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Be Civil: Confer Before You Go to Court
By:  Kennon Wooten, Scott Douglass & McConnico LLP

In Texas civil proceedings, a duty exists that is not well honored.  It is the duty to confer. 

Under Texas Rule of Civil Procedure 191.2, “[p]arties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case.”¹

To that end, Rule 191.2 provides that “[a]ll discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.”²  But the rule does not address what a “reasonable effort” entails in this context or the consequences of failing to make such an effort.

No statewide standard exists for assessing whether parties have made a reasonable effort to resolve their discovery disputes.  Some courts have local rules that define reasonable efforts and include certificate-of-conference forms for discovery motions and hearing requests.³  The Travis County courts have not adopted such rules.  Instead, they assess efforts on a case-by-case basis. 

An informal poll of district- and county-court judges in Travis County provided the following insights as to the efforts they expect parties to make before bringing a discovery dispute to court:

          1.  “Reasonable efforts” are to be made in good faith.

          2.  Parties (or their counsel) should attempt to confer with one another over the phone or in person to resolve a discovery dispute before filing a motion to compel.

          3.  The objective should be to reach reasonable agreements, not to “paper” efforts.

          4.  But parties should document their efforts.The requesting party should send at least one letter or email to the responding party that outlines (1) the specific requests made and (2) the reasons why the requesting party believes the responding party’s objections are invalid or responses are insufficient.The responding party should send a written response outlining why the requests are objectionable and/or why the requested information is protected.The court should be able to determine readily what has been produced, what has been withheld, and the reasons for the withholding.

          5.  Parties also should be prepared to outline their efforts for the court.When a judge is hearing a motion to compel, the first thing the judge may say is: “Tell me about your efforts to try to resolve this dispute.”And the judge may drill down to determine the precise manner and extent of consultation and whether it was collaborative in nature.

          6.  Channel Arthur Ashe and be elegant.Don’t get into the mud just because your opponent is there.Your elegance will be recognized and remembered by the judges.

If parties do not make a reasonable effort to resolve a discovery dispute before bringing it to court, Travis County judges may require the parties to confer at court before the judges will rule.  That consumes time on a crowded civil docket, and it is not appreciated.  Thus, if parties cannot resolve their dispute after conferring at court, a judge may require the loser of the discovery motion at issue to pay attorney’s fees as sanctions.  Such sanctions are permitted under Rule 215.  In fact, Rule 215 permits multiple sanctions for discovery abuses, including ordering parties and attorneys advising improper conduct to pay reasonable expenses, including attorney’s fees.⁴

The bottom line is that parties and attorneys should strive to avoid discovery disputes in court, not only because it is their obligation to do so and they may face sanctions for failing to do so, but also because it is the civil thing to do.  Moreover, attorneys should not feel compelled to go to court on every discovery dispute in order to be zealous advocates for clients.  An attorney’s obligation as an advocate is not simply to be zealous at all times, but to zealously assert clients’ positions “under the rules of the adversary system[,]”⁵ which require efforts to reach discovery agreements.

This article was originally published in the Austin Lawyer, and is reprinted with the express written permission of the Austin Lawyer and the Austin Bar Association.   Kennon L. Wooten is a partner at Scott Douglass & McConnico LLP, where she represents individuals and entities in complex commercial litigation, general civil litigation, and civil appeals. 

^{1 Tex. R. Civ. P. 191.2; see also In re BP Products N. Am., Inc., 244 S.W.3d 840, 846 (Tex. 2008) (“The Rules of Civil Procedure encourage parties to reach discovery agreements.”).} 

^{2 Tex. R. Civ. P. 191.2 (emphasis added).} 

^{3 See, e.g., Dallas (Tex.) Civ. Ct. Loc. R. 2.07; Collin (Tex.) Dist. Ct. Loc. R. 3.2-3.3.}

^{4 See, e.g., Tex. R. Civ. P. 215.1(d), 215.2(b)(8), 215.3, 215.4(a)-(b), 215.5(a)-(b).}

^{5 Tex. Disciplinary R. of Prof'l Conduct pmbl. ¶ 2 (emphasis added).}

Views and opinions expressed in eNews are those of their authors and not necessarily those of the Texas Young Lawyers Association or the State Bar of Texas.