PREVENTING AND PREPARING FOR DISCOVERY DISPUTES
OR
WHAT TO DO WHEN THE GRENADE HAS HAD THE PIN PULLED?

REGINALD A. HIRSCH
LIPSTET & HIRSCH, L.L.P.
1980 Post Oak Boulevard, Ste 1780
Houston, Texas 77056
(713) 961-7800

AND

JUDY WARNE
3816 West Alabama
Houston, Texas 77027
(713) 626-9501

9th Annual Family Law Conference
for the General Practitioner & Legal Assistant
South Texas College of Law
February 18-19, 1999
Houston, Texas

 

TABLE OF CONTENTS

I. PURPOSE OF THE REVISIONS
II. LISTING OF THE NEW RULES
III. DISCOVERY LIMITATIONS
IV. DISCOVERY LEVELS

A. Discovery Control Plan Level 1:
1. $50,000 or Less
2. Exceptions
3. Limitations
B. Discovery Control Plan Level 2:
1. Application
2. Limitations
C. Discovery Control Plan Level 3:
1. Applies
2. Limitations
D. Modification of Discovery Control Plan

V. PROCEDURES

A. Signature Requirements
B. Filing of Discovery Materials
VI. SCOPE OF DISCOVERY
A. Generally
VII. SUBPOENAS

VIII. WRITTEN DISCOVERY GENERALLY

A. Definitions
B. Responses
C. Objections
D. Asserting a Privilege
E. Amending and Supplementing Responses to Written Discovery
F. Failure to Timely Respond
G. Consequences of Production
H. Protective Orders
IX. REQUESTS FOR DISCLOSURE
A. The Request
B. Content
C. The Response
D. Applicability of the Harris County Local Rules Relating to Disclosure
X. INTERROGATORIES
A. Number
B. Procedure
C. Responding
D. Use
XI. REQUEST FOR ADMISSIONS
A. Procedure
B. Response
C. Effect
XII. REQUESTS FOR PRODUCTION
A. Procedure
B. Response
XIII. REQUEST OR MOTION FOR ENTRY UPON PROPERTY
A. Procedure
B. Response
C. Order
XIV. ORAL DEPOSITIONS
A. Procedure
B. Notice
C. Recording
D. Attendees
E. Duces Tecum
F. Compelling Attendance
G. Objections to Time or Place
H. Conduct
I. Hearing on Objections
J. Expert Depositions
K. Signature and Changes
L. Delivery
M. Exhibits
N. Objections to Transciptions/Delivery/Signing
O. Use
XV. DEPOSITIONS BY WRITTEN QUESTIONS
A. Procedure
B. Content
C. Attendance
D. Conduct
XVI. DEPOSITIONS IN FOREIGN JURISDICTIONS
A. Generally
B. Notice
C. Objections
D. Methods
XVII. PHYSICAL AND MENTAL EXAMINATIONS
A. Motion and Order
B. Report
C. Effect
D. Titles II or V of the Family Code
XVIII. DISCOVERY FROM NONPARTIES
A. Forms
B. Notice
C. Production without Deposition
XIX. SANCTIONS
A. Motion
B. Available Sanctions
APPENDIX:

Check List for the New Rules
The Hirsch/Warne Discovery Cheat Sheet
Local Rules for the District Courts of Harris County, Texas, Family Trial Division

A complete Text of the Revisions can be found on the Supreme Court's website which is www.supreme.courts.state.tx.us and is also printed in the December 1998 issue of the Texas Bar Journal.

I. PURPOSE OF THE REVISIONS

In order to more fully understand the changes to the discovery rules that we are about to discuss, I believe it is helpful to review and keep in mind the purpose for the revisions:

A. The revisions impose limits on the volume of discovery in an attempt to curb abuses and reduce cost and delay.

B. The new rules seek to modernize and streamline current discovery practice by eliminating wasteful procedures and improving others; and

C. The revisions reorganize and reword a number of the current discovery rules in an effort to improve clarity, accessibility, and understanding since some of the old rules still contain language from statutes enacted over a century ago.

II. LISTING OF THE NEW RULES There are 16 new rules which replace the former 24 rules are considered by the Supreme Court to be in a more rational sequence, as follows:

Rule 176: Trial and discovery subpoenas
Rule 190: Discovery volume limitations; tracking
Rule 191: Modification of discovery limitations; conference, certification, and filing rules
Rule 192: Scope and form of discovery; work product; protective orders; definitions
Rule 193: Procedures governing written discovery requests, responses, and objections
Rule 194: Requests for disclosure
Rule 195: Discovery regarding testifying experts
Rule 196: Requests for production and inspection; requests and motions for entry upon property.
Rule 197: Interrogatories
Rule 198: Requests for admissions
Rule 199: Oral depositions
Rule 200: Depositions upon written questions
Rule 201: Depositions in foreign jurisdictions for use in Texas proceedings; depositions in Texas for use in foreign proceedings
Rule 202: Depositions before suit or it investigate claims
Rule 203: Signing and certification of oral and written depositions
Rule 204: Motions for physical and mental examinations
Rule 205: Discovery from nonparties

The foregoing rules replace the following current rules:

166b, 166c, 167, 167a, 168, 169, 176, 177, 177a, 178, 179, 187, 188, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 737

In addition to the foregoing, Rule 215 has been modified to be consistent with the revised rules and incorporates Rule 203. Please note that the substance of former Rules 215(4)(a) and 215(5) are covered by new Rules 198 and 193, respectively.

The following is a summary of the new Texas Rules of Civil Procedure and Local Rules of Harris County which are catorgorized according to each type of discovery process.

III. DISCOVERY LIMITATIONS

Rule 190 introduces the concept of reasonable limits on the volume of discovery. It is intended to: (1) compel parties to consider the need for discovery prior to seeking it; and (2) encourage courts to actively monitor discovery to reduce unnecessary cost and delay.

RULE NO.
CONTENTS
190.1Discovery Control Plan applies to every case. Petitioner must allege in first paragraph of first pleading if discovery is to be conducted under Level 1, 2 or 3
190.6Not Applicable to Rule 202 (Depositions before Suit) or Rule 621a (Discovery & Enforcement of Judgment)
190.2(d)When filing of a pleading, or amended or supplemental pleading renders this subdivision no longer applicable, the discovery period reopens and must be completed pursuant to Rules 190.3 or 190.4. Any person previously deposed may be redeposed. On motion of any party, court should continue the trial date to permit completion of discovery.
191.1Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause. An agreement of the parties is enforceable if it complies with Rule 11 or, as it affects an oral deposition, if it is made a part of the record of the deposition.
191.2Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.

IV. DISCOVERY LEVELS

A. Discovery Control Plan Level 1:
1. $50,000 OR LESS

190.2(a)This level applies to all Plaintiff's who affirmatively plead for monetary relief of $50,000 or less, excluding costs, pre-judgment interest and attorney's fees or divorce with no children and marital estate is over zero but not more than $50,000

2. Exceptions:

190.2(b)Parties agree to Level 2

Court orders a discovery control plan (Level 3)

Amended/Supplemented Pleading more than 45 days before trial that seeks relief not available in a Level 1 case

3. Limitations:

190.2(c)Discovery period begins when the suit is filed and ends 30 days prior to trial

Maximum of 6 hours per party for oral depositions (Parties may agree to expand limit up to 10 hours in total, but not more except by court order.)

