OVERVIEW
Discovery is a routine part of lawsuits, including civil and family cases. At its core, discovery is simply the exchange of information between the parties: facts, legal theories, exhibits, witness lists, and other materials that may be used in court. Unlike what you see on television, real court proceedings do not involve surprise evidence or last‑minute revelations. Both sides know well in advance what the other intends to argue, largely because of discovery. Attorneys rely heavily on this process to prepare their cases.
Discovery is optional to send, meaning a party is typically not required to propound discovery unless one chooses to. However, if the opposing party sends discovery to you, you must respond. In addition, in non-family suits, disclosures are mandatory if not requested.
The process itself is straightforward. One party may choose to propound discovery on the other. Once discovery is served, the receiving party typically has 30 days to respond. This deadline can be extended if both sides agree or if the court orders an extension, or, under some other nuances of law.
A party has the right to object to discovery requests that are not reasonably calculated to lead to admissible evidence. In other words, discovery must relate to the issues in the lawsuit; requests cannot be random, overly broad, or irrelevant. Texas law recognizes several grounds for objection, but this “reasonably calculated” standard is one of the most commonly used.
If objections are made and the requesting party disagrees, they may file a Motion to Compel. The court can overrule objections and require responses, sustain objections entirely, or sustain some and overrule others. Each request is evaluated individually. Repeated non-responses can lead to the offending party being sanctioned, fined, or even “death penalty” sanctions such as having pleadings struck.
TYPES OF DISCOVERY
“Discovery” is a broad term covering several specific tools available under Texas law.
Request for Disclosure
This is the most standardized form of discovery. The requesting party does not draft custom questions; instead, they use the format provided under Rule 194 of the Texas Rules of Civil Procedure. Disclosures seek basic information such as legal theories, general facts, and witness details. They must be answered if requested.
In family cases, disclosures are not automatic and must be specifically requested. In non‑family cases, responses are typically due within 30 days.
Interrogatories
Interrogatories are written questions seeking information and facts. In family cases, these often address finances, custody issues, alleged misconduct, and similar topics. Common interrogatories may ask about bank accounts, business interests, drug use, or allegations of adultery. In civil cases, these often ask about the incident made basis of the suit.
Request for Production
This is a request for documents and other items. Responses usually involve providing physical or electronic copies (often PDFs). Typical examples include bank statements, retirement account statements, tax returns, and other financial records, letters, text messages, photographs, etc.
Request for Admissions
These ask a party to admit or deny specific statements. If a party admits something, it can be used against them in Court. If they deny something that is later proven true, their credibility can be challenged in court. Importantly, if admissions are not answered within 30 days, they may be deemed admitted by the court. Requests for Admissions are rarely used in family court, as Texas Courts have ruled that they typically carry less probative value in a custody case.
Depositions
Depositions involve questioning a party or witness under oath, with answers recorded by a court reporter. They can be used later in court to highlight inconsistencies or obtain key admissions. Depositions are valuable but often expensive, and therefore less common.
Medical Records
When medical information is relevant, a party may request signed authorizations to obtain medical records.
Entry on Land
This less common tool allows a party to inspect property for measuring, photographing, sampling, or otherwise examining land relevant to the case. This is most commonly used in injury cases or cases involving real property.
SUBPOENAS
Subpoenas are discovery tools directed at third parties rather than the opposing party. They seek documents or testimony from individuals or entities who are not directly involved in the lawsuit but possess relevant information.
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