ROOTING FOR ACORNS Discovery in Texas - PowerPoint Presentation

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ROOTING FOR ACORNSDiscovery in Texas2018 UpdatePaul N. Gold Aversano & GoldHouston, Texas 77008www.cuttingedgejustice.com

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Part II Discovery Methods

Part I Scope of Discovery

[UPDATE]

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Read the paper, but

even better,

read the opinions in the original language!

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IMPORTANT RECENT TEXAS SUPREME COURT CASES

Ford v. Castillo

In re Memorial Hermann

In re National Lloyds Ins. Co. (windstorm discovery)

In re State Farm Lloyds

In re Shipman

In re National Lloyds Ins. Co. (attorney’s fees)

N. Cypress Medical Center

In re Ford

In re H.E.B.

In re Garza (non-party discovery)

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Ford v. Castillo

279 S.W.3d 656

(Tex. 2009)

DISCOVERY GOING TO THE HEART OF A CLAIM

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The trial court's preemptive denial of discovery could have been proper only if there existed

no possible relevant

, discoverable testimony, facts, or material to support or lead to evidence that would support a defense to Castillo's claim for breach of contract. This record does not demonstrate such a situation.

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In re Memorial Hermann

,

464 S.W. 3d 686

(Tex. 2015)

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DO NOT HAVE TO SUBSTANTIATE CLAIM TO BE ENTITLED TO DISCOVERY RELEVANT TO IT

“Furthermore, it is

counter

to the notion that “[a]ffording parties full discovery promotes the fair resolution of disputes by the judiciary,”

to condition access to documents that could substantiate a Plaintiff’s claim on the Plaintiff’s ability to substantiate his claim without the documents’ aid.”

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In Re National Lloyds Insurance Company

,

149 S.W. 3d 486

(Tex. 2014)

WINDSTORM DISCOVERY

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“We do not hold that evidence of third-party insurance claims can never be relevant in coverage litigation. We simply hold that, in this case,

on this plaintiff’s allegations,

there is at best a remote possibility that such claims could lead to the discovery of admissible evidence. That possibility is not sufficient to render the claims discoverable under Rule 192.3 (a).”

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In re State Farm Lloyds,

520 S.W.3d 595

(Tex. 2017)

PROPORTIONALITY

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Neither party may dictate the form of electronic discovery

; the requesting party must specify the desired form of production, but

all discovery is subject to the proportionality overlay

embedded in the discovery rules and inherent in the reasonableness standard to which the electronic-discovery rule is tethered.

Tex. R. Civ. P. 192.4, 196.4

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In Re Shipman

540 S.W.3D 562

(Tex. 2018)

REQUEST FOR ELECTRONIC DATA

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Order cannot exceed motion (request can be contained in motion).

Mere “skepticism” is not ground for forensic examination of computer to confirm completeness of discovery response. There must be evidence of non-compliance or inadequate compliance.

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In re National Lloyds Insurance Company,

532 S.W.3d 794

(Tex. 2017)

DISCOVERY OF ATTORNEY’S FEES

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One party’s attorney’s fees in a case are generally irrelevant to the reasonableness of the opposing party’s fees. Too many variables.

A party’s attorney’s fees are irrelevant unless placed in issue by the responding party seeking fees.

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In re North Cypress Medical Center

Operating Company, Ltd.

2018 WL 1974376,

---S.W.3d---

(Tex. 2018)

REASONABLENESS OF HOSPITAL LIENS

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The “fundamental” variations affecting the connection between the information sought and the end for which it was sought in

National Lloyds

are not present here.

Roberts seeks reimbursement rates only for the specific services she received

.

12

Further, Roberts does not argue, and we do not hold, that the rates negotiated between North Cypress and any particular insurer govern the reasonableness of its charges to uninsured patients.

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Rather, we hold that the trial court did not abuse its discretion in concluding that the amounts North Cypress is willing to accept as payment for services rendered to the vast majority of its patients is relevant to the reasonableness of its charges for those same services to uninsured patients.

See

Haygood

, 356 S.W.3d at 393 (noting that few patients pay a hospital’s full charges).

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In re Ford

427 S.W.3d 396

(Tex. 2014)

DISCOVERY OF EXPERT WITNESS FINANCES

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Plaintiff wanted to depose the corporate representatives on

“detailed financial and business information for all cases the companies have handled for Ford or any other automobile manufacturer from 2000 to 2011.”

The Texas Supreme Court rejected this type of discovery as an improper

fishing expedition

.

