extent, and cause of Rodriguez’s injuries. As noted, these issues will in turn depend significantly on competing expert testimony. HEB seeks to allow its expert the same opportunity as Rodriguez’s expert to fully develop and present his opinion, ensuring a fair trial. Without that opportunity, HEB lacks an adequate appellate remedy.

18. DISCOVERY CONTROL ORDERS

19. EFFECT OF CONTINUANCE ON DCO DEADLINES Jafar v
EFFECT OF CONTINUANCE ON DCO DEADLINES Jafar v. Mohammed, Not Reported in S.W.3d, 2016 WL (Tex. App. – Houst. [14th] 2016)

20. DISCOVERY TOOLS

21. DISCLOSURE

22. IDENTIFICATION OF INDIVIDUALS WITH KNOWLEDGE OF RELEVANT FACTS Gibbons v. Luby’s Inc., Not Reported in S.W.3d, 2015 WL (Tex. App. – Fort Worth 2015)

23. EXPERT DISCLOSURE

24. MUST SERVE A REQUEST FOR DISCLOSURE In re C. C, M. C. , L. O. , and H
MUST SERVE A REQUEST FOR DISCLOSURE In re C.C, M.C., L.O., and H.P., 2015 WL (Tex. App. – Amarillo 2015)

25. EXPERT OPINIONS WITHIN MEDICAL RECORDS In Interest of K. M. – J
EXPERT OPINIONS WITHIN MEDICAL RECORDS In Interest of K.M. – J., Not Reported in S.W.3d., 2015 WL (Tex. App. – Houst. [1st Dist. 2015) Harmless error

26. INCOMPLETE DISCLOSURE = FAILURE TO RESPOND RULE 193
INCOMPLETE DISCLOSURE = FAILURE TO RESPOND RULE SANCTIONS In the Interest of D.W. and K.W. --- S.W.3d ---, 2015 WL (Tex. App. – Ft. Worth, 2015)

27. SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc
SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc WL (Tex. App. Houst.14TH 2016)

28. INTERROGATORIES

29. CONTENTION INTERROGATORIES Sheffield Development Company, Inc. v
CONTENTION INTERROGATORIES Sheffield Development Company, Inc. v. Carter & Burgess, Inc., --- S.W.3d ----, 2012 WL (Tex.App.-Waco)

30. REQUESTS FOR PRODUCTION

31. OBJECTIONS FEDERAL COURT WITHHOLDING STATEMENT FED. R. CIV. P
OBJECTIONS FEDERAL COURT WITHHOLDING STATEMENT FED. R. CIV. P. 34(C) An objection must state whether any responsive material are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

32. ANY AND ALL DOCUMENTS facially overbroad both in time and in scope In re Air Liquide Industrial U.S.,LP, 2015 WL (Tex. App. – Beaumont, 2015)

33. REQUEST TO ENTER, INSPECT, AND PHOTOGRAPH PROPERTY

34. MUST LEAD TO ADMISSIBLE EVIDENCE, NOT DEMONSTRATIVE AID In re Goodyear Tire & Rubber Company, 437 S.W. 3d 923 (Tex. App-Dallas 2014, orig. proceeding)

35. REQUESTS FOR ADMISSIONS

36. DEEMED ADMISSIONS SHOULD NOT BE USED TO DISPOSE OF CASE Marino v
DEEMED ADMISSIONS SHOULD NOT BE USED TO DISPOSE OF CASE Marino v. King, 355 S.W.3d 629, (Tex. 2011)

37. MOTION TO WITHDRAW DEEMED ADMISSIONS, MERIT PRECLUSIVE ADMISSIONS- STANDARD OF REVIEW In re TT Fountains of Tomball, 2016 WL (Tex. App. Houst. 1st 2016)

38. DEPOSITIONS

39. SCOPE SAME FOR DEPOSITIONS AS OTHER DISCOVERY DEVICES In re Arpin Moving Systems, LLC, --- S.W.3d WL (Tex. App.- Dallas 2013)

40. MEDICAL AND PSYCHOLOGICAL EXAMINATIONS

41. IT’S NOT AN INDEPENDENT EXAMINATION Guzman v. Jones, 804 F
IT’S NOT AN INDEPENDENT EXAMINATION Guzman v. Jones, 804 F.3d 707, at footnote 1 (5th Cir. 2015)

42. “DANCING WITH WOLVES IN DRAG” TACTICS AND STRATEGY WITH REGARD TO DEFENSE REQUESTED MENTAL AND PHYSICAL EXAMS (DME’S)

43. IMPORTANT HISTORICAL CASES Schlagenhauf v. Holder, 279 U. S. 104, 85 S
IMPORTANT HISTORICAL CASES Schlagenhauf v. Holder, 279 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) Coates v. Whittington, 258 S.W.2d 749 (Tex. 1988) In re Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App. – Dallas 204, orig. proceeding)

44. UPDATE In re H. E. B. Grocery Company, L. P. , --- S. W
UPDATE In re H.E.B. Grocery Company, L.P., --- S.W.3d WL (Tex. 2016)

45. In re Reliable Commercial Roofing Services, Inc., Not Reported in S.W.3d (Tex. App. Houst. 1st Dist. 2016)

46. In re Offshore Marine Contractors, Inc. , --- S. W
In re Offshore Marine Contractors, Inc., --- S.W.3d WL (Tex. App. – Houst. 1st Dist. 2016)

47. EXPERTS

48. BIAS- DISCOVERY OF FINANCIAL RECORDS VERBOTEN In re Ford, 427 S. W
BIAS- DISCOVERY OF FINANCIAL RECORDS VERBOTEN In re Ford, 427 S.W. 3d 396 (Tex. 2014)

49. DISCLOSE AS SOON AS PRACTICABLE Navarrete v. Williams, 342 S. W
DISCLOSE AS SOON AS PRACTICABLE Navarrete v. Williams, 342 S.W.3d 116 (Tex. App.–El Paso 2011, no pet.)

50. DE-DESIGNATION – CONSULTING EXPERT WHO’S MENTAL IMPRESSIONS ARE REVIEWED In re Robins & Morton Group, Not Reported in S.W.3d, 2016 WL (Tex. App. – San Antonio, 2016)

51. DUTY TO SUPPLEMENT AUTOMATIC SANCTIONS NOT CONSIDERED DEATH PENALTY SANCTIONS In Lee v. Wal-Mart, Not Reported in S.W.3d, 2016 WL (Tex. App. - Eastland- 2016)

52. SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc
SANCTIONS FOR INCOMPLETE DISCLOSURE In Re First Transit Inc WL (Tex. App. Houst.14TH 2016)