Why Not Have Responses To Document Requests
That Make Sense?

By W. Mark Cotham


Introduction

There is a memorable scene in Mel Brooks’ movie Blazing Saddles where the town leader Olson Johnson, following several minutes of incoherent and emotional babbling by “frontiersman” Gabby Johnson that repeatedly decries “hornswaggling,” says:
Now who can argue with that? I think we are all indebted to Gabby Johnson for clearly stating what needed to be said. I am particularly glad that these lovely children were here today to hear that speech. Not only was it authentic frontier gibberish, it expressed a courage little seen in this day and age.1

Unfortunately, a very large number of non-privilege responses made to document production requests today would also qualify as gibberish, “authentic frontier” or otherwise. It is virtually impossible to ascertain from many, if not most, responses what is and is not being produced and the specific reason that the non-produced documents are withheld.
This is a costly and regrettable state of affairs on several levels. Making objections and then later slashing through these objections wastes an extraordinary amount of time and effort, even when good faith abounds. Second, the imprecision in the case law’s articulation of pertinent standards inevitably leads to inconsistent and unpredictable results. Finally, the end product of this accepted process is often a record where neither the parties, nor the court, can say with certainty what has resulted, i.e., what documents have and have not been produced.
There is no reason for this state of affairs to exist and indeed every reason to think that a concerted effort to enforce existing rules and articulate workable principles could rid us of this unproductive practice.What Have Long Passed for Legitimate Objections to Document Production Are Often Gibberish.
A familiar formulation of the boilerplate objections often used by Texas practitioners is:
"Objection, the request is vague, ambiguous, overly broad, irrelevant, unduly burdensome and harassing. Subject to, and without waiving these objections, responsive non-privileged documents will be produced at a mutually convenient time and place."

Plain and simple, this kind of objection does not comply with the Texas Rules of Civil Procedure. Rule 193.2(a) established the standard that all objections must meet. That rule provides that a party must “state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.”
Federal courts, applying similar rules, have routinely held that such boilerplate objections do not constitute valid objections.2 In doing so, they have observed that such objections do nothing to inform the requesting parties or the court about why a request should not be honored, what part of it might be acceptable, or how it could be reformulated so as to pass muster.
A review of typical objections to document requests helps illustrate why the objections are often inconsistent with a rational discovery process.

A. Objections that a request is “vague” or “ambiguous.”
Taken literally, the objection that a request is “vague,” according to Webster’s, means that it is “not clearly expressed; stated in general or indefinite terms.” Likewise, the objection that a request is “ambiguous” according to Webster’s means that it “wander[s] about, waiver[s], dispute[s].”
“Vague” or “ambiguous” document requests by definition violate the requirement found in Rule 196.1(b) of the Texas Rules of Civil Procedure, which states that document requests “must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category.”
This same standard of “reasonable particularity,” according to federal authority interpreting comparable rules, turns on “whether a reasonable man would know what documents or things are called for,” “the goal” being that the designation is “sufficient to apprise a person of ordinary intelligence what documents are required and that the court be able to ascertain whether the requested documents have been produced.”3
The ultimate irony of how “vagueness” and “ambiguity” objections are frequently made is that these objections often are completely Delphic. The objections frequently leave the requesting counsel and the court guessing at which word or phrase is unclear and what might be unclear about it. In this sense, the objections are no more helpful than simply stating “objection, this is a bad request.”

B. Objections that a request is “overly broad.”
Texas courts have in recent years often used the phrase “overly broad” for describing objectionable discovery requests. For example, our Supreme Court has used the term “overly broad” or “overbroad” in sustaining objections to:

• a request to identify all safety employees who worked for a defendant over a 30-year period;4
• a request for information relating to all criminal activity on all K-Mart property nationwide over the last seven years;5 and
• a request for all investigations regarding fuel spills for all General Motors vehicles for all model years.6

The Court recently summarized Texas case law on the overbreadth objection as follows:
"We have identified as overbroad requests encompassing time periods, products, or activities beyond those at issue in the case – in other words, matters of questionable relevancy to the case at hand. This kind of review can generally be done on close examination of the pleadings and specific claims and defenses made, and it is clear that the sheer volume of a discovery request does not in itself render the request irrelevant or overbroad as a matter of law."7

