Thursday, February 01, 2007

Protection from Discovery in Texas Family Law Cases

In general, a party must produce discovery when a proper request is made under the Texas Rules of Civil Procedure. However, sometimes a discovery request may be an undue burden, an unnecessary expense, harassment, annoyance or invasion or personal, constitutional or property rights of a person. In those cases, the person upon whom the request is made (or any other person affected by the request) may file a Motion for Protective Order with the court to prevent the discovery.

The party requesting protection must prove to the court that the need for full discovery of facts is outweighed by the burden of responding to the discovery. In most cases, this is too high of a burden to overcome because our legal system is dependent on the discovery process to allow the facts to come to light at trial. Any request to curb discovery with a protective order is met with skepticism by the judge, so you better make sure you have a very good reason for asking for protection from having to answer the discovery.

A motion for protection should not be used when a legal objection should be made instead. And as with objections, a party can't rely on the protection to keep him from answering any discovery at all. The party must respond to any part of the discovery request which he would not absolutely need to be protected from.

Sometimes a party is not so concerned about the other party knowing information, but they wish the general public from getting the information. This can happen when a public official or famous person is involved in a divorce which may have some embarrassing facts. Or a party may wish to not disclose certain information simply because the information is very confidential, such as corporate trade secrets. They seek protection because they do not wish the information to become part of the public record.

In these instances, instead of seeking a motion for protection, the party would be better off seeking an agreement from the other party that the information will be kept confidential and to request that the file be sealed.