DISSECTING DISCLOSURES DOS DONTS DANGERS Houston Bar Association

DISSECTING DISCLOSURES: DO’S, DON’TS & DANGERS Houston Bar Association Family Law Section May 4, 2016 *Warren Cole* (The Litigator) *Hon. Eileen Gaffney* (The Leveler) *Sallee S. Smyth* (The Liberator)

TRCP 194: BACK TO BASICS 194. 1. Request. -- WHAT: Obtain information or material listed in Rule 194. 2 WHEN: At time of citation but no later than 30 days before the end of any applicable discovery period HOW: "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)]. "

Seeking Disclosure: Deadlines and Details O Generally, request no later than 30 days before the end of applicable discovery period O If included within original petition, change the title of the pleading to identify 194 request O If done in separate document but served with original petition, citation and return must reference both petition and request

TO TAILOR OR NOT TO TAILOR? O TOTALLY UP TO THE REQUESTING ATTORNEY O CAN ELIMINATE THE UNNECESSARY REQUESTS O the amount and any method of calculating economic damages (unless tort pled) O any indemnity and insuring agreements described in Rule 192. 3(f) (unless tort pled)

TRCP 194. 2 - CONTENTS 194. 2. Content. --A 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;

TRCP 194. 2 – CONTENTS cont’d (d) the amount and any method of calculating economic damages “Economic damages” are damages intending to compensate a claimant for actual economic or pecuniary loss. Tex. Civ. Prac. & Rem. Code § 41. 001(4). They do not include exemplary or non-economic damages. “Noneconomic damages” are damages awarded to compensate the claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, loss of enjoyment of life, injury to reputation, and all other non-pecuniary losses other than exemplary damages. Tex. Civ. Prac. & Rem. Code § 41. 001(12) Attorneys fees are not considered economic damages if allowed by statute. Disclosure of amount and calculation method not required under TRCP 194. 2(d) if fees claimed under Tex. Fam. Code § 6. 708; § 9. 014; § 9. 106; § 9. 205; § 106, 002; § 152. 312; § 156. 005; § 157. 167

TRCP 194. 2 – CONTENTS cont’d (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)

When is Enough? O Incorporating pleadings by reference? Not Recommended-Briefly state the basics O Restate pleadings? Only if very fact specific; better to provide brief summary O Legal and/or statutory authority? Not necessary to state case law

TRCP 194. 2 – CONTENTS cont’d (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 Van Heerden v. Van Heerden, 321 S. W. 3 d 869 (Tex. App. – Houston [14 th Dist. ] 2010, no pet. ) … you need only provide a short statement regarding the witnesses “connection to the case” i. e. “Petitioner’s father, Petitioner’s sister” L. B. v. T. D. F. P. S. , 2010 Tex. App. LEXIS 2518 (Tex. App. – Austin 2010, no pet. ) … description of a person with knowledge of relevant facts as a “social worker” held a sufficient 194 Disclosure response for “connection to the case. ”

TRCP 194. 2 – CONTENTS cont’d (f) for any TESTIFYING expert: O the expert's name, address, and telephone number; O the subject matter on which the expert will testify; O 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; If Expert RETAINED by responding party O 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 the expert's current resume and bibliography;

Expert Designation: Tricks & Traps Failure to include mental impressions & opinions is a complete failure to respond … not an incomplete answer. $27, 877 Current Money v. State, 331 S. W. 3 d 110 (Tex. App. – Fort Worth 2010, pet denied). If expert report produced contains all information required by Rule 194 then expert testimony should be admitted. In the Interest of W. D. W. , 173 S. W. 3 d 607 (Tex. App. – Dallas 2005, no pet. ) Exhibits supporting attorney’s testimony were so "heavily redacted” it was impossible to determine the time and effort devoted to establishing claims on which the party did and did not prevail. Meyer v. Meyer, No. 05 -14 -00655 -CV, 2016 Tex. App. LEXIS 1213 *22 -23 (App. —Dallas February 4, 2016, pet. filed) (mem. op. ) A party is required to provide 194 Disclosure information for anticipated rebuttal experts. Failure to do so automatically excludes the rebuttal evidence. Baker v. Energy Transfer Co. , 2011 Tex. App. LEXIS 8304 (Tex. App. – Waco October 18, 2011, pet. denied) (mem. op. )

Expert Designation: How Specific Must you Be? Enough information to provide the other party with ample notice as to what evidence you intend to offer through the expert i. e. Mr. Jones will opine as to his review of the X, Y, Z documents/records relating to the reimbursement claims of W, the methodology used, the results of his findings & the nature and amount of the claims

Expert Designation Deadline Dilemma TRCP 195. 2: 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 all other to experts, days 60 before the end of the discovery period.