See,

Ex parte Sheppard

, 513 S.W.2d 813, 816 (Tex. 1974) (orig. proceeding). See also

Russell v. Young

, 452 S.W.2d 434, 437 (Tex. 1970) (orig. proceeding) (denying discovery of financial records from a potential medical expert witness because “[t]here is ... a limit beyond which pre-trial discovery should not be allowed”).

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In re H.E.B,

492 S.W.3D 3003

(Tex. 2016)

(per curiam)

ADVERSE MEDICAL EXAMINATIONS

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LESS INTRUSIVE MEANS NOT FEASIBLE

A movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination

.

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The TXSCT finds that the doctor chosen by the defendant would be at risk of having his/her credibility challenged at trial, if the physician were not allowed to examine the Plaintiff.

The HEB decision appears to seek to fairness (an even playing field) at trial, which is one of the policy considerations underlying the rule. However, the opinion appears to sacrifice the “less intrusive means” criteria to achieve this end.

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In re Garza

544 S.W.3D 836

(Tex. 2018)

Abuse to sanction plaintiff for Non-Party physician seeking and obtaining protective order regarding medical records subpoenaed by defendant.

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SCOPE OF DISCOVERY

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SCOPE OF DISCOVERY

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NO FISHING!

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“It’s the pleadings, stupid!”

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PLEADINGS DEFINE SCOPE OF DISCOVERY

In re Methodist Primary Care Group,

2017 WL 3480292 (Tex. App. Houston [14th Dist.] 2017

UPDATE

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DUE PROCESS

DISCOVERY GOING TO THE HEART OF A CLAIM OR A DEFENSE

ABUSE OF DISCRETION TO DENY

Ford v. Castillo

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NEED ONLY PLEAD, NOT SUBSTANTIATE, TO OBTAIN DISCOVERY RELEVANT TO PLEADING

In re Memorial Hermann

,

464 S.W. 3d 686

(Tex. 2015)

 

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“Furthermore, it is

counter

to the notion that “[a]ffording parties full discovery promotes the fair resolution of disputes by the judiciary,”

to condition access to documents that could substantiate a Plaintiff’s claim on the Plaintiff’s ability to substantiate his claim without the documents’ aid.”

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EXAMPLE

PLACING MEDICAL CONDITION IN ISSUE

In Re Union Pacific Railroad Company and Wanda Heckel,

459 S.W.3d 127

(Tex. App. – El Paso, 2015, no pet.)

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The pleadings do not directly allege that Heckel was physically or mentally impaired due to sleep apnea or any other medical condition at the time of the incident

. . . there are neither

pleadings

nor evidence in the record

demonstrating that she [Plaintiff] is relying on Heckel’s medical condition

as the basis for her negligence claims such that it is an ultimate or central issue in the case.

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TAILORING DISCOVERY

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HOT OFF THE PRESSESIn Re Shipman540 S.W.3D 562(Tex. 2018)Order cannot exceed motion (request can be contained in motion).

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HOT OFF THE PRESSESIn re Brookfield Infrastructure Group, LLC2018 WL 1725467(Tex. App. Corpus Christi-Edinburgh 2018)Court cannot modify definitions in Request for Production to broaden scope of discovery. Order cannot exceed request. Abuse of discretion.

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In re Smith

2015 WL 4940363

(Tex. – Beaumont 2015).

 

“The Trial Court has the discretion to deny a request if it is an overly broad discovery request that it determines

could have been more narrowly tailored to include only relevant matters

or should have been limited in time and scope.”

In re Indeco Sales, Inc.,

No. 09-14-00405-CV, 2014 WL 5490943 at *1 (Tex. App. – Beaumont Oct. 30, 2014, orig. proceeding) (mem.op.).

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In Re National Collegiate Athletic Association,

543 S.W.3D 487

(Tex. App. – Dallas 2018)

Reports of concussive or sub-concussive head injuries from 1953 to present that might result in brain disease discoverable regarding a exposure from ‘68-’72 and death that occurred in 2015.

Discovery requests must be “reasonably tailored” to include only relevant matters.

Id.

Evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

In re

Nat’l Lloyds Ins. Co

.

