Requests for Production Under Texas Law
Requests for Production are a discovery tool used in Texas and across the country. They are requests to produce a document or electronically stored information (ESI) for inspection and copying. They are given after the lawsuit has started. Normally they are given with a set of interrogatories and a request for disclosures.
Having a proper understanding of requests for production should help you in responding to them. These requests are meant to get some basic information from the opposing party. They can also be used to narrow issues in dispute as you respond to them.
Both sides give and receive requests for production in the course of a lawsuit. These requests are generally governed by these civil procedure rules: The Texas Rules of Civil Procedure govern discovery in district and county courts and the order of this discussion follows those rules. That is where the references Council on Pursuit of Justice v. Paxton, 607 S.W.3d 526, 534 (Tex. App.—Austin 2020, pet. filed) come from.
In Texas, requests for production may be served on any other party. Tex. R. Civ. P. 196.2. This freedom to serve requests for production is limited by rules that require more specific requests to be answered when the documents requested are not easily identified. Tex. R. Civ. P. 196.1, 196.2(c). While these requests are given to another party, they are actually responses to a lawsuit. That is because they can include persons who have information about the lawsuit. "A written request for production of documents and things must be answered by a party, not a person."TEX. R. CIV. P. 196.1.
By its own terms and many different courts in Texas, the answer to these requests is a sworn answer even if they are answered by the party’s lawyers. "The party producing documents under this rule shall produce them under oath . " See, e.g., Council on Pursuit of Justice v. Paxton, 607 S.W.3d 526, 534 (Tex. App.—Austin 2020, pet. filed) footnote 8, citing In re Ontario Corp., 492 S.W.3d 788, 790 n.2 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding). See also Rollings v. Hejl, 952 S.W.2d 662, 679 (Tex. App.—Austin 1997, writ denied) (noting that "our discovery rules require verification of discovery responses, regardless of whether that request for discovery is served by the answering party or by the party’s listed attorney").
There are many requirements in these rules concerning the details involved in the requests, how to respond, and what happens if a party does not comply. There is room in the comments here to expand on any of these topics. It is important to keep in mind that these rules are written as a guide and the important thing to remember is that they are not the same as the rule of evidence concerning issues of admissibility of the document itself or the information the document contains. "Parties are entitled to discover relevant, unprivileged information regardless of whether it is admissible as evidence." In re Union Pac. R.R. Co., 353 S.W.3d 547, 552 (Tex. 2011) (orig. proceeding) (citing Tex. R. Civ. P. 192.3(a) and In re Alford Chevrolet-Geo, Inc., 997 S.W.2d 190, 202 (Tex. 1999) (orig. proceeding)); see also Rogers v. Baxter, 8 S.W.3d 767, 771 (Tex. 1999) ("Unlike Rule 615 of the Texas Rules of Evidence, the discovery rules expressly provide for the pretrial production—availability for examination and copying—of otherwise admissible documents and tangible things."); In re Union Pac. R.R. Co., 353 S.W.3d at 552. Also, "In addition to the Texas Rules of Civil Procedure, the Texas Rules of Evidence apply to discovery depositions conducted in Texas." Tex. R. Evid. 201.1.
Essential Elements of a Request for Production
When drafting a request for production of documents, there are six essential components every Texas request should contain. The first two components relate to what is required in every Texas lawsuit: 2. Caption – Naming the plaintiff and defendant, and identifying the court; 3. Citation – Stating who has been requested to file the response to the request for production: SAME STYLE FOLLOWS IN TEXAS RULES OF CIVIL PROCEDURE, RULE 176.1: a. Plaintiff’s name and attorney’s name are named in the petition; b. Defendant’s name and attorney’s name are named in the citation; 4. Contents – Stating the wording of the request for production (See sample requests for production in the next section); 5. Signature Block – Identifying who has filed the request (identity of the party or attorney making the request, address, phone numbers, fax numbers, and email addresses where each person can be reached); and 6. Certificate of Service – Stating when and to whom the request was provided for opposing counsel.
Best Practice Drafting Tips for Legal Professionals in Texas
In Texas, a request for production of documents must be drafted in such a way that it allows the opposing party to know exactly what documents must be produced, even if they do not have knowledge or control of the materials. A request for production that simply refers to a document is often insufficient – instead, a specific description of the materials in question is strongly advised.
When drafting, be precise in your requests, as an overly broad or vague request can lead to an objection. You should also be sure to issue your document requests early (in the case of the first document production, this is typically at the same time as the initial disclosures). Should you need additional documents (for example, after written discovery leads you to suspect that there are more relevant documents not provided in the first production), you can issue a second set of requests for production.
Just as is true for interrogatories, a party cannot object to a request for production and then submit only the responsive portions of the requested documents. A responding party must produce all documents that are appropriately requested. Of course, if a document is part of a single document or group of documents that otherwise is not discoverable, a party can produce the non-discoverable document with a redaction.
