Texas’ discovery rules reward specificity and punish boilerplate. Yet young litigators working from inherited templates may still open every response with a paragraph of prefatory objections — vague, overly broad, unduly burdensome, ambiguous, irrelevant, not calculated to lead to discoverable evidence, seeks material protected by privilege and the work product doctrine — without explaining how or why any of those labels apply to the particular request.
Courts across Texas have made clear that this practice is improper and may waive the very protections it purports to preserve.
For litigators in their early years of practice, drafting discovery responses that comply with the Texas Rules of Civil Procedure requires a more thoughtful approach, one that can withstand a motion to compel and build a defensible record to thrive in a meet-and-confer with opposing counsel.
Here are five rules for crafting discovery motions that can withstand scrutiny.
1. Privilege Is Not an Objection: Comply with Rule 193.3.
Under the Texas Rules of Civil Procedure, privilege is no longer a proper objection to a discovery request. Rule 193.2(f) provides “[a] party should not object to a request for written discovery on the grounds that it calls for production of material that is privileged but should instead comply with Rule 193.3.”
Rule 193.3, in turn, requires a responding party who withholds privileged information or material to make a withholding statement: (1) advising the requesting party that responsive material is being withheld as privileged, (2) identifying the specific privilege(s) asserted and (3) identifying the individual requests to which the withheld material relates.
If a discovery request seeks the production of privileged information, include a proper withholding statement in response.
2. ‘General’ Objections Are Meaningless.
Young litigators working from inherited templates may see “general” objections, typically made once at the beginning of a set of responses and containing every imaginable objection. These “general” objections are then incorporated by reference “to the extent” they apply to each specific request. Rule 193.2 prohibits this practice.
Rule 193.2(a) requires a responding party to “state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.” Where a responding party incorporates “general” objections into a response to each specific request with no attempt to show the application of each objection to each particular request, the responding party violates Rule 193.2.
Not only do “general” objections violate Rule 193.2(a), but courts should also strike each such “general” objection and rule that each such objection has been waived, as the Tyler Court of Appeals held in its 2023 In re Park Cities Bank decision.
If young litigators are concerned about waiving applicable objections, Rule 193.2(d) allows a responding party to amend or supplement an objection “on the basis that, at the time the objection or response initially was made, either was inapplicable or unknown after reasonable inquiry.”
3. Stop Responding ‘Subject to’ Objections.
Like “general” objections, a common practice when responding to a discovery request is to assert various objections and then answer “subject to and without waiving” the objections. Responding to a discovery request “subject to and without waiving” objections is confusing, misleading and improper because it leaves the requesting party unsure whether the request has or has not been fully answered.
Instead, Rule 193.2(a) and (b) require a responding party to “state specifically … the extent to which the party is refusing to comply with the request” and “comply with as much of the request to which the party has made no objection.” For example, if a discovery request is objectionable only in part because its scope is overly broad, the responding party should respond to as much of the request as deemed proper. If a request is wholly objectionable, a responding party is permitted to object to a request in its entirety, as noted in the official comments to Rule 193.
4. Explain the Basis of Objections.
If a responding party believes it has a valid objection to a discovery request, it is not sufficient to simply state the objection — you must explain the objection. For example, an objection that a request is overly broad, vague or ambiguous is meaningless boilerplate — Rule 193.2(a) requires more. A responding party “must state specifically the legal or factual basis for the objection.”
If a request is overly broad, explain why. Does it encompass time periods, activities, or locations that are not relevant to the case’s subject matter? If a request is vague or ambiguous, explain how the request is open to more than one meaning and why the responding party cannot use the ordinary meaning.
5. Know When Marshaling Is Proper and Improper.
Young litigators will often be told a discovery request improperly requires the responding party to marshal all available evidence. Such an objection is proper in certain circumstances.
A “marshaling” objection is never proper in response to a request for production. A request for production “may properly ask a party to provide ‘all,’ ‘each,’ or ‘every’ document pertaining to a relevant, narrow subject of the litigation,” as the Dallas Court of Appeals noted in its 2017 decision In re Sting Soccer Group.
Unlike requests for production, Rule 197.1 states that interrogatories “may not be used to require the responding party to marshal all of its available proof.” But an interrogatory “may inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses.”
Meaning, a marshaling objection is proper in response to an interrogatory that may ask for “each” or “every” fact concerning a cause of action or defense, but improper in response to an interrogatory that may ask for the basic identification of facts the responding party contends establish a specific allegation made in pleadings, a principle reinforced by the Fifth Court of Appeals of Texas in its 2017 In re Sting ruling.
Conclusion
Texas’s discovery rules are not traps for the unwary — they are a framework designed to reward precision and good faith while simultaneously yielding information and documents required to be provided under the rules.
Young litigators who learn early to draft specific, well-supported objections and proper withholding statements will spend less time in meet-and-confer disputes, face fewer motions to compel and deliver the kind of work product earning client confidence and court credibility. The template may be inherited, but the habit is yours to break.
Jay D. Evans is an associate at Munsch Hardt Kopf & Harr, P.C. His practice focuses on commercial litigation across a variety of industries. He believes that the key to effective advocacy is understanding what matters most to his clients so he can work with them to achieve their goals.
