Written by: Law Office of Porter Hedge LLP
With the 2020 Amendments, Rule 47(c)(3)’s current upper limit of $200,000 increases to $250,000 and Rule 47(c)(4)’s lower limit increases from $200,000 to “relief over $250,000.” On January 1, 2021 , these changes and the 2021 Amendments to Rule 47(c)(1) increase the cap on monetary relief, from $100,000 to $250,000 which excludes interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Rule 47(c)’s other statements of relief are commensurately increased, and the existing Rule 47(c)(3) is removed. The result is the four following statements of relief:
(1) only monetary relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs;
Importantly, the Texas Supreme Court’s comment to the 2021 Amendments states “A suit in which the original petition contains the statement in paragraph (c)(1) is governed by the expedited actions process of Rule 169.” The Court may be setting a blanket rule for expedited actions in both district and county courts in an effort to simplify two distinct rules in Tex. Gov. Code §§ 22.004(h) and (h-1). Subsection (h) requires rules to expedite district court actions where the claim of relief is under $100,000. However, subsection (h-1) requires rules to expedite county court actions where the claim of relief is under $250,000. One could interpret that the 2021 Amendments now allow all civil actions with a claim for relief under $250,000, excluding interest, etc. to be expedited, regardless of whether the action is in district or county court.
The 2021 Amendments to Rule 169 reflect the change to Rule 47(c)(1). The new Rule 169(a), formerly 169(a)(1), states that the expedited actions process applies to suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Most significantly note that the total relief sought is cumulative of all claimants’ statements for relief. Rule 169(b) limits a party’s recovery, stating that in no event may a party to an expedited action recover a judgment in excess of $250,000, excluding interest, etc. Former paragraph 169(a)(2) has been deleted. But new Rule 47(c) still excludes suits under the Family Code from expedited action, and a comment to the 2021 Amendments mentions certain actions are exempt from Rule 169’s application by statute citing actions under Texas Estates Code §§ 53.107 and 1053.105 but does not offer other examples.
The discovery levels under Rule 190 have also been significantly modified and will be a profound change on how initial discovery is conducted following the January 1, 2021 effective date. Some highlights are as follows:
Level 1 (Rule 190.2): Level 1 discovery control plans now cover expedited actions involving claims for relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Under the new Rule 190.2(b)(2), the total time for oral depositions in a Level 1 case increases from six hours to 20 hours, and parties may not increase this limit under the Rule. However, the new limit of 20 hours still exceeds the prior maximum time of 16 hours. Also, under Rule 190.2(b)(1), the discovery period now begins “when initial disclosures are due,” where, previously, the period began upon a suit’s filing. “When initial disclosures are due” is covered below in the discussion of the new Rule 194. Rule 194 completely replaces the prior Rule 190.2(b)(6), which covered requests for disclosure.
Level 2 (Rule 190.3): The discovery period under a Level 2 plan is similarly amended. As with Level 1, the discovery period now begins when initial disclosures are due, rather than when suit is filed. Under a Level 2 plan, the discovery period now ends on the earlier of: (1) 30 days before the date set for trial; or, (2) nine months after initial disclosures are due.
Level 3 (Rule 190.4): No change here –Level 3 allows the parties to customize their cases based on the complexity and the amount of relief involved.
Taking a page from the Federal Rules playbook (Rule 26(a)), requests for disclosure as of January 1, 2021 will be known as “Required Disclosures” and are broken down into three specific categories: 194.2 Initial Disclosures; 194.3 Testifying Expert Disclosures; and 194.4 Pretrial Disclosures. All are mandatory without a request for the same (new Rule 194.1), and are based on Federal Rule of Civil Procedure 26(a). As a practice tip, note there is no harm or prohibition in making a written request, and we recommend it as all parties and counsel become accustom to the new Rules. It is noteworthy that in a comment to the 2021 Amendments, the Texas Supreme Court stresses that a party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures. As with other written discovery responses, required disclosures must be signed under Rule 191.3, complete under Rule 193.2, served under Rule 191.5, and timely amended or supplemented under Rule 193.5.
194.2. Initial Disclosures: A party must make initial disclosures at or within 30 days of the filing of the first answer unless a different time is set by agreement or a court order. A party that is first served or otherwise joined after the filing of the first answer must make its initial disclosures within 30 days after being served or joined, unless a different time is set by the parties’ agreement or a court order.
More importantly, new Rule 194.2(b)(4) requires a responding party to disclose a computation of each category of its claimed damages and also make available for inspection and copying the documents or other evidentiary material on which each computation is based. This includes materials bearing on the nature and extent of injuries suffered. A party may still withhold such documents and materials under the attorney-client privilege but now the disclosure is required at the beginning of a case.
Similarly Rule 194.2(b)(6) requires a responding party to produce a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment. This follows the Federal model and again is a required disclosure at the beginning of a case.
Note there are limited exceptions to the above under Rule 194.2(d): (1) an action for review on an administrative record; (2) a forfeiture action arising from a state statute; and (3) a petition for habeas corpus. However, a court may order the parties to make particular disclosures and set the time for disclosure in these cases.
194.3. Testifying Expert Disclosures: In addition to the disclosures required by Rule 194.2, a party must disclose testifying expert information as provided by Rule 195. We review Rule 195 below.
194.4. Pretrial Disclosures: A party must also provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment. These disclosures must be made at least 30 days before trial.
194.6. Certain Responses Not Admissible: A disclosure under Rule 194.2(b)(3) and (4) that has been changed by an amended or supplemental response is not admissible and may not be used for impeachment. Rule 194.2(b)(3) pertains to the legal theories and factual bases of a responding party’s claims or defenses. As mentioned above, Rule 194.2(b)(4) pertains to a party’s computation of its damages.
195.2. Schedule for Designating Experts: The 2021 Amendments set two concrete deadlines for designating experts. Under 195.2(a), a party seeking affirmative relief must designate all of its testifying experts 90 days before the end of the discovery period. Under 195.2(b), a party must designate all other experts 60 days before the end of the discovery period. Parties must also make the expert disclosures under the new Rule 195.5(a) according to these deadlines.
195.5. Expert Disclosures and Reports: Amended Rule 195.5(a) lists the disclosures for experts. Like initial and pretrial disclosures, expert disclosures are now required without awaiting a discovery request. These requests include those formerly listed under Rule 194(f) and also include three new disclosures (in bold below) based on Federal Rule of Civil Procedure 26(a)(2)(B):
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
(A) 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;
For plaintiffs, new Rule 106 has been revised to make service simpler and easier. Rule 106(a) no longer requires service of a citation “by any person authorized under Rule 103” and expands the scope of who may serve a citation. Rules 106(a)(1) and (a)(2) remain functionally unchanged. However, Rule 106(b) dealing with substituted service has been changed to assist plaintiffs that have trouble tracking someone down for service. Interestingly, Rule 106(b)(2) allows a court to authorize substituted service by social media, email, or other technology. This amendment will be extremely helpful as defendants occasionally elude process servers or skip town to avoid service by mail, but remain visibly active on social media.
These new Rules should streamline cases going forward to help mitigate the expense of litigation. Porter Hedges stands ready to help you with any questions on any of these issues, as well as any litigation needs from the courtroom to arbitration and beyond.
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