Don’t Ask = Don’t Tell In the Interest of C. C. , 476 S. W. 3 d 632 (Tex. App. – Amarillo 2015, no pet. ): Reading [TRCP 194. 2(f) and TRCP 195. 2) together, we conclude that the obligation to disclose the identity of a testifying expert arises when the information was requested under Rule 194. 2(f). In the Interest of C. D. , 962 S. W. 2 d 145, 147 (Tex. App. — Fort Worth 1998, no pet. ): Because no discovery requests were sent to the ad litem for the children, there was no duty on the part of the ad litem to disclose the witnesses he would call at trial.

“Unless otherwise ordered by the court …” A trial court’s scheduling order and/or local rules could impose obligations for expert designations, making TRCP 195. 2 deadlines applicable. Harris, Fort Bend, Montgomery and Brazoria Counties: No set Scheduling Order requiring Expert Designations has been found in any court exercising family law jurisdiction. Level 3 application only. BUT CHECK FOR YOURSELF!!!

Using Disclosures to Limit Evidence at Trial DID ASK = DO TELL Failure to respond or fully respond to Disclosures = AUTOMATIC exclusion of witnesses / evidence unless good cause or lack of surprise is shown

TRCP 193. 6 - The Automatic Exclusion Rule TRCP 193. 6: 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

Avoiding Automatic Exclusion O Request a “good cause” hearing O Make sure a record of the hearing is made O Offer evidence establishing good cause, no unfair surprise or no unfair prejudice O Offer witness for deposition O Move for a continuance

Evidence Excluded – Now What? O Move for a continuance (unless prejudicial) O Make an offer of proof before case is submitted to the judge or jury O Re-offer the evidence after offer of proof O Make a formal bill of exception Watts v. Oliver, 396 S. W. 3 d 124 (Tex. App. – Houston [14 th Dist. ] 2013, no pet. ): When evidence is erroneously excluded, the court of appeals cannot assess harm if the excluded evidence is not in the record.

TRCP 194. 2 – CONTENTS cont’d (g) any indemnity and insuring agreements described in Rule 192. 3(f); NOTE: Recommended when tort claims involving third parties and/or entities are joined in family law proceedings (h) any settlement agreements described in Rule 192. 3(g); NOTE: Necessary when characterization of personal injury recovery is at issue

TRCP 194. 2 – CONTENTS cont’d (i) any witness statements described in Rule 192. 3(h) TRCP 192. 3(h): A party may obtain 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 stenographical, mechanical or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such 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.

Possible Witness Statements O Teacher notes or disciplinary write ups in student’s school file O Journal or diary entries regarding an event O Social media postings regarding an event O Police reports O Electronic recordings of conversations (in person or over wire) THINK OUTSIDE THE BOX OFFENSIVE vs. DEFENSIVE USES

TRCP 194. 2 – CONTENTS cont’d (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; Applies to claims for IIED; assault; battery; defamation; invasion of privacy; and more

TRCP 194. 2 – CONTENTS cont’d (l) the name, address, and telephone number of any person who may be designated as a responsible third party.

LEVEL 1: SPECIAL REQUEST TRCP 190. 2(b)(6): In addition to the content subject to disclosure under Rule 194. 2, a party may request all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control and may use to support its claims or defenses. A request for disclosure made pursuant to this paragraph is not considered a request for production. (See TRCP 190. 2(b)(4) which limits party to 15 RFP).

TRCP 194. 3 - RESPONSE 194. 3. Response. WHEN: must serve a written response on the requesting party within 30 days after service of the request, except that: O 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 O a response to a request under Rule 194. 2(f) is governed by Rule 195.

