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Texas Civ Pro

Terms in this set (23)

If a a defendant was served with discovery requests before his answer to the petition is due, he has 50 days from service of the requests for disclosure. Otherwise his responses are due by 30 days after the requests for disclosure are served. Rule 194 identifies discoverable matters that are so automatic they are not subject to objection. The names and information for persons with knowledge of relevant facts are not subject to objection. The request for relevant papers is not listed under the rule and therefore may be objected to.


Rule 194 identifies discoverable matters that are so automatic they are not subject to objection. That does not include all evidence the plaintiff will offer at trial. Any indemnity or insuring agreements; a testifying expert's name, address, and telephone number; and, in personal injury cases, medical bills reasonably related to the injuries are examples of matters covered by Rule 194 and not subject to objection.


A party may request disclosure from another party of the information and material listed below by serving the following request: "Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule 194.2 (__) [state rule]." No objection is permitted. The content that may be requested is as follows: (i) the correct names of the parties; (ii) the names, addresses, and telephone numbers of potential parties; (iii) the legal theories and, in general, the factual bases of the responding party's claim or defenses (the responding party need not marshal all evidence that may be offered at trial); (iv) the amount and any method of calculating economic damages; (v) the names, addresses, and telephone numbers of persons with knowledge of relevant facts and a brief statement of their connection with the case; (vi) expert information; (vii) any discoverable indemnity and insuring agreements; (viii) any discoverable witness statements; (ix) in a personal injury suit, all medical records and bills reasonably related to the injuries or damages asserted, or in lieu thereof, an authorization permitting disclosure of such records and bills; (x) in a personal injury suit, all medical records and bills obtained by virtue of an authorization furnished by the requesting party; and (xi) the name, address, and telephone number of any person who may be designated as a responsible third party.
If a defendant fails to appear at his deposition, the plaintiff may move the court for sanctions and to compel the defendant to appear at a rescheduled deposition. If the witness is a party, or employed by, retained by, or otherwise subject to the control of a party, service of the notice on the party's attorney has the same effect as a subpoena. A notice of deposition may include a request that the witness produce documents or things at the deposition. The request and the required response must comply with the rules concerning discovery of documents and things, including the 30-day time limit required for a response. If a defendant desires to object to a request to produce, he must file a motion for a protective order within 30 days after service of the subpoena.

A motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within three business days of service, the objection stays the deposition until the objection is resolved. Notice of deposition acts as a subpoena as to a party to the suit (but not as to nonparties), so Defendant may not simply ignore the notice. If Plaintiff's attorney gives at least 5 days' notice, the deposition can be recorded by nonstenographic means, including videotape. The party requesting the nonstenographic recording is responsible for assuring that the recording will be intelligible, accurate, and trustworthy.

The witness is a party, so service of the notice on the party's attorney has the same effect as a subpoena. A witness may be deposed in the county of the witness's residence, the county where the witness is employed or regularly transacts business in person, the county of suit (if the witness is a party or designated by a party), the county where the witness is served with a subpoena, or within 150 miles of the place of service (if the witness is not a Texas resident or is a transient), or at any other convenient place directed by the court. If the party gives at least five days' notice, the deposition can be recorded by nonstenographic means, including videotape.


No side may examine or cross-examine an individual witness for more than six hours. A deposition may be suspended because the time limit has expired, so an objection to terminating the deposition will not be sustained. Defendant's objection to Plaintiff's attorney conferring with a witness will be sustained. Private conferences between a witness and his attorney are not allowed except regarding the assertion of a privilege. Plaintiff's objections as to form, leading questions, and nonresponsiveness are permissible.

Ordinarily, the notice must be served on the parties a reasonable time before the deposition is taken. However, when a notice of deposition includes a request that the party produce documents or things at the deposition, the notice for a deposition and the request for production of documents also must comply with the rules concerning discovery of documents or things, including the 30-day time limit required for a response.
Summary judgment is based on the general principle that in some cases the evidentiary record entitles the moving party to judgment as a matter of law. A party may move for, and a court may grant, summary judgment on either on the basis that there is no genuine issue of material fact or that no evidence has been presented as to one or more elements of a claim or defense. If the basis of the motion is that no genuine disputed issue of material fact exists, the moving party must submit evidence with the motion (i.e., pleadings, affidavits, stipulations, authenticated or certified public records, deposition transcripts, and other products of discovery on file show) to show that there is no genuine disputed issue of material fact in the case, and the moving party is entitled to judgment as a matter of law. If the basis of the motion is that no evidence has been presented as to one or more elements of a claim or defense, the motion must state the elements as to which there is no evidence, but it need not contain summary judgment evidence (i.e., affidavits, transcripts, etc.). The adverse party must then produce summary judgment evidence raising a genuine issue of material fact. Unless the adverse party can do so, the court must grant the motion for summary judgment.

A motion for summary judgment, or a response to a motion for summary judgment, may be supported by pleadings, affidavits, stipulations by the parties, authenticated or certified public records, deposition transcripts, and other products of discovery on file. However, no oral testimony is heard at the summary judgment hearing.

Be made by a nonparty (parties will be expected to testify at the hearing on the motion for summary judgment). Affidavits made for the motion for summary judgment must (i) be made on the personal knowledge of the affiant; (ii) affirmatively show that the affiant would be competent to testify; and (iii) state facts that would be admissible in evidence (i.e., hearsay and opinion, except in accordance with evidentiary rules, have no effect).