Document requests often follow a broad request for all documents referenced throughout the initial disclosures, so it is helpful to take that request into account when drafting. In particular, you should identify the documents referenced in the initial disclosures and their respective Bates numbers to reference in your request for production. It’s also a good idea to look at the documents to determine which of the following requests for production of documents will be appropriate:
- 1. All documents that are responsive to the document request, but that contain information that is not discoverable. For example, if a company is developing a new product, it may have certain documents that refer to the potential release date of the product. The defendant should provide copies of the documents with the portions that reference the date redacted and its own assertion that the requested information is confidential.
- 2. All documents that are relevant to the pleadings. For example, if a plaintiff claims that it underwent $1 million in damages due to negligent hiring, all documents that relate to the claim should be produced, even those that may be privileged.
- 3. All documents (including accounting documents) that relate to damages. For example, if a plaintiff claims lost profits, the accounting documentation that relates to the lost profits claim should be provided. Likewise, if a defendant claims that it has lost earnings due to the lawsuit, all documents that relate to lost earnings should be provided.
You should keep in mind, when drafting your requests for production, that the same presumptions that exist for interrogatories also normally apply to requests for production. This includes that you are entitled to written responses to requests for production, unless otherwise ordered by the court. Furthermore, the requesting party cannot be required to exclude privileged information in his request for documents, but the documents that are produced can be redacted to exclude privileged information as mentioned above.
Practice and Legal Considerations
Most discovery disputes we see in family law cases involve Requests for Admissions, Interrogatories, and Requests for Disclosure. This is surprising because a Request for Production goes right to the heart of the case – requesting specific documents that are relevant to establishing the material facts. For example, existing email servers, cloud storage, text messages, bank records, pay stubs, and the like may be pivotal in a property division case. These pleadings are presented early in the process because the producing party is usually responsive in the early stages. In contrast, the third-party vendor of existing electronic data is often times far less helpful.
There are several legal and practical considerations in crafting an effective sample request for production of documents in Texas.
Legal Considerations. In general, a sample request for production of documents (sometimes referred to as a "request for production" or "RFP") is a standard method in which one spouse asks the other, or a third-party vendor, to turn over certain types of documents. For example, our Harris County District Courts, with minor deviations, use the following form: Relevance Your request must seek documents that are relevant to the case. The relevance standard is relatively low, but not imprecise, in that document production is limited to information that is "reasonably calculated to lead to discovery of admissible evidence." Tex. R. Civ. P. 192.3(a). That said, the requirement of a good faith effort at ever narrowing the scope of the request is absolute. Each request must be tailored to be as specific and as narrow as reasonably possible. This is particularly true when the initial timing of the document request. If, for instance, you requested an email exchange between three parties on a specific topic, it could be very relevant to pre-trial planning to ask a month in advance. Once the case moves closer to trial, however, the scope of what is actually necessary may be reduced. Additionally, in many cases it is more practical to request the employee’s e-mail from the employer directly or subpoena it from the ISP rather than the employee. In these cases, the strategy becomes simply getting the most accurate and up-to-date e-mail possible so as to avoid the time needed to gather documents from a missed request for production. Privilege Some documents are protected from being turned over, such as lawyer-client communications and health records. Parties have a duty to produce all responsive documents – even ones they think may be protected – unless they are expressly privileged or protected from disclosure by Texas Rule of Civil Procedure 193.3. A privilege log is a list of the documents the spouse is withholding from production on the basis of privilege. At least in Dallas, Bexar, and Harris Counties, the District Courts require a privilege log for any documents withheld. Without this log, the judge is likely to compel full production. As such, it is an important component of any sample request for production of documents in Texas. Timing In general, the best practice is to set a date for the production at least thirty days after service of the request for production of documents. It is also good practice to serve a Request for Production of Documents no later than halfway through the discovery control period. These Rules are set out in Texas Rules of Civil Procedure 190.3, 196.7 and 196.8.
Replying to a Production Request
The party receiving a Request for Production must respond to that request. The responding party is obligated by Texas Rule of Civil Procedure 176.7 to produce responsive documents in their possession, custody or control, to the attorney and provide a copy of the document to the party that served the Request. If the responding party claims not to possess any of the documents requested, then that party must submit an affidavit to the attorney who submitted the Request for Production stating that they do not possess such information. A timely response is mandatory, if a response is not timely submitted the responding party runs the risk of a motion to compel discovery or a motion for sanctions not being opposed.
Responding to a Request for Production does not simply require the party to provide a response. The responding party may object to a Request for Production (see Texas Rule of Civil Procedure 193.2). When an objection is made, then that objection should be set forth in the response. However, it has been held, without citing any authority, that a general objection to a request for production does not relieve a responding party from its duty to respond to the request. See, e.g., In re Estate of MacGregor, 233 S.W.3d 269, 265 (Tex.App. Corpus Christi 2007, orig. proceeding) ("A ‘general objection’ does not comply with the discovery rules and waives error."). Furthermore, when objecting to production of documents, a general objection, "would not be sufficient to preserve error." Spencer v. Roach, 123 S.W.3d 580, 585 n. 8 (Tex. App. Houston [1st Dist.] 2003, pet. denied).
