As foreclosure litigation proceeds, each party is entitled to engage in a process of finding out what the opposing party’s claims consist of, the basis for those claims, and what proof or evidence that party has to support his or her position. This process is called “Discovery”.

This discovery may take several directions. Some forms of discovery are Written Interrogatories, Request for Admissions, Request for Production and Inspections of Documents, Request for Disclosure and subpoena duces tecum.

The “discovery” phase is a very important stage in your lawsuit. The outcome of your suit may be determined during this time of discovery. I take Discovery VERY seriously because it is time-sensitive and the attorney has serious responsibilities in this regard.

Clients can and probably will spend many hundreds and even many thousands of dollars in attorney’s fees during the Discovery period. Clients will spend an inordinate amount of time getting all of the documents and answers ready for inclusion in the Discovery. It is the client that has the documents and the answers, not the attorney. Sometimes, clients give responses to the attorney to try to avoid answering discovery properly. The Supreme Court of Texas has attempted to put a stop to this (except in a very limited number of situations) and this attorney does not do that, solely because it is the client that is harmed by the avoidance. Avoidance cost much more money in the long run and the courts will make you answer, most probably, in any event. Not only is it a serious expense in attorneys fees for your attorney to go to hearings to compel you to answer and for Rule 215 sanctions hearings, but the court can assess your opponent’s attorneys fees and costs against you for the avoidance. And, on top of that, a court can get a really bad impression of you than no client can erase. As to sanctions, the Court can take away you right to present evidence and causes of actions, dismiss your pleadings, and, with the “death penalty”, dismiss your case. So, this is very serious. I would never want you to go down this futile path.

No doubt it is a chore, tedious and time-consuming, but your efforts and your understanding of these Rules Regarding Your Written Discover Responses will save you money in the long run, and may keep you from losing your case or losing on some important point on a technicality. Many areas of family law are very technical. Under-standing of these Rules Regarding Your Written Discover Responses will help you appreciate what these various types of written discovery are. The types of discovery are:

(1) Written Interrogatories are questions you are asked and which you must answer under oath. They are limited in number by statute.

(2) Request for Admissions are basically statements or facts that an opposing party wants you to “admit”, but you may “deny” the statement, if the request is not true. If you don’t know (legitimately do not know) the answer, you can respond “I can neither admit or deny”. But, understand that there are always consequences for giving an answering discovery, if you ever change the response in the future. If you don’t timely answer, the admissions (statements) may be “deemed” admitted (taken as true). That, of course, can end your case.

Your responses to Discovery, whatever is required by the Discovery, must be filed with the other attorney, no later than thirty (30) days from the date the questions or requests themselves were received by your attorney. A draft of your answers or responses and all documents requested should be in your attorney’s office within a reasonable time frame in advance of their being sent to the other attorney. Fully abiding by the deadlines is essential, to allow your attorney a chance to digest your responses and discuss them with you, if necessary. Also, these responses sometimes take considerable time to assemble in proper form. So, don’t be lulled into thinking there is plenty of time for you to start preparing your answers or responses. Your attorney will need time to type, revise, review and timely file your answers or responses. Also, extensions require the other side that sent the Discovery to agree, or time and money must be spent to set and conduct a hearing on an extension of time, and those requests are not always granted by the court.

You must answer this Discovery completely and truthfully. If you don’t, you may be sanctioned (punished) by the Judge. As I have written above, this sanctioning could include striking part of your side of the lawsuit or a monetary fine, you and/or your witnesses may not be allowed to testify, you may not be able to bring out certain evidence at trial, or you may lose everything you wanted to accomplish in this lawsuit. Consequently, discovery must be taken very seriously and fully complied with in every way. Some discovery may request privileged materials or are otherwise legally improper questions. The privileged and/or confidential material does not need to be divulged or produced, but you and your attorney better be certain that the objection is legitimate, because, if it is not, and the other side files a motion to compel or a motion for sanctions, you may wind up having to pay attorney’s fees for delaying the process (attorney’s fees for the preparation and presentation of the motion) and costs. If the information is not privileged or protected by law under some other serious legal principle, then a written objection can be raised, BUT YOU STILL HAVE TO ANSWER. The answer might not be able to be used at trial or at any other time, until the Court rules on the specific objection(s).

If your answer was correct at the time, but circumstances later change, or you acquire additional information, or you unintentionally omitted an answer, you must supplement this information at least thirty (30) days prior to trial, and amend your previous answers. You must notify your attorney of any changes in any part of your answers immediately. Failure to supplement thirty (30) days prior to trial can result in undesirable consequences. For example, if you fail to identify a witness, in response to an interrogatory, that witness may not be permitted to testify.

If you need to add names of any witnesses, notify your attorney immediately upon your own knowledge of such.

Whether you want to deny requests or not answer them or produce documents, YOU MUST ANSWER THEM AND PRODUCE THE REQUESTED DOCUMENTS in a timely fashion to your attorney. There may be valid objections to the production or the answers, but, TODAY, you must answer and produce and make an objection (unless it is privileged) and then, both sides wait to get a ruling at trial on the objection. YOU CANNOT AVOID ANYMORE. Your answers and production are still due in 30 days. When appropriate, your attorney will file objections at the same time your answers or responses are filed with the opposing counsel.

