Unfiled Discovery Products As Summary Judgment Evidence

Prior to 1999, courthouses across Texas were running out of storage space for the voluminous discovery documents which were being filed in civil cases, particularly in complex litigation matters.  The Texas Supreme Court responded with the promulgation of TRCP 191.4, which for the first time excepted out certain types of discovery documents which, according to the rule, should not be filed with the court.  While this change apparently did accomplish its purpose of reducing the space necessary to store civil files, it also raised new questions as to the proper use and treatment of discovery products relied upon in the summary judgment context.

Generally speaking, if the discovery relied upon to support or defend a summary judgment motion is filed with the court, then a movant or respondent relying upon it need only make specific reference to it in the motion or response for the discovery to be considered properly before the court as summary judgment evidence.  However, if the discovery is unfiled, then additional steps must be taken to ensure that the discovery products are before the court for consideration as evidence in the summary judgment context.

TRCP 166a(d) provides that in order for unfiled discovery products to be used as summary judgment evidence, the party relying upon it must file a “statement of intent” to use the specific discovery as summary judgment proof.   To comply with this rule, many attorneys will file a “Statement of Intent” either as a part of the summary judgment motion or response, or as a separate pleading.  The latter is the safest approach, but is oftentimes unnecessary. 

First, case law is clear that a separate pleading is not required.  Moreover, despite the plain language of the rule, in certain circumstances even use of the words “statement of intent” is not necessary.  The requirement to file a “statement of intent” will be fulfilled when the discovery is attached to the motion and the motion clearly relies on the attached discovery for support, notwithstanding the lack of a formal “statement of intent” on file.  Blake v. Intco Investments of Texas, Inc., 123 S.W.3d 521 (Tex. App. — San Antonio 2003).

The bigger question arises as to whether unfiled discovery need be filed at all.  The rule itself does not clearly state whether it must be filed.  TRCP 166a(d) simply provides that unfiled discovery products may be used as summary judgment evidence if “a notice containing specific references to the discovery” is filed along with a statement of intent to use the specified discovery as summary judgment proof.”  The rule is silent as to whether the unfiled discovery must be attached to the motion or response as well, although the comments following the rule have been read by some to imply that they should be attached.  And, of course, that is the safest approach.

At least one court has applied TRCP 166a(d) to require that the unfiled discovery documents be filed with the court in advance of the hearing.  Gomez v. TriCity Community Hospital, Ltd., 4 S.W.3d 281 (Tex.App. — San Antonio 1999) (the summary judgment evidence was not before the trial court because appellants “failed to file the discovery materials referenced in their notice” prior to the summary judgment hearing).  Two other courts have interpreted the rule to permit specific references to be used rather than requiring a party to file the discovery document itself.  In both of these cases, however, the courts did require a recitation of the substance of the discovery product in order to meet the “specific reference” requirement of the rule.  E.B. Smith Co. v. U.S. Fidelity and Guaranty Co., 850 S.W.2d 621 (Tex. App. — Corpus Christi 1993) (interpreting the term “specific reference” to require the party relying on unfiled discovery to show the court “language” from the document); Salmon v. Miller, 958 S.W.2d 424 (Tex. App. — Texarkana 1997) (holding deposition testimony not properly before the court because movant provided specific page and line number references instead of excerpts). 

One court has held, albeit inferentially, that specific page numbers and other identifiers of that nature will suffice.  Grainger v. Western Casualty Life Insurance Co., 930 S.W.2d 609 (Tex. App. — Houston [1st Dist.] 1996) (unfiled deposition identified by deponent, volume and page number, unfiled interrogatories referred to by set and number, with a six-page summary of the evidence in a memorandum filed with the court).  The dissent in Grainger points out the two major problems with this approach.  First, this interpretation leaves no mechanism for a trial judge to access or verify the information which is not on file with the court.  Second, allowing a memorandum summary of the evidence in lieu of actual excerpts blurs the line between argument and evidence.  (In fairness, the opinion in Grainger was also based on the fact that the appellant had waived error by failing to object at the trial court level to movant’s reliance on unfiled discovery in this manner.)

In many ways, the law remains unclear as to how to treat unfiled discovery in the summary judgment context.  Until the Texas Supreme Court weighs in, at minimum, a movant or respondent should provide extensive verbatim quotes of the contents of any unfiled discovery which is being relied upon.  It is never a bad idea to file the discovery products themselves, but keep in mind that even when the discovery products are filed, the inquiry doesn’t stop there.  Especially when such documents are voluminous, specific references must be made to the particular excerpts being relied upon.  Otherwise, the trial court may refuse to consider it.  Kelly v. Gaines, 181 S.W.3d 394 (Tex. App. — Waco 2005).  As one court put it, a court shouldn’t be expected to “sift through a 500-page deposition to search for evidence.”  Guthrie v. Suiter, 934 S.W.2d 820 (Tex. App. — Houston [1st Dist.] 1996). 

Amen to that.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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