, 529 S.W.3d 794, 808 (Tex. 2017) (orig. proceeding)

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DISCOVERABLE INFORMATION,

DATA AND

THINGS

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MEDICAL CONDITION

Medical Condition

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R.K. v. Ramirez

,

887 S.W.2d 836

(Tex. 1994)

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Litigation Exception To Patient/Physician Privilege

In re Turney

525 S.W.3d 832

(Tex. App. – Houston [14th ] 2017)

Heart attack defense puts decedent’s medical condition in issue to support discovery production of a medical authorization.

BUT

Trial judge abuses discretion by not reviewing obtained records to determine relevancy to claims and defenses.

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MEDICAL/MENTAL HEALTH RECORDS

In re Jarvis

, 431 S.W.3d 129 (Tex. App. Houston [14th Dist.] 2013)

Medical Bills = Medical Records

HIPAA: Compliance By Protective Order

Insurance Contracts Relevant To Paid And Incurred

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HOSPITAL CONTRACTS WITH INSURANCE CARRIERS In re North Cypress Medical Center Operating Company, Ltd. 2018 WL 1974376, ---S.W.3d--- (Tex. 2018) Relevant and discoverable on issue of reasonableness of charges to uninsured.

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Other Claims, Sufficient SimilarityIn Re National Lloyds Insurance Company, 149 S.W. 3d 486 (Tex. 2014)Pleadings!!!

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“We do not hold that evidence of third-party insurance claims can never be relevant in coverage litigation. We simply hold that, in this case,

on this plaintiff’s allegations,

there is at best a remote possibility that such claims could lead to the discovery of admissible evidence. That possibility is not sufficient to render the claims discoverable under Rule 192.3 (a).”

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HOT OFF THE PRESSES

In re AllstateInsurance Company, 2018 WL 1610927(Tex. App. – S.A. 2018)Discovery of other home owner’s claims, even if in same neighborhood, overbroad.

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In re National Lloyds Insurance Company, 532 S.W.3d 794 (Tex. 2017)

Attorney Fees

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Income Tax Returns

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Higher Burden for Discovery of Income Tax Returns

In Re Bullin

,

Not Reported in SW 3d,

2018 WL 358395

(Tex. App. – Waco 2018)

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Settlement Agreements

Settlement Agreements must be disclosed to non-settling defendant. Motion for Protection must be filed before deadline for disclosure.

In Re Grecon, Inc.,

542 S.W.3d 744

(Tex. App. – Houston

[14th Dist.] 2018)

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eDISCOVERYHard Drives

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HOT OFF THE PRESSESIn Re Shipman540 S.W.3D 562(Tex. 2018)Order cannot exceed motion (request can be contained in motion). Mere “skepticism” is not ground for forensic examination of computer to confirm completeness of discovery response. There must be evidence of non-compliance or inadequate compliance.

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HARD DRIVES

RULE 196.4 PROTOCOL

In re Verp,

457 S.W.3d 255

(Tex. App. – Dallas 2015, orig. proceeding)

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KEY WORD SEARCHES

In re Master Flo Valve Inc

.,

485

S.W.3d 207

(Tex. App. – Houston

[ 14

TH

Dist. ] 2016)

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In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017)

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Email Baker Hughes Incorporate v. Homa, Slip Copy, 2013 WL 684699 (S.D.Tex.)

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TELEPHONE RECORDS AND DATA

In re Indeco Sales, Inc.,

Not Reported in S.W.3d,

2014 WL 5490943

(Tex. App. – Beaumont 2014)

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Social Media

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In re Indeco Sales, Inc.,

Not Reported in S.W.3d,

2014 WL 5490943

(Tex. App. – Beaumont 2014)

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GOOD DISCUSSION

Gondola v. USMD PPM, LLC

223 F.Supp.3d 575

(N.D. Tex. – Dallas Div. 2016)

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Net Worth

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The Court may make a determination based upon affidavits and discovery that there is a

substantial likelihood

that the party will prevail on the merits of its gross negligence claim. §

41.0115 (a) Tex. Civ. Prac. & Rem. Code.

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Information Regarding Corporation’s Financial Condition = Trade SecretIn re Michelin North America, Inc., Not Reported in S.W.3d, 2016 WL 890970 (Tex. App. Dallas, 2016)

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OBJECTIONSHeller v. City of Dallas,2014 WL 5847449((N.D. Tex. Dallas, 2014)

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In re Sting Soccer Group, LP

2017 WL 5897454

(Tex. App. Dallas 2017)

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LIMITS ON DISCOVERY

RULE 192.6

BURDEN

In re Master Flo Valve Inc

.,

485 S.W.3d 207

at fn. 2

(Tex. App. – Houston [ 14

TH

Dist. ] 2016)

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PROPORTIONALITY!

