***VI. DISCOVERY

Question 1

Scope of Discovery . . . What Is Discoverable?
1. General Standard

Example [February 1998 #14, #16, and #20; February 2008 #8; February 2010 #9]:
Suppose plaintiff sues defendant for breach of contract. Plaintiff is seeking damages for lost consequential profits because defendant’s breach caused plaintiff to lose the benefit of several secondary transactions. During discovery, defendant demands that plaintiff identify any other breach of contract claims she has made against any other person in the five years preceding the contract in this case and produce all records related to the lost consequential transactions. Are these items within the scope of discovery?

Answer 1

• a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action.
• it is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
• not relevant. Prior breach of contract suits are not relevant to the pending suit.
• yes. Information concerning the secondary transactions is relevant to consequential damages.

Question 2

2. Trial Witnesses
   Example [July 2004 #6; July 2005 #5; February 2011 #9]: Suppose a plaintiff sends defendant a set of interrogatories asking defendant for the names of all witnesses defendant expects to call at trial, including impeachment and rebuttal witnesses. Is defendant required to provide the names of the witnesses?

Example [July 2005 #14; July 2006 #19; July 2007 #16; February 2009 #17; July 2009 #16]:
Suppose defendant calls a witness to testify at trial whose identity had not been disclosed in response to discovery requests for the identity of all trial witnesses. Plaintiff objects. What, if anything, must defendant show to overcome plaintiff’s objection.

Answer 2

yes and no. The names of trial witnesses are within the scope of discovery and must be disclosed. But the names of impeachment or rebuttal witnesses the necessity of whose testimony cannot reasonably be anticipated before trial need not be disclosed.

Defendant will have to show good cause for non-disclosure OR
that the opposing party will suffer no prejudice or surprise.

Question 3

3. Documents and Tangible Things

Answer 3

A party may obtain discovery of documents and tangible things that constitute or contain matters relevant to the subject matter of the action.
A person is required to produce a document or tangible thing that is within the person’s possession , custody or control.

Question 4

4. Experts
   a. Classification of Experts
   b. Discoverable Experts
   [July 1998 #12; February 2000 #9; July 2001 #15 and 16; July 2002 #13; February 2003 #1; July 2003 #9; February 2004 #12; July 2004 #11; July 2007 #8]

c. Designation of Experts [February 2002 #14; February 2004 #11; July 2004 #12]

Answer 4

4. Experts
   a. Classification of Experts
   Experts are classified as:
   • Testifying: those who may testify as an expert witness at trial;
   • Consulting: those who have been consulted, retained, or specially employed in anticipation of litigation or for trial, but who will not testify; or
   • Reviewed Consulting: a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees with the opinions of the consulting expert.

b. Discoverable Experts
The identity, mental impressions, and opinions of a purely consulting expert are not discoverable.
A party may discover information concerning a testifying or a reviewed consulting expert witness.

c. Designation of Experts [February 2002 #14; February 2004 #11; July 2004 #12]
With respect to testifying and reviewed consulting experts, parties may be required to designate experts and provide information through requests for disclosure:
• a party seeking affirmative relief must respond to the requests for disclosure at least 90 days before the end of the discovery period.
• other parties must identify experts at least 60 days before the end of the discovery period.

***Parties seeking affirmative relief must make their experts available for deposition reasonably promptly after the expert is designated unless a report concerning the expert’s opinions and observations is provided upon designation. If a report is furnished, the designated expert need not be available for deposition until all other experts have been designated. [February 2002 #13; July 2002 #14; February 2007 #8; Jul 2009 #8]

Question 5

5. Limited Discovery of Work Product
   a. Definition
   b. Protection Provided: Privilege
   Example [July 1999 #15; February 2000 #11; July 2007 #7; July 2011 #7]: Suppose plaintiff sued defendant for breach of contract. During discovery, plaintiff requests production of attorney notes taken in meetings between the defendant’s attorney and the defendant’s employees during the investigation of this matter. Does defendant have a valid work product objection to the production of this material?

Example: Suppose David is shopping at Ricky’s store when he is hit by a box that fell from a display. Ricky learned that David hired an attorney and plans to file suit in the near future. To protect himself, Ricky hires a private investigator, Ozzie, to “look into” the incident. Ozzie prepares a report summarizing witness statements and the results of his investigation. In the subsequent litigation, is Ozzie’s report to Ricky discoverable?
_______________ _______________. _______________

Answer 5

5. Limited Discovery of Work Product
   a. Definition
   Work product includes any material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representative.

b. Protection Provided: Privilege
yes. core work product of an attorney includes the attorney’s mental impressions, opinions, or conclusions, and is absolutely privileged.

probably not. other work product is discoverable only upon a showing that the party seeking discovery has a substantial need of the materials for preparation of the party’s case and that the party is unable, without undue hardship, to obtain the substantial equivalent.