No more than 25 interrogatories which includes discrete subparts but excludes identification and authentication of documents

190.2(b)When amendment or supplemental pleading makes Level 1 inapplicable, discovery goes to new level and court should continue trial as necessary.

B. Discovery Control Plan Level 2:

1. Application

190.3(a)Applies unless Level 1 or 3 governs

2. Limitations

190.3(b)Discovery period begins when suit is filed and ends 30 days prior to trial

Maximum of 50 hours of depositions to examine and cross-examine:

Parties on the opposing side
Experts designated by those parties
Persons subject to those parties' control

"Side" refers to all litigants with generally common interests in the litigation

If there are more than 2 experts on one side - additional six hours per additional expert

Court may modify deposition hours and must do so when a side or party is given an unfair advantage

No more than 25 Interrogatories excluding interrogatories asking a party only to identify or authenticate documents.

Each discrete subpart of an interrogatory is considered a separate interrogatory.

C. Discovery Control Plan Level 3:
1. Applies

190.4(a)Court must on a party's motion and may on its own motion make a tailored discovery control plan

Parties may submit an agreed order

Court should act on party's motion or agreed order as promptly as reasonably possible

2. Limitations

190.4(b)May address any issue listed in Rule 166 or change any limitation on time or amount of discovery

Limitations of Rule 190.2, if applicable, apply or otherwise Rule 190.3 apply unless specifically changed in a court ordered discovery control plan.

Plan must include:

Date for trial or for a conference to determine a trial setting;

Discovery period during which (1) all discovery must be conducted; or (2) all discovery requests must be sent, for the entire case or an appropriate phase of it;

Appropriate limits on the amount of discovery; and

Deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.

D. Modification of Discovery Control Plan

190.5Court may modify at any time.

Court must do so when the interest of justice requires

Court must allow additional discovery:
190.5(a)Related to new, amended or supplemental pleadings or new information disclosed if:
Made after the completion deadline or so nearly before the deadline, the adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and

The adverse party would be unfairly prejudiced without additional discovery

Regarding matters that have changed materially after the discovery cutoff if trial is set or postponed more than 3 months after the end of the discovery periods.

190.6This rule's limitations on discovery do not apply to discovery conducted under Rule 202 or Rule 621a; but, Rule 202 cannot be used to circumvent the limitations of this rule.

V. PROCEDURES
A. Signature Requirements

191.3The attorney or the party's signature is required on every disclosure, discovery request, notice, response and objection.
191.3(b)The signature of the attorney or the party, certifies that to the best of the signer's knowledge, information and belief formed after reasonable inquiry, the disclosure is complete and correct at the time made.
191.3(c)The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's knowledge, formed after a reasonable inquiry, the request, notice, response, or objection:
Is consistent with the Rules of Civil Procedure and discovery rules and warranted by existing law or a good faith agreement for the extension, modification or reversal of existing law;

Has a good faith factual basis;

Not interposed for any improper purpose; and

Is not unreasonable or unduly burdensome or expensive given the issues of the case.

191.3(d)If a required document is not signed, it must be stricken unless it is signed promptly after the omission is pointed out. A party is not required to take any action with respect to a request or notice that is not signed.
191.3(e)If the certification is false without substantial justification, Court may, upon motion or its own initiative, impose an appropriate sanction for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.

B. Filing of Discovery Materials

191.4(a)MUST NOT FILE WITH THE COURT:
Discovery requests, deposition notices and subpoenas required to be served only on parties.

Responses and objections to discovery request and deposition notices

Documents and tangible things produced

Statements prepared in compliance with Rule 193.3(b) or (d) - (a response indicating that material or information has been withheld from production OR an amended response which identify material or information that was previously produced is privileged.)

191.4(b)MUST FILE WITH THE COURT:
Discovery requests, depositions notices and subpoenas served on non-parties

Discovery motions and responses to motions; and

Rule 11 agreements concerning discovery matters

191.4(c)EXCEPTIONS:
Court order

Person may file discovery materials in support of or in opposition to a motion or for other use in a court proceeding; and

Necessary for proceeding in appellate court

191.4(d)If discovery material is not required to be filed, the original or exact copy must be retained for six months after case is over (includes appeal proceedings) unless otherwise provided by trial court.
191.5All disclosure, discovery request, notice, response, and objection is required to be served on all parties of record.

VI. SCOPE OF DISCOVERY
A. Generally

192.3(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(b) Documents and tangible things. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession, custody, or control.

(c) Persons with knowledge of relevant facts. A party may obtain discovery of the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not have admissible information or personal knowledge of the facts. An expert is "a person with knowledge of relevant facts" only if that knowledge was obtained first-hand or if it was not obtained in preparation for trial or in anticipation of litigation.

(d) Trial witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.

(e) Testifying and consulting experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which a testifying expert will testify;

(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;

(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;

(5) any bias of the witness;

(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;

(7) the expert's current resume and bibliography.

(f) Indemnity and insuring agreements. Except as otherwise provided by law, a party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.

(g) Settlement agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.

(h) Statements of persons with knowledge of relevant facts. A party may obtain discovery of the statement of any person with knowledge of relevant facts - a "witness statement" - regardless of when the statement was made. A witness statement is (1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording. Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.

(i) Potential parties. A party may obtain discovery of the name, address, and telephone number of any potential party.

(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.

192.4Limitations on Scope of Discovery. The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or

(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

192.5 Work Product.

(a) Work product defined. Work product comprises:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

(b) Protection of work product.

(1) Protection of core work product - attorney mental processes. Core work product - the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories - is not discoverable.

(2) Protection of other work product. Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.

(3) Incidental disclosure of attorney mental processes. It is not a violation of subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally discloses by inference attorney mental processes otherwise protected under subparagraph (1).

(4) Limiting disclosure of mental processes. If a court orders discovery of work product pursuant to subparagraph (2), the court must - insofar as possible - protect against disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable.

(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery:

(1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions;

(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;

(3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;

(4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and

(5) any work product created under circumstances within an exception to the dsattorney-client privilege in Rule 503(d) of the Rules of Evidence.

(d) Privilege. For purposes of these rules, an assertion that material or information is work product is an assertion of privilege.

192.6Protective Orders.

(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.

(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may - among other things - order that:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

VII. SUBPOENAS
176.1All subpoenas must be issued in the name of "The State of Texas"

All subpoenas must contain:

The style, court and cause number of the suit

Date of issuance

Name of the Subpoenaed Witness

Time, Place and Action required by the Witness

Name of the Party Issuing the Subpoena

Text Contained in T.R.C.P. 176.8

176.2Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;

(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.

176.8(a)Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
176.8(b)Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
176.1the signature of the issuing party
191.3(a)
194(b)(1)
191.4
Not to be filed with the Clerk if served on a party; must be filed with the Clerk if served on non-party
176.3Valid within 150 miles from where the person resides or is served.
199.2(b)(2)If subpoena is for oral deposition, the place may be in:
County of the witness's residence

County where the witness is employed or regularly transacts business in person

County of suit, if witness is a party or person designated by a party

County where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or

Subject to the foregoing, at any other convenient place directed by the court in which the cause is pending.