(3) Request for Production of Documents and/or Subpoena Duces Tecum (used at depositions and trial)

Both a request for production and a subpoena duces tecum require you to gather and turn over to your attorney and then to the other side, certain relevant, requested documents (or other tangible things such as photographs, school records, tax returns, financial account information, letters, diaries, etc.). Most definitions of the term “documents” are a full, single-spaced page long or more, so very few things don’t fall within the matters to be produced. Then, there must be the original copy (sent to the requestor), a copy for your attorney, a copy to be used in evidence, and you should probably have a copy. Can anyone legitimately wonder why the simplest case can become voluminous in no time? You can copy this mountain of evidence yourself and possibly save some on the reproduction fees and attorney’s fees, also.

These two methods of discovery differ however, in the time allowed for response. The Request for Production has a thirty (30) day deadline for you, through your attorney, to turn over or make available for inspection, the documents or tangible things requested.

The Subpoena Duces Tecum normally has a shorter time frame, requiring you to bring with you to a hearing, trial or deposition, set at a time and certain date, the requested (subpoenaed) documents or other tangible things. These can also be Instanter, which means IMMEDIATELY.

You should bring these things to your attorney in advance of their due date for review and perhaps to protect your legal rights, if possible.

The documents you gather in response to the Request for Production are due in your attorney’s office by the deadline he gives you, which is usually at least a week before they are due at the other side’s office.

You are not required to produce any document or other tangible thing unless it is in your possession, custody or control. This means that you may not have actual possession of something, but as long as you have a superior right to make someone else produce it for you or to you, then the law says you have “possession” of the requested item and must produce it, or at least use your best efforts to produce it.

Sometimes your attorney may choose to provide the other side with the necessary consent form to obtain the requested records (and they incur the expense) from third parties.

If you do not do Discovery properly, my contract with you allows me to withdraw from you as your attorney. I will do that.

If after you make your initial response and you have additional materials that become available (example: new monthly bank statements, or something you overlooked or could not locate before), you must notify your attorney and take them to his/her office at once.


You may substantial save attorney’s fees and costs, if you follow certain suggestions. When you receive a written discovery request, you are likely to resent the time and trouble involved in responding. You have every right to discuss the requests with your attorney. However, you should remember that you pay for all the time your attorney spends on your case. If you require your attorney to spend time listening to your grievances about the discovery process, you are only increasing your fees and accomplishing nothing toward the resolution of your case. If the request is overbroad or harassing (and can be proven so, according to established legal theories), your attorney will file the appropriate objection and seek protection from the court. Otherwise, you must respond.

Interrogatories. When you receive the written interrogatories, you should first carefully read each question. Make sure you understand the question. If not, ask your attorney to explain it to you. Then, you should prepare a draft of the answers. After preparing your answers, review the questions again to make certain your answers are truthful and complete to fully answer the question asked. Do not offer additional information beyond the answer to the Interrogatory, but answer the question asked. All subparts must be responded to in to order asked. Finally, present your answers to your attorney in a legible form, and in the sequence asked in the interrogatories. If you have access to word processing equipment, you should ALWAYS type the answers. This way your attorney will not spend time trying to decipher your handwriting. You should submit your answers to your attorney well before the required answer date. Your attorney will then review your answers and may make suggestions for additional or less information. The attorney will prepare the answers in the proper form and will request you to sign, under oath before a notary public, those types of Discovery requiring answers under oath. Remember, the less time your attorney spends trying to read, understand and complete your answers, the more money you save in fees.

Request for Production. When you receive the request for production, you should first carefully read each request and make sure you understand them. If not, ask your attorney for further explanation. Then, you should begin gathering the requested documents. You should organize them by number, according to the number of the request. If you do not have possession, control or custody of a document, make a legible list of such item, according to the number of the request, and submit the list to your attorney. If the request is for monthly or periodic statements (e.g., bank or brokerage statements), organize them chronologically. Checks and the like can be loaded on a copy machine to the fullest extent possible. Many times, by reducing the image, you can get 8-10 checks on a page. But they must be legible.

You should index each response. For example, if Request #1 calls for bank statements and canceled checks for the period covered from January 1, 1990 to the current date, and you maintained two accounts during that period, your index will be:

“Response to Request #1 – Bank statements and canceled checks from account #5432, First National Bank, for the period covered from Jan.1, 1990 to current date, ewe produced in file #1. Bank statements and canceled checks from account #9876, State National Bank, for the period covered from Jan. 1, 1990 to the current date, are produced in file #1.”

Once the documents are collected, organized and indexed, submit them to your attorney. They should be presented with tabs separating the various documents (or in separate files), clearly identified by number according to the number of the request. Be sure to submit the documents well before the response deadline so that your attorney will have sufficient time to review them.

If you choose to present the material in a disorganized fashion, your attorney will be forced to spend extra time collecting and organizing at his/her hourly rate, which is usually expensive. This will be an additional and unnecessary expense to you, when litigation is expensive enough. Remember, the less time your attorney spends trying to organize, read and understand your production response, the more money you save in fees.

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