The phrase “overly broad” and its prominence, achieved by repetition, is unfortunate. Texas law offers no definitive guidance concerning when a request becomes “overly broad,” in contrast to what our courts have repeatedly reminded us are “liberal” and “broad” discovery rights.
Upon a close examination, the real problem with the “overly broad” objection is that it is simply a surrogate for one, or sometimes a combination of two or three, other distinct objections that are found in and based on our rules. In every case involving the “overly broad” objection that the author is familiar with, the real objection could and should more specifically have been described as a relevance (Tex. R. Civ. P. 192.3(a); Tex. R. Evid. 401), unduly burdensome (Tex. R. Civ. P. 192.4; 192.6(b)) and/or failure to state a request with reasonable particularity (Tex. R. Civ. P. 196.1) objection. As one federal court put the matter, “[t]he overbreadth element is but a restatement of the proposition that the relevance of and need for documents sought will bear on the reasonableness of the subpoena.”8
Several courts have, perhaps unintentionally, been quite plain about the fact that “overly broad” is really serving as a surrogate for these other objections. So, for example, courts have stated:

• “We hold Judge Lawrence’s discovery order was overly broad in compelling discovery of all General Motors’ vehicles for all model years. Surely information on all “vehicles” designed, manufactured or sold by General Motors is not relevant to this action.”9 and
• “In opposing discovery on the grounds of over-breadth, a party has the burden to show facts justifying their objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burden-some.”10

The continued reliance by counsel and our courts on the “overly broad” objection when in fact other specific rule-based objections are proper is undesirable for at least three reasons. First, given its multiplicity of distinct meanings, the phrase, “overly broad” does not specifically communicate a basis for objection. As such, the objection runs afoul of Rule 192.3(a) and the salutary purposes it serves. Second, the use of “overly broad” to describe such distinctly different objections promotes confusion about what, if any, proof is required by the objecting party. Depending on which real objection the “overly broad” label is substituting for, Texas case law either does or does not require specific proof. Third, it is jurisprudentially undesirable for courts to substitute case law developed standards for standards founded in rules, especially when the substituted standards are bereft of specific definition.

C. Objections based on requests being “unduly burdensome.”
The phrase “unduly burdensome” is shorthand for the standards found in Rules 192.4 and 192.6(b). Rule 192.4 emphasizes that trial courts “should” limit discovery if “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or…the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”11
Rule 192.6(b) provides that a court may “in the interest of justice,” issue a protective order to “protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights.”
While litigators generally tend to think of “burden” in the context of hours of search time and the number of boxes of documents, the concept is in fact much broader. “Burden” also includes:

1. the difficulty of the search process, including interference with ongoing activities and the number of diverse geographic locations and personnel that must be contacted;
2. commercial sensitivity;
3. privacy issues; and
4. personal embarrassment.

Very rarely do objecting parties make any attempt to describe the nature or extent of the burden or why, in context, it is “undue.” Again, this leaves both the requesting party and the court to guess about these subjects in contrast to what the rules plainly require. For this reason, many courts, both Texas and federal, have found that assertions of “burdensome,” without more, fail to state a competent objection.12

D. Objections based on requests being “harassing.”
A literal approach to defining the “harassment” objection is not particularly illuminating. Black’s Law Dictionary defines “harassment” as “words, gestures and actions which tend to annoy, alarm and abuse (verbally) another person.” Beyond this, courts in many contexts have held that there is an inherent problem in defining what “harasses” people since what might harass or embarrass one person may not harass or embarrass another.13
Much like the overbreadth objection, “harassing” is not a distinct objection to requested discovery. Instead, the objection of “harassing” is again an imprecise surrogate for other objections more definitively stated in our rules. To begin with, a request that seeks relevant documents, or is otherwise calculated to lead to the discovery of admissible evidence, by definition cannot (with one exception) be “harassing.” As one court stated, “[w]e have already concluded, however, that these discovery requests were reasonably calculated to lead to the discovery of admissible evidence; a request that meets that criterion is manifestly not…sought solely for the purpose of harassment.”14 The exception to this statement is, of course, when a request is “unduly burdensome.” So again, the only time that the objection of “harassing” is properly made is when a request is either irrelevant or unduly burdensome. This has been recognized, albeit implicitly, by Texas courts.15

E. Objections based on relevance.
The general “Scope of Discovery” is stated in Rule 192.3(a). It establishes that “a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.”
The United States Supreme Court in Oppenheimer Fund, Inc. v. Sanders,16 interpreted “relevant to the subject matter in the pending action” as extending beyond the mere pleadings:
"[T]he key phrase in this definition—‘relevant to the subject matter in the pending action’ has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case…Consistent with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues…Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits."

