Creative Discovery

I. RULES GOVERNING PARTY & NONPARTY SUBPOENAS

A. In General. Discovery subpoenas as well as trial subpoenas are authorized under TRCP 176. This paper addresses primarily discovery subpoenas.

1. Trial subpoenas. A trial subpoena directs a witness to appear in court at a date and time certain and to remain there until discharged. CPRC §22.002; TRCP 176.6(a).

2. Discovery subpoenas. A discovery subpoena is a writ by which a court, at the request of a party, commands a person to appear or produce documents or other things for discovery. TRCP 176.2. TRCP 176 no longer uses the term “subpoena duces tecum.” A person commanded to produce documents or other things need not appear in person at the time and place of production unless the subpoena commands the person to attend and give testimony TRCP 176.6(c). In most cases, a discovery subpoena is issued to compel a nonparty to attend a deposition and produce documents. To secure documents and other tangible things from nonparties, a party must serve a notice on both the party and nonparty and a discovery subpoena. TRCP 205.1, 205.2. A party is not required to file a motion for production to obtain documents from a nonparty. TRCP 205, cmt. However, a party is required to file a motion and secure a court order when it seeks to take a deposition of a nonparty before suit under TRCP 202 or to secure a physical or mental examination under TRCP 204. TRCP 205.1.

B. Scope of discovery subpoena. The scope of production of a discovery subpoena is governed by TRCP 192.3. See Martin v. Khoury, 843 S.W.2d 163,166 (Tex.App.-Texarkana 1992, orig. proceeding). A subpoena may not be used to secure information that is not discoverable by other forms of discovery requests. This prohibits subpoenaing a party for documents rather than sending a request for production in order to speed up (circumvent) the thirty day waiting period. TRCP 176.3(b) (prohibiting the use of a subpoena to circumvent discovery rules); Prestige Ford Co. v. Gilmore, 56 S.W.3d 73, 80 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).

C. Types of discovery subpoenas.

1. To appear. A nonparty may be subpoenaed to appear for a deposition without producing any documents. TRCP 205.1 (a), (b). The subpoena may be issued by the deposition officer, the clerk of the court where the case is pending or by the attorney and served by process. TRCP 176.4. The discovery subpoena should direct the witness to appear for deposition at the time and place stated in the notice of deposition. TRCP 176.1 (e), 176.2.

2. To appear & produce. A nonparty may be subpoenaed to appear for a deposition and produce documents or other things. TRCP 205.1(c), 205.3(a), (b); see In re Jose F. and Nellyda G. Amaya, et al, 34 S.W.3d 354, 356 (Tex.App.—Waco 2001, orig. proceeding). The subpoena and the notice of deposition must contain the list of documents or things to be produced at the deposition. See, eg., Crown Cent. Pet. Corp. v. Garcia, 904 S.W.2d 125, 126 (Tex.1995) (subpoena served with notice of deposition); see TRCP 176.2(b) (subpoena must command person to produce "designated" documents), TRCP 199.2(b)(5) (designation of materials to be produced by nonparty identified in subpoena must be attached to or included in deposition notice), TRCP 200.1 (b) (same). Notice of a discovery subpoena must also be provided to all parties. TRCP 191.5

3. To produce. Under the 1999 discovery rules, a nonparty may be subpoenaed to produce documents or things, without requiring the nonparty to appear for a deposition. TRCP 205.3. When the subpoena commands a witness to produce documents or other things but not to give testimony, the witness need not appear in person at the time and place of production. TRCP 176.6(c). Because new TRCP 176 permits a lawyer for the party to issue subpoenas, most subpoenas will probably be issued by the lawyer. TRCP 176.4(a), (b).

D. General form for Subpoena. See Form 1.

E. Notice. The notices discussed below are notices to produce documents. These are separate documents from the subpoena and are required in addition to the subpoena. The notice to produce may be incorporated in a notice of intention to take a deposition. The description of the items being requested should be identical in the notice and in the subpoena. See Forms 2 and 3.

1. Types of notices. Notice rules apply to both nonparty witnesses and all parties unless otherwise noted.

a. For deposition with or without documents. When a subpoena requires the nonparty to appear for an oral or written deposition, the notice must comply with TRCP 199.2 (for an oral deposition) or TRCP 200.1 (for deposition on written questions). TRCP 205.1(c).

b. For documents only. When a subpoena requires a nonparty to produce documents without appearing for a deposition, the notice must provide: (1) the name of the person from whom production is sought, (2) a reasonable time and place for production, and (3) a description of the items to be produced. TRCP 205.3(b).

2. Description of documents or things. When the nonparty is required to bring documents or things, the notice must describe each item or category of items sought with reasonable particularity. TRCP 205.3(b)(3); see TRCP 199.2(b)(5) (document request must comply with TRCP 205), TRCP 200.1 (b) (same). If testing or sampling is requested, the notice must be sufficiently specific to inform the nonparty of the means, manner, and procedure for testing or sampling. TRCP 205.3(b)(3).

F. Time to serve notice. To secure documents from a nonparty at the nonparty’s deposition, the party must give the nonparty reasonable notice of the date for production and may accompany the subpoena. Compare TRCP 199.2 (a) (production of documents at deposition), and TRCP 205.3(a) (production of documents from nonparty without deposition), with TRCP 199.2(b)(5) (requires 30 days' notice to parties to secure documents at deposition), and TRCP 200.1 (a) (requires 20 days' notice to nonparty to secure attendance at deposition on written questions). One issue that should be considred is whether the three-day period for objecting to the time and place of an oral deposition in Rule 199.4 applies to document requests served with an oral deposition. Rule 199.4 provides that a motion to quash or for protective order concerning the time or place of an oral deposition stays the deposition without need for court order if the motion is filed within 3 days after the notice is served. Therefore, the three-day requirement does not apply to objections to the time and place for compliance for document requests served with deposition notices, but only to those concerning the time and place of the deposition itself. Also recall that TRCP 199.1(c) (non-stenographic means - video and audio) also requires at least 5 days notice before the deposition.

One alternative that will circumvent the “document only” 10-day notice rule for nonparties is to serve a subpoena for deposition with doucments and send a proposed business records affidavit with a letter to the deponent excusing his attendance if the records custodian can affirm the affidavit and attach the records. See Forms 4 and 5.

1. For deposition with or without documents. The party must serve the notice before or at the same time it serves the subpoena compelling attendance. TRCP 205.2.

2. For documents only. The party must serve the notice to produce documents or things from a nonparty under TRCP 205.3 at least ten days before the subpoena compelling production is served. TRCP 205.2. Thus, under TRCP 205.2, a party who intends to secure documents from a nonparty without a deposition must serve the notice and subpoena separately. First, the party must serve the nonparty and all parties with the notice of the documents it wants the nonparty to produce; and then, ten days later, the party must serve the subpoena on the nonparty. The purpose of the amendment to TRCP 205.2 is to make sure a nonparty who receives a subpoena for documents does not produce them before the other parties have a chance to move for a protective order.

G. Time to serve subpoena. A subpoena must be served within a reasonable time before the date for compliance. TRCP 1992(a), 205.3. The subpoena cannot be served before the notice. TRCP 205.2.

1. For deposition. Generally, a subpoena for a nonparty to appear at a deposition (with or without documents) is served at the same time as the notice of the deposition. Under the former rules, the party seeking a subpoena was required to serve the officer with proof of service of the notice of deposition before the subpoena could be issued. Id. Thus, TRCP 176.4(c) codifies the customary practice of noticing a deposition and serving the subpoena at the same time.

2. For documents only. When a discovery subpoena is served on a nonparty to produce documents but does not require the nonparty to appear for a deposition, the subpoena cannot be served with the notice of production; the subpoena must be served ten days after service of the notice. TRCP 205.2.

H. Necessity for compliance. Service of a subpoena and the required fees is necessary to compel a nonparty to attend a deposition or to produce documents or other things. TRCP 199.2(b)(5), 199.3, 200.2.

I. Nonparty’s response. A nonparty must respond to the subpoena and notice as required by TRCP 176.6. TRCP 205.3(d). The rules for a nonparty responding to a notice and subpoena to produce documents or other things are similar to the rules for a party responding to a request for production.

1. No appearance necessary. A nonparty requested to produce documents or other things is not required to appear in person at the time and place of production unless the person is also subpoenaed to attend and give testimony. TRCP 176.6(c).

2. Organization of documents. Documents must be produced either as they are (1) kept in the ordinary course of business or (2) organized and labeled to correspond to each particular request. TRCP 176.6(c).

J. Cost of document production. The party who issues the subpoena requiring production of documents or other things must reimburse the nonparty for the reasonable costs of production. TRCP 205.3(f).

K. Failure to produce documents. If a nonparty does not produce documents or other things requested by a subpoena, the court can hold the nonparty in contempt. TRCP 176.8(a), 215.2(a), (c).

L. Objecting to discovery subpoena.

1. Who can object. The subpoena can be challenged by the person subpoenaed, a party to the suit or a third person whose records are sought. TRCP 176.6(d), (e).

2. Deadline to object. Any person (party or nonparty) who objects to a discovery subpoena must serve objections or file a motion for protective order before the time specified for compliance in the subpoena. TRCP176.6(d), (e).

3. Effect of timely objection. If a party or nonparty files a motion for protection or to quash, objecting to the time or place of a deposition within three business days after service of a notice of deposition, the objection stays the deposition until the motion can be determined. TRCP 199.4.

4. Making objections.

a. To the subpoena. To avoid being cited for contempt and having a writ of attachment (a type of civil arrest) issued, the subpoenaed person should file written objections or a motion for protective order alleging one or more of the following: 1) The subpoena was not dated and signed by a person authorized under TRCP 176.4 to issue subpoenas. TRCP 176.1 (h). 2) The subpoena was not served by a sheriff, constable, or other person authorized by law. TRCP 176.5. 3) There was no witness fee attached to the subpoena. CPRC §22.001; TRCP 176.8(b); Kieffer v. Miller, 560 S.W.2d 431, 432 (Tex.App.--Beaumont 1977, writ ref’d n.r.e.). 4) At the time the subpoena was issued, the nonparty witness did not reside nor was her served within 150 miles of the county in which the suit is pending. CPRC §22.002; see TRCP 176.3(a). 5) Only one subpoena was issued for two or more witnesses, including the summoned person. TRCP 176.1(d).

b. To undue burden. The subpoenaed person should file objections or a motion for protective order to a subpoena that imposes an undue burden or expense. TRCP 176.7. The objections or motion must be filed within a reasonable time before the deadline for complying with the subpoena. St. Luke's Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 310 (Tex.App.-Houston [14th Dist.] 1996, orig. proceeding); Thomas & Betts Corp. v. Martin, 798 S.W.2d 366, 367-68 (TexApp.-Beaumont 1990, orig. proceeding) (4 months too long). In determining whether a discovery subpoena would impose undue burden or expense, the following factors are relevant: (1) the quantity of materials subpoenaed, (2) the ease or difficulty of collecting and transporting the materials, (3) the length of time before the deposition, (4) the availability of the information from other sources, and (5) the relevance of the materials. St. Luke's, 928 S.W.2d at 310.

5. Asserting privileges. A witness commanded to produce documents or other things may withhold material or information claimed to be privileged but must comply with TRCP 193.3. TRCP 176.6(c). That is, the witness must withhold the information, serve a withholding statement and, when requested, serve a privilege log. If an affected party (not the person subpoenaed) objects to production of documents by a nonparty because it would disclose the affected party's privileged information, the affected party must assert its objections according to TRCP 193.3. The privilege claims must be asserted before the deadline for complying with the subpoena. See St. Luke's, 928 S.W.2d at 311 (privilege claims must be made before time for production or else they are waived).

