A lawsuit begins once a plaintiff initiates a civil action against one or more defendants. As soon as the defendant answers, both parties begin to exchange written discovery requests to solicit specific information from the opposing party that is relevant to the litigation. The information sought can be in the form of documents or other tangible items such as video or audio recordings, bank statements, tax documents, letters, emails, etc. Additionally, the Texas Rules of Civil Procedure allow parties to solicit admissions, interrogatories, and other information through depositions. Each of these methods seeks to develop the factual circumstances surrounding the lawsuit to ensure that the parties attorneys are informed. This helps prepare a game plan for the attorneys to present their version of what actually happened to their clients.
Withholding Information on Documents from Discovery Requests
The obvious question then becomes: what happens if the opposing party withholds discoverable information—such as an insurance policy?
The existence of an insurance policy can be key information in determining the defendant’s ability to pay a judgment or settlement based on the merits of the case. Namely, an insurer has a duty to defend claims against one of their insured and the existence of a liability insurance policy may be the difference between the injured party being able to recover damages or not.
When one of the parties does not cooperate with discovery requests or fails to answer the requests thoroughly, the opposing party has a few avenues for redress. The first is to “meet and confer.” This method is an informal attempt to resolve discovery disputes before the parties involve the court. The purpose is to save the parties time and money and increase the judicial economy by encouraging a resolution of disputes without the need for court intervention. If this is unsuccessful because one party contends certain information is not discoverable, the complaining party may then file a motion to compel discovery with the court.
What is a Motion to Compel?
A motion to compel operates as a formal request for the court to require the non-producing party to comply with the discovery requests. This is done by requiring that the offending party must produce whatever information they have withheld. The party filing this motion must prove that they have requested discoverable and relevant information that was withheld. The court, after hearing evidence of one party’s attempts to get discoverable information and the other party’s refusal or neglect to provide, will determine whether the non-producing party is abusing the discovery process and may compel that party to produce discoverable information—such as an applicable insurance policy. A determination that the withholding of information is proper ends the conflict; however, a determination that the withheld information was discoverable results in a granted motion to compel, and nonadherence to this ruling results in court-imposed sanctions against the nonadherent party.
Court Sanctions
Determining that the non-producing party has abused discovery can lead to sanctions by the court that takes various forms. One method of sanctioning the non-producing party is to award the party seeking discoverable information reasonable attorney’s fees to compensate them for the time they spent preparing pleadings and spending time compelling the information. Other sanctions include disallowing further discovery of a particular kind by the disobedient party, an order refusing the disobedient party from supporting or opposing designated claims or defenses, or an order staying the proceedings until the order is obeyed. These sanctions handicap the disobedient party’s ability to conduct cost-effective cases and place them in a position where they are unable to conclude a case for their client until they comply.
In the end, the legal community is tight-knit. Withholding pertinent information from opposing counsel will not get anyone very far, and the risks far outweigh the reward. In that a liability insurance policy is withheld, there are safeguards in place to ensure that counsel acting in bad faith through withholding such information is held accountable and forced to comply—or face sanctions by the court.
Written by:
Lance Kimbro
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
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