It is, however, unclear whether Oppenheimer reflects Texas law. The “fishing expedition” line of cases discussed next suggest that Texas might limit the interpretation of “subject matter” solely to those causes of action already plead.

F. Objections that a request constitutes a “fishing expedition.”
Another commonly used basis for objecting to document requests is that it constitutes a “fishing expedition.” This label derives from Loftin v. Martin,17 where the Texas Supreme Court stated:
"Unlike interrogatories and depositions, Rule 167 is not a fishing rule. It cannot be used simply to explore. You are permitted to fish under deposition procedures, but not under Rule 167. The Motion for Discovery must be specific, must establish materiality, and must recite precisely what is wanted. The Rule does not permit general inspection of the adversary’s records."

Respectfully, the “fishing expedition” label, no matter how often it is repeated, offers no standard at all. It is a colloquial label that is, at best, confusing given the inherent nature of discovery. Since Loftin v. Martin the Texas Supreme Court has narrowed the “fishing expedition” term by holding that the court “reject[s] the notion that any discovery device can be used to “fish.”18 In addition, Wright, Miller and Marcus, citing United States Supreme Court authority, has suggested that a “fishing expedition” is an appropriate description of modern discovery:
"With regard to discovery of documents, as with the other discovery provisions, it should be true that ‘no longer can the time honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case.’ Prior to the 1970 amendments some courts thought that the “good cause” requirement formerly in Rule 34 prevented fishing expeditions under the rule. With that requirement now eliminated, an objection that a request for inspection is a fishing expedition should be given short shrift. It is true that the party seeking discovery must still designate what it wishes to inspect, but all this obstacle means is that the would-be angler must have a general idea of what kind of fish he or she is hoping to catch. As with all discovery, a court may limit document production on grounds of proportionality.19"

The best that can be gathered as to what Texas courts mean by “fishing expedition” is that a request is seeking evidence that is not relevant to the issues raised by the pleadings, but is instead relevant to whether other claims may exist.20 Assuming that this is the intended meaning of the “fishing expedition” objection, it really boils down to nothing more than:

1. the causes of action and defenses in the pleadings determine the boundaries of relevance; and
2. requests about subjects outside of the matters plead (usually other causes of action) are therefore irrelevant.

When so analyzed, the “fishing expedition” objection offers nothing distinct but is instead simply a surrogate for relevance.

G. Production “subject to” objections.
A common fellow traveler to the previously discussed boilerplate ob-jections is the statement, or its likeness, that “subject to and without waiving these objections, respondent will produce responsive non-privileged documents.” When the respondent makes this statement, a requesting party is left to guess what information the respondent is withholding versus what information it is voluntarily producing.
No Texas court has directly addressed the use of such a “subject to objections” statement. The federal courts that have addressed this practice, however, have soundly berated it. In Athridge v. Aetna Casualty & Surety Co.,21 the court summed up why this sort of response amounts to a responding party “hiding the ball”:
"Plaintiffs argue that, as to nine of the 19 requests for production, the defendant asserts an ambiguous relevance objection…the defendant responds that it objects on the grounds that the request “is not reasonably calculated to lead to discovery of admissible evidence” but that it will produce “relevant, non-privileged” documents that are responsive to the request. In other words, the defendant does not object with specificity to the request itself, or to its scope on relevance grounds. Rather, it merely repeats the standard contained in Fed. R. Civ. P. 26(b)(1), then states that it will determine what documents are relevant and produce those documents only. This type of answer hides the ball. It leaves the plaintiff wondering what documents are being produced and what documents are being withheld…Such an objection is really no objection at all as it really does not address why potentially responsive documents are being withheld. The defendant, having no incentive to err on the side of disclosure, has arrogated to itself the authority to decide the question of relevance which is unquestionably the decision of the judge…Asserting a relevance objection, then proceeding to produce “relevant, non-privileged” documents “subject to and without waiving” that objection, serves only to obscure potentially discoverable information and provides no mechanism for either the plaintiffs or the Court to review defendant’s actions."

This and other federal courts22 do a good job of articulating the problems with the “subject to” statement accompanying objections. Texas courts should, as they have on other discovery issues, take the lead from these federal courts.