6. Moving for protective order. A nonparty may file a motion for protective order under TRCP 192.6(b) before the time specified for compliance with the subpoena. TRCP 176.6(e). Cf. TRCP 176.6(f) for trial subpoenas which allow the filing up to the time and place specified.

7. Burden to get ruling. The burden to get a ruling is on the party who issued the subpoena. Oblinger v. Curry, 926 S.W.2d 832, 835 (Tex.App.-Fort Worth 1996, orig. proceeding). TRCP 176.6(d) and 176.6(e), which require the subpoenaed person to object to a discovery subpoena or seek a protective order before the time specified for compliance, do not require the person to get a ruling before the time for compliance. The party who issued the subpoena may move for an order any time after an objection is made or a motion for protection is filed. TRCP 176.6(d), (e).

8. Ruling on objections. The court may sustain the objections or grant a protective order if the subpoena does not allow adequate time for compliance, the subpoena requests the disclosure of privileged material, or the subpoena imposes an undue burden or expense. See TRCP 176.7. The court may impose reasonable conditions on compliance with a subpoena, including compensation to the nonparty for undue hardship. Id.; see also TRCP 205.3(f) (party requiring production must reimburse the nonparty's reasonable costs of production).

M. Copies for other parties. The party obtaining the production must make the produced materials available to the other parties for inspection on reasonable notice. TRCP 205.3(e). The obtaining party must furnish copies to the requesting party at that party’s expense. Id.

II. COMPELLING PRODUCTION & SANCTIONS

A. Motion to compel & for sanctions. If the party or nonparty responding to the request for or notice of production refuses to produce documents, the party requesting documents can move to compel production and move for sanctions or an order of contempt. See Form 6.

1. Sanctions against party. When a party refuses to produce a document that was properly requested, the trial court can exclude the document limit the testimony about the document or the issue, or impose any other sanction listed in TRCP 215.2(b).

2. Sanctions against nonparty. The only sanction the court may impose on a nonparty for not complying with an order under TRCP 205.3 is contempt. TRCP 215.2(c). See also TRCP 176.8(a) City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex.App.—Houston [14^th Dist.] 1995, orig. proceeding).

B. Other remedies. When the party requesting documents believes the responding party has overlooked or ignored relevant documents in responding to the request, the requesting party cannot ask the court for permission to go through the other party's files. Texaco, Inc. v. Dominguez, 812 S.W.2d 451, 455-56 (Tex.App.--San Antonio 1991, orig. proceeding). In Texaco, the court offered three alternatives: the trial court could appoint a master, the plaintiff could take depositions, or the plaintiff could send written interrogatories. Id. at 456.

III. SPECIALIZED DOCUMENT REQUESTS

A. Securing Documents from Financial Institutions

1. Exclusive discovery procedure. To secure a customer's records from a bank or other financial institution, a party must comply with Finance Code §59.006, which is the exclusive method to compel discovery of a customer's records. Fin. Code §59.006(a); see CPRC §30.007; Enviro Protection, Inc. v. National Bank, 989 S.W.2d 454, 455 (Tex.App.-El Paso 1999, no pet.) (applying provisions of CPRC §30.007, which are now in Fin. Code §59.006).

2. Definitions under §59.001.

a. Financial institution. A "financial institution" is defined as one of the following (but excluding an entity organized under the laws of another state or under federal law, which has its main office in another state, and does not maintain a branch or other office in Texas):

(1) A bank, whether chartered under the laws of this state, another state, the United States, or another country. Fin. Code §§59.001(5),201.101(l)(A).

(2) A savings and loan association chartered under Finance Code chapter 62 or similar laws of another state. Id. §§59.001(5),201.101(l)(B).

(3) A federal savings and loan association, federal savings bank, federal credit union, or credit union chartered under Finance Code chapter 122 or similar laws of another state. Id. §§59.001(5),201.101(l)(C), (D).

(4) A trust company chartered under the laws of this state or another state. Id. §§59.001(5), 201.101(l)(E).

b. Record. "Record" means financial or other information of a customer maintained by a financial institution. Fin. Code §59.001(7).

c. Record request. "Record request" means a valid and enforceable subpoena, request for production, or other instrument issued under authority of a tribunal that compels production of a customer record. Fin. Code §59.001(8).

d. Tribunal. 'Tribunal" means a court or other adjudicatory tribunal with jurisdiction to issue a request for records, including a government agency exercising adjudicatory functions and an alternative dispute resolution mechanism, voluntary or required, under which a party may compel the production of records. Fin. Code §59.001(10).

3. Procedure to secure party-customer records.

a. Requesting the records. The party requesting records from a financial institution about one of its customers who is a party to the suit must do the following:

(1) Serve the bank with a record request that permits the financial institution at least 24 days to comply with the request. Fin. Code §59.006(b)(1); Enviro Election, 989 S.W.2d at 456 (subpoena to produce records from bank not valid because it was not issued with 24 days' notice). See Form 1 and 7.

(2) Pay the financial institution's reasonable costs of complying with the record request or post a cost bond in an amount estimated by the financial institution to cover the costs before the financial institution complies with the record request. Fin. Code §59.006(b)(2). Costs include costs of reproduction, postage, research, delivery, and attorney fees. Id.

b. Objecting to the request. The bank's customer bears the burden of preventing or limiting the financial institution's compliance with a record request by seeking an appropriate remedy, including filing a motion to quash the record request or a motion for a protective order. Fin. Code §59.006(e). Any motion must be served on the financial institution and the requesting party before the date that compliance with the request is required. Id.

4. Procedure to secure nonparty-customer records.

a. Requesting the records. When the financial institution's customer is not a party to the proceeding in which the request was issued, the requesting party must do the following:

(1) Serve the financial institution with a record request. See Form 1 and 7.

(2) Pay the financial institution's reasonable costs.

(3) Give notice to the nonparty-customer, stating the customer's rights under Finance Code §59.006(e), and serve a copy of the request to the customer under TRCP 21a. Fin. Code §59.006(c)(1). See Form 8.

(4) File with the tribunal and the financial institution a certificate of service indicating that the nonparty-customer was mailed or served with the notice and a copy of the record request. Id. §59.006(c)(2).

(5) Request the nonparty-customer's written consent authorizing the financial institution to comply with the request. Id. §59.006(c)(3). See Form 9.

b. Objecting to the request. The nonparty-customer's procedure to object is to withhold written consent authorizing the financial institution to comply with the request. See Fin. Code §59.006(d) (sole means of obtaining access to records of nonparty is to file a motion seeking in camera inspection).

c. Procedure to compel disclosure for nonparty-customer records.

(1) File motion for in camera review. When a nonparty-customer refuses to execute the consent or does not respond to the request under Finance Code §59.006(c)(3) by the date for compliance, the sole means of obtaining access to the requested record is for the requesting party to file a written motion seeking an in camera inspection of the requested record by the court. Fin. Code §59.006(d). See Form 10.

(2) Court inspection. In response to a motion for in camera inspection, the court may inspect the record requested to determine its relevance to the matter before the tribunal. Fin. Code §59.006(d). The tribunal may order redaction of parts of the record that it determines should not be produced. Id. The court must sign a protective order preventing the record it orders produced from being disclosed to a person who is not a party to the proceeding and used by a person for any purpose other than resolving the dispute before the court. Id.

4. Deadline to produce.

a. Party-customer. The financial institution must produce the record by the 24th day after the date of receipt of the record request as provided by Finance Code §59.006(b). Fin. Code §59.006(f)(1).

b. Nonparty-customer. The financial institution must produce the record before the later of the following:

(1) The 15th day after the date of receipt of a customer’s consent to disclose a record. Fin. Code §59.006(f)(2).

(2) If the nonparty-customer did not sign a consent, the 15th day after the date a court orders production of a record after an in camera inspection of a requested record. Id §59.006(f)(3).

5. No interlocutory appeal. By statute, an order to quash or for protection or other remedy entered or denied by the tribunal under Finance Code §59.006(d) or (e) is not a final order and is not subject to an interlocutory appeal. Fin. Code §59.006(g).

6. Exemptions. Finance Code §59.006 does not create a right of privacy in a customer record. Fin. Code §59.006(a); Martin v. Darnell, 960 S.W.2d 838,843 (Tex.App.-Amarillo 1997, orig. proceeding) (citing statutory language from former CPRC §30.007(b)). Section 59.006 does not apply to and does not require or authorize a financial institution to give a customer notice of the following:

a. A demand or inquiry from a state or federal government agency authorized by law to conduct an examination of the financial institution. Fin. Code §59.006(a)(1).

b. A record request from a state or federal government agency or instrumentality under statutory or administrative authority that provides for, or is accompanied by, a specific mechanism for discovery and protection of a customer record of a financial institution, including a record request from a federal agency subject to the Right to Financial Privacy Act of 1978, 12 U.S.C., chapter 35, or from the IRS under § 1205, Internal Revenue Code of 1986. Fin. Code §59.006(a)(2).

c. A record request from or report to a government agency arising out of the investigation or prosecution of a criminal offense. Id. §59.006(a)(3); State of Texas v. Rutherford, 18 S.W.3d 666, 670 (Tex.App.-San Antonio 1999, pet. ref’d).

d. A record request in connection with a garnishment proceeding in which the financial institution is garnishee and the customer is debtor. Fin. Code §59.006(a)(4).

e. A record request by a duly appointed receiver for the customer. Id. §59.006(a)(5).

f. An investigative demand or inquiry from a state legislative investigating committee. Id.

§59.006(a)(6).

g. An investigative demand or inquiry from the attorney general of this state as authorized by law other than the procedural law governing discovery in civil cases. Id. §59.006(a)(7).

h. The voluntary use or disclosure of a record by a financial institution subject to other applicable state or federal law. Id. §59.006(a) (8).

7. Using the Requested Documents

a. Offering documents. To use a document produced in response to a request for or notice of production, the party offering the document must prove its authenticity and its admissibility.

b. Self-authenticating. A party's production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial, unless the producing party timely objects to the authenticity of the document TRCP 193.7. See §8.3, below.

c. Admissibility. To use a document produced in response to a request for or notice of production, the party offering the document must prove it is admissible, lay the proper predicate for its admission, offer it into evidence, and get the court to rule on its admissibility. TRE 104, 105, 402. Just because a document was produced by the other party in discovery does not mean the document is admissible. For example, although an insurance policy is discoverable, it is not generally admissible. TRE 411.

8. Using the response. When relevant to the suit, a party may read into evidence the other party's response to the request for documents. Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768, 772 (Tex.App.-El Paso 1993, writ denied) (on rebuttal, P read into evidence Wal-Mart's response that it had no safety manual at the time of the accident).

9. Objections to documents. A party may object to the authenticity of all or part of a document it produced in discovery. TRCP 193.7. The party must object either in writing or on the record, within ten days after it has actual notice the document will be used. Id. An objection to authenticity must be made in good faith. Id. Once an objection is made, the court must permit the party attempting to use the document a reasonable opportunity to establish its authenticity. Id.

To avoid complications at trial, parties should identify before trial the documents they intend to offer. This will trigger the obligation to object to authenticity and the ability to "snap-back” an inadvertently produced privileged document TRCP 193, cmt 7; see TRCP 193.3(d).