199.2(b)(5)Subpoena may include a request that the witness produce at the deposition documents or tangible things within the scope of discovery and within the witness' possession, custody, or control. If the witness is a nonparty, the request must comply with Rule 205 and materials required to be identified in the subpoena must be attached to, or included in, the notice. When witness is a party or subject to control of a party, document requests are governed by Rules 193 and 196.
199.3
200.2
Subpoena can be used for party and non-party depositions and duces tecum. "A party may compel the witness to attend the oral deposition by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party's attorney has the same effect as a subpoena served on the witness."
176.4May be issued by Clerk of Court, or Attorney for a party, or Court Reporter
176.5aMay be served by Sheriff or Constable, or Non-party person over 18 years of age
199.3May be served on the witness' attorney of record if the witness is a party to the suit.
176.5(b)Proof of Service by:
Memorandum signed by witness acknowledging receipt, or

Statement by person serving stating date, time, manner of service

176.6Response:
176.6(a)The witness served with the subpoena must comply with the command unless discharge by the court or the party issuing the subpoena.

A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or the party issuing the subpoena.

176.6(c)If the subpoena requests the production of documents, the witness need not appear unless commanded to appear and/or give testimony either in the same subpoena or a separate one. The requested documents must be produced as they kept in the usual course of business or must organize and label them to correspond with the categories in the demand.
176.6(c)Privileged information may be withheld but must comply with Rule 193.3.
193.3Must state in a response or in a separate document that (1) information to the request has been withheld; (2) the request to which the information relates; and (3) the privilege(s) asserted. See Rule 193.3 (b) for further analysis of Description of Withheld Material or Information; Rule 193.3(c) for Exemptions and 193.3(d) for Privilege not Waived by Production).
199.2(b)(5)The nonparty's response to the subpoena is governed by Rules 176 and 205.
205A party may compel discovery from a nonparty - that is, a person who is not a party or subject to a party's control - only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena compelling:
an oral deposition;

a deposition on written questions;

a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and a request for production of documents under this rule.

205.2A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. This notice must be served before or at the same time that the subpoena is served.
205.3A party may compel production of documents from a nonparty by serving on the nonparty and all parties - a reasonable time before the response is due but no later than 30 days before the end of any applicable discovery period - the notice required in Rule 205.2 and a subpoena compelling production or inspection of documents or tangible things.

The notice must state:

(1) the name of the person from whom production or inspection is sought to be compelled;

(2) a reasonable time and place for the production or inspection; and

(3) the items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling.

If a party requests a nonparty to produce medical or mental health records of another nonparty, the requesting party must serve the nonparty whose records are sought with the notice required under this rule. This requirement does not apply under the circumstances set forth in Rule 196.1(c)(2).

The nonparty must respond to the notice and subpoena in accordance with Rule 176.6.

The party obtaining the production must make all materials produced available for inspection by any other party on reasonable notice, and must furnish copies to any party who requests at that party's expense.

A party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production.

176.6eProtective Orders:

Any person affected by subpoena may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the Court where the action is pending or in a district court in a county where the subpoena was served.

All parties must received a copy of the Motion for Protective - Rule 21a.

Witness does not have to comply with the part of a subpoena from which protection is sought unless ordered by the Court.

Party issuing subpoena may seek an order on the motion for protection at any time after the motion for protection is filed.

176.6(f)Trial or Hearing Subpoenas

If the subpoena commands that the witness appear for testimony and/or to produce documents at a hearing or trial, witness may make objection or move for protective order at the time and place specified for compliance, rather than before the time specified for compliance.

176.7Person requesting subpoena must take necessary steps to avoid undue burden and expense to witness.
176.8Subpoenas may be enforced by Contempt of Court, and/or Fine, provided affidavit is attached stating that all necessary witness fees have been paid or tendered
176.3(b)Subpoena is not to be used to circumvent discovery rules. A party is still subject to all discovery rules.

VIII WRITTEN DISCOVERY GENERALLY

A. Definitions

192.7Definitions. As used in these rules -

(a) Written discovery means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.

(b) Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.

(c) A testifying expert is an expert who may be called to testify as an expert witness at trial.

(d) A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.

B. Responses

193.1Responding to Written Discovery; Duty to Make Complete Response. A party must respond to written discovery in writing within the time provided by court order or these rules. When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made. The responding party's answers, objections, and other responses must be preceded by the request to which they apply.
193.7A nonparty's production of documents authenticates the document for use against the nonparty.

C. Objections

176.6(d)Must be made prior to time specified for compliance

Witness does not have to comply with the part of a subpoena to which objection is made unless ordered by the Court.

Party issuing subpoena may move for an order to compel production at any time after an objection is made.

193.2Objecting to Written Discovery.

(a) Form and time for objections. A party must make any objection to written discovery in writing - either in the response or in a separate document - within the time for response. The party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.

(b) Duty to respond when partially objecting; objection to time or place of production. A party must comply with as much of the request to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection. If the responding party objects to the requested time or place of production, the responding party must state a reasonable time and place for complying with the request and must comply at that time and place without further request or order.

(c) Good faith basis for objection. A party may object to written discovery only if a good faith factual and legal basis for the objection exists at the time the objection is made.

(d) Amendment. An objection or response to written discovery may be amended or supplemented to state an objection or basis that, at the time the objection or response initially was made, either was inapplicable or was unknown after reasonable inquiry.

(e) Waiver of objection. An objection that is not made within the time required, or that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.

(f) No objection to preserve privilege. A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.

D. Asserting a Privilege

193.3Asserting a Privilege. A party may preserve a privilege from written discovery in accordance with this subdivision.
(a) Withholding privileged material or information. A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response. The party must state - in the response (or an amended or supplemental response) or in a separate document - that:
(1) information or material responsive to the request has been withheld,

(2) the request to which the information or material relates, and

(3) the privilege or privileges asserted.

(b) Description of withheld material or information. After receiving a response indicating that material or information has been withheld from production, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld. Within 15 days of service of that request, the withholding party must serve a response that:
(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and

(2) asserts a specific privilege for each item or group of items withheld.

(c) Exemption. Without complying with paragraphs (a) and (b), a party may withhold a privileged communication to or from a lawyer or lawyer's representative or a privileged document of a lawyer or lawyer's representative

(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and

(2) concerning the litigation in which the discovery is requested.

(d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if - within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made - the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.

193.4 Hearing and Ruling on Objections and Assertions of Privilege.
(a) Hearing. Any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule. The party making the objection or asserting the privilege must present any evidence necessary to support the objection or privilege. The evidence may be testimony presented at the hearing or affidavits served at least seven days before the hearing or at such other reasonable time as the court permits. If the court determines that an in camera review of some or all of the requested discovery is necessary, that material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing.

(b) Ruling. To the extent the court sustains the objection or claim of privilege, the responding party has no further duty to respond to that request. To the extent the court overrules the objection or claim of privilege, the responding party must produce the requested material or information within 30 days after the court's ruling or at such time as the court orders. A party need not request a ruling on that party's own objection or assertion of privilege to preserve the objection or privilege.

(c) Use of material or information if no ruling. A party need not request a ruling on that party's own objection or assertion of privilege to preserve the objection or privilege, but a party may not use - at any hearing or trial - material or information withheld from discovery under a claim of privilege, including a claim sustained by the court, without timely amending or supplementing the party's response to that discovery.

E. Amending and Supplementing Responses to Written Discovery

193.5(a)Duty to amend or supplement. If a party learns that the party's response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct, the party must amend or supplement the response:
(1) to the extent that the written discovery sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, and

(2) to the extent that the written discovery sought other information, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses.