2. A Concrete “Check-list” for Evaluating Common Objections to Document Requests.
Based on existing Texas and federal case law it is possible to develop a check-list of the elements that should be addressed when these familiar objections are employed.

A. Evaluating “vagueness” or “ambiguity” objections.
When confronted with a “vagueness” or “ambiguity” objection, a court should consider (and an objecting party’s counsel would be well-advised to plead and prove) the following elements:

1. Has the objecting party identified the word(s) or phrase(s) in the request that are vague or ambiguous? If not, the objection does not comply with Tex. R. Civ. P. 193.2(a)’s specificity requirements;
2. Has the objecting party explained why the identified word(s) or phrase(s) are ambiguous or vague? The key question here is why these word(s) or phrase(s) are reasonably susceptible to more than one meaning. Again, if not, the objection does not comply with Tex. R. Civ. P. 193.2(a)’s specificity requirement;
3. Is the ambiguity latent, i.e., one that arises when a request that is unambiguous on its face is applied to the subject matter and an ambiguity appears due to some collateral matter? If so, proof of this circumstance must be offered. Alternatively, if the objection is patent or “on its face,” then no proof is required.; and
4. Is there a commonly understood meaning for the supposed vague or ambiguous words or phrases? If so, the responding party should be required to respond with this meaning governing their responses.

This formulation of the pleading and proof requirements for a vagueness objection has a strong analog in our judiciary’s approach to ambiguities that are alleged to exist in contracts or deeds. A party asserting ambiguity in the context of such disputes has the burden to plead that ambiguity and to prove it.23 The same pleading and proof requirements are appropriate in connection with evaluating objections to document requests.

B. Evaluating the “overly broad” objections.
The standards that emerge for evaluating an objection of “overly broad” to a document request involves a court considering:

1. What part, if any, of a request seeks information that is irrelevant and not otherwise reasonably calculated to lead to the discovery of admissible evidence?;
2. What part, if any, of a request seeks information that is unduly burdensome to produce?; and/or
3. Does the request fail to state with reasonable particularity what documents are being requested?

This articulation of the considerations pertinent to an “overly broad” objection obviously collapses the “overly broad” objection into relevance, “undue burden” and particularity of designation inquiries. This is intentional and perfectly consistent with, and more accurately reflective of, the rules governing discovery in Texas.
If, contrary to the author’s view, the overbreadth objection as such is recognized as a distinct objection, there nonetheless are two principles to keep in mind about its application. First, overbreadth is usually determined both by the request and the circumstances. For example, regardless of whether a request contains a time limit, if the subject is “one company, which has been in business for about three years, and the documents responsive to the request are contained in but one file,” the request is not overly broad.24 Second, in determining overbreadth, our Supreme Court has noted that “[a] central consideration…is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information.”25

C. Evaluating “undue burden” objections.
The elements that need to be considered in determining the validity of any undue burden objection include:

1. Has the precise nature of the burden been plead? Depending on the nature of the claimed burden, this should include an explanation of what is involved in complying with a given request. Barring such a specific statement, a proper objection has not been stated.;
2. Has proof of the nature and the extent of the burden been offered?; and
3. Why is the burden that has been plead and proved “undue?” This may, per Rule 192.4, include an explanation of the marginal relevance or the cost versus what is at stake. Alternatively, in some cases, proof regarding the factual premises behind the “undue” nature of the burden should be offered.

While the sheer volume of documents involved is often part of the “burden” equation, it is not the complete answer.26 In this connection, practitioners would be well-advised to spend the time to understand fully how clients organize and maintain their documents. This work is critical to securing the type of detailed non-conclusory affidavit that many courts require to urge an undue burden objection successfully. Counsel should also consider combining argument, and if necessary additional proof, on why the burden is “undue” in terms of what is at stake and the marginal, if that, relevance of what is being requested.

D. “Harassment” objections.
The same elements considered in determining undue burden objections are properly considered with respect to harassment objections. For the reasons indicated in Section 1.D., this objection should not be recognized as a distinct objection.

E. Evaluating Relevance Objections.
Determining objections to document production based on relevance is more difficult than it might at first appear. From the author’s perspective, it generally makes the most sense to work through three steps, which help to “back in to” an answer.