B. SECURING MEDICAL RECORDS OF PARTIES

1. General. The discovery rules provide two procedures that are specific to the discovery of medical records -- a written request for disclosure, and a motion to examine the person. The parties also may use all the traditional methods of discovery -- request for production, a notice of deposition with a notice to the party to bring the medical records, and a deposition on written questions of a records custodian. See TRCP 176.6(c), 194.2(j)-(k), 204, 205.3; TRE 509(e)(4), 510(d)(5) and TRCS art. 4590i, §4.01(d).

2. Scope of discovery of medical records. A party may discover the medical records of any person who is claiming physical or mental injury arising from the event that is the subject of the lawsuit. TRCP 194.2(j). Further, and more commonly applicable in Family Law cases, TRCP 12.3(a), (b), (d) and (e) parties are entitled to discover all relevant information regarding the physical, medical, psychological and psychiatric condition of persons who will be involved in the care of the children, or where the medical condition is otherwise in issue such as where one party is relying on medical condition to establish a claim for maintenance, subject to review by the court as to asserted doctor/patient privilege. R.K. v. Ramirez, 687 S.W.2d 836 (Tex. 1994); TRE 509(e)(4), 510(d)(5).

3. Request for medical records.

a. Request for records or authorization from a hospital or clinic.

(1) The request. In a suit alleging physical or mental injury and damages, a party may request the injured party to produce relevant medical records or furnish an authorization permitting the disclosure of medical records. TRCP 194.2(j). The request should be made as a part of a TRCP 194 request for disclosure. TRCP 194.1. In a suit for maintenance or a Suit Affecting Parent Child Relationship, where the medical psychiatric condition of a party is in issue, the request should be by way of a request for production and should include a request for execution of a medical release attached. See Form 11.

(2) The response. Responsive documents must be produced as follows: (1) by the party alleging injury (generally, the plaintiff), who must produce medical records and bills that are reasonably related to the injuries or damages asserted, or provide an authorization permitting disclosure of medical records and bills; and (2) if the plaintiff provided an authorization for medical records by which the other party (generally, the defendant) acquired medical documents, the defendant must provide copies of the medical records and bills to the plaintiff. TRCP 194.2(j)-(k).

(3) Medical authorization to hospital. A party may serve a written request for the party to sign a medical authorization if a claim is made for medical injury to the party. Health & Safety Code §241.152. A medical authorization is valid for only 180 days from the date it is signed, unless it provides otherwise or is revoked. Id. §241.152(c)-(d).

(a) Requirements for authorization. An authorization under Health & Safety Code §241.152(b) must (1) be in writing, (2) be dated and signed by the patient or legal representative, (3) identify the information to be disclosed, (4) identify the person or entity to whom the information is to be disclosed, and (5) W contained in a separate document from the one that contains the consent to medical treatment obtained from the patient. Health & Safety Code §241.152(b).

(b) Providing records. The hospital or its agent must provide copies of the medical records not later than 15 days after the request and payment for reasonable fees are received. Health & Safety Code §241.154(a). The hospital or its agent is permitted to charge fees as set out in Health & Safety Code §241.154(b).

b. Request for medical records from Physicians in Title 2 & 5 TFC

(1) Physicians Duty. Section 159.004 of the Texas Occupation’s Code provides that, absent a court order or consent for release signed by the patient, medical records cannot be released. For medical release form see Form 11.

(2) Physician/Patient Privilege. TRE 509(d)(2) provides that the patient is presumed to assert the privilege and physicians must honor the presumption.

(3) Request for Production. The appropriate approach, therefore, is to serve a Request for Production on the party and include a release for execution. If the party refuses to sign the release, a motion to compel should be filed to immediately address the issue.

(4) Order of the court. If a privilege is asserted, the court applies a balancing test between the privacy rights of the patient and the relevance and need for the documents. R.K. v. Ramirez, supra.

(5) Designation as expert. If a party designates the physician as an expert, all discovery under Rule 195 is available at the opposing party’s expense. TRCP 195.

c. Requests for mental health records in Title 2 & 5 TFC.

(1) Confidentiality. Mental health records enjoy the same general privilege as doctor/patient records under Rule 510. TRE 510.

(2) Presumed confidential. The mental health provider is presumed to assert the privilege on behalf of the patient, absent a release signed by the patient. For mental health release form see Form 11.

(3) Exceptions to privilege. TRE 510(d)(5) provides that if communication is relevant to physical, mental or emotional condition in which any party relies as a part of its claim or defense, privilege is excepted.

(4) Request for Production. The appropriate approach, therefore, is to serve a Request for Production on the party and include a release for execution. If the party refuses to sign the release, a motion to compel should be filed to immediately address the issue.

(5) Order of the court. If a privilege is asserted, the court applies a balancing test between the privacy rights of the patient and the relevance and need for the documents. R.K. v. Ramirez, supra.

(6) Designation as expert. If a party designates the physician as an expert, all discovery under Rule 195 is available at the opposing party’s expense. TRCP 195.

d. Discovery of Substance Abuse Treatment Records in Civil Litigation

(1) Introduction. As a subset of mental health records, practitioners sometimes seek disclosure of a patient’s substance abuse treatment records in the same manner as other mental health records. While frequently arising in the family law setting, discovery of substance abuse treatment records is certainly not limited to this practice area. See, e.g., Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005 (1^st Cir. 1987).

(2) Federal Law. Title 42 CFR Part 2 limits the manner in which substance records may be disclosed, if at all.

(a) Who is a Patient? Under the federal scheme, a patient is “any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program….” 42 C.F.R. § 2.11 (2000).

(b) What Records are Subject to Federal Disclosure Regulations? The C.F.R defines “records” as “any information, whether recorded or not, relating to a patient” received or acquired by a federally assisted alcohol or drug program. A program is considered to be “federally assisted” if it operates with a license issued by a federal agency or department. § 2.12(b). This includes any facility that dispenses substances under the Controlled Substances Act to the extent that the dispensed substance is used for treatment of substance abuse. § 2.12(b)(2)(iii)

More significantly, any program that is a recipient of federal funds, such as Medicaid or Medicare, qualifies as a “federally assisted program,” regardless of whether the funds are actually used for treatment of alcohol or drug abuse. § 2.12(b)(3)

(c) General Prohibition on Disclosure of Patient Records. With limited exceptions, records of the identity, diagnosis, prognosis, or treatment of any patient in a substance abuse program at a qualified facility “shall…be confidential and be disclosed only” for statutorily defined purposes and under authorized circumstances. 42 U.S.C. §§ 290dd-3, 290ee-3. The one exception to the general rule prohibiting disclosures worth mentioning is the exception for reports of suspected child abuse neglect.

(d) Obtaining Disclosure of Patient Substance Abuse Records.

[1] Effect of Consent. Within the federal framework for disclosure of substance abuse treatment records, patient records fall into one of two broad categories:

i. Disclosure with patient consent; or

ii. Disclosure without patient consent. § 2.1.

A patient may authorize the disclosures of his own medical records.

[2] Without Consent.

i. Absent patient consent, substance abuse records may be disclosed to medical personnel “to the extent necessary” to treat a “bona fide medical emergency.” 42 U.S.C.A. §§ 290dd-3(b)(2)(A), 290ee-3(b)(2)(A).

ii. These records may also be disclosed to “qualified personnel” when the substance abuse program is the subject of evaluation, research, or audits. 42 U.S.C.A. §§ 290dd-3(b)(2)(B), 290ee-3(b)(2)(B).

iii. The Court Order Exception

Under this exception, a patient’s records may be disclosed as follows:

If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore. In answering good cause its court shall weigh the public interest and the need for disclosures against the injury to the patient, the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure. 42 U.S.C. §§ 290dd-3(b)(2)(C), 290ee-3(b)(2)(C) (emphasis added).

(e) Application to the Court. First, the practitioner must apply to the trial court for disclosure of the records. § 2.64(a). See Form 12.

[1] Anonymity. The application to the trial court cannot disclose the identity of the patient whose records are sought. Indeed, the federal regulations require that the applicant use a fictitious name, e.g. John or Jane Doe, when referring to the patient. § 2.64(a). The application cannot contain any information that would disclose any patient-identifying information.

[2] Filing the Application. The application for disclosure of the records may be filed as part of an ongoing civil action, or the application may constitute its own separate proceeding. §2.64(b).

[3] Notice to the Patient and Record Holder. After filing of the application, notice of the application must be given to both the patient and the holder of the patient’s records. Both the patient and the holder of the records must be given an opportunity to respond in writing, or to personally appear before the court, for the purpose of providing evidence as to whether the sought-after records be disclosed in a manner that complies with the federal regulations. §2.64(b).

[4] Hearing on the Application. After what the federal regulations describe as an “adequate time” has passed for response by the patient and record holder, the trial court may then conduct a hearing on whether to disclose the medical records. § 2.64(c).

[5] Closed Hearing. The hearing can be held in the trial judge’s chambers. Or, the hearing may be conducted in a manner that guarantees the records will not be disclosed.

(f) Findings Required to Order Disclosure.

[1] “Good Cause”. “Good cause” exists when:

(a) other ways of obtaining the same information are ineffective or unavailable; and

(b) the public interest and need for disclosure of the records outweigh the potential injury to the patient, the physician-patient relationship, and the treatment services. § 2.64(d).

(g) What Must Be Disclosed?. § 2.63 speaks in terms of limiting disclosure of “confidential communications” to one of three situations:

[1] Where it is necessary to protect against an existing threat to life or serious personal injury (this includes suspected child abuse, child neglect , and verbal threats against third parties);

[2] Where it is necessary in the course of investigating or prosecuting an “extremely serious crime,” such as homicide, aggravated assault, or suspected child abuse or neglect; or

[3] Where the disclosure is in connection with litigation or administrative proceedings in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.

(h) Form of order. See Form 13.

(i) Subpoena Requirement. If the trial court issues an order requiring partial of complete disclosure of the records, the issuance of the order alone does not compel disclosure. Instead, the order must be served concurrently with a subpoena. § 2.61.

4. Order compelling production. An order compelling the release of medical records may be restricted to maintain as the privileged records that are not relevant to the underlying suit. R.K. v. Ramirez, supra., Groves v. Gabriel, 874 S.W.2d 660, 661 (Tex.1994); see TRCP 196.1(c)(3). The order must meet the standard set out in Mutter v. Wood, 744 S.W.2d 600, 601 (Tex.1988). Depending on the circumstances, Mutter may require a time limitation on disclosure. Groves, 874 S.W.2d at 661.

C. SECURING MEDICAL RECORDS OF NONPARTY

A party may request another party to produce medical records about a nonparty. TRCP 196.1 (c).

1. Service on nonparty.

a. Required. When a party requests another party to produce medical records about a nonparty, the requesting party must serve the nonparty with the request for production under TRCP21a. TRCP 196.1(c)(1), 205.3(c). See Forms1, 2, 14, 15 and 16.

b. Not required. A party is not required to serve the request on the nonparty if (1) the nonparty signed a release that is effective as to the requesting party, (2) the identity of the nonparty will not be disclosed, either directly or indirectly, by production of the records, or (3) on good cause shown, the court orders that service is not required. TRCP 196.1(c)(2).

2. Confidentiality. Production of medical records about a nonparty under TRCP 196.1(c) is subject to the laws concerning confidentiality of medical and mental health records. TRCP 196.1(c)(3). TRCP 196.1(c) is merely a notice requirement; it does not expand the scope of discovery of a nonparty’s medical records. TRCP 196, cmt. 8; In re Columbia Valley Reg’l Med. Ctr., 41 S.W.3d 797, 800 (Tex.App.--Corpus Christi 2001, orig. proceeding). For example, TRCP 196.1 (c) cannot be used to circumvent the confidentiality laws governing nursing home records. In re Diversicare Gen. Partner, Inc., 41 S.W.3d 788, 795 (Tex.App.--Corpus Christi 2001, orig. proceeding).