Proportionality

Proportionality

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2015 AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE

RULE 26

PROPORTIONALITY

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PROPORTIONALITY FACTORS

the amount in controversy,

the importance of the issues at stake in the

action,

the parties’ resources,

the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its likely benefit.

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Information within this scope of discovery

need not be admissible in evidence

to be discoverable.

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ADVISORY COMMITTEE NOTE

“Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and parties to consider proportionality and

the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.”

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Carr v. State Farm Mutual

,

312 F.R.D.459

(N.D. Tex. Dal. Div. 2015)

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To put it succinctly, “the simple fact that requested information is discoverable ... does not mean that discovery must be had.”

In re State Farm Lloyds,

520 S.W.3d 595

,

(Tex. 2017)

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Federal Court Guidance

To be sure, there are differences in language between the Texas rule and the federal rule. But as we affirmed in

In re Weekley Homes

,

“our rules as written are not inconsistent with the federal rules or the case law interpreting them,” even though they may not “mirror the federal language.”

71

In re State Farm Lloyds,

520 S.W.3d 595

(Tex. 2017)

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DISCOVERY TOOLS

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DISCLOSURE

DISCLOSURE

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IDENTIFICATION OF INDIVIDUALS WITH

KNOWLEDGE OF RELEVANT FACTS

Record Custodians

Fox v. Bank of America,

Not Reported in S.W.3d, 2017 WL 626628

(Tex. App. – Houston [14

th

Dist.] 2017)

No Surprise

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TESTIFYING EXPERTS

Failure to timely supplement or show good cause or prejudicial surprise results in disallowance of specific testimony

Kingsley Properties, LP v. San Antonio Title Services of Corpus Christi LLC,

501 S.W.3d 344

(Tex. App- Corpus Christi 2016)

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TESTIFYING EXPERTS

Cannot Rely On Catch-All Designations

or Designations of Other Parties

First Bank v. DTSG, Ltd

.

472 S.W.3d 1, *8-10

(Tex. App. – Houston [14

th

Dist.] 2015)

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TESTIFYING EXPERTS

FULL DISCLOSURE – REPORTS

Plunkett v. Christus St. Michael Health System, et al

,

Not Reported in S.W.3d, 2016 WL 7335872

(Tex. App. – Texarkana 2016)

Better practice to require full disclosure in report, but no abuse to allow additional opinion when no demonstration of undue surprise or prejudice.

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Incomplete Disclosure Regarding ExpertsBailey v. Respironics, 2014 WL 3698828 (Dallas, 2014)

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MANNER OF EXPERT WITNESS SUPPLEMENTATION

In re M.F.D.,

Not Reported in S.W.3d, 2016 WL 7164063 at *5

(Tex. App. – Houston [1

st

Dist.] 2016)

So long as supplementation is in writing, in pleadings or in other forms of discovery, it should meet the requirements of Tex. R. Civ. P.

193.5 (a) (2).

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Duty To Supplement

“As Soon As Practicable”

Navarrete v. Williams,

342 S.W.3d 116

(Tex. App.–El Paso, 2011)

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Rule 193.6 Sanctions

Allan v. Nersesova

,

307 S.W.3d 564

(Tex.App.–Dallas,2010)

Failure To

To Respond Completely Or Properly

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EXPERT DISCOVERY

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Material Changes In Expert OpinionsBeinar v. Deegan,432 S.W.3d 398 (Tex. App.- Dallas, 2014)

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RefinementsPilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880 (Tex.App.–Texarkana, 2004)

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“Mulligan” Argument RejectedPopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699 (Tex.App.-Dallas)

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Investigations And Consulting Expert DataIn Re Jourdanton Hospital Corporation, Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. – San Antonio 2014)

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Scope Of Discovery From Expert- BiasSIGNIFICANT OPINION In re Ford 427 S.W.3d 396(Tex. 2014)

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De-designation of a Testifying ExpertIn Re Jourdanton Hospital Corporation, Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. – San Antonio 2014)

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PERMISSIBLE METHODS OF DISCOVERY

OF AND FROM EXPERTS

In re National Lloyds Insurance Company,

532 S.W.3d 594

(Tex. 2017)

Plaintiffs had not complied with Rule 195.5 (cannot seek discovery of experts by interrogatories or requests for production) in seeking discovery about the testifying expert regarding attorney fees. Therefore, the exceptions to the work product rule found in Tex. R. Civ. P. 192.3 (i.e. waiver of the work product exception) were in fact not waived.