193.5bTime and form of amended or supplemental response. An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly. An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be verified by the party, but the failure to comply with this requirement does not make the amended or supplemental response untimely unless the party making the response refuses to correct the defect within a reasonable time after it is pointed out.

F. Failure to Timely Respond

193.6(a)Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or

(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

193.6(b)Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.
193.6(c)Continuance. Even if the party seeking to introduce the evidence or call the witness fails to carry the burden under paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response.

G. Consequences of Production

193.7Production of Documents Self-Authenticating. A party's production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless - within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used - the party objects to the authenticity of the document, or any part of it, stating the specific basis for objection. An objection must be either on the record or in writing and must have a good faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. If objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity.

H. Protective Orders

192.6(a)A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.
192.6(b)To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may - among other things - order that:
(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

IX. REQUESTS FOR DISCLOSURE
A. The Request

194.1Request. A party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party - no later than 30 days before the end of any applicable discovery period - 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 [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g)]."

B. Content

194.2A party may request disclosure of any or all of the following:

(a) the correct names of the parties to the lawsuit;

(b) the name, address, and telephone number of any potential parties;

(c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial);

(d) the amount and any method of calculating economic damages;

(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case;

(f) for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:

(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and

(B) the expert's current resume and bibliography;

(g) any indemnity and insuring agreements described in Rule 192.3(f);

(h) any settlement agreements described in Rule 192.3(g);

(i) any witness statements described in Rule 192.3(h);

(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;

(k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party.

NOTE: This is the ONLY MEANS OF WRITTEN DISCOVERY for discovery expert information.

C.The Response

194.3 Response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that:
(a) a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request, and

(b) a response to a request under Rule 194.2(f) is governed by Rule 195.

194.4Production. Copies of documents and other tangible items ordinarily must be served with the response. But if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.
194.5No Objection or Assertion of Work Product. No objection or assertion of work product is permitted to a request under this rule.
194.6Certain Responses Not Admissible. A response to requests under Rule 194.2(c) and (d) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.
195.1Permissible Discovery Tools. A party may request another party to designate and disclose information concerning testifying expert witnesses only through a request for disclosure under Rule 194 and through depositions and reports as permitted by this rule.
195.2Schedule for Designating Experts. Unless otherwise ordered by the court, a party must designate experts - that is, furnish information requested under Rule 194.2(f) - by the later of the following two dates: 30 days after the request is served, or -
(a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period;

(b) with regard to all other experts, 60 days before the end of the discovery period.

D. Applicability of the Harris County Local Rules relating to Disclosure

4.1 Temporary Orders. In any hearing for temporary orders in which child support or spousal support is an issue, completion and exchange of Financial Information Statements, copies of income tax returns for the past two years, and the tow most recent payroll stubs are required prior to the commencement of the hearing. This rule providing for the exchange of information shall constitute a discovery request under the Texas Rules of Civil Procedure, and failure to comply with this rule may be grounds for sanctions, as provided by Rule 215 of the T.R.C.P. Sanctions shall not issue if the judge or associate judge determines that the failure to comply was not willful.

4.2 Final Information. A party's final Inventory, Financial Information Statement and financial information required under the Texas Family Code including, but not limited to, the party's income tax returns for the past two years and the party's two most recent payroll stubs, as well as suggested findings regarding child support and a proposed division of property shall be exchanged no later than ten (10) days before trial, and shall be filed before the commencement of trial. If children are involved in the proceeding, the inventory shall contain sufficient information so the court may render a qualified medical child support order regarding health insurance for the children. This rule providing for the exchange of information shall constitute a discovery request under the T.R.C.P., and failure to comply with this rule may be grounds for sanctions.

4.3 Inventory. Each inventory shall list of property and its value, and shall also list each liability, together with the amount of the liability, the number of periodic payments in arrears, if any, the property securing its payment, and the name of the creditor. Any property or liability claimed to be separate property shall be so characterized. All beneficial interests in insurance and all benefits arising from a party's employment (such as pensions, profit sharing plans, savings or thrift plans, whether vested or non-vested) shall be identified. Each party shall incorporate as an exhibit to the inventory the last information furnished about to the employee's rights and monetary interest in the retirement and savings plans. Each party shall also furnish sufficient information so the court may render a qualified domestic relations order, if applicable. A summary attached to the inventory shall list and total, in columnar format, the property values and liabilities. Each inventory shall show the net worth of the community estate and the net worth of any claimed separate estate.

4.4Without waiting for a discovery request, each party to a suit for divorce, annulment, or a suit in which child or spousal support is in issue, has a duty of disclosure of certain information to the other party. "Disclosure" includes providing for inspection and copying the information in the party's "possession, custody or control," as that phase is defined in Rule 166b(2)(b) of the T.R.C.P. Different types of suits require disclosure of different information.
4.4.1.Disclosure in Suit for Divorce or Annulment. Each party to a suit for divorce or annulment shall, without waiting for a discovery request, provide to the other party the following information about property in which the party claims an interest:
1) All documents pertaining to real estate;

2) All documents pertaining to any pension, retirement, profit-sharing, or other employee benefit plan, together with the most recent account statement for any plan;

3) All documents pertaining to any life, casualty, liability, and health insurance;

4) the most recent account statement pertaining to any account located with any financial institution including, but not limited to, banks, savings & loans, credit unions, and brokerage firms.

4.4.2 Disclosure in Suit in which Child or Spousal Support is in Issue. Each party to a suit in which child support or spousal support is in issue shall, without waiting for a discovery request, provide to the other party the following information:
All policies, statements, and descriptions of benefits which reflect any and all medical and health insurance coverage that is or would be available for the child or the spouse;

Unless the information has previously been exchanged in connection with a temporary hearing (Rule 4.1), a Financial Information Statement for the party, together with that party's previous two years income tax returns and two most recent payroll check stubs, or, if no payroll check stubs are available, the party's latest Form W-2.

4.4.3Failure to Comply. This rule providing for the duty of disclosure shall constitute a discovery request under T.R.C.P., and failure to comply with this rule (or any of its subparts) may be grounds for sanctions, as prescribed by Rule 215 of T.R.C.P.

4.4.4 Method of Disclosure.
1) Timing of Disclosure. Disclosure required under this rule shall be made as follows:
1. by a Petitioner or Movant within 30 days after the Respondent files Respondent's first pleading or makes a general appearance in the case;

2. by a Respondent within 30 days after he or she files Respondent's first pleading or makes a general appearance in the case, whichever occurs first.

2) Delivery of Disclosure. The disclosures required under this rule shall be made by furnishing the information to the opposing party's attorney of record or, if the opposing party is pro se, by furnishing the disclosures to the opposing party at the party's address. Each party making a disclosure shall promptly file a note with the court advising that the required disclosure has taken place.
4.4.5 Duty to Supplement. After disclosure is made pursuant to this rule, each party shall be under a duty to reasonably supplement or to amend the information if the party obtains information on the basis of which he or she knows that the information disclosed was either incomplete or incorrect when made, or is no longer complete or true.

4.4.6Rule 11. The provisions of this rule may be modified by agreement pursuant to Rule 11 of T.R.C.P.

X. INTERROGATORIES
A. Number

190.2(c)(3)In Level 1 Cases - No more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.

190.3(b)(3)In Level 2 Case - No more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.