D. SECURING MENTAL OR PHYSICAL EXAMINATION OF A PARTY

l. The motion. To request a mental or physical examination under TRCP 204.1, the movant must file a motion for an order compelling the examination of the person. The examination under TRCP 204.1 is limited to a party or to a person in the custody or under the legal control of a party. TRCP 204.1(a). See Forms 17 and 18.

a. The elements. The court may issue an order for examination only when (1) the movant shows good cause and (2) either (a) the mental or physical condition of a party, or of a person under the legal control of a party, is in controversy or (b) the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist's records for possible use at trial. TRCP 204.1(c).

(1) Good cause. There must be good cause for the examination. TRCP 204.1 (c); Coates v. Whittington, 758 S.W.2d 749,753 (Tex.1988). "Good cause" requires an affirmative showing of the following three components:

(a) The examination is relevant to the genuine issues. Coates, 758 S.W.2d at 753. The movant must show that the examination will produce or is likely to lead to evidence relevant to the case. Id.; see, e.g., In re Caballero, 36 S.W.3d 143, 145 (Tex.App.--Corpus Christi 2000, orig. proceeding) (mandamus to compel physical examination denied because Ds were unable to articulate why examination would shed any light on P's condition before the hysterectomy).

(b) There is a reasonable connection between the condition in controversy and the examination sought. Coates, 758 S.W.2d at 753.

(c) It is not possible to obtain the information sought through some other, less-intrusive, means. Id.; Caballero, 36 S.W.3d at 145 (mandamus denied because Ds did not show information was not available through less intrusive means).

(2) In controversy. The mental or physical condition (including the blood group) of a party, or of a person in the custody, conservatorship, or under the legal control of a party, must be in controversy. TRCP 204.1(c)(1); Coates, 758 S.W.2d at 75 1.

(a) Objecting party put issue in controversy by pleading. The condition may be in controversy if the party objecting to the examination put it in issue by pleading the condition in support of or in defense of its position. See Laub v. Millard, 925 S.W.2d 363, 364-65 (Tex.App.--Houston [1st Dist.] 1996, orig. proceeding) (suit to set aside gifts, P pleaded statute of limitations was tolled because she was incompetent); Crouch v. Gleason, 875 S.W.2d 738, 740 (Tex.App.--Amarillo 1994, orig. proceeding) (in contract dispute, P alleged D exploited his mental weakness); Beamon v. O’Neill, 865 S.W.2d 583, 586 (Tex.App.--Houston [14th Dist.] 1993, orig. proceeding) (in personal injury suit, P put physical condition in controversy); Exxon Corp. v. Starr, 790 S.W.2d 883, 887 (Tex.App.-Tyler 1990, orig. proceeding) (P claimed severe mental injury & designated psychological experts). A party's mental condition is not "in controversy" just because the party makes a routine request for damages for mental anguish or emotional distress. Coates, 758 S.W.2d at 752 (examination not permitted in personal injury suit for bums). A party's state of mind is not equivalent to a mental condition. Amis v. Ashworth, 802 S.W.2d 374,378 (Tex.App.--Tyler 1990, orig. proceeding) (mental health professional not permitted to examine party based on pleadings of self-defense).

(b) Movant put issue in controversy by pleading. The condition may be "in controversy" if the movant put it in controversy by pleading the condition in support of or in defense of its position. Cf. Coates, 758 S.W.2d at 752 (D's allegations of contributory negligence did not justify examination of P); Spear v. Gayle, 857 S.W.2d 122, 125 (Tex.App.--Houston [1st Dist] 1993, orig. proceeding) (P’s allegations that D was negligent in failing to seek help to cure psycho-sexual disorder did not put D's mental health in controversy).

(c) Proof of “in controversy.” If the parties' pleadings did not put a party’s mental or physical condition in controversy, the movant must provide evidence to show it is in controversy. Walsh v. Ferguson, 712 S.W2d 885, 887 (Tex.App.--Austin 1986, orig. proceeding) (examination not permitted in a divorce because husband did not assert his mental or physical condition in support or in defense of his position, and wife did not offer any proof at hearing).

(3) Designation of psychologist as expert or disclosure of psychologist's records. The movant must show that the other party identified a psychologist as a testifying expert or disclosed a psychologist's records for possible use at trial. TRCP 204.1 (c)(2). This provision does not apply in cases under Family Code Title 2 or 5. TRCP 204.1(c)(2). See §5.4.1(2), below.

b. The doctor. The order must identify the physician or psychologist who will conduct the examination. TRCP 204.1(d).

c. Time to serve motion for examination. A motion requesting a physical or mental examination may be served any time after suit is filed. TRCP 190.2(c)(1), 190.3(b). The deadline to serve the motion is 30 days before the end of the discovery period. TRCP 204.1 (a). When served by mail or fax, the motion should be served up to 34 days before the end of the discovery period.

2. Notice. The party seeking the examination must give notice to all parties and to the person to be examined. TRCP 204.1(b).

3. Hearing request. The party seeking discovery must ask for and secure a hearing on the motion. TRCP 204.1 (requires motion, notice, show of good cause, and order). If there is no hearing, the request is waived. See Von Behren v. Von Behren, 800 S.W.2d 919, 924 (Tex.App.--San Antonio 1990, writ denied) (party seeking examination did not present motion).

4. The hearing. The court must conduct a hearing on a motion made under TRCP 204. At the hearing, the movant must present evidence. Walsh, 712 S.W.2d at 887. If no evidence is received at the hearing, the appellate court will find the trial court abused its discretion and will reverse. See id.

5. The order. The order must (1) be in writing; (2) identify the person to be examined; (3) specify the time, place, manner, conditions, and scope of the examination; and (4) identify the person or persons to make the examination. TRCP 204.1(d).

6. The examination.

a. The medical professional.

(1) In most cases. A qualified physician may conduct a mental or physical examination. TRCP 204.1(a)(1). A psychologist may conduct a mental examination if the party responding to the motion identified a psychologist as a testifying expert or disclosed a psychologist's records for possible use at trial. TRCP 204.1(c)(2). A vocational rehabilitation specialist is not a physician or a psychologist and may not conduct an examination. See TRCP 204.5; Moore v. Wood, 809 S.W.2d 621, 624 (Tex.App.--Houston [1st Dist.] 1991, orig. proceeding) (construing former TRCP 167a(a)). But see TRCP 191, cmt. 1 (trial court may order, or parties may agree to, discovery methods other than those prescribed in these rules).

(2) In Family Code matters. In cases arising under Title 2 or 5 of the Family Code, TRCP 204.4 provides that the court on motion or on its own, may appoint the following:

(a) A psychiatrist or psychologist to make mental examinations of any children who are the subject of the suit, or of any other parties. TRCP 204.4(a).

(b) A nonphysician expert qualified in paternity testing to take blood and other bodily fluids to conduct tests in paternity disputes. TRCP 204.4(b); see also Fam. Code § § 160.501-160.511 (genetic testing).

b. Attendance of lawyer. The trial court has the discretion to permit or prohibit a party's lawyer from attending the person's examination. Simmons v. Thompson, 900 S.W.2d 403,404 (Tex.App.--Texarkana 1995, orig. proceeding) (physical examination). Because the medical professional conducting the examination is chosen by the adverse party, the party's lawyer should probably be permitted to attend. See id. (Grant, J., dissenting).

E. USING MEDICAL RECORDS

1. Medical records. Medical records may be introduced into evidence by a custodian who testifies by affidavit or in person that the records are kept in the course of regularly conducted business activity. TRE 803(6), (7), 902(10). .

2. Physical or mental examination. If a physical or mental examination was ordered under TRCP 204, the parties may introduce the testimony of the doctor or medical professional who conducted the examination or test, either by deposition or as a live witness. See TRCP 204.2(b).

3. Refusal to make a report. If a physician or psychologist does not make a report required by court order, the court may exclude the testimony if offered at trial. TRCP 204.2(a).

4. Effect of no examination. If no examination is sought under TRCP 204, the party whose condition is in controversy cannot comment to the fact-finder that it was willing to submit to an examination or that the other party did not seek an examination. TRCP 204.3. The primary purpose of TRCP 204.3 is to ensure that the defendant is not penalized for not seeking a physical examination. Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580, 585 (Tex.App.--Houston [14th Dist.] 1997, writ denied) (interpreting former TRCP 167a(c)).

F. SECURING CHILD PROTECTIVE SERVICE AND ADULT PROTECTIVE SERVICE RECORDS

1. Introduction. In general, barring a court order, Child Protective Services and Adult Protective Services will not release records to anyone who is not the legal guardian (including Managing Conservator, Possessory Conservator, Temporary Managing Conservators, Temporary Possessory Conservator) or a biological parent of the child the subject of the investigation. The full list of individuals who are designated as eligible to receive the records are provided in the Texas Family Code Section 261.201 and the Human Resources Code Section 48.101.

a. Temporary Managing Conservators and Temporary Possessory Conservators. Temporary Managing Conservators and Temporary Managing Conservators are only eligible to receive copies of records relating to the timeframe since they were appointed conservator.

b. Perpetrator. An alleged perpetrator can get only the portion of an investigation relating to his or her own role in the case unless they are one of the persons identified above as eligible to receive the records.

c. Reporter. The person who makes a report of suspected abuse or neglect cannot receive any records unless they are one of the above referenced persons.

d. Intervenors. Barring a court order, Intervenors (i.e. grandparents, foster parents, aunts, uncles, prospective adoptive parents, adult siblings, adult children of disabled adult, etc.) cannot receive the records unless they are one of the persons identified above as eligible to receive the records.

e. Tape Recordings. Video and audio tape recordings are not available under a subpoena but can be reviewed by appointment at the Child Protective Services/Adult Protective Services office by any person who is eligible to receive a copy of the record. The person’s attorney may also review the tapes. No other persons will be allowed to review the tapes. Also, copies of the tapes are not made available.

2. Subpoena. A subpoena for Child Protective Services or Adult Protective Services records must be directed to the custodian of records who, in most cases, will be the caseworker. In the event that the caseworker is no longer with the agency, a supervisor or the next person up the chain of command should be designated by the agency. It may be wise to direct the subpoena to “Connie Caseworker, or other designated custodian of records for TPRS- Child Protective Services (Adult Protective Services)” as applicable. The subpoena will then be directed to the “Deidentification Unit” whose job it is to redact the record before it is produced. The “Deidentifier” is not considered by Child Protective Services or Adult Protective Services to be a custodian of the records for the purposes of a business records affidavit so you will need to obtain that from the caseworker of other person designated as a custodian of the record.

3. Redaction. Records from Child Protective Services and Adult Protective Services are deidentified (redacted to remove identifying information for the reporter and any other confidential and/or privileged information. In general, the redacted information relates to:

a. Work product relating to litigation;

b. attorney-client privileged communications;

c. the name(s) and other identifying information concerning person(s) making a report of child abuse or neglect under Chapter 261, Family Code or a report of abuse, exploitation or neglect of the elderly or disabled under Chapter 48.101, Human Resources Code;

d. the name(s) and other identifying and/or locating information concerning person(s) whose life or safety may be endangered by disclosure;

e. the name(s) and other identifying and locating information concerning parents of an adopted child;

f. the name(s) and other identifying information concerning other persons whose identity is confidential; and Child Protective Services or Adult Protective Services has received that relate to the request but which are under the control or authority of other agencies.

Redaction can be submitted to the court in camera for determination of balancing the need to know against the need to protect.

