By issuing In Re: State Farm, the Texas Supreme Court gave lawyers a manual for handling discovery disputes in Texas courts. The opinion lists seven factors for balancing the requesting party’s need for discovery with the responding party’s claim of burden and cost. The factors are:
- Likely benefit of requested discovery;
- Needs of the case;
- Amount in controversy;
- Parties’ resources;
- Importance of issues at stake in the litigation;
- Importance of the proposed discovery in resolving the litigation; and
- Any other articulable factor bearing on proportionality.
Federal Authorities Are Welcome
The Court reiterated that the Texas discovery rules “are not inconsistent with the federal rules or the case law interpreting them.” [Emphasis mine] Notably, the Court first made this statement in a decision that pre-dated the 2015 amendments to the Federal Rules of Civil Procedure. By reiterating that statement in this case, the Court is making clear that the “not inconsistent” status remains (and is perhaps enhanced) with the 2015 amendments.
Give the Trial Court Facts and Analyses, Grouped According to these Factors
When trial judges receive adequate, case specific factual support for their rulings, the trial court’s determination on these issues will generally determine the outcome. Successful lawyers will provide facts and expert opinions addressing each factor relevant to the specific case. Do not rely on expert opinions that are unsupported by facts, or that do not flow easily and logically from the facts. And remember, the best expert opinions may come from a party’s own employees, especially when analyzing the attributes of a party’s electronically stored information (“ESI”).
While the Court’s opinion addressed a dispute regarding the form in which ESI should be produced, I expect Texas judges to use these factors to resolve many different types of discovery disputes.
When Appropriate, Encourage the Trial Court to Issue Findings
Finally, in cases where an appeal (including mandamus) is a possibility, the prevailing party should strongly consider submitting proposed findings for the trial court to enter. These can give the appellate court a strong indication that the trial court performed the required analysis, and will help narrow the focus (and possibly lower the cost) of any appeal.
For a copy of the Court’s opinion click here.