Question 6

Example [July 1999 #16; July 2006 #8]: Fred makes a very popular hot sauce. Ethel bought a bottle of Fred’s hot sauce and became very ill after consuming a small amount of the sauce. In Ethel’s suit against Fred, she seeks to obtain Fred’s “secret” recipe in discovery. Fred wants to keep his family recipe secret…what, if anything, can Fred do?

Answer 6

B. Protective Order
Seek a protective order. A person from whom discovery is sought may seek a protective order within the time permitted for a response. The court may make any order limiting discovery in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance.
A person should not move for protection when an assertion of privilege or an objection is appropriate.

Question 7

C. Response to Written Discovery

1. General Rules [February 2009 #7]

Answer 7

C. Response to Written Discovery
1. General Rules [February 2009 #7]
A party must respond to written discovery within the time provided by court order or the rules. When responding, a party must make a complete response including answers, objections, and other matters.
For most discovery devices including a request for disclosure, request for production or inspection, interrogatories, and requests for admissions, a plaintiff must respond within 30 days after service. The defendant also has 30 days after service to respond, except that a defendant has 50 days from service if the defendant was served before his answer to the petition is due. (petition and discovery served together)

Question 8

2. Asserting a Privilege to Written Discovery
   Example: Suppose plaintiff sued defendant for breach of warranty. Plaintiff sends defendant a set of interrogatories and defendant believes that several questions require disclosure of matters that are privileged under the rules of evidence. What procedure must the defendant follow to properly assert the claim of privilege as a basis for refusing to answer some of the interrogatories? What procedure must the plaintiff follow to obtain answers to the interrogatories?

Example [February 2001 #10; July 2003 #5; February 2007 #7; February 2009 #12]:
Suppose defendant is served with a request for production of documents. The defendant produces a large number of documents, including privileged material. The defendant did not intend to waive the privilege and the disclosure was made inadvertently. Has defendant waived the privilege by disclosing the privileged information?

Answer 8

a. Step One: Withholding Statement [July 2004 #7; February 2005 #7; February 2006 #8; February 2009 #11; July 2011 #7]
The party asserting a privilege must state, in a response or in a separate document, within the time for the response to the request that:
• information or material responsive to the request has been withheld;
• the request to which the materials relate; and
• the privilege asserted.

b. Step Two: Response [July 2004 #8]
• after receiving a withholding statement, the party seeking discovery may request that the withholding party identify the information withheld.

c. Step Three: Privilege Log [February 2006 #9]
• within 15 days, the withholding party must serve a response that describes the information or materials withheld (a “privilege log”) and asserts a specific privilege for each item or group of items withheld.
• at the hearing on a motion to compel, the withholding party must establish a prima facie case for privilege by testimony or by affidavit. The withholding party must do so without revealing privileged information and may tender representative documents with the testimony or affidavit.

d. Inadvertent Disclosure
probably not. The producing party does not waive the privilege if, within 10 days of discovering that such production was made, the party amends the response identifying the material produced and states the privilege asserted.
After the disclosing party makes such an amendment, the requesting party must promptly return the specified material and any copies thereof.

Question 9

3. Objecting to Written Discovery
   Example [February 2000 #6; July 2005 #6; February 2008 #8 #9; July 2010 #8]: Suppose plaintiff sued defendant for personal injuries and filed a request for production of documents. The defendant believes that some, but not all, of the requests are objectionable because they seek material beyond the scope of discovery, are unduly burdensome, and are overly broad. How should the defendant preserve these objections?

Answer 9

• the defendant must make any objection to written discovery in writing, either in the response or in a separate document, within the time for the response;
• an objection that is not made within the time for response is waived;
• the defendant must state the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request;
• the defendant must have a good faith factual and legal basis for the objection.