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EXPERT WITNESSES AND ATTORNEY/CLIENT PRIVILEGE

In re Segner,

441 S.W.3d 409

(Tex. App. – Dallas 2013)

In re Texas Windstorm Insurance Association

,

Not Reported in S.W.3d, 2016 WL 7234466

(Tex. App. – Houston [14

th

Dist.]

Communications protected by the attorney/client privilege are not waived by designating the individual as a testifying expert.

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CONTENTION

CONTENTION INTERROGATORIES

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“Marshaling Evidence” Objection (Tex.App.-Waco)

Sheffield Development Company, Inc. v. Carter & Burgess, Inc.,

2012 WL 6632500

(Tex. App. – Fort Worth, 2012)

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HOT OFF PRESSESIn re Sting Soccer LP2017 WL 5897454(Tex. App. Dallas 2017)

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REQUESTS FOR PRODUCTION

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REQUESTS FOR PRODUCTION

Amendments to FRCP 34 Requests for Production

An objection must state whether any responsive material are being withheld on the basis of that objection.

An objection to part of a request must specify the part and permit inspection of the rest.

See,

Heller v. City of Dallas

,

303 F.R.D.466

(N.D. Tex., Dallas Div. 2014).

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In re Sting Soccer LP

2017 WL 5897454

(Tex. App. Dallas 2017)

Any and all documents relevant to an issue.

vs.

Specific types and categories of documents.

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In re EOG Resources,

Inc.,

Not Reported in S.W.3d,

2011 WL 455280

(Tex. App.-Waco)

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“All documents relied upon”

= Overbroad

“All damages relating to damages”

= Overbroad

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MOTION TO ENTER PROPERTY OF NON-PARTY

In re Sun City Gun Exchange, Inc. d/b/a Kirk’s Gun Shop

,

545 S.W.3d 1

(Tex. App. – El Paso 2017)

Failure to demonstrate good cause

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MOTION TO ENTER AND PHOTOGRAPH PREMISESIn re Goodyear Tire & Rubber Co.437 S.W.3d 923(Tex. App. Dallas, 2014)No Duty To Create Evidence

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REQUESTS FOR ADMISSIONS

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MOTIONS TO WITHDRAW DEEMED ADMISSIONS

Merit preclusive requests

Ramirez v. Noble Energy, Inc

.,

521 S.W.3d 851

(Tex. App. – Houston [1

st

Dist.] 2017)

“when as here, the party seeks withdrawal of merits-preclusive deemed admissions, due process requires the party

opposing

withdrawal to prove that the moving party’s failure to timely answer the requests

resulted from flagrant bad faith or callous disregard for the discovery rules

. “

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REQUESTS FOR ADMISSIONFIFTH AMENDMENTIn re Ferguson, 445 S.W.3d 270 (Tex.App.-Houston [1st Dist.])

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DEPOSITIONS

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DEPOSING THE VENTRILOQUIST’S DUMMY

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HOT OFF THE PRESSESIn re Daimler Trucks North America LLC2018 WL 1831618(Tex. App. San Antonio 2018) If party proves trade secret, opposing party must “prove” necessity for a fair adjudication. In product liability case cost is alternative design is relevant to feasibility, but plaintiff did not prove it was necessary. Court abused discretion in ordering deposition on topics involving trade secrets.

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Oral Depositions

In re Arpin America Moving Systems, LLC

,

416 S.W.3d 927

(Tex. App. Dal. 2013)

Scope Of Discover Same For All Discovery Tools

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DEPOSITIONS OF CORPORATE REPRESENTATIVES

UIM CASES

In re Crystal Luna

,

Not Reported in S.W.3d,

2016 WL 6576879

(Tex. App. – Corpus Christi 2016)

Context Matters

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Motions To Quash And For Protection

Sells v. Drott, 330 S.W.3d 696 (Tex.App.–Tyler,2010)

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RULE 202 DEPOSITIONS

PRODUCTION OF DOCUMENTS

In re Pickrell

,

Not Reported in S.W.3d, 2017 WL 1452851

(Tex. App. – Waco 2017).

“Neither by its language nor by implication can we construe Rule 202 to authorize a Trial Court, before suit is filed, to order any form of discovery

but deposition

.”

