By: Shabaz Nizami
Effective January 1, 2021, the Texas Supreme Court has made significant amendments to the Texas Rules of Civil Procedure. These new rules attempt to broaden the applicability of expedited action procedures, with the expressed attempt of lowering discovery costs for such lawsuits. The rules also provide changes to the initial disclosure requirements and timing of discovery in all cases, as well the manner in which citations are served on the litigants. This article summarizes some of those changes and provides some observations on how the rule changes could impact cases filed in the new year and beyond.
A. Limitations on Expedited Actions Are Now Expanded
1. Amount in Controversy
Rule 169 of the Texas Rules of Civil Procedure governs expedited actions. These procedures currently apply to cases seeking under $100,000 as the amount in controversy. The amended expedited action procedures increase that limit and will now automatically apply to lawsuits in which claimants seek monetary relief aggregating $250,000 or less. The amended rule also excludes from the amount in controversy requirement interest, statutory or punitive damages and penalties, and attorney’s fees and costs.
2. Discovery Limitations
The discovery period in Level 1 expedited actions has been narrowed. Now it will start when initial disclosures are due and end 180 days after that date. Each party is now allowed 20 hours of total oral deposition time, an increase from the 6 hours currently allowed. However, the trial court can modify this limit within its discretion.
3. Trial Date and Continuances
Expedited actions must be set for a trial date within 90 days after the end of the discovery period and can be continued twice, up to a total of 60 days.
4. Observations on Amendments
According to the comments to the amendments pertaining to expedited actions, the Supreme Court stated that its intent is to implement relevant portions of the Texas Government Code—Section 22.004(h-1) of the Texas Government Code calls for “rules to promote the prompt, efficient, and cost-effective resolution of civil actions”—by balancing the need for lowering discovery costs against the complexity of the lawsuits. However, this amendment may now give litigants pause in formulating their litigation pleading strategy, in that parties may now be hesitant to plead into the amended expedited action rule for fear of being governed by expedited timelines and verdict limits. Additionally, given the increased case volume the amendment is likely to cause, it remains to be seen if courts will have capacity to set and call to trial these cases—especially in light of the backlog of cases due to the COVID-19 pandemic.
B. Texas Goes Federal with its Disclosure Requirements
1. Timing on Serving Discovery
Under the amendments to Rule 192.2(a), unless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery until after the initial disclosures are due.
2. Required Disclosures
Requests for disclosures under Rule 194 will now be known as “required disclosures.” The Texas Supreme Court noted that the amendment was based on Federal Rule of Civil Procedure 26(a), to require disclosure of basic discovery automatically, without awaiting a discovery request. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures. Similarly, the failure of one party to make its disclosures does not excuse the other party of its obligation to comply.
The content of the initial disclosures is similar to the material listed for requests for disclosures under the current version of rule 194, except that rule 194.3 now provides that testifying expert disclosures will be made in conformance with rule 195, discussed below. In addition to the information required under the current rules, parties now also must disclose a computation of each category of damages and provide copies—or a description by category and location—of documents in support of such computation, as well as any documents they may use to support their claims or defenses.
3. Timing of Required Disclosures
Barring an agreement or court order, all parties must make their initial disclosures within 30 days after the first answer is filed. Parties that are served or joined after the first answer is filed must make the initial disclosures within 30 days of being served or joined.
4. Pretrial Disclosures
Rule 194.4 governs pretrial disclosures. Parties now must provide identifying information about witnesses, documents, and exhibits that they may present at trial, other than solely for impeachment purposes, at least 30 days before trial unless the court orders otherwise. The parties are to separately identify the witnesses and items that they expect to be present or offered versus those that they may call or use only if the need arises.
5. Observations on Amendments
There are both benefits and drawbacks to the requirement that discovery cannot be served until after the initial disclosures are made. For instance, a benefit could be that each party will have a better frame of reference when drafting their later discovery requests. On the other hand, a drawback to this amendment could be that it is viewed as an unnecessary delay to parties who are accustomed to state court litigation and want to get a quick handle on issues that may fall outside of the scope of the initial disclosures.
C. Discovery Regarding Testifying Experts
1. Schedule for Designating Experts
Except as otherwise ordered by the court, parties seeking affirmative relief must designate experts 90 days before the end of the discovery period. All other experts must be designated 60 days before the end of the discovery period. The Supreme Court removed the current language pertaining to designations occurring by the later of the above dates or 30 days after a request is served.
2. Expert Disclosures and Reports
The material from the previous requests for disclosure rule pertaining to experts has been moved to Rule 195.5, with a couple of additions based on Federal Rule 26(a)(2)(B). Without awaiting a discovery request, parties now must disclose information for testifying experts. In addition, for retained experts, parties now must provide (i) the expert’s qualifications, including a list of all publications authored in the previous 10 years, (ii) a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition, and (iii) a statement of the compensation to be paid for the expert’s study and testimony in the case.
3. Observations on Amendments
This could prove to be beneficial to the litigants, as additional information will allow each party to more thoroughly prepare for rebutting expert testimony and deposing experts.
D. Rule 106 Substituted Service: the Use of Social Media, Email, and Other Technology in Serving Citations on Litigants
1. Who May Serve Process
The changes to rule 106 take effect on December 31, 2020. Rule 106(a) no longer requires service of a citation “by any person authorized under Rule 103” and expands the methods for service of citation.
For instance, Rule 106(b) dealing with substituted service has been changed to assist plaintiffs that have trouble tracking someone down for service. Rule 106(b)(2) now allows a court—upon motion supported by a statement sworn to before a notary or made under penalty of perjury that traditional methods of service were not successful—to authorize substituted service by social media, email, or other technology that will be reasonably effective to give the defendant notice of the lawsuit.
2. Observations on Amendment
If process servers cannot find the defendant in person, plaintiffs may soon file a motion requesting alternative service “in any other manner, including electronically by social media, email, or other technology, that the [process server’s] statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” This means courts may soon allow plaintiffs to post lawsuits on Facebook, Instagram, Twitter, and other social media platforms if there is evidence the defendant regularly uses such accounts and will be likely to see that a lawsuit has been filed against them.
This amendment likely will be more helpful to plaintiffs, as defendants occasionally can elude process servers by avoiding service by mail or process server, even when they remain visibly active on their social media accounts. It will be interesting to see how the Courts address the threshold issue of when a defendant “regularly uses” their social media accounts.