Question 10

4. Resolving an Objection or Claim of Privilege [February 2008 #9; July 2008 #7; July 2010 #9]

Answer 10

Any party may request a hearing on an objection or claim of privilege. The party making the objection or asserting the privilege has the burden to prove the validity of the objection or privilege claimed.
Alternatively, a party may move to compel discovery after attempting to resolve a discovery dispute. The party seeking discovery may seek an order to compel and/or sanctions. [February 2002 #12; February 2007 #6]

Question 11

D. Supplementing Discovery

Example: Suppose plaintiff sued defendant for personal injuries. In response to prior discovery requests, plaintiff disclosed the nature of her injuries and her testifying expert witnesses regarding those injuries. Forty days before trial, plaintiff’s doctors diagnose a new injury which is separate and distinct from the plaintiff’s original injuries. Plaintiff determines that another testifying expert would be very helpful in this case. What action should be taken to protect the plaintiff’s interests?

Example [July 2002 #19; February 2004 #19; July 2004 #15; February 2005 #16; February 2007 #14]:
Suppose in the previous example plaintiff supplements her discovery answers twenty-five days before trial to disclose her newly diagnosed injury. However, she does not supplement her previously disclosed medical expert reports. At trial, plaintiff offers expert testimony about her new injury. Defendant objects. How should the court rule?

Answer 11

D. Supplementing Discovery
A party has a duty to supplement written discovery when the party has responded and knows that the response was incorrect or incomplete when made, or, although correct and complete when made, is no longer correct and complete.

Plaintiff should supplement her prior discovery responses:
• identify the newly diagnosed injury and including the expert expected to testify about the newly discovered injury;
• supplement the discovery responses reasonably promptly, but not less than 30 days before trial; and
• if discovery responses are supplemented less than 30 days before trial, they are presumed not reasonably prompt.

(template) sustain the objection. Here, plaintiff supplemented her answers, but only twenty-five days before trial and she did not supplement the medical reports at all. The rule provides that evidence is not admissible unless plaintiff can show god cause for failure to timely supplement or no unfair surprise or prejudice to defendant.

Question 12

E. Discovery Control Plans: Level 1, 2, and 3

1. Pleading Requirement [July 2000 #4; July 2001 #11]

Answer 12

• the plaintiff’s original pleading should state, “Plaintiff intends that his suit be covered by Level 1,2, Discovery Control Plan, pursuant to Rule 190.2/190.3/190.4 (as appropriate), Texas Rules of Civil Procedure;”
• the failure to so plead is subject to a special exception, and the case automatically defaults to a level 2 discovery plan.

Question 13

E. Discovery Control Plans: Level 1, 2, and 3

level 1

Answer 13

2. Level 1
   a. Application
   Level 1 applies to (i) any suit that is governed by the Expedited Actions process in Rule 169—which means a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating 100k or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; and (ii) any suit for divorce not involving children in which the party pleads that the value of the marital estate is more than $0 but not more than $50,000.

b. Limits [February 2002 #8]
1) The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.
2) Each party may have no more than 6 hours of deposition time, but can agree to expand the limit to 10 hours per party.
3) Each party may serve on the other party no more than 15 interrogatories, except interrogatories that seek to identify or authenticate specific documents are unlimited.
4) A party may serve no more than 15 requests for production and 15 requests for admission on any other party. Each discrete subpart of a request for production or admission is considered a separate request.
5) A party may request disclosure of 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. Such a request for disclosure is not counted against the 15 permitted requests for production.

c. Special Trial Procedures for Expedited Actions
1) Purpose: The Expedited Actions process is meant to more quickly resolve relatively small disputes. The process is mandatory for any dispute in which all claimants (other than counter-claimants) seek only monetary relief not greater than $100,000.
2) Limited Recovery: In no event may a party who prosecutes a suit under this rule recover a judgment in excess of $100,000, excluding post-judgment interest.
3) Trial Procedures: (i) on any party’s request, the court must set the trial date within 90 days after the discovery period ends (180 days from the service of the first discovery request); and ii) each side is allowed only 8 hours to complete jury selection, opening statement, all examinations, and closing arguments (time spent on objections, bench conferences, and challenges for cause during jury selection do not count against the 8 hours). court has discretion to extend it to 12 hours

Question 14

3. Level 2

Answer 14

3. Level 2
   a. Application
   A Level 2 case is a case that exceeds the requirements for Level 1 and in which there is no “order” ordering a Level 3 plan. Level 2 is also appropriate if the plaintiff fails to plead a discovery level.
   b. Limits [July 1999 #1; July 2002 #10; February 2004 #7; July 2004 #5; February 2005 #5; July 2010 #8]
   • duration: the discovery period begins when suit is filed and continues until the earlier of
   30 days before the date set for trial, or
   9 months after the date of the first oral deposition,
   or the due date of the first response to written discovery.
   • depositions: Each side may have no more than 50 hours of deposition time to examine and cross-examine parties on the opposing side, experts designated by those parties, and persons subject to their control. “Side” refers to all litigants with generally common interests in the litigation.
   • If one SIDE designates more than two experts, the opposing SIDE may have an additional six hours per additional expert designated.
   • The fifty hour limit does not apply to depositions of non- party fact witnesses who are not under a party’s control.
   • interrogatories: Each party may serve on the other party no more than 25 interrogatories, excluding interrogatories asking a party to identify or authenticate specific documents.
   c. Enforcing Limits
   if depo over time
   Under the rules, if the time limitations for the deposition have expired, a party or a witness may suspend the oral deposition.