4. Notice. If Child Protective Services or Adult Protective Services is a party, remember that the 30-day requirement of TRCP 205.3(a).

5. Psychological Evaluations. In a case where a psychological evaluation is performed on several persons including those who have significant contact with the child or who are potential placements for the child, each person can receive a copy of his or her own evaluation but not the evaluations of the other persons. Even if these are a part of the record and the person is entitled to the record these will be redacted. This would include psychological evaluations of biological parents in an adoption case.

6. Child Protective Services and Adult Protective Services Developing Guidelines. The Agency is in the process of developing a guidelines handbook that will set out the rules in a more user-friendly manner. However, until then it may be helpful to contact the regional deidentifier to determine what they require in order to produce the records. Our regional deidentifier has provided the attached list and encouraged us to enclose it for your use.

7. Forms. For forms requesting disclosure see Forms1,2 and 19.

IV. REQUESTS AND NOTICES FOR PARTICULAR DOCUMENTS

A. Employment records. See Forms 1, 2 and 20.

1. Payroll and Fringe Benefits

2. Attendance and Disciplinary

3. Retirement

B. Education and Attendance records (including Child Care) See Forms 1, 2 and 21.

C. Telephone records. See Forms 1, 2 and 22.

1. Regular telephone.

2. Cellular telephone.

D. Business organizational records. See Forms 1, 2 and 23.

E. Law Enforcement records. See Forms 1, 2 and 24.

F. Life Insurance Records. See Forms1, 2 and 25.

V. DEPOSITION IN ANOTHER STATE

A. Notice. Upon notice, a deposition may be taken before a person authorized to administer oaths in the place where the deposition is being taken, either by the law of that state or of Texas. TRCP 201.1(b). Such request is for “Letters Rogatory.” See Form 26 (motion, order, and letters rogatory).

B. Procedure. A deposition in another state may be taken by notice, letter rogatory, letter of request, agreement of the parties, or court order. TRCP 201.1 (a). Parties may also take the deposition of a witness in another state by telephone or video conference while the parties and their lawyers are in Texas. TRCP 199.1 (b), 201.1 (g). See Clone Component Distribs., Inc. v. State, 819 S.W2d 593, 598 (Tex.App.-Dallas 1991, no writ).

VI. DEPOSITION IN A FOREIGN COUNTRY

A. Procedure. The procedure for foreign discovery is outlined in TRCP 201. Smith v. Smith, 720 S.W2d 586, 598-99 (Tex.App.-Houston [1st Dist.] 1986, no writ) (substantial compliance with former TRCP 188, now TRCP 201, is sufficient). A deposition in a foreign jurisdiction may be taken by notice, letter rogatory, letter of request, agreement of the parties, or court order. TRCP 201.1 (a). A deposition may also be taken by any other means and terms of any applicable treaty or convention. TRCP 201.1(d). The Hague Evidence Convention is the most well known treaty for obtaining evidence abroad. See Martikan, Note, The Boundaries of the Hague Convention, 68 Tex.L.Rev. 1003,1004-05 (Apr.1990).

1. Notice. Parties may take by notice the deposition of a witness in a foreign jurisdiction before a person authorized to administer oaths, either under the law of the place where the examination is held or under Texas law. TRCP 201.1 (b). There are two serious drawbacks to taking depositions in foreign countries by notice: (1) the parties have no power to compel the attendance of a witness; and (2) taking testimony in some countries violates local laws and, in some cases, can result in criminal penalties. Bishop, International Litigation in Texas, 19 Hous.L.Rev. 361, 364-65 (1982).

2. Letter of request. Generally, if the foreign country subscribes to the Hague Evidence Convention, the method to obtain discovery is by letter of request under the Convention. Bishop, 19 Hous.L.Rev. at 371. The Hague Evidence Convention supplements, but does not replace, other means of obtaining evidence located abroad. Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct., 482 U.S. 522, 534-39, 107 S.Ct. 2542, 2551-53 (1987); Sandsend Fin. Consultants, Ltd. v. Wood, 743 S.W.2d 364, 365-66 (TexApp.-Houston [ Ist Dist. 1 1988, orig. proceeding). The procedure for discovery under the Hague Evidence Convention can be found in 28 U.S.C., chapter 117.

3. Letter rogatory. If a country does not subscribe to the Hague Evidence Convention, a party must obtain a letter rogatory to take the deposition in a foreign country. A letter rogatory is a judicial request addressed to a foreign authority asking it to use its compulsive powers to require evidence to be obtained from a person within its territory. Bishop, 19 Hous.L.Rev. at 383. In some countries, only the judicial officer can ask the witness questions, not the attorneys. Id. at 384. The letter rogatory must be addressed to the appropriate authority in the jurisdiction. TRCP 201.1(c)(1).

4. Officer to conduct the deposition. A deposition may be taken in a foreign country by one of the following:

a. A U.S. minister, commissioner, or charge d'affaires who is a resident of and is accredited in the country where the deposition is taken. CPRC§20.001(c)(1).

b. A U.S. consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent who is a resident of and is accredited in the country where the deposition is taken. Id. §20.001(c)(2).

c. Any notary public. Id. §20.001(c)(3).

d. If the deponent is a witness who is a member of the U.S. Armed Forces or Auxiliary or a civilian employed by such forces or auxiliary outside the U.S., the deposition may be taken by a commissioned officer in the Armed Forces or Auxiliary or Reserve. Id. §20.001 (d).

5. Forms. See forms on the State Department’s Website at <http://travel.state.gov/judicial_assistance.html>.

6. Depositions in Texas for use in foreign jurisdictions. If a court of record of any other state or foreign jurisdiction issues an order that requires a witness's oral or written deposition testimony in Texas, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in Texas. TRCP 201.2.

7. Website. More information is available at the State Department’s Website at <http://travel.state.gov/judicial_assistance.html>.

Form 1

NO. XXXX

IN THE MATTER OF	§	IN THE DISTRICT COURT
THE MARRIAGE OF	§
	§
PETITIONER SMITH	§
AND	§	_____JUDICIAL DISTRICT
RESPONDENT SMITH	§
	§
AND IN THE INTEREST OF	§
SMITH CHILD 1 AND SMITH CHILD 2, CHILDREN	§ §	__________ COUNTY, TEXAS

Subpoena

Issued in the Name of the State of Texas

You, [name of witness], are hereby commanded [to appear at [address, city, county], Texas, on [date] at [time]] to [attend and give testimony at a [hearing/trial/deposition][and/or produce at the time and place the documents or tangible things in your possession custody or control specified below] relating to the case entitled “[style of case]” and filed under Cause No. [number], in the [designation] Court of [county] County, Texas, and remain at that place from day to day until discharged by [name of attorney].

[INCLUDE THE FOLLOWING IF APPLICABLE]

You are further commanded to produce, at the time and place specified above, the following documents or tangible things in your possession, custody, or control: [specify]. [(request for production or inspection of documents).]

[CONTINUE WITH THE FOLLOWING]

This subpoena is issued at the instance of [name of party], [Petitioner/Respondent/Intervenor] in the above-referenced case [include if applicable: , by and through [his/her/its] attorney of record, [name of attorney]].

FAILURE OF ANY PERSON WITHOUT ADEQUATE EXCUSE TO OBEY A SUBPOENA SERVED ON THAT PERSON MAY BE DEEMED A CONTEMPT OF THE COURT FROM WHICH THE SUBPOENA IS ISSUED OR A DISTRICT COURT IN THE COUNTY IN WHICH THE SUBPOENA IS SERVED, AND MAY BE PUNISHED BY FINE OR CONFINEMENT, OR BOTH.

This subpoena is issued on [date] by:

______________________________________________

[Name of person issuing subpoena]

[Capacity]

[Address]

[Telephone]

[Telecopier]

Proof of Service

I, [name of witness], accept service of the attached subpoena and will appear at the time and place directed in the subpoena.

Date: ________________________________.

______________________________________________

(Signature of witness)

_______________________________________________________________________________

I, _________________________________, am over the age of eighteen years. I am not a party in the above-entitled and -numbered cause of action. On ___________________ I served a subpoena, of which this is a true and correct copy, on [name of witness] by personally handing the subpoena to the named individual or in accordance with rule 176.5(a) of the Texas Rules of Civil Procedure. I also tendered to the witness the witness fees required by law at the time the subpoena was delivered.

Date: ________________________________.

______________________________________________

(Signature of person serving subpoena)

Form 2

NO. XXXX

IN THE MATTER OF	§	IN THE DISTRICT COURT
THE MARRIAGE OF	§
	§
PETITIONER SMITH	§
AND	§	_____JUDICIAL DISTRICT
RESPONDENT SMITH	§
	§
AND IN THE INTEREST OF	§
SMITH CHILD 1 AND SMITH CHILD 2, CHILDREN	§ §	__________ COUNTY, TEXAS

NOTICE OF INTENTION TO SUBPOENA RECORDS OF NONPARTY

To: [Nonparty’s Name] [Nonparty’s Address]

Under Rule 205.2 of the Texas Rules of Civil Procedure, you are notified that a subpoena will be issued no less than ten (10) days for the date of this notice.

This subpoena will require you to produce and permit inspection and copying of the following documents or tangible things:

[Insert list of items to be produced]

This subpoena will be issued at the instance of [Party’s Name], whose attorney of record is [Attorney’s Name] [Attorney’s Address].

Issued on this the _____ day of _____________, 20___.

[Attorney’s Signature Block]

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on the _____ day of _______________, 20____.

____________________________________

[Attorney for _________]

Form 3

NO. XXXX

IN THE MATTER OF	§	IN THE DISTRICT COURT
THE MARRIAGE OF	§
	§
PETITIONER SMITH	§
AND	§	_____JUDICIAL DISTRICT
RESPONDENT SMITH	§
	§
AND IN THE INTEREST OF	§
SMITH CHILD 1 AND SMITH CHILD 2, CHILDREN	§ §	__________ COUNTY, TEXAS

NOTICE OF INTENTION TO TAKE [ORAL/VIDEOTAPED/WRITTEN] DEPOSITIONS

To: RESPONDENT SMITH, by and through her attorney of record, [NAME AND ADDRESS OF RESPONDENT’S ATTORNEY]

Under rule 199[199.2 (oral & video), 200.1(written questions)] of the Texas Rules of Civil Procedure, you are notified that Petitioner, PETITIONER SMITH will take the oral and videotaped depositions of the following persons in the above case at [ADDRESS FOR DEPOSITION] on [DATE DEPOSITION] beginning at [TIME OF DEPOSITION]:

DEPONENT ONE

DEPONENT TWO, if applicable, etc.

These depositions will be taken before an officer authorized by law to take depositions and will continue from day to day until completed. These depositions will not be taken by telephone or other remote electronic means. These depositions will be recorded by video. They will also be recorded by stenographic means.

[ATTORNEY’S SIGNATURE BLOCK]

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on the _____ day of ______________, 20___.

____________________________________

[Attorney for Petitioner]

Form 4

NO. XXXX

IN THE MATTER OF	§	IN THE DISTRICT COURT
THE MARRIAGE OF	§
	§
PETITIONER SMITH	§
AND	§	_____JUDICIAL DISTRICT
RESPONDENT SMITH	§
	§
AND IN THE INTEREST OF	§
SMITH CHILD 1 AND SMITH CHILD 2, CHILDREN	§ §	__________ COUNTY, TEXAS

AFFIDAVIT FOR BUSINESS RECORDS

The custodian of Business Records for [NAME OF BUSINESS], [NAME OF RECORDS CUSTODIAN], appeared before me today and stated under oath:

"My name is . I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

"I am the custodian of the records of [NAME OF BUSINESS]. Attached to this affidavit are ____ pages of records from [NAME OF BUSINESS]. These pages of records are kept by [NAME OF BUSINESS] in the regular course of business, and it was the regular course of business of [NAME OF BUSINESS] for an employee or representative of [NAME OF BUSINESS], with knowledge of the act, event, condition, opinion, or diagnosis recorded, to make the record or to transmit information thereof to be included in the record. The record was made at or near the time or reasonably soon thereafter. The records attached to this affidavit are the original or exact duplicates of the original."

