Motion to Extend Discovery Deadline in Texas

What Is a Motion to Extend Discovery Deadline?

How to Structure the Motion

“As stated in Rule 2, the Texas Rules of Civil Procedure govern the procedure in justice, county, and district courts "with such exceptions as may be hereinafter stated." (Tex.R.Civ.P. 2.) One exception is that counsel may agree to extend discovery deadlines. (Sothwestn Bell Telephn v. Perez (1995) 904 S.W.2d 817, 821 citing Tex.R.Civ.P. 166b(4).) However, as a general rule, to be enforceable, these agreements must either be "in writing, signed and filed with the papers as part of the record" or "made in open court and entered of record"; an oral agreement will not suffice. (Id., citing Tex.R.Civ.P. 11; London Market Co. v. Schattman (1991) 811 S.W.2d 550, 552; see also Tex.R.Civ.P. 166c.) Accordingly, an oral agreement [to which] Rules 5 and 21a do not apply is unenforceable unless it is made in open court and entered of record. Likewise, a written extension agreement that does not expressly provide that Rules 5 and 21a do not apply is governed by those rules by virtue of Rules 2, 11, and 166c.” (Id.)

Discovery Conference Certification

Under Tex.R.Civ.P., Rule 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. 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.”

The Court’s Decision

“The court considers the following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery:

the length of time the case has been on file,
the materiality and purpose of the discovery sought, and
whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.”

(Joe v. Two Thirty Nine Joint Venture (2004) 145 S.W.3d 150, 161. [diligence and length of time on file]; Tenneco Inc. v. Enter. Prods. Co. (1996) 925 S.W.2d 640, 647 [materiality and purpose]; National Union Fire Ins. Co. v. CBI Indus., Inc. (1995) 907 S.W.2d 517, 521-22 [materiality]; State v. Wood Oil Distrib., Inc.(1998) 751 S.W.2d 863, 865 [diligence]; see also Perrotta v. Farmers Ins. Exch. (2001) 47 S.W.3d 569, 576 [using these factors to decide whether a trial court abused its discretion in denying a motion for continuance].)

A party requesting additional time for discovery must comply with rule 252 under oath. (See Hatteberg v. Hatteberg (1994) 933 S.W.2d 522, 527.) Tex.R.Civ.P., Rule 252 concerns applications for continuance, and states in relevant part:

“If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known;... The failure to obtain the deposition of any witness residing within 100 miles of the courthouse or the county in which the suit is pending shall not be regarded as want of diligence when diligence has been used to secure the personal attendance of such witness under the rules of law, unless by reason of age, infirmity or sickness, or official duty, the witness will be unable to attend the court, or unless such witness is about to leave, or has left, the State or county in which the suit is pending and will not probably be present at the trial.”

Timing of Deadline, Filing and Service by Mail

In Southwestern Bell Telephone v. Perez the court had to “initially decide whether, in the absence of a written agreement to the contrary, a written extension agreement between counsel incorporates the ‘mailing equals filing and service’ terms of Rules 5 and 21a. [The court held] that it does.” (Sothwestn Bell Telephn v. Perez (1995) 904 S.W.2d 817 at 821.)