TRCP 194. 4 - PRODUCTION 194. 4. Production. -- Copies of documents and other tangible items ordinarily must be served with the response. If 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.

TRCP 194. 5 – NO OBJECTION OR ASSERTION OF WORK PRODUCT 194. 5. No Objection or Assertion of Work Product. --No objection or assertion of work product is permitted to a request under this rule.

Privileges and Protection O 5 th amendment privilege against self- incrimination O Trade secrets or proprietary information O Motion for protection from disclosure of party/witness address or phone number if there is a threat of harm

TRCP 194. 6 – Certain Responses Not Admissible 194. 6. Certain Responses Not Admissible. --A response to requests under Rule 194. 2(c) [legal theories and factual basis] and (d) [amount and method of calculating economic damages] that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment.

Challenging 194 Disclosures: When & How Remington Arms v. Caldwell, 850 S. W. 2 d 167 (Tex. 1993): The failure to obtain a pre-trial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. QUERY: Is the failure to answer or supplement a 194 Disclosure Response a discovery dispute?

NO: When discovery is untimely, exclusion of evidence under TRCP 193. 6 is automatically triggered without the necessity of a pre-trial motion. An objection at trial is sufficient Clark v. Trailways, Inc. , 774 S. W. 2 d 644, 647 (Tex. 1989); Sharp v. Broadway National Bank, 784 S. W. 2 d 669, 671 (Tex. 1990); Mc. Kinley Alexander & Leadlow, Inc. v. The State of Texas, 803 S. W. 2 d 852, 858 (Tex. App. – Corpus Christi 1991, writ denied); F&H Investments, Inc. v. State of Texas, 55 S. W. 3 d 663, 671 (Tex. App. – Waco 2001, no pet. ); White v. Perez, 2010 Tex. App. LEXIS 150 (Tex. App. – Fort Worth 2010, pet. denied) (Cause No. 02 -09 -0251 -CV) (mem. opinion)

YES: Deficiencies in 194 Disclosure Responses are a discovery dispute and must be resolved prior to trial. Objection at trial with request to exclude under TRCP 193. 6 waived. Mandell v. Mandell, 214 S. W. 3 d 682, 691 -692 (Tex. App. – Houston [14 th Dist. ] 2007, no pet. ); Corona v. Pilgrim’s Pride Corp. , 245 S. W. 3 d 75, 84 (Tex. App. – Texarkana 2008, pet. denied); Toles v. Toles, 45 S. W. 3 d 252, 266 (Tex. App. – Dallas 2001, pet. denied); Sprague v. Sprague, 363 S. W. 2 d 788 (Tex. App. – Houston [14 th Dist. ] 2012, pet. denied).

Pre-Trial Action Required O Rulings on objections; privileges and/or protection O Technical errors in the 194 Response (i. e. lack of attorney’s signature) waived if not asserted prior to trial O If 194 Response includes expert report indicating documents attached but they are not, expert cannot be excluded unless responding party was notified of deficiency prior to trial. Safeco Sur. V. J. P. Southwest Concrete Inc. , 2013 Tex. App. LEXIS 13314 (Tex. App. – Houston [1 st Dist. ] 2013)

Protecting the Record for Appeal O Insure that a record is made of all significant discovery hearings O Insure that evidence is offered to support TRCP 193. 6 “good cause” or “unfair surprise/prejudice” arguments O Make all necessary offers of proof or file formal bills of exception O Motion in Limine preserves nothing; objection to evidence must be made at trial O Arguing best interest of the child to support inclusion of evidence at the appellate level too late. In the Interest of T. K. D. -H, 439 S. W. 3 d 473 (Tex. App. – San Antonio 2014, no pet. ) O TRCP 191. 4(c)(3) – Notice of Filing of Discovery Materials Necessary for Appellate Proceeding

DISSECTING DISCLOSURES: DO’S, DON’TS & DANGERS Houston Bar Association Family Law Section May 4, 2016 *Warren Cole* (The Litigator) *Hon. Eileen Gaffney* (The Leveler) *Sallee S. Smyth* (The Liberator)