Question 15

4. Level 3

Answer 15

4. Level 3 large cases
   a. Application
   Level 3 applies only when a courts order it, pursuant to party’s motion or on its own initiative, a discovery control plan that is tailored to the circumstances of the specific suit. [February 2003 #7]
   b. Limits
   In ordering a Level 3 discovery plan, the court will start with the guidelines and limitations contained in Levels 1 and 2. However, these guidelines and limitations may be modified by court order.

Question 16

F. Forms of Discovery . . . How to Get Information
1. Forms of Discovery [February 2008 #7; February 2009 #8; July 2010 #7; February 2011 #6]
Permissible forms of discovery include:

Answer 16

F. Forms of Discovery . . . How to Get Information
1. Forms of Discovery [February 2008 #7; February 2009 #8; July 2010 #7; February 2011 #6]
Permissible forms of discovery include:
a. requests for disclosure;
b. requests for production and inspection;
c. interrogatories to a party;
d. requests for admission;
e. oral and written depositions; and
f. motions for physical examinations.

Question 17

2. Request for Disclosure

One type of question has required that you name five types of information that may be obtained using a Request for Disclosure and the date by which the receiving party must respond. [February 2001 #1; July 2002 #11; February 2003 #8; July 2003 #3; February 2005 #8; February 2007 #4; July 2008 #4]

A second type of question has identified a specific type of information and has either asked how the information may be obtained or has sought the information using an inappropriate discovery device, such as an interrogatory, rather than a Request for Disclosure. [February 1999 #12, #13, #15, #19; July 1998 #11, #12; February 2000 #12; and February 2002 #12; July 2009 #7, #8; February 2010 #8; July 2010 #9; July 2011 #8]

c. Response

Answer 17

2. Request for Disclosure
   a. Request
   • a party may request disclosure of the information and material listed below by serving a Request for Disclosure on another party to the suit.
   • no objection or assertion of work product is permitted to a request under this rule. [July 2002 #12; February 2011 #7]
   b. Content of Request
   There have been two types of questions on the bar examination concerning the content of a Request for Disclosure.

The following is a list of information that can be obtained using a Request for Disclosure:
• the correct names of the parties;
• the names, addresses, and telephone numbers of potential parties;
• the name, address, and telephone number of any person who may be designated as a responsible third party;
• the amount and method of calculating economic damages;
• 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 (i.e., eyewitness, treating physician, investigating officer).
• any indemnity or insuring agreements;
• any witness statements;
• in cases seeking damages for personal injuries, all medical records and bills that are reasonably related to the injuries, or in lieu thereof, an authorization permitting the disclosure of such medical records and bills [July 2007 #6; July 2008 #8; July 2010 #10]. Cases have held that the party requesting disclosure has the option of seeking an authorization rather than the medical records and that the requesting party’s preference controls.
• for any testifying expert, the expert’s name, address, and telephone number; the subject matter on which the expert will testify; the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them; and all documents and other information that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony.

c. Response … Reminder
A plaintiff must respond within 30 days after service of the request for disclosure. The defendant also has 30 days to respond after service, except a defendant has 50 days from service of the requests for disclosure if the defendant was served with the requests before his answer to the petition is due.