1. What are the factual issues that are material to the outcome of the suit? These are the special issues (or contested facts in a bench trial) that will ultimately be outcome determinative. If a request relates only to a proposition that is not material to the outcome of a lawsuit, then it is definitionally irrelevant under Tex. R. Evid. 401.
2. What type(s) of evidence will be admissible with respect to these contested special issues or contested facts?
3. Are the request(s) in issue “reasonably calculated to lead to the discovery of” this “admissible evidence”? Courts have generally interpreted “reasonably calculated” in a liberal manner.27 In some circumstances, but certainly not all, successfully urging a relevance objection may require evidence.
   Obviously, a favorable answer from the requesting party’s perspective is required to each of these questions, otherwise the evidence is not discoverable based on its irrelevance.

F. Evaluating the “Fishing Expedition” Label.
If, contrary to the approach urged herein, a Texas court is willing to entertain the label of “fishing expedition” as an objection, then there are two alternative approaches to consider. First, if a court attempts to limit discovery solely to causes of action that have been plead, then a comparison in line with that outlined in the previous section between the pleadings and the documents requested should suffice.
Second, and alternatively, if a court attempts to limit discovery to the “subject matter of the pending action,” as Rule 192.3(a) and at least the United States Supreme Court’s interpretation of essentially the same language suggests, then the “subject matter of the pending action,” must be determined. The definition of a “claim” employed in connection with the doctrines of merger and bar appears to be an appropriate and principled means for delineating the boundaries of such discovery.28

G. The “subject to” comment.
The phrase “subject to the foregoing objections, respondent will produce relevant non-privileged documents” is simply not an appropriate response. It is at best superfluous and more often flies in the face of Tex. R. Civ. P. 193.2(a)’s requirement that a “party must state specifically …the extent to which the party is refusing to comply with the request.” The only circumstance when this condition on production would comply with the rules is when the responding party has precisely articulated what part of the request it is complying with, versus what part it is not complying with, due to an objection. In this context, the “subject to” caveat would be superfluous.

3. How Courts Should Address Document Production Disputes.
There are many alternatives available to courts in assessing objections to document production requests and making sure that legitimate discovery is permitted. Before addressing the alternatives available to courts, it is worthwhile to examine the concept of discretion and its proper application to document production disputes.

A. The proper role of “discretion” in assessing discovery disputes.
Appellate courts commonly recognize that trial courts have discretion in ruling on discovery matters.29 The existence of discretion, however, should not be confused, as it often seems to be, with an ability to make decisions based on judicial whims. As Justice Cardozo explained, “[w]e must not invite the exercise of judicial impressionism. Discretion there may be, but ‘methodized by analogy, disciplined by system.’”30
The more precise way justices articulate, in published decisions, why particular requests are or are not objectionable, the more guidance trial courts and Texas practitioners will receive. This will not remove a trial court’s discretion. Instead, it will relegate the exercise of that discretion to its proper role – the “power to choose among alternatives within legal bounds.”31

B. Should courts compel, sustain or reform?
The choices a court faces in ruling on an objection to a document request include:

1. compelling production in accordance with the original request;
2. requiring narrower production than requested based on a reformed request; and
3. treating the request as incorrigible and sustaining the objection in its totality.

In most cases where a request is only partially objectionable, the appropriate course for a court to follow is narrowing the request so that it is acceptable. There is ample authority for this approach. As one federal court has explained:
"It is within the discretion of a court ruling on a motion to compel to narrow the requests rather than sustain the responding party’s objections to them in toto. In doing so, the court effectively sustains an objection that the requests are vague, ambiguous or overbroad in part, and overrules it in part.32"

This is also the approach that is contemplated by the Texas Rules. Rule 192.6(b)(4), for example, authorizes the court to enter a protective order providing that “the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court….”
The interests of judicial economy strongly support narrowing and thereby reforming document production requests when the request is only partially objectionable. While some litigants may simply “give up” on the discovery in issue, frequently parties will make additional requests, drawing similar objections and all of the expense, time and delay associated with a second motion to compel can occur.

