Informal Discovery Conference in Texas

What Is an Informal Discovery Conference?

Background

The Texas Rules of Civil Procedure require that the parties cooperate in the discovery process and engage in a conference prior to filing discovery motions.

"Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All 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."

(Tex. R. Civ. P. 191.2.)

Such a discovery conference differs from some other states, where the conference is conducted with the court. Here, the parties conduct such a conference outside the presence of the court. Tex. R. Civ.P. 191.2 mandates cooperation in pre-trial discovery. (Headington Oil Co., L.P. v. White, 287 S.W.3d 204.) The fundamental purpose of the certificate "is to ensure that parties cooperate … and me reasonable efforts to resolve … disputes without the necessity of court intervention." (Union Carbide Corp. v. Martin, 349 S.W.3d 137, 146.)

How to Structure the Motion

"All 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." (Tex. R. Civ. P. 191.2.) As such, the Certificate of Conference is not a motion itself, but rather is filed with a discovery motion.

Response

A party wishing to respond to a Certificate of Conference included with a discovery motion should a Response to Certificate of Conference with the opposition to the discovery motion. Courts disprove of conferences taking place in a pro forma matter. (Dondi Properties Corp. v. Commerce Savings and Loan Association, 121 F.R.D. 284, 289.)

Meet and Confer

The discovery conference itself is a meet and confer effort prior to filing a discovery motion and thus meet and confer is required. The purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought. (Dondi Properties Corp. v. Commerce Savings and Loan Association, 121 F.R.D. 284, 289.)

The Court’s Decision

The Court doesn’t rule on the Certificate of Conference itself, but rather the discovery motion. Courts can use the failure to conduct a discovery conference as the basis for denying a motion. (Union Carbide Corp. v. Martin, 349 S.W.3d 137.) However, courts can also assess sanctions against an attorney for discovery abuses without such a Certificate, if other factors are in play. (In re Exmark Mfg. Co., 299 S.W.3d 519.)

Monetary Awards

There is no provision for monetary awards associated with the failure to file a Certificate of Conference with a discovery motion. In fact, a moving party may miss out on a sanctions award by failing to file a Certificate of Conference with a discovery motion. The Court overturned a sanctions award of $11,250 for discovery abuse on the basis that had plaintiff’s counsel engaged in a discovery conference prior to filing discovery motions, the discovery dispute might have been avoided. (Union Carbide Corp. v. Martin, 349 S.W.3d 137.)

Timeline

A Certificate of Conference showing that an informal discovery conference has occurred should be filed with any discovery motion. While generally a good idea to include such a motion, the courts have held that a trial court did not abuse its discretion by assessing sanctions against an attorney despite the lack of a Tex. R. Civ. P. 191.2 certificate of conference on the motion to compel. (In re Exmark Mfg. Co., 299 S.W.3d 519.)

Documents for Informal Discovery Conference in Texas

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Khit & Associates, PLLC d/b/a Khit Chiropractic & Wellness Center,Skak Investments, LLC d/b/a Insight Diagnostics and Imaging Center,Kay Medical Center, PLLC VS. Law Office of Jose G. Gonzalez, PLLC document preview

Motion - Plaintiffs' Motion to Enforce Settlement Agreement

5 pages

Electronically Submitted 4/8/2024 3:58 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon …

Case Name Khit & Associates, PLLC d/b/a Khit Chiropractic & Wellness Center,Skak Inv…