B. Procedure

197.1Interrogatories. A party may serve on another party - no later than 30 days before the end of the discovery period - written interrogatories to inquire about any matter within the scope of discovery except matters covered by Rule 195. An interrogatory may inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party's claims or defenses, but interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial.

C. Responding

197.2(a)Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the interrogatories, except that a defendant served with interrogatories before the defendant's answer is due need not respond until 50 days after service of the interrogatories.

197.2(b)Content of response. A response must include the party's answers to the interrogatories and may include objections and assertions of privilege as required under these rules.

197.2(c)Option to produce records. If the answer to an interrogatory may be derived or ascertained from public records, from the responding party's business records, or from a compilation, abstract or summary of the responding party's business records, and the burden of deriving or ascertaining the answer is substantially the same for the requesting party as for the responding party, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or compilation, abstract or summary of the records. The records from which the answer may be derived or ascertained must be specified in sufficient detail to permit the requesting party to locate and identify them as readily as can the responding party. If the responding party has specified business records, the responding party must state a reasonable time and place for examination of the documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.

197.2(d)Verification required; exceptions. A responding party - not an agent or attorney as otherwise permitted by Rule 14 - must sign the answers under oath except that:
(1) when answers are based on information obtained from other persons, the party may so state, and

(2) a party need not sign answers to interrogatories about persons with knowledge of relevant facts, trial witnesses, and legal contentions.

D. Use

197.3Use. Answers to interrogatories may be used only against the responding party. An answer to an interrogatory inquiring about matters described in Rule 194.2(c) and (d) that has been amended or supplemented is not admissible and may not be used for impeachment.

XI. REQUEST FOR ADMISSIONS

A. Procedure

198.1A party may serve on another party - no later than 30 days before the end of the discovery period - written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Each matter for which an admission is requested must be stated separately.

B. Response

198.2(c)Effect of failure to respond. If a response is not timely served, the request is considered admitted without the necessity of a court order.

C. Effect

198.3Effect of Admissions; Withdrawal or Amendment. Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if:
(a) the party shows good cause for the withdrawal or amendment; and

(b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.

XII. REQUESTS FOR PRODUCTION

A. Procedure

196.1(a)Request. A party may serve on another party - no later than 30 days before the end of the discovery period - a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery.
196.1(b)Contents of request. The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. The request must specify a reasonable time (on or after the date on which the response is due) and place for production. If the requesting party will sample or test the requested items, the means, manner and procedure for testing or sampling must be described with sufficient specificity to inform the producing party of the means, manner, and procedure for testing or sampling.
196.1(c)Requests for production of medical or mental health records regarding nonparties.

(1) Service of request on nonparty. If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production under Rule 21a.

(2) Exceptions. A party is not required to serve the request for production on a nonparty whose medical records are sought if:

(A) the nonparty signs a release of the records that is effective as to the requesting party;

(B) the identity of the nonparty whose records are sought will not directly or indirectly be disclosed by production of the records; or

(C) the court, upon a showing of good cause by the party seeking the records, orders that service is not required.

(3) Confidentiality. Nothing in this rule excuses compliance with laws concerning the confidentiality of medical or mental health records.

B. Response

196.2 Response to Request for Production and Inspection.

(a) Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request.

(b) Content of response. With respect to each item or category of items, the responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:

(1) production, inspection, or other requested action will be permitted as requested;

(2) the requested items are being served on the requesting party with the response;

(3) production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or

(4) no items have been identified - after a diligent search - that are responsive to the request.

196.3Production.

(a) Time and place of production. Subject to any objections stated in the response, the responding party must produce the requested documents or tangible things within the person's possession, custody or control at either the time and place requested or the time and place stated in the response, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them.

(b) Copies. The responding party may produce copies in lieu of originals unless a question is raised as to the authenticity of the original or in the circumstances it would be unfair to produce copies in lieu of originals. If originals are produced, the responding party is entitled to retain the originals while the requesting party inspects and copies them.

(c) Organization. The responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.

196.4Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.
196.5Destruction or Alteration. Testing, sampling or examination of an item may not destroy or materially alter an item unless previously authorized by the court.
196.6Expenses of Production. Unless otherwise ordered by the court for good cause, the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party.

XIII REQUEST OR MOTION FOR ENTRY UPON PROPERTY

A. Procedure

196.7(a)Request or motion. A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon by serving - no later than the earlier of 30 days before the end of any applicable discovery period -

(1) a request on all parties if the land or property belongs to a party, or

(2) a motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. If the identity or address of the nonparty is unknown and cannot be obtained through reasonable diligence, the court must permit service by means other than those specified in Rule 21a that are reasonably calculated to give the nonparty notice of the motion and hearing.

196.7bTime, place, and other conditions. The request for entry upon a party's property, or the order for entry upon a nonparty's property, must state the time, place, manner, conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspection, testing, or sampling is to be made.

B. Response

196.7(c) (1) Time to respond. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request.

(2) Content of response. The responding party must state objections and assert privileges as required by these rules, and state, as appropriate, that:

(A) entry or other requested action will be permitted as requested;

(B) entry or other requested action will take place at a specified time and place, if the res-ponding party is objecting to the time and place of production; or

(C) entry or other requested action cannot be permitted for reasons stated in the response.

C. Order

196.7(d)Requirements for order for entry on nonparty's property. An order for entry on a nonparty's property may issue only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action.

XIV. ORAL DEPOSITIONS

A. Procedure

199.1(a)A party may take the testimony of any person or entity by deposition on oral examination before any officer authorized by law to take depositions. The testimony, objections, and any other statements during the deposition must be recorded at the time they are given or made.
199.1(b)Depositions by telephone or other remote electronic means. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction.
199.1(c)Nonstenographic recording. Any party may cause a deposition upon oral examination to be recorded by other than stenographic means, including videotape recording. The party requesting the nonstenographic recording will be responsible for obtaining a person authorized by law to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. At least five days prior to the deposition the party must serve on the witness and all parties a notice, either in the notice of deposition or separately, that the deposition will be recorded by other than stenographic means. This notice must state the method of nonstenographic recording to be used and whether the deposition will also be recording stenographically. Any other party may then serve written notice designating another method of recording in addition to the method specified, at the expense of such other party unless the court orders otherwise.

B. Notice

199.2(a)Time to notice deposition. A notice of intent to take an oral deposition must be served on the witness and all parties a reasonable time before the deposition is taken. An oral deposition may be taken outside the discovery period only by agreement of the parties or with leave of court.
199.2(b)Content of Notice.
(1) Identity of witness; organizations. The notice must state the name of the witness, which may be either an individual or a public or private corporation, partnership, association, governmental agency, or other organization. If an organization is named as the witness, the notice must describe with particularity the matters on which examination is requested. In response, the organization named in the notice must--a reasonable time before the deposition--designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matter on which the individual will testify. Each individual designated must testify as to the matter that are known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized by these rules.

(2) Time and Place. The notice must state a reasonable time and place for the oral deposition. The place may be in:

1. the county of the witness's residence;

2. the county where the witness is employed or regularly transacts business in person;

3. the county of suit, if witness is a party or person designated by a party under Rule 199.2(b);

4. the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or

5. subject to the foregoing, at any other convenient place directed by the court in which the cause is pending.