C. The Normal Range of Sanctions.
Rule 193.2(c) specifically provides that “[a] party may object to written discovery only if a good faith factual and legal basis for the objection exists at the time the objection is made.” Rule 215.1 and 215.2(b) makes a number of sanctions available to Texas courts to address groundless objections to document production requests. These range from a simple order compelling the discovery, 215.1(b), to the award of fees, 215.1(d), to the striking of pleadings, 215.2(b)(5).
The circumstances under which particular sanctions are appropriate have been thoroughly covered elsewhere and will not be revisited here. Nonetheless, it is worthwhile to consider the practicalities of dilatory document production responses, briefly, in determining an appropriate judicial response. As was stated by one obviously frustrated federal District Court as follows:
"The problem for courts is this: Parties and counsel file general objections which they know to be improper to force the other side to confer hoping to negotiate down the discovery responses to disclose less information than should be disclosed. This tactic often works because courts are busy, don’t have extra time to focus on discovery disputes and can’t decide the discovery disputes soon enough to be of value in the litigation.33"

Aside from the familiar powers of the court in dealing with discovery, there are also specific powers that a court can exercise in connection with document production disputes.

D. Alternative approaches to boilerplate objections.
Courts faced with the use of boilerplate objections have alternatives in addition to simply sustaining or overruling them one by one or employing traditional sanctions.

(1) Finding waiver of objections.
Often, the same boilerplate objections are used in response to all, or almost all, of a set of document requests. Rule 193.2(e) specifically condemns the practice of making numerous unfounded objections and provides that waiver of otherwise valid objections can result:
"(e) Waiver of Objection. An objection that is…obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.
At least one Texas court has found that the use of the same objection to many requests is a factor that supports sanctions in connection with boilerplate objections.34 A finding of waiver seems particularly appropriate when a party has evidently made no effort to specify its objections, but instead has used essentially the same form objections to every or virtually every request, assuming that at least many of the requests are legitimate."

(2) Holding that the responding party is barred from later introducing withheld evidence.
If a responding party refuses to produce documents based on objections, in most instances it follows that this party should not at a later date, when it suits its purposes, offer the evidence that it has withheld.
The Texas rules specifically recognize that documents or evidence not produced can and should be barred from later introduction. Tex. R. Civ. P. 193.4(c) (a party may not use information withheld from discovery under a claim of privilege); 193.6(a) (a party who fails to answer or supplement timely may not introduce in evidence such material); and 215.2(b) (sanctions for failing to comply with proper discovery). This is a common-sense and fair result that Texas courts routinely apply.35

(3) Shifting expenses.
Aside from “sanctions” and the other remedies discussed, one often overlooked alternative is a “shifting” of the costs involved in document production. Under normal circumstances, the responding party will be required to bear the costs of compiling documents and making them available for inspection and copying, with copying on the requesting party’s tab. The costs of compiling documents are often referred to as part of the “costs of doing business” and are an ordinary outgrowth of our so-called American Rule whereby each party generally bears its own fees and expenses.

Other rules, Tex. R. Civ. P. 192.(b)(4) and 215.2(b)(2), plainly authorize costs to be shifted. While there is no authority in Texas case law defining the circumstances under which the costs of production should be shifted, federal courts have articulated a series of tests to help determine when expenses are undue and should be shifted.36

Conclusion
This article is not intended to argue for more liberal or more restricted discovery of documents. Instead, its purpose is to suggest that a principled approach is not only possible, but far preferable to the existing way in which document production objections are made and evaluated.
Now is a particularly appropriate time for reconsidering the underlying principles involved in document production. The time is readily foreseeable, and even today in many fields, where “document” production will not involve anything an ordinary person today considers a “document.” In such an environment, principled decision making is all the more necessary.

Mark Cotham is a shareholder in the Houston firm of Cotham, Harwell & Evans. His practice areas include oil and gas, commercial and constitutional litigation. He has also frequently served as a Master in Chancery, arbitrator and mediator in a number of complex cases.

