2. New discovery rules apply, beginning with required disclosures
- Under Rule 194.1, all parties must provide information about all current and potential parties, factual bases of claims, legal theories, and provide a computation of each category of damages.
- Parties must disclose information about witnesses and exhibits, separating those it expects to call or use at trial and those it may use if the need arises. Rule 194.4.
- Each party must produce all documents supporting the damage computation and all documents it may use at trial unless they are solely for impeachment purposes.
- All parties must answer the initial disclosures within 30 days from the day the first answer is filed/the date that a party is joined unless modified.
- Until the disclosures are due, no other discovery can be filed.
- Parties must produce copies of all responsive documents or state a time and method for their production.
- Under Rule 195.5, parties must produce a revised list of information and documents regarding experts including a statement detailing their compensation.
- This information must be provided at least 90 days before the end of the discovery period for the plaintiff and 60 days before then for other parties.
- Parties are not permitted to refuse to answer on the grounds that their investigations are incomplete.
3. Faster pre-trial procedures are guaranteed for many cases
- Expedited actions under Rule 169 will be invoked if damages claimed under Rule 47 are less than $250,000 (not counting attorney’s fees, costs, interest and penalties), a much higher number than the former limit of $50,000.
- This will trigger discovery level 1, so this will accelerate the time it takes for cases to get to trial. After the first initial disclosures are due, the discovery period begins and continues for 180 days, different times for each period.
- The time for depositions for each party increases to 20 hours from six hours.
- The beginning and ending dates for Level 2 discovery are revised.
- Cases must be set for trial in a faster 90 days after the date discovery closes.
- There can only be two continuances granted, and they can not exceed total of 60 days.
The stated goal of these 2021 lawsuit changes is to provide for the “prompt, efficient, and cost-effective resolution of civil actions.” They will hopefully accomplish these badly needed objectives. For many years, it has been widely agreed that the litigation process has to be revised. It is extremely expensive, slow, and unwieldy, even in routine cases. This deprives individuals and businesses of their rights to effective and speedy trials and also unnecessarily increases the costs for defendants. Lawsuits that grind on for years are common.
Requiring and increasing mandatory disclosures is an excellent idea. Important information from the parties can be exchanged without the immediate need for additional interrogatories, requests for production of documents, requests for admission of facts, depositions, and the court hearings to adjudicate the inevitable disputes.
However, the new rule regarding service of process has due process problems. Although it requires that some evidence is required to show that alternative methods of service are reasonably effective to give a defendant notice of the lawsuit, that is vague. There will now be default judgments rendered where the defendant never knew they had been sued and it is impossible for the plaintiff to prove that the defendant saw the post or email.
Finally, the timing is problematic. Just as jury trials have ground to a halt, lawsuits are being hurried to trial. But there is already almost a one year backlog with no way to know when jury trials can proceed. In its latest emergency order, the Supreme Court extended the date until February 1. It was estimated that, at the current delivery of the coronavirus vaccine, it may take up to 10 years to immunize enough Americans to make it safe to conduct business in person. For those who advocate jury trials via Zoom, they raise serious questions about representative fairness and have their own set of technological and logistic issues.