Affiant

SIGNED under oath before me on .

Notary Public, State of Texas

Form 5

[DATE]

[NAME OF BUSINESS] ATTN: Records Custodian

[street address]

__________, Texas 79065

RE: No. X,XXX; In the Matter of the Marriage of Petitioner Smith and Respondent Smith and In the Interest of Smith Child 1 and Smith Child 2, Children

To Whom It May Concern:

Accompanying this letter is a subpoena regarding the above referenced matter. It requires that you [or if applicable – an authorized representative] to appear and testify at a hearing [or deposition] scheduled for Monday, ___________, 2002. If you would prefer to simply provide the records requested therein, with the Affidavit for Business Records properly executed and attached, before _______________, 2002, at 10:00 a.m., I will release you [or the authorized representative] from the obligation to appear and testify at the hearing [or deposition].

I appreciate your cooperation and assistance in this matter and should you have any questions, please contact my office.

Yours sincerely,

Douglas R. Woodburn

Attorney at Law

DRW/csh

Enclosure

cc: Client

Form 6

Motion to Compel Discovery [and/or] for Sanctions

This motion is brought by [name of movant], [party designation], who shows in support:

[select as applicable]

1. Documents

On [date] a notice of intention to subpoena records of a nonparty was served on [name]. On [date] a corresponding subpoena for production of documents was served on [name].

[select one of the following:]

To date, no response has been received, nor have proper objections been made, and the documents have not been produced.

[or]

A response was served on [date].

[Include options a, b and/or c, as applicable]

a. The response is inadequate because [state nature of problem with response].

b. Objections were made to certain of the requests for production of documents. Those objections should be overruled and [name] should be required to produce the requested documents.

c. In the response, [information was/material was/information and material were] withheld based on the following privileges asserted: [specify]. On [date] a written request to identify the [information/material/information and material] withheld was served on [name]. [Name] has failed to serve a response to the written request [include if applicable: that describes the [information/material/information and material] withheld that enables assessment of the applicability of the privilege and asserts a specific privilege for each item or group of items withheld].

2. Depositions

On [date] the deposition of [name] was noticed to be taken at the time and place designated in the notice, a copy of which is attached. A subpoena was served upon [name] on [date]. The witness refused or failed to appear [include if applicable: and to produce the items designated in the notice].

3. Relief Requested

[Name of movant] asks the Court, after notice and hearing, to make such orders with regard to the failure to comply with discovery procedures as are just and right, including the following:

[remember that contempt is the only sanction available against a nonparty]

[Name of movant] prays that the Court grant this motion.

[ATTORNEY’S SIGNATURE BLOCK]

[Certificate of Conference]

[Certificate of Service]

Form 7

SUGGESTED LANGUAGE FOR PRODUCTION OF BANK RECORDS

1. The credit file, loan file, and copies or originals of all promissory notes, guaranty agreements, or other obligations and all financial statements, profit-and-loss statements, balance sheets, income and expense statements, and operating statements submitted or executed by [opposing party] or any of the following entities: ______.

2. All signature cards, deposit-box rental agreements, deposit-box entry records, and records of assets in safekeeping in the name of [opposing party] or on which [opposing party] had or has signatory authority for the period from ______ to the date of production of the records.

3. All contractual agreements between ______ and [opposing party], including but not limited to lines of credit, contracts for drafting authority, and security agreements for the period from ______ to the date of production of the records.

4. All bank statements, deposit records, withdrawal records, transfer records, and canceled checks for all checking accounts, savings accounts, certificates of deposit, and all other types of accounts maintained in the name of [opposing party] or on which [opposing party] had or has the right to draw for the period from ______ to the date of production of the records, including but not limited to the following:

a. Account number ______ in the name of [opposing party].

b. ______.

5. All records maintained for the benefit of [opposing party] in the Trust Department.

Form 8

[DATE]

NOTICE OF REQUEST FOR FINANCIAL RECORDS FROM LAST NATIONAL BANK

Mr. Joe Customer 1234 Main Street Anywhere, Texas 79000

RE: No. 12,345; In the Matter of the Marriage of Pedro Petitioner and Priscilla Petitioner

and In the Interest of Petitioner Child 1 and Petitioner Child 2, Children

Dear Mr. Customer:

On behalf of Pedro Petitioner this firm has been employed to examine the following financial records dealing with your account with the Last National Bank:

Section 59.006 of the Texas Finance Code provides that if you have no objection to release of these documents you may execute the enclosed financial records release authorization where indicated and return same to me in the enclosed envelope. I have also included a copy of the request to the financial institution made on Pedro Petitioner’s behalf.

You are advised that should you fail to execute the enclosed records release authorization, the firm shall proceed with a hearing in Cause No. 12,345 in the 450^th District Court in and for Law County, Texas at which hearing the firm shall request the court to order the financial institution herein identified to provide the documents requested. In the event that I have not received a properly executed financial records release authorization by ______________, 200___, a written motion requesting an in camera inspection of the requested records will be filed requesting the court to review the records in private, determine the relevance of the records to the issues in the case, and provide this firm access to the records. The court may order release of the records without conditions or release of the records with parts thereof redacted. The court may further order information contained therein not be disclosed to a nonparty, or that the documents not be used for any purpose other than resolving the dispute before this court. You have the right to refuse to execute this release authorization, and further have the right to file a motion to quash the request or for a protective order at the time the court schedules a hearing on the motion.

Thank you for your attention.

Yours sincerely,

Douglas R. Woodburn

Attorney at Law

DRW/mk

Enclosure

cc: Client

Last National Bank

Opposing Counsel

Form 9

Records Authorization - Financial

I, [name], authorize [name of bank or other financial institution] to release all financial records and information to [name] and the law firm of [name of law firm]. This authorization specifically includes the following:

1. The credit file, loan file, and copies or originals of all promissory notes, guaranty agreements, or other obligations and all financial statements, profit and loss statements, balance sheet statements, and operating statements submitted or executed by [name of party/nonparty] or any of the following entities: [names of partnerships, corporations, or other entities in which the party/nonparty has an interest].

2. All signature cards, deposit-box rental agreements, deposit-box entry records, records of assets in safekeeping, bank statements, deposit records, withdrawal records of all checking accounts, savings accounts, certificates of deposit, or interest-bearing accounts maintained in the name of [name of party/nonparty] or on which that person had the right to draw for the period [date] to the date of production thereof, including but not limited to the following:

a. Account number [number] in the name of [name of account].

b. [Continue with identification of other accounts.]

3. All contractual agreements between [name of bank or other financial institution] and [name], including but not limited to lines of credit, contracts for drafting authority, and security agreements for the period [date] to the date of production thereof.

4. All the above records maintained for the benefit of [name of party/nonparty] in the Trust Department.

I authorize reliance on a photocopy of this authorization.

___________________________________________

[Name]

Social Security number [number]

STATE OF TEXAS )

COUNTY OF )

This instrument was acknowledged before me on ________________________ by [name of person acknowledging].

___________________________________________

Notary Public, State of Texas

Form 10

[STYLE OF CASE]

Motion for In Camera Inspection of Nonparty Financial Records

Comes now Pedro Petitioner, by and through his attorney of record, Larry Lawyer, and files this his motion for an in camera inspection to be conducted by the Court of the financial records of Joe Customer, a nonparty to this cause and for cause thereof would respectfully show the Court as follows, to wit:

1. The financial records of Joe Customer sought in this case are material and relevant to the issues in this case.

2. This request for an in camera inspection is made pursuant to Section 59.006 of the Texas Finance Code.

3. Joe Customer has been notified of the request of Pedro Petitioner to review the financial records of Joe Customer and has been provided a request for written consent authorizing Last National Bank to release the records to Pedro Petitioner pursuant to Section 59.006(c)(3) of The Texas Finance Code. A copy of the notice is here attached.

4. The time has passed for Joe Customer to provide written consent. No written consent has been furnished to Pedro Petitioner, his counsel or Last National Bank.

5. Joe Customer has been provided with a notice of this motion by certified mail, detailing his rights pursuant to Section 59.006(e).

WHEREFORE, PREMISES CONSIDERED, Pedro Petitioner requests the Court to set a hearing on this Motion and to grant his request requiring disclosure of financial records from Last National Bank as to Joe Customer.

[Attorney’s Signature Block]

[Certificate of Service – serving customer, bank and opposing party]

NOTICE OF HEARING

A hearing on PEDRO PETITIONER’S Motion for In Camera Inspection of Nonparty Financial Records in the above case has been set for the _____ day of ____________, 2002 at ____ o’clock p.m. before the 450^th District Court in Anytown, Blank County, Texas.

SIGNED this ____ day of August, 2002.

_____________________________

JUDGE PRESIDING

Form 11

Records Authorization - Health Care

TO WHOM IT MAY CONCERN:

All physicians, psychiatrists, dentists, pharmacists, psychologists, social workers, medical technicians, clinics, hospitals, and other health-care providers with whom I have had any connection are authorized to furnish the law firm of [name of law firm], their representatives, or the bearer of this authorization, or of any photostatic copy of it, all information desired, including all records, billing statements, photographs, X-rays, laboratory reports, and opinions relative to my physical, mental, and medical condition, past, present, or future.

___________________________________________

[Name]

[Address]

Social Security number [number]

STATE OF TEXAS )

COUNTY OF )

This instrument was acknowledged before me on ________________________ by [name of person acknowledging].

___________________________________________

Notary Public, State of Texas

Form 12

Cause No. 12,345

IN RE: JOHN DOE § IN THE DISTRICT COURT

§ 450^th JUDICIAL DISTRICT

§ BLANK COUNTY, TEXAS

PETITIONER'S APPLICATION FOR DISCLOSURE OF

PROTECTED SUBSTANCE ABUSE TREATMENT RECORDS

TO THE HONORABLE JUDGE OF SAID COURT

COMES NOW JANE JONES, Petitioner in the above-entitled cause and files this, her Application for Disclosure of Protected Substance Abuse Treatment Records, and would respectfully show the Court as follows:

1. Petitioner, JANE JONES, is a party in Cause No.12,345 presently pending in the 450^th District Court.

2. Petitioner seeks discovery of JOHN DOE'S [alcohol or drug] abuse treatment records presently in the custody of MEDICAL FACILITY.

3. The [alcohol or drug] abuse treatment records sought by Petitioner are protected from disclosure, pursuant to [42 U.S.C. § 290dd-3 or 42 U.S.C. § 290ee-3] and 42 C.F.R. Part 2.

4. Petitioner has a legally recognized interest in disclosure of the requested records. 42 C.F.R. § 2.64.

5. Other methods of obtaining the same information contained in the requested records are not effective and are not available. 42 C.F.R. § 2.64(d).

6. The public interest and need for disclosure of the records outweigh the potential injury to JOHN DOE, the physician-patient relationship, and the treatment services. 42 C.F.R. § 2.64(d).