Endnotes
1. Blazing Saddles (Warner Bros. 1974). 2. PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 297 (N.D.W.Va. 2004); see also, Josephs v. Harris Corp., 677 F.2d 985, 992 (3rd Cir. 1982); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990); Starlight Int’l v. Herlihy, 181 F.R.D. 494, 497 (D. Kan. 1998); Momath v. Albert Einstein Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996); Roseberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980); In re Folding Carton Antitrust Litigation, 83 F.R.D 260, 264 (N.D. Ill. 1979); see Independent Insulating Glass/Southwest Inc. v. Street, 722 S.W.2d 798, 802 (Tex. App. – Fort Worth 1987, writ dism’d w.o.j.). 3. 4A Moore’s Federal Practice P. 34.07, pp. 34-36.; C. Wright & A. Miller, 8 Federal Practice and Procedure: Civil § 2211 at 415 (West 1994). 4. In re: CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003). 5. K-Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). 6. General Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983). 7. In re: Alfred Chevrolet-Geo, 997 S.W.2d 173, 181 n. 1 (Tex. 1999). 8. United States v. International Business Machines, 83 F.R.D. 97, 106 (S.D.N.Y. 1980) 9. General Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983). 10. Super Film of America, Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D. Kan. 2004). 11. Alford Chevrolet-Geo, 997 S.W.2d at 181 citing Tex. R. Civ. P. 192.4(b). 12. In re: Alford Chevrolet-Geo, 997 S.W.2d at 181; Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 592-93 (W.D.N.Y. 1996). 13. Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Kramer v. Price, 712 F.2d 174, 178 (5th Cir. 1983) (striking down the “Texas Harassment Statute” on vagueness grounds). 14. In re: Energas Co., 63 S.W.3d 50, 55 (Tex. App. – Amarillo 2001, no writ). 15. Mole v. Millard, 762 S.W.2d 251, 254 (Tex. App. – Houston [1st Dist.] 1988, no writ); cf., In re: Amaya, 34 S.W.3d 354, 358 (Tex. App. – Waco 2001, no writ). 16. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). 17. Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989). 18. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). 19. Wright, Miller and Marcus, 8A Federal Practice and Procedure, §2206, p. 380 (1994), quoting in part, Hickman v. Taylor, 329 U.S. 495, 507 (1947) (emphasis added). 20. In re: Sears Roebuck and Co., 123 S.W.3d 573, 578 (Tex. App. – Houston [14th Dist.] no writ); compare, Davis v. Pate, 915 S.W.2d 76, 79 (Tex. App. – Corpus Christi 1996, orig. proceeding). 21. 184 F.R.D. 181, 190 (D.D.C. 1998). 22. See, e.g., Howard v. Sweetheart Cup Co., 2001 U.S. Dist LEXIS 8682 at *6 and *8 (N.D. Ill. 2001); National Union Fire Insurance Co. of Pittsburg, PA v Federal Deposit Insurance Corporation, et al, 1995 U.S. Dist. LEXIS 3102 (D. Kansas March 7, 1995). 23. Ayers v. Hodges, 517 S.W.2d 589, 592 (Tex. Civ. App. – Tyler 1974, no writ). 24. Tjernagel v. Roberts, 928 S.W.2d 297, 302 (Tex. App.—Amarillo 1996, no writ). 25. In re: CSX Corp., 124 S.W.3d at 153 (citing American Optical, 988 S.W.2d at 713). 26. Cotracom Commodity Trading Co. v. Seaboard Corporation, 1998 U.S. Dist. LEXIS 6726 (D. Kan. May 6, 1998). 27. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). 28. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992); Restatement (Second) of Judgments § 27 (1982). 29. Duke v. University of Texas, 729 F.2d 994, 997 (5th Cir. 1984), cert. denied, 469 U.S. 982 (1984); Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 187 (1st Cir. 1989). 30. Cardozo, The Nature of the Judicial Process, 139, 141 (1921). 31. Landon v. Jean-Paul Budinger, Inc., 724, S.W.2d 931, 935 (Tex. App. – Austin 1987, no writ). 32. Green v. Baca, 219 F.R.D. 485, 490 (C.D. Cal. 2003); see also, In re: Alford Chevrolet-Geo, 997 S.W.2d at 191-192. 33. Biovail Corporation v. Mylan Laboratories, Inc., 217 F.R.D. 380, 382 (N.D. W.Va. 2003). 34. Braden v. South Main Bank, 837 S.W.2d 733, 737 (Tex. App. –Houston [14th Dist.] 1992, writ denied). 35. Wilson v. Snead Site Preparation, Inc., 770 S.W.2d 840, 842-43 (Tex. App. – Houston [14th Dist.] 1989, writ denied); Town East Ford Sales, Inc v. Gray, 730 S.W.2d 796, 809 (Tex. App. – Dallas 1987); Paramount Petroleum Corp. v. Taylor Rental Center, 712 S.W.2d 534, 537-38 (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.); Clear Lake City Authority v. Windgard, 695 S.W.2d 632, 639-40 (Tex. App. – Houston [1st Dist.] 1975, writ ref’d n.r.e.). 36. Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421, 428-9 (S.D. N.Y. 2002); Bills v. Kennecott Corp., 108 F.R.D. 459, 463 (D. Utah 1985); but see, Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003).

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