C. Recording

199.2(a)(3)Alternative means of conducting and recording. The notice must state whether the deposition is to be taken by telephone or other electronic means and identify the means. If the deposition is to be recorded by nonstenographic means, the notice may include the notice required by Rule 199.1(c)

D. Attendees

199.2(a)(4)Additional attendees. The notice may include the notice concerning additional attendees required by Rule 199.5(a)(3).
E. Duces Tecum

199.2(a)(5)Request for Production of documents. The notice may include a request that the witness produce at the deposition documents or tangible things within the scope of discovery and within the witness' possession, custody, or control. If the witness is a nonparty, the request must comply with Rule 205 and the designation of materials required to be identified in the subpoena must be attached to, or included in, the notice. The nonparty's response to the request is governed by Rules 176 and 205. When the witness is a party or subject to the control of a party, document requests under this subdivision are governed by Rules 193 and 196.

F. Compelling Attendance

199.3Compelling Witness to Attend. A party may compel the witness to attend the oral deposition by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party's attorney has the same effect as a subpoena serve on the witness.

G. Objections to time or place

199.4Objections to Time and Place of Or Deposition. A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.

H. Conduct

199.5Examination, Objection, and Conduct During Oral Depositions.
(a) Attendance.

(1) Witness. The witness must remain in attendance from day to day until the deposition is begun and completed.

(2) Attendance by party. A party may attend an oral deposition in person, even if the deposition is taken by telephone or other remote electronic means. If a deposition is taken by telephone or other remote electronic means, the party noticing the deposition must make arrangements for all persons to attend by the same means. If the party noticing the deposition appears in person, any other party may appear by telephone or other remote electronic means if that party makes the necessary arrangements with the deposition officer and the party noticing the deposition.

(3) Other attendees. If any party intends to have in attendance any persons other than the witness, parties, spouses of parties, counsel, employees of counsel, and the officer taking the oral deposition, that party must give reasonable notice to all parties, either in the notice of deposition or separately, of the identity of the other persons.

(b) Oath; examination. Every person whose deposition is taken by oral examination must first be placed under oath. The parties may examine and cross-examine the witness. Any party, in lieu of participating in the examination, may serve written questions in a sealed envelope on the party noticing the oral deposition, who must deliver them to the deposition officer, who must open the envelope and propound them to the witness.

(c) Time limitation. No side may examine or cross-examine an individual witness for more than six hours. Breaks during depositions do not count against this limitation.

(d) Conduct during the oral deposition; conferences. The oral deposition must be conducted in the same manner as if the testimony were being obtained in court during trial. Counsel should cooperate with and be courteous to each other and to the witness. The witness should not be evasive and should not unduly delay the examination. Private conferences between the witness and the witness's attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held, however, during agreed recesses and adjournments. If the lawyers and witnesses do not comply with this rule, the court may allow in evidence at trial statements, objections, discussions, and other occurrences during the oral deposition that reflect upon the credibility of the witness or the testimony.

(e) Objections. Objections to questions during the oral deposition are limited to "Objection, leading" and "Objection, form." Objections to testimony during the oral deposition are limited to "Objection, nonresponsive." These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing costs or other sanctions. The officer taking the oral deposition will not rule on objections but must record them for ruling by the court. The officer taking the oral deposition must not fail to record testimony because an objection has been made.

(f) Instructions not to answer. An attorney may instruct a witness not to answer a question during an oral deposition only if necessary to preserve a privilege, comply with a court order or these rules, protect a witness from an abusive question or one for which any answer would be misleading, or secure a ruling pursuant to paragraph (g). The attorney instructing the witness not to answer must give a concise, nonargumentative, non-suggestive explanation of the grounds for the instruction if requested by the party who asked the question.

(g) Suspending the deposition. If the time limitations for the deposition have expired or the deposition is being conducted or defended in violation of these rules, a party or witness may suspend the oral deposition for the time necessary to obtain a ruling.

(h) Good faith required. An attorney must not ask a question at an oral deposition solely to harass or mislead the witness, for any other improper purpose, or without a good faith legal basis at the time. An attorney must not object to a question at an oral deposition, instruct the witness not to answer a question, or suspend the deposition unless there is a good faith factual and legal basis for doing so at the time.

I. Hearing on Objections

199.6Any party may, at any reasonable time, request a hearing on an objection or privilege asserted by an instruction not to answer or suspension of the deposition; provided the failure of a party to obtain a ruling prior to trial does not waive any objection or privilege. The party seeking to avoid discovery must present any evidence necessary to support the objection or privilege either by testimony at the hearing or by affidavits served on opposing parties at least seven days before the hearing. If the court determines that an in camera review of some or all of the requested discovery is necessary to rule, answers to the deposition questions may be made in camera, to be transcribed and sealed in the event the privilege is sustained, or made in an affidavit produced to the court in a sealed wrapper.

J. Expert Depositions

195.3(a) Experts for party seeking affirmative relief. A party seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition as follows:

(1) If no report furnished. If a report of the expert's factual observations, tests, supporting data, calculations, photographs, and opinions is not produced when the expert is designated, then the party must make the expert available for deposition reasonably promptly after the expert is designated. If the deposition cannot - due to the actions of the tendering party - reasonably be concluded more than 15 days before the deadline for designating other experts, that deadline must be extended for other experts testifying on the same subject.

(2) If report furnished. If a report of the expert's factual observations, tests, supporting data, calculations, photographs, and opinions is produced when the expert is designated, then the party need not make the expert available for deposition until reasonably promptly after all other experts have been designated.

195.3(a)Other experts. A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition reasonably promptly after the expert is designated and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.

K. Signature and Changes

203.1(a)Deposition transcript to be provided to witness. The deposition officer must provide the original deposition transcript to the witness for examination and signature. If the witness is represented by an attorney at the deposition, the deposition officer must provide the transcript to the attorney instead of the witness.

203.1(b)Changes by witness; signature. The witness may change responses as reflected in the deposition transcript by indicating the desired changes, in writing, on a separate sheet of paper, together with a statement of the reasons for making the changes. No erasures or obliterations of any kind may be made to the original deposition transcript. The witness must then sign the transcript under oath and return it to the deposition officer. If the witness does not return the transcript to the deposition officer within 20 days of the date the transcript was provided to the witness or the witness's attorney, the witness may be deemed to have waived the right to make the changes.

203.1(c)Exceptions. The requirements of presentation and signature under this subdivision do not apply:

(1) if the witness and all parties waive the signature requirement;

(2) to depositions on written questions; or

(3) to nonstenographic recordings of oral depositions.

203.2Certification. The deposition officer must file with the court, serve on all parties, and attach as part of the deposition transcript or nonstenographic recording of an oral deposition a certificate duly sworn by the officer stating:

(a) that the witness was duly sworn by the officer and that the transcript or nonstenographic recording of the oral deposition is a true record of the testimony given by the witness;

(b) that the deposition transcript, if any, was submitted to the witness or to the attorney for the witness for examination and signature, the date on which the transcript was submitted, whether the witness returned the transcript, and if so, the date on which it was returned.

(c) that changes, if any, made by the witness are attached to the deposition transcript;

(d) that the deposition officer delivered the deposition transcript or nonstenographic recording of an oral deposition in accordance with Rule 203.3;

(e) the amount of time used by each party at the deposition;

(f) the amount of the deposition officer's charges for preparing the original deposition transcript, which the clerk of the court must tax as costs; and

(g) that a copy of the certificate was served on all parties and the date of service.

