Litigation Alert: Major Rule Changes Are Coming in 2021 That Will Affect All Texas Cases
The Texas Rules of Civil Procedure ("TRCP"), the governing procedural rules for all civil cases in Texas state courts, help provide consistency throughout the life of a case allowing cases to run more smoothly from inception to resolution. Many of the rules pertain to different aspects of the discovery process, including information that must be disclosed or produced and timelines for requests and responses. While the rules normally undergo only minor changes in any given year, the Texas Legislature and Texas Supreme Court occasionally make major overhauls to the TRCP, resulting in significant changes to the progression of a case, such that clients should be aware of the changes. Three such changes were made this year, all of which will take effect on January 1, 2021, and will greater align the TRCP with the Federal Rules of Civil Procedure.
Requests for Disclosures will be replaced with required Initial, Expert and Pretrial Disclosures.
Initial Disclosures
The new Initial Disclosures will be the biggest change to the current discovery process, as it changes both parties' timelines to disclose and the content of the disclosures. Regarding timelines, under the current rules, a party can serve written discovery at one time or at different times.[1] Furthermore, it is common for plaintiffs and defendants to serve written discovery with its initial pleading—the petition and the answer respectively.
However, the new rules are not as flexible and force parties to wait to make requests.[2] Instead of parties serving their discovery requests at any time, a party must wait to conduct any discovery, including interrogatories, requests for production and requests for admission until both parties have served their Initial Disclosures.[3] And the parties are not required to serve a Request for Disclosure; like the Federal Rules, as the disclosures are required by the Rules without a request being served. These Initial Disclosures are due 30 days after the defendant's answer is due.[4] Accordingly, it will typically be 50-60 days after the petition is served, before any discovery can be conducted; a major change from the current rules, which allow discovery to immediately commence.
The content of the initial disclosures remains largely unchanged except for two additions. The first is the requirement of a computation of each category of damages, accompanied by documents on which the computation is based.[5] This will allow parties to have more information about damages earlier in the case. This should promote earlier settlement as parties will be forced to analyze their alleged damages in more detail from the outset. Second, a party must initially describe all information, including electronically stored information, which it may use to support its claims or defenses.[6] While typically included in parties' request for production, this information will now be required initially, without request by the parties.
Expert Disclosures
The new initial disclosures change the timing of required expert disclosures. The information is now due 90 days before trial for plaintiffs and 60 days before trial for defendants.[7] This allows parties more time to determine who they want to call as experts in a case. The disclosures must include all information formerly required in responding to a request for disclosure, and additionally, a list of publications, previous cases the expert testified in and a statement of compensation; however, no other information need be disclosed for experts, and a party who wants to learn more should do so through deposition.[8]
Pretrial Disclosures
Lastly, the new disclosures require pretrial witness disclosures to be made at least 30 days before trial.[9] The disclosures require a witness list, separating the witnesses into those that the party "expects to call" and those the party "may call."[10]
All actions less than $250,000, excluding punitive damages, costs and fees will be Expedited Actions.
Currently, the TRCP provides that all actions where a party seeks only monetary relief of $100,000 or less are classified as expedited actions.[11] Expedited actions are automatically subject to a Level 1 discovery plan, which is designed to involve less discovery and move more quickly than cases with larger amounts pled and/or non-monetary relief involved.[12] Level 1 cases, in addition to having a shorter discovery period, are substantially more limited in the number of document requests allowed, the number of interrogatories that can be served and the number of depositions that can be taken.[13] The new rules raise the amount in controversy to $250,000.[14] However, punitive damages, statutory damages, interest, costs and fees are not included toward the $250,000 as they are under the current rules.[15] Accordingly, a plaintiff could plead for an amount multiple times more than $250,000 and still have an expedited action, subject to Level 1 discovery.[16]
While the effects of this change are currently unclear, one potential consequence is plaintiffs in smaller cases pleading higher damages. This could result from either plaintiffs who want an expedited action, or plaintiffs who want the more extensive discovery offered by Level 2 and Level 3 discovery plans. For the former, the plaintiff can plead 2.5 times as much (and more if pleading punitive damages) and still have an expedited litigation process, leading to a faster resolution. For the latter, plaintiffs that want more extensive discovery but have a small amount of damages might plead larger amounts to cross the $250,000 threshold.
Electronic service, through email, social media or other technology is permissible as a substitute for service in person or by mail.
Under the current Rule 106, the petition can be served by delivering it to the defendant in person or through certified mail.[17] Alternatively, if service cannot be accomplished in one of the above ways, a plaintiff can, upon motion and sworn statement, serve the petition through another manner that is reasonably effective.[18] While Rule 106 does not currently state what manner would be reasonably effective, the new amendments provide concrete alternatives.
The new methods include electronic service through email, social media or other technology.[19] While in the past this might not have been a sufficient form of service, in 2021, it will be allowed as an alternative method. Accordingly, if you are served with a petition via email or social media, it may be valid and you should consult your attorney to determine if you have been properly served.
Beginning January 1, the discovery process in state court will change to look more like the federal court process, but the underlying substantive legal action is unaffected. The impact of these changes could be significant, however, as the parties learn to adapt and modify their current discovery practices.
[1] See Tex. R. Civ. P. 192.2 (stating the forms of discovery "may be combined in the same document and may be taken in any order or sequence.").
[2] Tex. R. Civ. P. 192.2(a) (2021 Amendments).
[3] Id.
[4] Tex. R. Civ. P. 194.2(a) (2021 Amendments).
[5] Tex. R. Civ. P. 194.2(b)(4) (2021 Amendments).
[6] Tex. R. Civ. P. 194.2(b)(6) (2021 Amendments).
[7] Tex. R. Civ. P.195.2(a-b) (2021 Amendments).
[8] Tex. R. Civ. P. 195.5 (2021 Amendments).
[9] Tex. R. Civ. P. 194.4 (2021 Amendments).
[10] Id.
[11] Tex. R. Civ. P. 169(a)(1).
[12] Tex. R. Civ. P. 190.2(a)(1).
[13] Tex. R. Civ. P. 190.2(b).
[14] Tex. R. Civ. P. 169(a)(1) (2021 Amendments).
[15] Id.
[16] See id.
[17] Tex. R. Civ. P. 106(a).
[18] Tex. R. Civ. P. 106(b).
[19] Tex. R. Civ. P. 106(b) (2021 Amendments).