Written discovery in a Texas lawsuit can produce an enormous number of objections.
“Overbroad.” “Unduly burdensome.” “Not relevant.” “Attorney-client privilege.” “Work product.”
But an objection written on a piece of paper does not necessarily settle whether the requested information must ultimately be produced.
When the parties cannot resolve a discovery dispute, Texas Rule of Civil Procedure 193.4 provides a procedure for obtaining a court ruling on discovery objections and assertions of privilege.
The rule is highly technical, but it can become extremely important when a lawsuit reaches a genuine discovery fight.
What Is Texas Rule of Civil Procedure 193.4?
Rule 193.4 addresses hearings and rulings concerning objections and claims of privilege made during discovery.
Under Rule 193.4(a):
“Any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule.”
That means a discovery objection does not necessarily remain unresolved indefinitely.
A party seeking the information can ask the court to determine whether the objection or privilege claim is valid.
This frequently becomes important when requested documents could materially affect the lawsuit but the responding party contends that they are protected from discovery.
Who Has the Burden at the Discovery Hearing?
Rule 193.4 contains an important allocation of responsibility.
The rule states:
“The party making the objection or asserting the privilege must present any evidence necessary to support the objection or privilege.”
In other words, simply typing “attorney-client privilege”into a discovery response does not necessarily prove that every withheld document is privileged.
Likewise, a party claiming that a discovery request is unduly burdensome may need evidence supporting that position if evidence is necessary to establish the objection.
The rule therefore distinguishes between asserting an objection and proving an objection when it is challenged.
How Can Evidence Be Presented?
Rule 193.4(a) specifically contemplates two methods.
Evidence may consist of:
- testimony presented at the hearing; or
- affidavits.
The rule further provides that affidavits generally must be served at least seven days before the hearing, although the court may permit another reasonable time.
This can create a procedural trap.
A party may have a perfectly legitimate discovery objection but nevertheless arrive at the hearing without the evidence necessary to establish it.
Discovery disputes should therefore be prepared like actual evidentiary matters when the nature of the objection requires evidentiary support.
What Is an In-Camera Review?
Privilege disputes present a particularly difficult problem.
Suppose one party requests an email. The responding party claims that the email is protected by the attorney-client privilege.
The requesting party says:
“How do we know it is privileged if we aren't allowed to see it?”
Obviously, simply giving the requesting party the email to determine whether the privilege exists could defeat the purpose of the privilege.
Rule 193.4 provides a solution.
If the court determines that in-camera review is necessary, the disputed material is segregated and provided to the judge for private review.
The judge can therefore examine the document without first disclosing it to the opposing party.
What Does Rule 193.4 Say About In-Camera Review?
The rule provides that if the court determines an in-camera review is necessary:
“that material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing.”
The terminology may sound somewhat old-fashioned in an era of electronic filing, but the underlying concept is straightforward.
The judge receives the disputed material separately so that the court can determine whether the claimed protection actually applies without unnecessarily revealing the information to the opposing side.
What Happens If the Court Sustains the Objection?
Rule 193.4(b) addresses the consequences of the court's ruling.
If the court sustains the objection or claim of privilege, the responding party has no further duty to respond to that request or required disclosure to the extent of the court's ruling.
For example, if a court determines that particular communications are protected by attorney-client privilege, those communications generally do not have to be produced merely because the opposing party requested them.
What Happens If the Court Overrules the Objection?
The opposite result creates a production obligation.
Rule 193.4(b) provides that when the court overrules an objection or claim of privilege, the responding party must produce the requested material or information:
“within 30 days after the court's ruling or at such time as the court orders.”
That last phrase is important.
Thirty days is not necessarily guaranteed. The court can establish another deadline.
A party therefore should read the actual discovery order carefully rather than automatically assuming that production is due exactly 30 days later.
Do You Have to Ask the Court to Rule on Your Own Objection?
Interestingly, no.
Rule 193.4(b) expressly states:
“A party need not request a ruling on that party's own objection or assertion of privilege to preserve the objection or privilege.”
This provision can be easy to overlook.
