“Discovery” is the process by which the parties obtain information of the issues and facts of the lawsuit from others, usually opposing parties to the lawsuit. The purpose is to prevent “trial by surprise”, where some unknown information is presented by an opposing party for the first time at trial.
In Texas, it is common to be served with interrogatories, a request for disclosure, requests for admission and requests for production when you first get sued for something like a credit card debt or personal injury. (Although these forms of discovery are not limited to lawsuits on credit card debts and personal injury actions.) Sometimes these discovery requests will be served on you at the same time the original petition is served upon you. At other times, these will be served on you after you have been served with the original petition.
Failing to answer discovery requests will result in negative legal consequences. For instance, if a request for admission is not answered, or otherwise responded to, within the proper time period, it will be deemed admitted, automatically, on the day it is due. (See Texas Rule of Civil Procedure 198.2(c).) This could have severely negative consequences for the defendant’s case, if the plaintiff has asked him to admit or deny various elements of the case, and they are deemed admitted. Normally these elements of the “prima facie case” would need to be proven by the plaintiff. It would be a logical tactic for a Plaintiff’s attorney to serve requests for admission on a defendant that he knows is representing his self, in the hopes that the defendant will not understand the legal impact of failing to answer the requests in a timely manner. If the self-represented defendant fails to respond properly to the requests for admission regarding the elements of the plaintiff’s prima facie case, then the defendant may, essentially, lose the case before the trial has even begun. (Lawyers will try to take advantage of a self-represented individual.)
Responses to written discovery must be in writing, signed by the defendant (or his attorney), and, in the case of answers to interrogatories, verified. Responses to the written discovery discussed here is not normally filed with the court. (TRCP 191.4.) Responses will normally need to be served on all parties of record, not just the party that made the requests. If a party is represented by a licensed attorney, then service would be upon his attorney of record. There are several methods of service of written discovery available. Three ways are: certified US mail, fax, and hand-delivery. (TRCP 21a.) So for, instance, a defendant could send his written discovery responses to the fax numbers of the other party’s attorneys. These fax numbers are usually listed below the area where the other party’s attorney signs his name to written discovery requests.
The first type of written discovery request commonly encountered is the request for disclosure, found in Texas Rule of Civil Procedure 194. This is a request for some basic information about the case. For instance, TRCP 194.2(a) asks for “…the correct names of the parties to the lawsuit…” This form of discovery request may be found in the Plaintiff’s original petition (or the Defendant’s original answer). It may also be served as a separate written discovery document on the opposing party. The request will likely be in the form of the following language: “Under the authority of Texas Rule of Civil Procedure 194, defendant requests that plaintiff disclose, within 30 days of the service of this request, the information or material described in Rule 194.2...” If the request is served before the defendant’s original answer is due, then the defendant gets an extra 20 days to respond (50 days total). (See Texas Rule of Civil Procedure 194.3(a).) The format of the written response to the request for disclosure might look something like this in some cases:
{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}
DEFENDANTS’ ANSWERS TO PLAINTIFF’S REQUESTS FOR DISCLOSURE
To: Plaintiff, {Name of Plaintiff}, through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}
Defendant {Name of Defendant} serves these answers to Plaintiff’s requests for disclosure made under Texas Rule of Civil Procedure 194.2.
ANSWERS TO REQUESTS FOR DISCLOSURE
1. Response to request under Rule 194.2(a): {text of response here.}
2. Response to request under Rule 194.2(b): {text of response here.}
3. Response to request under Rule 194.2(c): {text of response here.}
4. Response to request under Rule 194.2(d): {text of response here.}
5. Response to request under Rule 194.2(e): {text of response here.}
6. Response to request under Rule 194.2(f): {text of response here.}
7. Response to request under Rule 194.2(g): {text of response here.}
8. Response to request under Rule 194.2(h): {text of response here.}
9. Response to request under Rule 194.2(i): {text of response here.}
10. Response to request under Rule 194.2(j): {text of response here.}
11. Response to request under Rule 194.2(k): {text of response here.}
12. Response to request under Rule 194.2(l): {text of response here.}
Respectfully submitted,
{Defendant’s signature (or his attorney’s),
address, telephone, and fax (if any)}
Requests for admissions ask the responding party to either admit or deny a specific fact. When used legitimately, they can simplify the eventual trial by eliminating matters about which there is no controversy. (For instance, if the fact that the sky is blue and not red with green polka dots is important in the trial, a party could ask the opposing party to “Admit that the sky is blue and not red with green polka dots.” Usually, the responding party will then either admit it, deny it, say it can neither admit nor deny it (with a reason why he can’t), refuse to answer due to lack of information (in certain cases), object, or assert a privilege. (TRCP 198.2(b)) The format of a written response to requests for admissions may look something like this in some cases:
{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}
DEFENDANT’S ANSWERS TO PLAINTIFF’S FIRST REQUEST FOR ADMISSIONS
To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}
Defendant, {Defendant name}, serves these responses to Plaintiff’s requests for admissions.