7. [If applicable.] Petitioner seeks discovery of confidential communications contained within JOHN DOE'S substance abuse treatment records because [choose one]:

(a) It is necessary to protect against an existing threat to life or serious personal injury

(b) It is anticipated that JOHN DOE will offer testimony or other evidence pertaining to the content of the confidential communications.

8. Petitioner further asks the Court, after adequate time, to conduct a hearing in chambers, or in some other manner that guarantees the records will not be disclosed to anyone other than Petitioner, JOHN DOE, or MEDICAL FACILITY.

WHEREFORE, PREMISES CONSIDERED, Petitioner prays this honorable court will:

(a) Conduct a hearing on Petitioner's Application for Disclosure of Protected Substance Abuse Treatment Records,

(b) Find that good cause exists for ordering disclosure of JOHN DOE'S protected substance abuse treatment records-, and

[Attorney’s Signature Block]

[Certificate of Service – serving customer, bank and opposing party]

NOTICE OF HEARING

A hearing on JANE JONES’ Application for Disclosure of Protected Substance Abuse Treatment Records in the above case has been set for the _____ day of ____________, 2002 at ____ o’clock p.m. before the 450^th District Court in Anytown, Blank County, Texas.

SIGNED this ____ day of ____________, 20____.

_____________________________

JUDGE PRESIDING

Form 13

Cause No. 12,345

IN RE: JOHN DOE § IN THE DISTRICT COURT

§ 450^th JUDICIAL DISTRICT

§ BLANK COUNTY, TEXAS

ORDER GRANTING PETITIONER'S APPLICATION FOR DISCLOSURE OF

PROTECTED SUBSTANCE ABUSE TREATMENT RECORDS

ON THIS the ______ day of ___________, 20___, this Court conducted a hearing on Petitioner’s Application for Disclosure of Protected Substance Abuse Treatment Records. After hearing the evidence and arguments of counsel the Court finds:

1. Petitioner, JANE JONES, is a party in Cause No.12,345 presently pending in the 450^th District Court.

2. Petitioner has sought discovery of JOHN DOE'S [alcohol or drug] abuse treatment records presently in the custody of MEDICAL FACILITY.

3. The [alcohol or drug] abuse treatment records sought by Petitioner are protected from disclosure, without a court order, pursuant to [42 U.S.C. § 290dd-3 or 42 U.S.C. § 290ee-3] and 42 C.F.R. Part 2.

4. Petitioner has a legally recognized interest in disclosure of the requested records. 42 C.F.R. § 2.64.

5. Other methods of obtaining the same information contained in the requested records are not effective and are not available. 42 C.F.R. § 2.64(d).

6. The public interest and need for disclosure of the records outweigh the potential injury to JOHN DOE, the physician-patient relationship, and the treatment services. 42 C.F.R. § 2.64(d).

7. Petitioner is entitled to discovery of confidential communications, [after redaction] contained within JOHN DOE'S substance abuse treatment records because [choose one]:

(a) It is necessary to protect against an existing threat to life or serious personal injury

(b) It is anticipated that JOHN DOE will offer testimony or other evidence pertaining to the content of the confidential communications.

8. The Court finds that good cause exists for ordering disclosure of JOHN DOE’S protected substance abuse treatment records

Therefore, this Court ORDERS and directs that MEDICAL FACILITY disclose to Petitioner the following records, to wit:

The Court further finds that the following safeguards are necessary in order to adequately protect disclosure of the substance abuse treatment records and serve the need for disclosure of confidential communications, to wit:

SIGNED this ______ day of ________________, 200____.

_______________________________________

JUDGE PRESIDING

Form 14

SUGGESTED LANGUAGE FOR HEALTHCARE RECORDS

Any and all records pertaining to ______, Social Security number ______, date of birth ______, including but not limited to:

1. Admission records

2. Report of history/Admitting history and physical

3. Nurses' notes

4. Doctors' notes

5. Record of treatment

6. Record of medication prescribed or administered

7. Doctors' reports or opinions, including all consulting physicians' reports

8. Reports of diagnostic tests administered and laboratory reports

9. Billing statements and record of payments

10. Photographs

11. Correspondence sent or received

12. X-rays and/or radiology reports

13. Surgical reports

Form 15

Suggested Language for Mental Health Records – Counselor (not M.D.)

You are commanded to produce, at the time and place specified above, all medical, psychological, psychiatric and/or counseling records, documents or tangible things in your possession, custody, or control regarding RESPONDENT SMITH, including, but not limited to:

a. Admission records

b. Report of history/Admitting history

c. All testing data and results

d. Counselors’ notes

e. Record of evaluations

f. All documents written by the patient(s)/counselee(s)

g. Counselors’ reports or opinions, including all consulting physicians' or counselors’ reports

h. Reports of diagnostic tests administered and related reports

i. Billing statements and record of payments

j. Photographs

k. Correspondence sent or received

l. Audio or video recordings

The original of the attached Business Records Affidavit, completed, signed and notarized, as applicable. This may be submitted in lieu of personal appearance for deposition.

Form 16

Suggested Language for Mental Health Records (Alternate)

You are further commanded to produce, at the time and place specified above, the following documents or tangible things in your possession, custody, or control:

1. All diaries, notes, memoranda, journals, or calendars, including electronic diaries, notes, memoranda, journals, or calendars, reports or other written logs regarding PETITIONER SMITH, RESPONDENT SMITH, SMITH CHILD 1 AND/OR SMITH CHILD 2 [Continue as applicable].

2. All letters and correspondence, including electronic writings, from or concerning PETITIONER SMITH, RESPONDENT SMITH, SMITH CHILD 1 AND/OR SMITH CHILD 2, and any other correspondence that constitute or contain matters relevant to the subject matter of this lawsuit. All data or information that exists in electronic or magnetic form should be printed or transcribed.

3. All drawings, graphs, charts, photographs, tape or electronic recordings, and audio/video recordings that constitute or contain matters relevant to the subject matter of this lawsuit. All data or information that exists in electronic or magnetic form should be printed or transcribed.

4. All records relating to medical, psychological or psychiatric treatments, consultations, or diagnoses of PETITIONER SMITH, RESPONDENT SMITH, SMITH CHILD 1 AND/OR SMITH CHILD 2.

5. Any and all documents, files, field notes, photographs, recordings, and tangible records that have been prepared by the by you, or have been obtained or created by you during or in connection with your consultations with or evaluation and/or treatment of PETITIONER SMITH, RESPONDENT SMITH, SMITH CHILD 1 AND/OR SMITH CHILD 2 or any witness involved in this suit.

6. Your current curriculum vitae.

7. Any and all other documents contained in any file you maintain with regard to PETITIONER SMITH, RESPONDENT SMITH, SMITH CHILD 1 AND/OR SMITH CHILD 2 or any witness involved in this suit.

Form 17

Motion for [Physical/Mental] Examination

This Motion for [Physical/Mental] Examination is brought by [name of movant], [party designation], who shows in support:

[select the following as applicable]

1. This is a case arising under [title 2/title 5] of the Texas Family Code. [Name of movant] seeks appointment of [a] [psychologist[s]/psychiatrist[s]] to make any and all appropriate mental examinations of [name[s] of child[ren] the subject of the suit and/or of other party[ies]].

[and/or]

2. This is a case arising under [title 2/title 5] of the Texas Family Code. [Name of movant] seeks appointment of [an] [expert[s]] who [is/are] qualified in paternity testing to take blood, body fluid, or tissue samples to conduct paternity tests as ordered by the Court.

[and/or]

3. [Name of movant] seeks an order from the Court compelling [name of responding party] to [submit to/produce [name of person in responding party’s custody, conservatorship, or legal control] for] a [physical/mental] examination by a qualified physician. The [physical/mental] condition [include if applicable: , including the blood group,] of [name], a [party/person in the custody or conservatorship or under the legal control of [name], a party] is in controversy in this case. Good cause to grant the relief sought exists in that [state factual grounds supporting claim of good cause].

[and/or]

4. [Name of movant] seeks an order from the Court compelling [name of responding party] to [submit to/produce [name of person in responding party’s custody, conservatorship, or legal control] for] a mental examination by a qualified psychologist. The mental condition of [name], a [party/person in the custody or conservatorship or under the legal control of [name], a party] is in controversy in this case. Good cause to grant the relief requested exists in that [state factual grounds supporting claim of good cause].

[and/or]

5. [Name of movant] seeks an order from the Court compelling [name of responding party] to [submit to/produce [name of person in responding partys custody, conservatorship, or legal control] for] a mental examination by a qualified psychologist. [Name of responding party] has [designated a psychologist as a testifying expert/disclosed a psychologist’s records for possible use at trial] in this case. Good cause to grant the relief sought exists in that [state factual grounds supporting claim of good cause].

[continue with the following]

[Name of movant] prays that the Court grant this Motion for [Physical/Mental] Examination and order the examination.

[Attorney’s Signature Block]

Certificate of Conference

Notice of Hearing

Certificate of Service

Form 18

[STYLE OF CASE]

MOTION FOR MENTAL EXAMINATION

This Motion for Mental Examination is brought by [NAME OF MOVANT], [PARTY’S CAPACITY] in the above-referenced cause, who shows in support:

1. This is a case arising under title 5 of the Texas Family Code. [NAME OF MOVANT] seeks appointment of a psychologist or psychiatrist to conduct appropriate mental examination and testing of [NAME OF PERSONS UPON WHOM THE EXAMINATION SHOULD BE CONDUCTED].

2. [NAME OF MOVANT] seeks an order from the Court compelling each party to submit to, [and NAME OF PARTY TO PRODUCE THE CHILD produce NAME OF CHILD for] a mental examination evaluation and testing by a qualified psychologist or psychiatrist. The mental condition of [NAME OF PARTY(IES)], parties, [and NAME OF CHILD,] is in controversy in this case. [NAME OF PARTY(IES)] should undergo evaluations of custodial and parenting skills including standardized personality and parenting evaluations. [NAME OF CHILD should undergo educational, academic and personality testing.] The evaluations should include, but not necessarily be limited to the following tests:

a. Pass Situations;

b. Projective Drawings;

c. Sentence Completion Test;

d. (PSI) Parent Stress Index;

e. Quality of Life;

f. (TSI) Trauma Stress Index;

g. MMPI-2;

h. MCMI-II;

i. PAI;

j. NEO; and

k. Rorschach.

Good cause to grant the relief requested exists.

WHEREFORE, PREMISES CONSIDERED, [NAME OF MOVANT] prays that the Court grant the Motion for Mental Examination and order the examination, testing and evaluation of the named persons, appoint a mental health examiner for such purpose, arrange copies of the results to be provided to each party, provide for the costs to be borne, and provide a date for completion of the testing.

[ATTORNEY’S SIGNATURE BLOCK]

[Certificate of Service]

Form 19

SUGGESTED LANGUAGE TO SECURE SOCIAL WORKER'S REPORT

1. Any and all documents, files, field notes, photographs, recordings, and tangible records that may have been obtained or created by the investigator during the investigation of any party, child[ren], or witness involved in this suit.

2. All diaries, notes, memoranda, journals, or calendars, including electronic diaries, notes, memoranda, journals, or calendars, reports or other written logs regarding _____________________________.

3. All letters and correspondence, including electronic writings, from or concerning ____________________________________ and any other correspondence that constitute or contain matters relevant to the subject matter of this lawsuit.

4. All drawings, graphs, charts, photographs, tape or electronic recordings, and audio/video recordings that constitute or contain matters relevant to the subject matter of this lawsuit. 5. All records relating to medical, psychological or psychiatric treatments, consultations, or diagnoses of _____________________________.