In re Akzo Nobel Chem., Inc.,

24 S.W.3d 919, 921 (Tex. App. -- Beaumont 2000, orig. proceeding).

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RULE 205 DEPOSITION OF NON-PARTY AUTHORIZES REQUESTS FOR PRODUCTION

Rule 202.5

specifically allows the Court to order a deposition pursuant to Tex. R. Civ. P. 205.

  Except as otherwise provided in this rule,

depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit

.

Tex. R. Civ. P. 205(3)(a)

expressly address the method of issuing a notice of oral deposition and production of documents on a non-party:

 

Notice; subpoena.

A party may compel production of documents and tangible things from a nonparty

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THE LOOK BEFORE THE LEAP

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MEDICAL/PSYCHOLOGICAL EXAMINATIONS“DMEs”

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“DANCING WITH WOLVES IN DRAG”

A TEXAS PLAINTIFF ATTORNEY’S PERSPECTIVE ON TACTICS AND STRATEGY INVOLVING

ADVERSE MENTAL AND PHYSICAL EXAMS

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Schlagenhauf v. Holder,

379 U.S 104, 85 S.Ct. 234, 13 L.Ed.2d 152

(1964)

Coates v. Whittington

758 S.W.2d 749

(Tex. 1988)

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In re H.E.B, 492 S.W.3D 3003 (Tex. 2016) (per curiam).

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RELEVANCY

 

An examination is relevant to issues that are genuinely in controversy in the case.

It must be shown that the requested examination will produce, or is likely to lead to, evidence of relevance to the case.

 

NEXUS

 

There must be shown a reasonable nexus between the condition in controversy and the examination sought.

 

LESS INTRUSIVE MEANS NOT FEASIBLE

 

A movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination

.

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The TXSCT finds that the doctor chosen by the defendant would be at risk of having his/her credibility challenged at trial, if the physician were not allowed to examine the Plaintiff.

The HEB decision appears to seek to fairness (an even playing field) at trial, which is one of the policy considerations underlying the rule. However, the opinion appears to sacrifice the “less intrusive means” criteria to achieve this end.

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POST-H.E.B. OPINIONS

In re Offshore Marine Contractors

,

496 S.W.3d 796

(Tex. App. – Houston [1

st

Dist. 2016)

In re Advanced Powder Solutions

,

496 S.W.3d 838

(Tex. App. -Houston [1

st

Dist.] 2016)

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In re Nikki Lauren Morgan

,

507 S.W.3d 400

(Tex. App. – Houston [1

st

Dist.] 2016, orig. proceeding).

The EXAMINEE’S condition (medical/ psychological) must be placed in issue by the pleadings.

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EXAMINER MAY ONLY BE A

QUALIFIED PHYSICIAN OR PSYCHOLOGIST

In re Advanced Powder Solutions

,

496 S.W.3d 838

(Tex. App. -Houston [1

st

Dist.] 2016)

Defendant failed to specify in its motion or brief who would conduct the functional capacity examination.

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TIMING OF REQUEST FOR DME

Diaz v. Con-Way Truckload, Inc.,

279 F.R.D. 412

(S.D.Tex. 2012)

Naranjo v. Continental Airlines, Inc.,

Slip Copy,

2013 WL 1003485 (S.D.Tex.)

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DISCOVERY AND MOTIONS FOR SUMMARY JUDGMENT

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ADEQUATE TIME FOR DISCOVERY

Booklab Inc. v. Konica Minolta Business Solutions, Inc.

Not Reported in S.W.3d,

2012 WL 3893521 (Tex.App.-Dallas)

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SPOLIATION

SIGNIFICANT OPINION

Brookshire Bros., Ltd v. Aldridge

,

438 S.W.3d 9

(Tex. 2014)

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SANCTIONS

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HOT OFF PRESSESIn re Garza544 S.W.3D 836(Tex. 2018)Abuse to sanction plaintiff for Non-Party physician seeking and obtaining protective order regarding medical records subpoenaed by defendant.

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ABSENT DEMONSTRATION OF GOOD CAUSE OR ABSENCE OF PREJUDICE, SANCTIONS FOR FAILING TO TIMELY SUPPLEMENT ARE MANDATORY

In re M.F.D.,

Not Reported in S.W.3d, 2016 WL 7164063 at *5

(Tex. App. – Houston [1

st

Dist.] 2016)

Kingsley Properties, LP v. San Antonio Title Services of Corpus Christi LLC,

501 S.W.3d 344

(Tex. App- Corpus Christi-Edinburg 2016).

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@agtriallaw.

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@cutting

edge

justice.

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