Staying On the Level and Avoiding Discovery Snafus

Originally published by Sarah Scott.

Every case filed in Texas state court requires the plaintiff to choose a discovery plan: Level One, which applies only for cases where the plaintiff seeks less than $100,000 in damages; Level Two, which applies by default to all other cases and has its own specific set of deadlines; and Level Three, which allows the parties to agree on deadlines that work best for their case. Tex. R. Civ. P. 190.1-109.4.

For many attorneys, choosing a Level 3 discovery plan seems like a no-brainer: you can avoid calculating all those pesky and seemingly arbitrary Level 2 deadlines, which change depending on when written discovery is served, when depositions are taken, or when trial is set. Level 2 discovery limitations also don’t leave a lot of breathing room for complex cases, especially where the plaintiff decides to serve requests for disclosures with the petition (as is standard practice at many firms).

Simply pleading that you’d like to follow a Level 3 discovery plan, however, doesn’t make it so. The case law is clear: Level 3 discovery is only established once a court actually signs a discovery order. Without a court order, the default Level 2 discovery deadlines apply. (The sole exception would be if the plaintiff seeks less than $100,000; in that case, Level 1 would apply.)

Where the parties neglect to get a judge’s signature on a discovery order, the Level 2 deadlines control. This can have drastic consequences. For example, the Fort Worth Court of Appeals ruled that where a plaintiff failed to procure an order for a Level 3 discovery plan for more than a year, the trial court was within its rights to deny her motion for a Level 3 order. Because there was no signed Level 3 order, Level 2 deadlines controlled – and the defendant filed a motion for summary judgment a week after the Level 2 discovery deadline passed. The trial court denied Plaintiff’s motion for continuance to conduct depositions prior to responding and also denied Plaintiff’s motion for entry of a Level 3 Scheduling order. The Fort Worth Courtt of Appeals held that the trial court did not abuse its discretion in granting defendant’s summary judgment motion. Allen v. United of Omaha Life Insurance Co., 236 S.W.3d 315, 322–23 (Tex. App.—Fort Worth 2007, pet. denied).

Even if a judge signs off on a Level 3, it’s worth familiarizing yourself with Level 2 plans for another reason. Any deadlines left out of a Level 3 plan are still governed by the rules for a Level 2 plan. So if you need to change the number of interrogatories you can serve, the time allotted for depositions, or the deadline for finish conducting discovery, for example, you must include those new deadlines or changes in any Level 3 order. If you don’t, you risk blowing by deadlines that could be crucial for mounting your case at trial.

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