L. Delivery

203.3(a)Endorsement; to whom delivered. The deposition officer must endorse the title of the action and "Deposition of (name of witness)" on the original deposition transcript (or a copy, if the original was not returned) or the original nonstenographic recording of an oral deposition, and must return:
(1) the transcript to the party who asked the first question appearing in the transcript, or

(2) the recording to the party who requested it.

203.3(b)Notice. The deposition officer must serve notice of delivery on all other parties.
203.3(c)Inspection and copying; copies. The party receiving the original deposition transcript or nonstenographic recording must make it available upon reasonable request for inspection and copying by any other party. Any party or the witness is entitled to obtain a copy of the deposition transcript or nonstenographic recording from the deposition officer upon payment of a reasonable fee.

M. Exhibits

203.4At the request of a party, the original documents and things produced for inspection during the examination of the witness must be marked for identification by the deposition officer and annexed to the deposition transcript or nonstenographic recording. The person producing the materials may produce copies instead of originals if the party gives all other parties fair opportunity at the deposition to compare the copies with the originals. If the person offers originals rather than copies, the deposition officer must, after the conclusion of the deposition, make copies to be attached to the original deposition transcript or nonstenographic recording, and then return the originals to the person who produced them. The person who produced the originals must preserve them for hearing or trial and make them available for inspection or copying by any other party upon seven days' notice. Copies annexed to the original deposition transcript or nonstenographic recording may be used for all purposes.

N. Objections to Transcriptions/ Delivery/Signing

203.5Motion to Suppress. A party may object to any errors and irregularities in the manner in which the testimony is transcribed, signed, delivered, or otherwise dealt with by the deposition officer by filing a motion to suppress all or part of the deposition. If the deposition officer complies with Rule 203.3 at least one day before the case is called to trial, with regard to a deposition transcript, or 30 days before the case is called to trial, with regard to a nonstenographic recording, the party must file and serve a motion to suppress before trial commences to preserve the objections.

O. Use

203.6(a)Nonstenographic recording; transcription. A non-stenographic recording of an oral deposition, or a written transcription of all or part of such a recording, may be used to the same extent as a deposition taken by stenographic means. However, the court, for good cause shown, may require that the party seeking to use a nonstenographic recording or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. The court reporter's transcription must be made from the original or a certified copy of the deposition recording. The court reporter must, to the extent applicable, comply with the provisions of this rule, except that the court reporter must deliver the original transcript to the attorney requesting the transcript, and the court reporter's certificate must include a statement that the transcript is a true record of the nonstenographic recording. The party to whom the court reporter delivers the original transcript must make the transcript available, upon reasonable request, for inspection and copying by the witness or any party.
203.6(b)Same proceeding. All or part of a deposition may be used for any purpose in the same proceeding in which it was taken. If the original is not filed, a certified copy may be used. "Same proceeding" includes a proceeding in a different court but involving the same subject matter and the same parties or their representatives or successors in interest. A deposition is admissible against a party joined after the deposition was taken if:

(1) the deposition is admissible pursuant to Rule 804(b)(1) of the Rules of Evidence, or

(2) that party has had a reasonable opportunity to redepose the witness and has failed to do so.

203.6(c)Different proceeding. Depositions taken in different proceedings may be used as permitted by the Rules of Evidence.

XV. DEPOSITIONS BY WRITTEN QUESTIONS

A. Procedure

200.1(a)Who may be noticed; when. A party may take the testimony of any person or entity by deposition on written questions before any person authorized by law to take depositions on written questions. A notice of intent to take the deposition must be served on the witness and all parties at least 20 days before the deposition is taken. A deposition on written questions may be taken outside the discovery period only by agreement of the parties or with leave of court. The party noticing the deposition must also deliver to the deposition officer a copy of the notice and of all written questions to be asked during the deposition.

B. Content

200.1(b)Content of notice. The notice must comply with Rules 199.1(b), 199.2(b), and 199.5(a)(3). If the witness is an organization, the organization must comply with the requirements of that provision. The notice also may include a request for production of documents as permitted by Rule 199.2(b)(5), the provisions of which will govern the request, service, and response.

C. Attendance

200.2Compelling Witness to Attend. A party may compel the witness to attend the deposition on written questions by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the deposition notice upon the party's attorney has the same effect as a subpoena served on the witness.

D. Conduct

200.3Questions and Objections.
(a) Direct questions. The direct questions to be propounded to the witness must be attached to the notice.

(b) Objections and additional questions. Within ten days after the notice and direct questions are served, any party may object to the direct questions and serve cross-questions on all other parties. Within five days after cross-questions are served, any party may object to the cross-questions and serve redirect questions on all other parties. Within three days after redirect questions are served, any party may object to the redirect questions and serve recross questions on all other parties. Objections to recross questions must be served within five days after the earlier of when recross questions are served or the time of the deposition on written questions.

(c) Objections to form of questions. Objections to the form of a question are waived unless asserted in accordance with this subdivision.

200.4The deposition officer must: take the deposition on written questions at the time and place designated; record the testimony of the witness under oath in response to the questions; and prepare, certify, and deliver the deposition transcript in accordance with Rule 203. The deposition officer has authority when necessary to summon and swear an interpreter to facilitate the taking of the deposition.

XVI DEPOSITIONS IN FOREIGN JURISDICTIONS

Depositions in Foreign Jurisdictions for Use in Texas Proceedings.

1. Generally

201.1aGenerally. A party may take a deposition on oral examination or written questions of any person or entity located in another state or a foreign country for use in proceedings in this State. The deposition may be taken by:
(1) notice;

(2) letter rogatory, letter of request, or other such device;

(3) agreement of the parties; or

(4) court order.

2. Notice

201.1(b)By notice. A party may take the deposition by notice in accordance with these rules as if the deposition were taken in this State, except that the deposition officer may be a person authorized to administer oaths in the place where the deposition is taken.
201.1(c)By letter rogatory. On motion by a party, the court in which an action is pending must issue a letter rogatory on terms that are just and appropriate, regardless of whether any other manner of obtaining the deposition is impractical or inconvenient. The letter must:
(1) be addressed to the appropriate authority in the jurisdiction in which the deposition is to be taken;

(2) request and authorize that authority to summon the witness before the authority at a time and place stated in the letter for examination on oral or written questions; and

(3) request and authorize that authority to cause the witness's testimony to be reduced to writing and returned, together with any items marked as exhibits, to the party requesting the letter rogatory.

201.1(d)By letter of request or other such device. On motion by a party, the court in which an action is pending, or the clerk of that court, must issue a letter of request or other such device in accordance with an applicable treaty or international convention on terms that are just and appropriate. The letter or other device must be issued regardless of whether any other manner of obtaining the deposition is impractical or inconvenient. The letter or other device must:
(1) be in the form prescribed by the treaty or convention under which it is issued, as presented by the movant to the court or clerk; and

(2) must state the time, place, and manner of the examination of the witness.

3. Objections

201.1(e)Objections to form of letter rogatory, letter of request, or other such device. In issuing a letter rogatory, letter of request, or other such device, the court must set a time for objecting to the form of the device. A party must make any objection to the form of the device in writing and serve it on all other parties by the time set by the court, or the objection is waived.
201.1(f)Admissibility of evidence. Evidence obtained in response to a letter rogatory, letter of request, or other such device is not inadmissible merely because it is not a verbatim transcript, or the testimony was not taken under oath, or for any similar departure from the requirements for depositions taken within this State under these rules.

