Responding to written discovery in Texas: thirty days, and the deadlines that bite hardest

Texas sets one response period for written discovery and then attaches very different consequences to missing it. Requests for admission are the outlier, and they're the reason this deadline is worth taking seriously.

Thirty days, with one exception

Rules 196.2(a), 197.2(a) and 198.2(a) all say the same thing in the same words: the responding party must serve a written response on the requesting party within 30 days after service of the request.

The exception is identical in all three: a defendant in a suit governed by the Family Code who is served with a request before the defendant's answer is due need not respond until 50 days after service of the request.

Rule 4 governs the count, so weekends and holidays are counted — a 30-day period isn't a period of "five days or less." If service was by mail, Rule 21a(c) adds three days, and Rule 4 confirms those three days are calendar days.

Rule 193.1 covers the form: a party must respond in writing within the time provided, must make a complete response based on all information reasonably available to the party or its attorney at the time, and the answers, objections and other responses "must be preceded by the request or required disclosure to which they apply."

Requests for admission: the deemed-admission rule

Rule 198.2(c) is four lines long and decides cases:

If a response is not timely served, the request is considered admitted without the necessity of a court order.

No motion. No hearing. No order. The deadline passes and the facts are admitted.

Rule 198.3 then makes an admission "conclusively established as to the party making the admission" unless the court permits withdrawal or amendment. The court may permit it if the party shows good cause and the court finds the parties relying on the deemed admissions won't be unduly prejudiced and that letting them be withdrawn will serve the presentation of the merits.

Rule 198.3 also limits reach in the other direction: an admission may be used solely in the pending action and not in any other proceeding.

Rule 198.2(b) sets out what a real response looks like. Unless the party objects or asserts a privilege, it must specifically admit or deny, or explain in detail why it can't do either. The response must fairly meet the substance of the request. A party may qualify an answer or deny in part only when good faith requires. Lack of information isn't a proper response unless the party states that a reasonable inquiry was made and the information known or easily obtainable is insufficient. And "an assertion that the request presents an issue for trial is not a proper response."

Objections have their own deadline

Rule 193.2(a): a party must make any objection to written discovery in writing — in the response or in a separate document — within the time for response. The objection must state specifically the legal or factual basis and the extent to which the party is refusing to comply.

Rule 193.2(e) supplies the consequence, and it has two halves:

An objection that is not made within the time required, or that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.

The second half is the one worth reading twice. Burying a good objection in a pile of boilerplate waives it.

Rule 193.2(b) requires a party who objects to part of a request to comply with the rest, unless it's unreasonable to do so before getting a ruling. A party objecting to the time or place of production must state a reasonable time and place and comply then, without further request or order.

Rule 193.2(c): a party may object only if a good faith factual and legal basis exists at the time. Rule 193.2(d) allows an objection or response to be amended or supplemented to state a basis that was inapplicable or unknown after reasonable inquiry when the response was first made.

Privilege is not an objection

Rule 193.2(f) is explicit: a party should not object on the ground that a request calls for privileged material, and should follow Rule 193.3 instead. A party who does object doesn't waive the privilege, but must comply with Rule 193.3 once the error is pointed out.

Rule 193.3 works in two stages.

Stage one — withhold and say so. A party may withhold privileged material, but must state — in the response, an amended response, or a separate document — that responsive information or material has been withheld, which request it relates to, and which privileges are asserted.

Stage two — describe, on request, within 15 days. After receiving that statement, the requesting party may serve a written request that the withholding party identify what was withheld. Within 15 days of service of that request, the withholding party must serve a response that describes the withheld information well enough to let others assess the privilege without revealing the privileged material, and asserts a specific privilege for each item or group of items.

The litigation-file exemption. Rule 193.3(c) lets a party withhold, without doing either stage, a privileged communication to or from a lawyer or a lawyer's representative, or a privileged document of a lawyer or lawyer's representative, created from the point at which a party consults a lawyer with a view to obtaining legal services in the prosecution or defense of a specific claim in the litigation where discovery is sought, and concerning that litigation.

The snap-back. Rule 193.3(d): a party who produces material without intending to waive privilege doesn't waive it if — within ten days after the producing party actually discovers the production, or a shorter time the court orders — it amends the response, identifies the material, and states the privilege. Any party who obtained the material must promptly return it and all copies pending a ruling.

