What the Essence of “Discovery” Reveals About its Practice, Part 2

In my last blog, we posited from In re Kimberly-Clark Corp. that Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed. We found, however, that this definition alone did not fully capture the court’s description. The court described the nature of Discovery not merely in terms of process, but also purpose.  

            What is the purpose of Discovery?

The purpose of discovery may first be gleaned by the stated objective of the Texas Rules of Civil Procedure: “The proper objective of rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of rights of litigants under established principles of substantive law.” Tex. R. Civ. P. 1. We may glean from TRCP 1 that the objective of Discovery must be in line with the proper objective of rules of civil procedure generally. That is, Discovery cannot have as its purpose anything short of the general objective of civil procedure rules. But we cannot conclude, yet, that the purpose of discovery is exactly the same as the proper objective of civil procedure rules.

Texas Courts articulate the purposes of Discovery in line with but not exactly as the stated objective of civil procedure rules.

1.    “The ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (emphasis added).

2.    “Discovery should be used to augment and facilitate the trial process by narrowing as much as possible the actual issues in dispute.” In re Kimberly-Clark Corp., 228 S.W.3d 480, 490 (Tex. App.—Dallas, 2007 orig. proceeding) (emphasis added).

3.    “The purpose of the discovery rules is to encourage full discovery of the issues and facts before trial so that parties can make realistic assessments of their respective positions in order to facilitate settlements. . . .” Lopez v. La. Madeleine of Texas, Inc., 200 S.W.3d 854, 861 (Tex. App.—Dallas 2006, no pet.) (emphasis added) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)).

4.    “The rules of discovery were changed to prevent trials by ambush and to ensure that fairness would prevail.” Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691, 693 (Tex. 1987) (emphasis added).

Notably, if discovery’s primary purpose is to seek the truth, then the stated objective of civil procedure rules would mostly be met; that is, if discovery is a process by which litigants seek the truth, then discovery would facilitate a just and impartial resolution of rights of litigants.

However, there are countervailing civil procedure rules that thwart the truth-seeking function of discovery, like certain privileges, and rules limiting the scope of discovery. Though we value the search for truth, we also value protecting other rights and privileges in the process. We also value reducing the cost of civil processes so as not to unduly burden litigants, that is, to ensure cases are decided on their merits and not on the mere inability of a party to pay to defend itself; an unrestrained search for the truth through civil processes could prove unfair or inequitable. So, courts articulate the purpose of discovery not merely in terms of the search for truth, but also in terms of ensuring fairness.

The other stated purposes of discovery are really not purposes of discovery, but consequences of the stated purposes of discovery. As a truth-seeking process, discovery is the process through which all relevant facts come to light. If all relevant facts come to light, then the issues in dispute will narrow, and the parties will be able to make realistic assessments of their positions. Further, if discovery’s purpose is to ensure fairness in the search for truth, then as a consequence it would avoid trials by ambush.

Having uncovered the process-oriented nature of Discovery and unpacked its normative grounds, we may posit a legal definition of “Discovery”: Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed, the process of which aims to ensure fairness in the search for truth.

If we accept or agree that this legal definition accurately, albeit generally, describes the nature or essence of Discovery, then we can efficiently and effectively examine and describe, in a non-question-begging manner, the practice of Discovery in Texas.

Daniel Correa