4. Methods

201.1(g)Deposition by electronic means. A deposition in another jurisdiction may be taken by telephone, videoconference, teleconference, or other electronic means under the provisions of Rule 199.
201.2Depositions in Texas for Use in Proceedings in Foreign Jurisdictions. If a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission that requires a witness's oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State.

XVII PHYSICAL AND MENTAL EXAMINATIONS

A. Motion and Order

204.1Motion and Order Required.
204.1aMotion. A party may - no later than 30 days before the end of any applicable discovery period - move for an order compelling another party to:

(1) submit to a physical or mental examination by a qualified physician or a mental examination by a qualified psychologist; or

(2) produce for such examination a person in the other party's custody, conservatorship or legal control.

204.1(b)Service. The motion and notice of hearing must be served on the person to be examined and all parties.
204.1(c)Requirements for obtaining order. The court may issue an order for examination only for good cause shown and only in the following circumstances:

(1) when the mental or physical condition (including the blood group) of a party, or of a person in the custody, conservatorship or under the legal control of a party, is in controversy; or

(2) except as provided in Rule 204.4, an examination by a psychologist may be ordered when the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist's records for possible use at trial.

204.1(d)Requirements of order. The order must be in writing and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

B. Report

204.2Report of Examining Physician or Psychologist.
204.2(a)Right to report. Upon request of the person ordered to be examined, the party causing the examination to be made must deliver to the person a copy of a detailed written report of the examining physician or psychologist setting out the findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery of the report, upon request of the party causing the examination, the party against whom the order is made must produce a like report of any examination made before or after the ordered examination of the same condition, unless the person examined is not a party and the party shows that the party is unable to obtain it. The court on motion may limit delivery of a report on such terms as are just. If a physician or psychologist fails or refuses to make a report the court may exclude the testimony if offered at the trial.
204.2(b)Agreements; relationship to other rules. This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or psychologist or the taking of a deposition of the physician or psychologist in accordance with the provisions of any other rule.

C. Effect

204.3Effect of No Examination. If no examination is sought either by agreement or under this subdivision, the party whose physical or mental condition is in controversy must not comment to the court or jury concerning the party's willingness to submit to an examination, or on the right or failure of any other party to seek an examination.

D. Titles II or V of the Family Code

204.4Cases Arising Under Titles II or V, Family Code. In cases arising under Family Code Titles II or V, the court may - on its own initiative or on motion of a party - appoint:
(a) one or more psychologists or psychiatrists to make any and all appropriate mental examinations of the children who are the subject of the suit or of any other parties, and may make such appointment irrespective of whether a psychologist or psychiatrist has been designated by any party as a testifying expert;

(b) one or more experts who are qualified in paternity testing to take blood, body fluid, or tissue samples to conduct paternity tests as ordered by the court.

204.5Definition. For the purpose of this rule, a psychologist is a person licensed or certified by a state or the District of Columbia as a psychologist.

XVIII DISCOVERY FROM NONPARTIES

A. Forms

205.1Forms of Discovery; Subpoena Requirement. A party may compel discovery from a nonparty - that is, a person who is not a party or subject to a party's control - only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena compelling:
(a) an oral deposition;

(b) a deposition on written questions;

(c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and

(d) a request for production of documents and tangible things under this rule.

B. Notice
205.2Notice. A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. A notice to produce documents or tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

3. Production without Deposition

205.3Production of Documents and Tangible Things Without Deposition.
205.3(a)Notice; subpoena. A party may compel production of documents and tangible things from a nonparty by serving - a reasonable time before the response is due but no later than 30 days before the end of any applicable discovery period - the notice required in Rule 205.2 and a subpoena compelling production or inspection of documents or tangible things.
205.3(b)Contents of notice. The notice must state:
(1) the name of the person from whom production or inspection is sought to be compelled;

(2) a reasonable time and place for the production or inspection; and

(3) the items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling.

205.3(c)Requests for production of medical or mental health records of other nonparties. If a party requests a nonparty to produce medical or mental health records of another nonparty, the requesting party must serve the nonparty whose records are sought with the notice required under this rule. This requirement does not apply under the circumstances set forth in Rule 196.1(c)(2).
205.3(d)Response. The nonparty must respond to the notice and subpoena in accordance with Rule 176.6.
205.3(e)Custody, inspection and copying. The party obtaining the production must make all materials produced available for inspection by any other party on reasonable notice, and must furnish copies to any party who requests at that party's expense.
205.3(f)Cost of production. A party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production.

XIX. ABUSE OF DISCOVERY; SANCTIONS

A. Motion

215.1Motion for Sanctions or Order Compelling Discovery. A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order compelling discovery as follows:

215.1(a)Appropriate court. On matters relating to a deposition, an application for an order to a party may be made to the court in which the action is pending, or to any district court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all other discovery matters, an application for an order will be made to the court in which the action is pending.
215.1(b)Motion.

(1) If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1) or 200.1(b); or

(2) if a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:

(A) to appear before the officer who is to take his deposition, after being served with a proper notice; or

(B) to answer a question propounded or submitted upon oral examination or upon written questions; or

(3) if a party fails:

(A) to serve answers or objections to interrogatories submitted under Rule 197, after proper service of the inter-rogatories; or

(B) to answer an interrogatory submitted under Rule 197; or

(C) to serve a written response to a request for inspection submitted under Rule 196, after proper service of the request; or

(D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection submitted under Rule 196;

the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request, or apply to the court in which the action is pending for the imposition of any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such discovery.

When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.

If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to Rule 192.6.

215.1(c)Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
215.1(d)Disposition of motion to compel: award of expenses. If the motion is granted, the court shall, after opportunity for hearing, require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order compelling compliance or in opposing a motion which is denied.

215.1(e)Providing person's own statement. If a party fails to comply with any person's written request for the person's own statement as provided in Rule 192.3(h), the person who made the request may move for an order compelling compliance. If the motion is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable in relation to the amount of work reasonably expended in obtaining the order.

B. Available Sanctions

215.2Failure to Comply with Order or with Discovery Request.
215.2(a)Sanctions by court in district where deposition is taken. If a deponent fails to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
215.2(b)Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under Rules 204 or 215.1, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:

(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;

(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;

(3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party;

(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person failing to comply shows that he is unable to appear or to produce such person for examination.

(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

215.2(c)Sanction against nonparty for violation of Rules 196.7 or 205.3. If a nonparty fails to comply with an order under Rules 196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court.
215.3Abuse of Discovery Process in Seeking, Making, or Resisting Discovery. If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.
215.4Failure to Comply with Rule 198.
215.4(a)Motion. A party who has requested an admission under Rule 198 may move to determine the sufficiency of the answer or objection. For purposes of this subdivision an evasive or incomplete answer may be treated as a failure to answer. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of Rule 198, it may order either that the matter is admitted or that an amended answer be served. The provisions of Rule 215.1(d) apply to the award of expenses incurred in relation to the motion.
215.4(b)Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 198 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 193, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had a reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
215.5Failure of Party or Witness to Attend or to Serve Subpoena; Expenses.
215.5(a)Failure of party giving notice to attend. If the party giving the notice of the taking of an oral deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees.
215.5(b)Failure of witness to attend. If a party gives notice of the taking of an oral deposition of a witness and the witness does not attend because of the fault of the party giving the notice, if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees.
215.6Exhibits to Motions and Responses. Motions or responses made under this rule may have exhibits attached including affidavits, discovery pleadings, or any other documents.