RESPONSES TO REQUESTS
REQUEST FOR ADMISSION 1:
“You are the sole authorized user of Mister Card Credit Card, number 3333-5555-6666-4444.”
Response: {Possible responses: “Defendant admits”, or “Defendant denies”}
REQUEST FOR ADMISSION 2:
“Your address is 6666 Elm St. London, England.”
Response: {Possible responses: “Defendant admits”, or “Defendant denies”}
Respectfully submitted,
{Defendant’s Signature (or his attorney),
address, telephone, and fax (if any)}
Interrogatories are written questions served on a party that require him to serve written answers, usually under other (verified). Texas Rule of Civil Procedure 197 institutes this form of written discovery. 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. A response must include the party’s answers to the interrogatories and may include objections and assertions of privilege as required under the rules. A responding party must usually sign the answers under oath. This is known as “verification”, and can be accomplished by taking the responses and answers, along with a verification page, to a notary. The format of a written response to interrogatories may look something like this in some cases (with two commonly asked interrogatories). (A possible sample verification page is also included.):
{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}
DEFENDANT’S RESPONSE TO PLAINTIFF’S INTEROGATORIES
To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}
Defendant serves these responses to Plaintiff’s Interrogatories
ANSWERS AND OBJECTIONS TO INTERROGATORIES:
INTERROGATORY 1:
Identify each person answering these interrogatories, supplying information, or assisting in any way with the preparation of the answers to these interrogatories. For each person named, provide the person's address and telephone number.
ANSWER: {Place Answer/Objection/Response to Plaintiff’s Interrogatory Number 1 here.}
INTERROGATORY 2:
Please state your full name, date of birth, driver's license number, social security number, all names used by you in the last ten (10) years, name of spouse, if any, present residential address and all previous addresses within the last ten (10) years, including dates resided at each, and residential telephone numbers.
ANSWER: {Place Answer/Objection/Response to Plaintiff’s Interrogatory Number 2 here.}
Respectfully submitted,
{Defendant’s Signature (or his attorney),
address, telephone, and fax (if any)}VERIFICATION PAGE
STATE OF TEXAS
COUNTY OF {county where verification occurs}
On this day {name of party responding to interrogatories –defendant in this instance-} appeared before me, the undersigned notary public, and after I administered an oath to him, and upon his oath, he said he read the “DEFENDANT’S RESPONSE TO PLAINTIFF’S INTEROGATORIES” and the facts in it are within his personal knowledge, and are true and correct
{Signature of Defendant}
SWORN TO and SUBSCRIBED before me by {Name of Defendant} on the _____ day of ____________, 200__.
{Signature of Notary}
Notary Public in and for the State of Texas
My commission Expires: ___________
Requests for production are a means of obtaining documents from another party to the case. Texas Rule of Civil Procedure 196 institutes requests for production. A party responding to requests for production will either comply with the document requests, object, or state reasons why he is not or cannot. The format of a written response to requests for production (with a common request for production included) may look something like this in some cases:
{Caption: Will be something like ‘Joe Blow, Plaintiff v. John Smith, Defendant’, along with information about the court that the case is in, and the case number. The caption will normally be the same as the caption found at the top of the written discovery request being responded to, so it is probably a safe bet to copy that and put it at the top of the discovery response.}
DEFENDANT’S RESPONSES TO PLAINTIFF’S FIRST REQUEST FOR PRODUCTION
To: Plaintiff, {Plaintiff’s name}, by and through his attorney of record, {Name, address, telephone, and fax number of plaintiff’s attorney}
Defendant serves these responses to Plaintiff’s requests for admissions.
RESPONSES TO REQUESTS
REQUEST FOR PRODUCTION NO. 1:
True, correct, and legible copies of any and all correspondence, communications, letters, notes of oral communications, and all other documents or writings sent to or received from, or exchanged by and between you and Plaintiff concerning the subject matter of this lawsuit.
RESPONSE: {Possible responses: “After a diligent search, no items have been identified that are responsive to the request”, or, “See attached documents”}
Respectfully submitted,
{Defendant’s signature (or his attorney’s),
address, telephone, and fax (if any)}
A note about post-judgment discovery: If you loose a lawsuit (or take a default judgment), it is common to be served with discovery requests like interrogatories and requests for production regarding your assets so that the plaintiff can attempt to collect on the judgment against you. Answering all discovery is important because if you don’t, it is possible for the opposing party to get the judge in your case to find you in contempt of court. Although debtor’s prison is abolished under the Texas State Constitution, the unscrupulous judgment creditor may try to use post-judgment discovery as a means of getting you put in jail for contempt of court, if you don’t answer the discovery. However, you can avoid this possible negative legal consequence by properly responding to the post-judgment discovery.
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