6. Any and all documents, files, field notes, photographs, recordings, and tangible records that have been prepared by the TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, or have been obtained or created by any investigator during the investigation of any party, the child[ren],_____________________ or any witness involved in this suit.

7. The curriculum vitae of each expert and each expert report prepared in anticipation of litigation in this suit.

8. All records, documents, files or notes relating to any investigation by any social service agency of ___________________. 9. All arrest, conviction or criminal background records of __________________________.

10. Each document promulgated or relied upon by the TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES to train, educate or evaluate any person to determine whether or not a complaint of abuse or neglect of a child is founded in fact and, if so, who is responsible for such abuse or neglect.

Form 20

SUGGESTED LANGUAGE FOR EMPLOYMENT RECORDS

1. The complete personnel file maintained for [opposing part/nonparty] for the entire period of employment.

2. The original employment contract or agreement for [opposing part/nonparty].

3. The payroll records showing the gross pay, including commissions, deferred bonus, and/or severance pay, withholding deductions, and net pay for all compensation paid to [opposing part/nonparty] for the period from ______ to the date of production of the records.

4. The expense-account records showing the nature and amount of all expenses reimbursed to [opposing part/nonparty] under the terms of employment for the period from ______ to the date of production of the records.

5. The original or official written health insurance plan, medical reimbursement plan, life insurance plan, employee stock ownership plan, stock option plan, stock appreciation plan, employee retirement plan, pension plan, profit-sharing plan, and/or savings plan or other employee benefit plan or official summary thereof, and any loan, withdrawal, or distribution information, together with the annual report of the interest of [opposing part/nonparty] in those plans, for the period from ______ to the date of production of the records.

6. The travel records showing the date and place of destination and duration of all periods of travel of [opposing part/nonparty] for the period from ______ to the date of production of the records.

Form 21

SUGGESTED LANGUAGE FOR SCHOOL RECORDS

Any and all records pertaining to _____________________, including but not limited to:

1. Attendance records

2. Report cards

3. Behavioral reports or disciplinary actions taken

4. Teachers' comments or recommendations

5. Notations from parent-teacher conferences

6. Telephone records or other notations between any parent and the school, including dates of the calls and contents

7. Counseling reports or counseling recommendations

8. Authorizations on file on persons who may pick up the child[ren] at school

9. Any written letters from a parent to the school as to specific instructions or restrictions concerning the child[ren], release of information concerning the child[ren], or notification of activities or conferences

10. School health records and school nurses' notes

11. Designations of persons to be contacted in an emergency

12. Records of admission, review, and dismissal (ARD)

Form 22 SUGGESTED LANGUAGE FOR PRODUCTION OF TELEPHONE RECORDS

All records, documents or tangible things in your possession, custody, or control regarding the [NAME OF TELEPHONE/CELLULAR TELEPHONE COMPANY] account for [cellular] telephone numbers (806) 678-XXXX and (806) 670-XXXX, including, but not limited to the records of all incoming and outgoing telephone calls and itemized billing statements at all times when the account was in the name of _________ and/or ___________________.

The original of the attached Business Records Affidavit, properly completed, signed and notarized, as applicable, with the requested documents attached may be submitted in lieu of personal appearance for deposition if the documents and affidavit are delivered to the offices of WOODBURN & WATKINS prior to the above appearance date and time.

Form 23

SUGGESTED LANGUAGE FOR BUSINESS ORGANIZATIONAL RECORDS

1. All articles of incorporation or organization of nonpublicly traded corporations, partnership agreements, joint venture agreements, or trust instruments that pertain to any entity in which the parties now claim or have claimed any legal or equitable interest;

2. IRS Form 2553;

3. All certificates of stock or brokerage house statements evidencing any ownership of any securities in which [party] and/or ABC, INC., claims or has claimed any interest.

Form 24

SUGGESTED LANGUAGE FOR LAW ENFORCEMENT RECORDS

All documents, notes, memoranda, or other written logs, photographs, drawings, graphs, charts, tape or electronic recordings, and audio/video recordings that relate to Anytown Police Department Incident Report #______.

Any and all records of _______________’s notices of residence or updates of residence for the last two (2) years as provided by ________________ on his application or other form as required as a registered sex offender.

Form 25

SUGGESTED LANGUAGE FOR LIFE INSURANCE RECORDS

All records, documents or tangible things in your possession, custody, or control regarding [Party], including but not limited to:

1. Names of beneficiaries.

2. Loans made against the policies, including a copy of the front and back of the loan check(s) and the loan balances.

3. Cash surrender value.

4. Amounts of premiums and if premiums are current.

5. Date or dates of purchase.

6. Full name of insured.

7. Changes in beneficiary or requests for changes.

8. Face value of each policy.

9. Owner of each policy.

10. A copy of each policy.

11. All information on any annuities that might be in the name of [name] and/or [name].

Form 26

NO. ##,###

IN THE INTEREST OF	§	IN THE DISTRICT COURT
	§
JOHN MOVANT	§	320TH JUDICIAL DISTRICT
	§
A CHILD	§	POTTER COUNTY, TEXAS

MOTION FOR LETTER ROGATORY

TO DEPOSE OUT OF STATE WITNESS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, MICHAEL MOVANT, Movant herein, and files this Motion for Letter Rogatory to Depose Out-of-State Witness pursuant to Rule 201.1(c) of the Texas Rules of Civil Procedure and respectfully petitions this honorable Court enter an order authorizing the taking of the deposition of NANCY NONPARTY, and in support thereof, Movant respectfully shows the following:

Under Rule 201.1 of the Texas Rules of Civil Procedure, a person may request the court to issue a letter rogatory, or other such device if necessary, to depose an out-of-state witness.

II.

Movant needs to depose NANCY NONPARTY who resides at 100 State Street, Anytown, Butte County, California because she is the wife of RACHEL RESPONDENT’s “fiancé”, NED NONPARTY and has knowledge of facts relevant to the subject matter of this lawsuit. NANCY NONPARTY has knowledge regarding her husband’s violent behavior and behavior that creates situations that are not in the best interest of the child the subject of this suit.

III.

The authority of the jurisdiction in which NANCY NONPARTY resides is the Honorable Judge of the Superior Court, Family Law Branch, Superior Court of California, County of Butte at One Court Street, Oroville, California.

IV.

Movant requests the court to request and authorize said authority to summon NANCY NONPARTY to appear before the authority at the offices of The Deposition Reporters, 1000 Main Street, Anytown, California on Monday, October ______, 2002 at 9:00 a.m. Pacific time for examination on the documents requested to be produced by deponent which are attached to this motion as Exhibit A and on all other matters relevant to this lawsuit about which she may have knowledge.

Movant further requests the testimony of NANCY NONPARTY to be reduced to writing and returned, together with any items marked as exhibits, to Movant.

WHEREFORE, PREMISES CONSIDERED, Movant prays the court issue a letter of request, or other such device, as requested above and pursuant to Rule 201.1(e) for the deposition of NANCY NONPARTY further requests the court set a deadline for any objections to the form of the letter of request, or other such device.

Respectfully Submitted,

WOODBURN & WATKINS, L.L.P.

Amarillo National's Plaza II

500 S. Taylor, Suite 1110, LB 264

Amarillo, TX 79101

Tel: (806) 374‑9584

Fax: (806) 374‑8225 FAX

By:

DOUGLAS R. WOODBURN

State Bar No. 21929700

Attorney for MICHAEL MOVANT

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on the _____ day of __________, 2002.

___________________________________

DOUGLAS R. WOODBURN

Attorney for MICHAEL MOVANT

EXHIBIT "A"

DOCUMENTS REQUESTED:

1. All tape recordings, letters and other documents in NANCY NONPARTY’s possession or subject to her control relating to Ned Nonparty including tape recording of discussion on or about January 1, 2001 dealing with his testimony in Cause #xx,xxx and/or his treatment of her.

2. All items including each tangible thing, recording, or reproduction of any visual or auditory information, including but not limited to papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations, however made, whether handwritten, typewritten, or printed material, drafts, duplicates, carbon copies, photocopies, and all other copies which reflects or relates to the following:

a. NANCY NONPARTY’s relationship with NED NONPARTY;

b. Physical and mental distress caused by NED NONPARTY to NANCY NONPARTY and/or to the children of their marriage;

c. Date (if any) of divorce from NED NONPARTY;

d. NED NONPARTY’s relationship with his children;

e. Date of separation from NED NONPARTY;

f. any issues raised by NANCY NONPARTY, either on her behalf or on behalf of the children of the marriage to NED NONPARTY during the divorce proceedings between NANCY NONPARTY and NED NONPARTY.

NO. ##,###

IN THE INTEREST OF	§	IN THE DISTRICT COURT
	§
JOHN MOVANT	§	320TH JUDICIAL DISTRICT
	§
A CHILD	§	POTTER COUNTY, TEXAS

ORDER

On this date the court considered the Motion for Letter Rogatory to Depose Out-of-State Witness pursuant to Rule 201.1(c) of the Texas Rules of Civil Procedure filed by Respondent, MICHAEL MOVANT. After consideration of the motion and the arguments of counsel, the Court is of the opinion that the motion should be GRANTED

IT IS FURTHER ORDERED, ADJUDICATED AND DECREED that a letter rogatory be issued requesting and authorizing MICHAEL MOVANT or his attorneys to summon and depose NANCY NONPARTY, residing at 100 State Street, Anytown, Butte County, California 77777 on Monday, June 3, 2002 at 9:00 a.m. Pacific time at the offices of The Deposition Reporters, 1000 Main Street, Anytown, California.

IT IS FURTHER ORDERED, ADJUDICATED AND DECREED that any party who wishes to object to the form of the letter of request must object in writing and serve said objection to all parties by _______________________, 2002.

SIGNED and ENTERED on , 2002.

Presiding Judge

NO. XX,XXX

IN THE INTEREST OF	§	IN THE DISTRICT COURT
	§
JOHN MOVANT	§	320TH JUDICIAL DISTRICT
	§
A CHILD	§	POTTER COUNTY, TEXAS

LETTER ROGATORY

TO:	HONORABLE JUDGE OF THE SUPERIOR COURT OF CALIFORNIA, FAMILY LAW BRANCH, COUNTY OF BUTTE One Court Street Oroville, California 95965-3303

WHEREAS, NANCY NONPARTY, having been named by MICHAEL MOVANT, Respondent, as a witness having knowledge of relevant facts pertaining to the matters and the documents listed on the attached Exhibit "A" in the above numbered and styled cause of action;

WHEREAS, this Court has determined that good cause exists for the video deposition of NANCY NONPARTY.

WHEREAS, the evidence NANCY NONPARTY provides will be used in the above numbered and styled cause of action;

WE THEREFORE, request and authorize you, in the interest of justice, to issue a subpoena or an order by your proper and usual process summoning NANCY NONPARTY to appear before a duly appointed court reporter, or other official who is authorized to administer oaths and depose witnesses, to give testimony under oath upon oral deposition and to provide all documents requested by Respondent, said request attached and included as Exhibit A;

WE FURTHER, request and authorize you to mark any items produced by deponent as exhibits; and

WE FURTHER, request and authorize you to reduce to writing and return, together with any items marked as exhibits, to the party listed below, who is the party requesting this letter rogatory.

DOUGLAS R. WOODBURN

WOODBURN & WATKINS, L.L.P.

Amarillo National's Plaza II

500 S. Taylor, Suite 1110, LB 264

Amarillo, TX 79101

Tel: (806) 374‑9584

Fax: (806) 374‑8225 FAX

SIGNED and ENTERED on , 2002.

PRESIDING JUDGE

Woodburn, Watkins, and Jackson, LLP