Question 18

3. Request for Production and Inspection

a. The Request

Answer 18

3. Request for Production and Inspection
   a. The Request
   • a party may serve a request for production or for inspection, to inspect, sample, test, photograph, and copy documents or tangible things within the scope of discovery.
   • if the request is served on a non-party, production of documents and things may be requested only by obtaining a court order or by serving a subpoena compelling the specific form of discovery requested by the party. [July 2005 #6]
   • medical records may be obtained in several ways. First, the party seeking the records could obtain a court order upon a hearing for the production of records. Second, the party could use a request for disclosure to obtain the records or the party’s authorization. Finally, the party may subpoena production of the records by serving the physicians and parties with a notice to produce 30 days before the subpoena is served. The subpoena is often used in connection with a deposition on written questions. [July 2008 #8; July 2009 #9]

b. The Response [February 2008 #8]
Production of a document operates to authenticate the document produced for use against the producing party. This rule of self-authentication applies unless within ten days after the producing party has actual notice the document will be used, the producing party objects to the authenticity. [February 2002 #18; July 2003 #18]

c. Testing
May defendant obtain the motorcycle and, if so, what limits exist on the testing by the defendant?
yes. The defendant may obtain the motorcycle using a Request for Production. The rules provide that any testing of an item may not destroy or materially alter the item unless previously authorized by the court.

d. Entry on Property
plaintiff sued defendant alleging that the defendant improperly stored plaintiff’s property while the property was in the custody of defendant.

Plaintiff should file a Request or Motion for Entry Upon Property. This allows a party to gain entry upon property to inspect, measure, survey, photograph, or sample the property in question. The request must state the time, place, manner, conditions, and scope of the inspection.

Question 19

4. Interrogatories [July 2011 #14]

Answer 19

4. Interrogatories [July 2011 #14]
   a. Use
   Interrogatories are written questions to a party in the suit and the answers may be used only against that party.
   b. Answers
   • the responding party must sign the answers under oath unless the answers are based on information obtained from other persons.
   • the response consists of answers, objections, or the assertion of a privilege.

Question 20

5. Requests for Admissions

c. Response [July 2005 #4; July 2006 #13; February 2007 #5; July 2008 #5; February 2009 #9]
d. Effect of Admissions [July 2005 #4; July 2006 #14; February 2007 #5; July 2008 #6; February 2009 #9; February 2011 #8]

Answer 20

5. Requests for Admissions
   a. Use
   A party may serve on another party written requests that the other party admit the truth of any matter within the scope of discovery.
   b. Limits
   There are no limits on the number of requests. except level 1 case

c. Response [July 2005 #4; July 2006 #13; February 2007 #5; July 2008 #5; February 2009 #9]
Unless a responding party states an objection or asserts a privilege:
• the responding party must specifically admit or deny the request, or explain in detail the reasons that the request cannot be admitted or denied;
• the response is due within 30 days after service, or 50 days if a defendant was served with the request before the time to answer the petition; and

***• importantly, if a response is not timely served, the request is deemed admitted. (ALL questions within deemed admitted)

d. Effect of Admissions [July 2005 #4; July 2006 #14; February 2007 #5; July 2008 #6; February 2009 #9; February 2011 #8]
A matter admitted is conclusively established as to the party making the admission without the need of a court order.

Upon motion, the court may allow withdrawal of an admission if the party shows good cause and the court finds that the parties relying on the admission will not be unduly prejudiced. These rules apply to actual and deemed admissions for failure to timely answer.

Question 21

6. Oral Depositions
   a. Notice
   when a notice of deposition includes a request that the party produce documents or things at the deposition?
   Deposition of Organization
   Place of Deposition

objection to time and place

Answer 21

6. Oral Depositions
   a. Notice
   Notice of intent to take an oral deposition must be served on the deponent and parties a reasonable time before it is to be taken. The notice shall contain the name of the deponent, and a reasonable time and place for the deposition.
   However, when a notice of deposition includes a request that the party produce documents or things at the deposition, the notice for a deposition and the request for production of documents also must comply with the rules concerning discovery of documents or things, including the 30-day time limit required for a response.

• Deposition of Organization [July 1999 #2; July 2006 #6, #7; July 2009 #11]:
If the deponent is an organization, the notice must describe with reasonable particularity the matters on which the examination is requested. In response, the organization must designate one or more individuals to testify on its behalf.

• Place of Deposition [February 2006 #10; July 2009 #10; July 2011 #9]:
The deposition of a non-party may be taken in the county of the deponent’s residence; the county where the deponent is employed or regularly transacts business in person; or the county where the deponent was served with a subpoena.
If the deponent is a party, the deposition may be taken in the same locations that are proper for a non-party as well as the county in which the suit is filed.
Appearance is required in a county that is not more than 150 miles from where the person resides or is served. [February 2000 #10]
A motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within three business days of service, the objection stays the deposition until the objection is resolved. [July 2006 #8; July 2008 #9; July 2010 #12]

motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within three business days of service, the objection stays the deposition until the objection is resolved.