The party asserting the objection does not necessarily have to affirmatively obtain a ruling merely to keep the objection alive. The opposing party may instead seek a hearing if it wants the court to resolve the dispute.
That does not eliminate other procedural requirements governing proper and timely discovery objections, but Rule 193.4 itself does not require the objecting party to obtain a ruling merely to preserve the objection.
The Rule Contains Another Important Trap: You May Not Be Able to Use What You Withheld
Rule 193.4(c) contains a provision that can become strategically significant at trial.
It states:
“A party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege”
without timely amending or supplementing the discovery response.
That restriction applies even when the privilege claim was sustained by the court.
Consider the practical problem.
A party possesses a helpful document but withholds it during discovery as privileged. Later, that same party decides the document would be extremely useful at trial.
Rule 193.4 prevents a party from simply keeping evidence hidden during discovery and then unexpectedly using it when advantageous.
The discovery response must be properly amended or supplemented before the material can be used.
How Does Rule 193.4 Relate to a Privilege Log?
Rule 193.4 should be read together with Rule 193.3.
Rule 193.3 establishes procedures for withholding privileged material and, under certain circumstances, requires the withholding party to provide enough information about the withheld material for other parties to assess the privilege claim.
Rule 193.4 then provides the mechanism for obtaining a judicial determination when the parties continue to disagree.
The distinction is useful:
Rule 193.3 concerns asserting and identifying the privilege. Rule 193.4 concerns litigating whether the objection or privilege should be sustained.
What About Accidentally Produced Privileged Documents?
Texas discovery rules also address inadvertent production.
Rule 193.3(d) provides a mechanism through which a party who unintentionally produces privileged material may assert the privilege after discovering the mistake. The rule generally requires the producing party to amend its response within 10 days after actually discovering the inadvertent production, unless the court orders a shorter period.
When the procedure is properly invoked, the party who obtained the material must promptly return the specified material and copies pending a court ruling denying the privilege.
This is sometimes called a clawback procedure.
It is another reason discovery involving large quantities of emails and electronic documents requires careful attention. Accidentally clicking “produce” does not necessarily destroy a privilege, but the rules impose procedures that should not be ignored.
Example: A Disputed Email Chain
Suppose a plaintiff requests:
“All communications concerning the decision to terminate the contract.”
The defendant identifies responsive emails but withholds several communications involving its lawyer and asserts attorney-client privilege.
The plaintiff believes some of those emails involved ordinary business discussions rather than requests for or provision of legal advice.
The dispute could proceed through the Rule 193 framework.
The plaintiff may challenge the privilege claim and request a hearing. The defendant may need to present evidence establishing the basis for the claimed privilege. If necessary, the judge can privately review the disputed emails in camera.
The judge might conclude that some communications are privileged while others are discoverable.
Rule 193.4(b) accommodates precisely that result because the court's ruling operates “to the extent” the objection or privilege is sustained or overruled.
Discovery disputes therefore do not always produce an all-or-nothing answer.
Why Rule 193.4 Matters in Texas Civil Litigation
Discovery objections can sometimes look like boilerplate exchanged between lawyers.
They should not always be treated that way.
A discovery dispute may determine whether a party obtains the email, accounting record, internal memorandum, photograph, or other evidence necessary to prove a claim or defense.
Rule 193.4 establishes the procedure through which those disagreements can move from words written in discovery responses to an actual judicial determination.
For Texas litigants, the important lessons are straightforward:
- an objection does not necessarily end the discovery dispute;
- the party asserting an objection or privilege may need evidence to support it;
- affidavits used as evidence generally must be served at least seven days before the hearing;
- a court may privately review disputed material in camera;
- an overruled objection generally results in a production obligation within 30 days or another time ordered by the court; and
- evidence withheld as privileged generally cannot later be used at a hearing or trial without timely amendment or supplementation.
Those details can matter enormously in a document-heavy lawsuit.
A discovery objection may occupy only one sentence in a written response.
Texas Rule of Civil Procedure 193.4 determines what happens when somebody forces the court to decide whether that sentence is actually correct.
This article provides general information about Texas civil procedure and is not legal advice. Discovery disputes can involve additional procedural rules, evidentiary privileges, court orders, and case-specific considerations.
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