A general work product objection, without more, in a response to a request for production will not suffice to preserve that objection. See, e.g., In re City of Georgetown, 192 S.W.3d 168, 191 (Tex.App.-Texarkana 2006, orig. proceeding (citation omitted); Valley Baptist Church v. MacKenzie, 199 S . W.3d 103, 113 (Tex.App.-El Paso 2006, orig. proceeding); Tex. Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).
If a privilege applies, such objection must be asserted in the response as a specific objection. The responding party has the burden of proving the applicability of a privilege or protection to exclude any documents. Tex.R.Civ.P. 193.3. Tex.R.Civ.P. 193.3 provides:
If a party withholds information that is otherwise discoverable by claiming that it is privileged or otherwise protected, the party shall: (a) expressly make the claim; and (b) describe the nature of the documents, things, or control most directly by giving: (1) the information required by Form 193.3; or (2) a statement of the elements of the privilege or protection claimed and a description of the material withheld that is sufficient to enable the court to determine the application of the privilege or protection . . . . Tex. R. Civ. P. 193.3. The rule requires the responding party to expressly make and describe the nature of the privilege or protection being asserted and to set forth the information required by Form 193.3. Tex.R.Civ.P. 501.
There is no requirement that a party or a party’s attorney provide an affidavit. But if an objection based on privilege is improperly made, then the party making the objection assumes the burden of providing evidence in support of the objection.
In response to a request for production of documents that are claimed to be privileged, the party may provide a privilege log. A privilege log is typically a table format with general columns include: (1) Record Number, (2) Date, (3) Addressee, (4) Sender, (5) Sender’s company affiliation, (6) Subject, (7) Text or ‘excerpt,’ (8) Privilege claimed, (9) Notes. A privilege log is not required to be in this table format, but it should be easy to read and comprehend by the reader.
Sample Request for Production Precedent
In drafting a sample effective request for production, nothing is better than having a clean, easy to read template that someone can download easily. Many sample forms floating around the Internet are overwhelmingly difficult to read, and lead to further confusion for people trying to navigate a simple request for production of documents. Here is a sample request for production of documents:
SAMPLE OF A REQUEST FOR PRODUCTION OF DOCUMENTS
- (1) Please produce the TRANSCRIPT of deposition taken of the Plaintiff on October 16, 2019, related to the allegations in the lawsuit.
- (2) Please produce all documents relating to a video or other recording that depicts [EXAMPLES INCLUDE: activity of the parties prior to the date of the accident, repair of the property after the incident, etc.]
- (3) Please produce any correspondence related to the initial loss at issue, including but not limited to: [examples include: estimates, calculations, appraisals or similar documents related to the damages at issue, as well as any documents related to further investigation they had to conduct.]
- (4) Please produce all correspondence related to any adjustments, final estimates, calculations, or appraisals in connection with the above-styled and numbered cause.
- (5) Please produce all claims notes entered or written down by any adjuster in this matter. This specifically includes, but is not limited to, notes entered by the adjusters for [CONTENTS] during the month of [Month and Year of Loss].
- (6) Please produce any photographs or video footage generated by [Insurance Company] in connection with the [CONTENTS] taken on or after [Date of Loss]. If you have any photographs or video footage showing the [INSURED PROPERTY OR CONTENTS] after the water loss, please include these photographs as well.
- (7) Please produce all insurance company documents regarding the subject loss. This specifically includes, but is not limited to, the following:
(A) [Insert 1-2 examples; for example, all contracts, policies, and declarations on the subject property]; and
(B) [Insert 1-2 examples; for example, all bank drafts, payment authorizations, stipulations, letters of intent to pay, release or non-waiver agreements, adjustments, bills properly rendered, time sheets, reports, work orders and purchase orders].
- (8) Please produce all photographs and/or video recordings taken of the [PROPERTY] after the loss occurred and leading up to the present date.
- (9) Please produce a copy of any appraisals or estimates that have been performed on the property.
- (10) Please produce all invoices for repairs made at the [PROPERTY].
- (11) Please produce all documents regarding the cause of loss that you relied on in adjusting the claim.
Commonly Asked Questions
Frequently Asked Questions about Requests for Production of Documents in Texas
How do I know what documents to ask for?
The most common types of documents that can be requested are:
Insurance policies. Specifically, the insurance company should produce the policy in effect at the time of the loss. If your claim includes a denial of coverage, then you will also want to request a copy of the policy in effect at the time of denying coverage. If the insurance company is a nationally recognized insurance company, you may also want to request a copy of their underwriting "guidelines" during the time of the underwriting of your policy.
The "insurance file . " This would be any documents generated by or related to the insurance company’s claim number, including but not limited to notes from the insurance adjuster and other insurance company representatives. In Texas, an insurance company may not be required to produce some items if it is work product or privileged, but the vast majority of insurance company documents should be produced.
Any reports, public records, or other documents relating to your claim that would be helpful to your case.
I was also going to write more about some of the ordering of the requests for production, and how you should refer to the requests as "this request seeks the following documents." But there is an example below from the Texas Rules of Civil Procedure that should help guide you.