Question 22

6. Oral Depositions
   b. Compelling Attendance [February 2006 #10, July 2010 #11]
   Example: Suppose Al sues Acme, Inc., for breach of contract. Al serves Acme’s attorney with a notice of intent to take Acme’s deposition describing the matters on which examination is requested. Instead of seeking a protective order, Acme simply fails to appear for the deposition. What are Al’s options?

Answer 22

• if a witness is a party, or employed by, retained by, or otherwise subject to the control of a party, service of the notice on the party’s attorney has the same effect as a subpoena;
• if the deponent is a non-party witness, you must issue both the notice and a subpoena.

Al may file a motion for sanctions or an order compelling discovery based on Acme’s failure to produce a witness at the properly noticed deposition. The court may order Acme to pay Al’s attorney’s fees incurred in obtaining the order as well as a broad range of other sanctions.

Question 23

6. Oral Depositions
   c. Production of Documents
   If the deponent desires to object to the request?

Answer 23

c. Production of Documents
The notice may include a request that the witness produce documents or things at the deposition. The notice of deposition may also use a subpoena to compel the production of documents in which case the rules concerning requests for production govern the response to the subpoena. [July 2005 #6]

If the deponent desires to object to the request to produce tangible things, the witness must file a Motion to Quash or a motion for a protective order within 30 days after service of the subpoena. [July 1999 #11; February 2000 #6; July 2007 #8]

Question 24

6. Oral Depositions
   d. Conduct of Deposition
   Time Limit
   Objections
   Communication with the Witness:
   if improper objections
   recorded by nonstenographic?

Answer 24

If Plaintiff’s attorney gives at least 5 days’ notice, the deposition can be recorded by nonstenographic means, including videotape.

d. Conduct of Deposition
• Time Limit: No side may examine or cross-examine an individual witness for more than 6 hours. The deposition may be suspended if the time limit has expired. Separate cumulative time limitations are created by the discovery plan (i.e., fifty hours).

• Objections [July 1999 #13; February 2000 #8; July 2001 #18; July 2003 #6; February 2005 #9; July 2005 #7; July 2007 #10; July 2008 #10; February 2009 #13]:
There are only three proper objections to questions and testimony at an oral deposition. Objections are limited to:
• “Objection, leading”;
• “Objection, form” (e.g., the question calls for speculation, is vague, is confusing, or is ambiguous);
• “Objection, non-responsive”;
• making other objections or suggestive objections at the deposition may be grounds for suspending the deposition in order to obtain a ruling on the contention that the objections are improper. The court may award costs and attorney’s fees associated with a motion for sanctions.

• Communication with the Witness:
An attorney may not confer a witness during a deposition except to identify a privilege to be protected. [February 2006 #11]
An attorney may instruct a witness not to answer only if doing so is necessary to preserve a privilege, to comply with a court order, or to protect the witness from an abusive question or one that requires a misleading response. [July 1999 #13; February 2002 #9]

if improper objections: may seek costs and other discovery sanctions and the court should grant the requests. Argumentative and suggestive objections are grounds for termination of the deposition as well as the award of costs and other sanctions. Also, the objections are waived.

Question 25

e. Deposition Before Suit
Example [July 2000 #1; July 2002 #1]: Suppose Paul and Dan have a serious automobile accident. Based on their conversations, Dan is aware that Paul plans to file suit in the near future. Dan is aware of an eyewitness to the accident who has a terminal illness and is currently very ill. What, if anything, can Dan do to preserve this testimony for trial?

f. Expert Witness Fees [July 2007 #11]

Answer 25

e. Deposition Before Suit

File a Petition for a Deposition Before Suit. The petition must be verified and must be served on all persons whom the petitioner seeks to depose or expects to be adverse in any anticipated lawsuit. The petition must allege that:
• that the petitioner anticipates the institution of a suit in which the petitioner may be a party;
• the subject matter of the anticipated action, if any, and the petitioner’s interests therein; and
• the names of the persons the petitioner expects to have interest adverse to the petitioner and their addresses and telephone numbers.
Presuit depositions are prohibited in health care liability claims.

When a party takes the oral deposition of the opposing party’s expert witness, all reasonable fees charged by the expert must be paid by the party that hired the expert.

Question 26

7. Medical Examination

Answer 26

A party can file a motion to compel a medical exam of another party by a qualified physician. The moving party must show good cause for the exam and that the other party’s physical condition is in controversy. The motion and notice of hearing must be filed at least 30 days before the end of the discovery period and be served on all parties and the person to be examined. [July 2004 #10; July 2005 #9; July 2007 #9; February 2009 # 10]