Getting a ruling

Rule 193.4(a): any party may at any reasonable time request a hearing on an objection or privilege claim. The party objecting or asserting the privilege must present any evidence needed to support it — testimony at the hearing, or affidavits served at least seven days before it, or at another reasonable time the court permits. If the court decides an in camera review is necessary, the material must be segregated and produced to the court in a sealed wrapper within a reasonable time after the hearing.

Rule 193.4(b): to the extent the court sustains the objection or privilege, there's no further duty to respond. To the extent it overrules it, the responding party must produce within 30 days after the ruling or as the court orders. A party need not request a ruling on its own objection to preserve it.

Rule 193.4(c) is the trade-off: a party may not use, at any hearing or trial, material withheld under a claim of privilege — including one the court sustained — without timely amending or supplementing the response.

The duty to update

Rule 193.5(a): a party who learns that a response was incomplete or incorrect when made, or has since become incomplete or incorrect, must amend or supplement — as to the identity of persons with knowledge of relevant facts, trial witnesses and expert witnesses, and as to other information unless the corrective information has already been made known to the other parties in writing, on the record at a deposition, or through other discovery responses.

Rule 193.5(b): the amendment must be made reasonably promptly. And there's a built-in presumption: "it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly." The amendment must be in the same form as the original and verified if the original had to be — though a verification defect doesn't make it untimely unless the party refuses to fix it within a reasonable time after it's pointed out.

What a late response costs at trial

Rule 193.6(a): a party who fails to make, amend or supplement a discovery response in a timely manner may not introduce the material or information that wasn't timely disclosed, or offer the testimony of a witness (other than a named party) who wasn't timely identified.

Two exceptions: the court finds good cause for the failure, or finds that it won't unfairly surprise or unfairly prejudice the other parties. Rule 193.6(b) puts the burden on the party seeking to use the evidence, and requires any such finding to be supported by the record. Rule 193.6(c) lets the court grant a continuance to allow a late response and let the other side conduct discovery on it, even if the burden isn't carried.

Two rules about the documents themselves

Production is authentication. Rule 193.7: producing a document in response to written discovery authenticates it for use against the producing party in any pretrial proceeding or at trial — unless, within ten days after actual notice that the document will be used (or a longer or shorter time the court orders), that party objects to its authenticity, stating the specific basis. The objection must be on the record or in writing and must have a good faith factual and legal basis. An objection to part of a document doesn't affect the rest.

How they're organized. Rule 196.3(c): the responding party must either produce documents as they are kept in the usual course of business, or organize and label them to correspond with the categories in the request. Rule 196.3(b) allows copies instead of originals unless authenticity is questioned or it would be unfair; if originals are produced, the responding party may keep them while the requesting party inspects and copies.

Rule 196.4 covers electronic data: the requesting party must specifically request it and specify the form. The responding party must produce what's responsive and reasonably available in the ordinary course of business. If it can't, through reasonable efforts, retrieve or produce the data in the form requested, it must object. If the court orders compliance anyway, it must also order the requesting party to pay the reasonable expenses of any extraordinary steps required.

Rule 196.6: the responding party bears the cost of producing; the requesting party bears the cost of inspecting, sampling, testing, photographing and copying.

Requests have a deadline too

Rules 196.1(a), 197.1 and 198.1 each require a party to serve requests no later than 30 days before the end of the discovery period. A request served on day 29 doesn't buy a shorter response time — it's simply out of time.

Rule 197.2(d) adds a requirement unique to interrogatories: the responding party — not an agent or attorney, despite Rule 14 — must sign the answers under oath. Two exceptions: when answers are based on information obtained from other persons the party may say so, and a party need not sign answers about persons with knowledge of relevant facts, trial witnesses, and legal contentions.

Rule 197.2(c) lets a party answer by producing business records when the answer can be derived from them and the burden of deriving it is substantially the same for both sides — provided the records are specified in enough detail for the requesting party to find the answer as readily as the responding party could.

Where these rules live

• Rule 193 — Written Discovery: Response; Objection; Assertion of Privilege
• Rule 196 — Requests for Production and Inspection
• Rule 197 — Interrogatories to Parties
• Rule 198 — Requests for Admissions
• Rule 194 — Required Disclosures
• Rule 190 — Discovery Limitations
• Rule 21a — Methods of Service

For forms and step-by-step help, the Texas courts point to TexasLawHelp.org. This page explains what the rules say. It isn't legal advice.