Successful Mandamus Addresses Actual Notice Requirement in Rule 193.7
Aug 31, 2022
Austin attorneys Bill Mennucci and Elizabeth Brabb were granted Mandamus relief, with the Thirteenth Court of Appeals holding that the trial court abused its discretion and left their client, Ford Motor Company, without an adequate remedy on appeal after the court ordered Ford Motor Company to admit or object to the authenticity of tens of thousands of documents without actual notice from the Plaintiff of the documents intended for use.
This opinion will have far-reaching implications as this is the only Texas appellate court to date to directly address interpretation of the “actual notice” requirement of Texas Rule of Civil Procedure 193.7, governing the self-authentication of documents produced in discovery.
The case began as a personal injury product liability matter where the Plaintiff’s original petition included a purported Rule 193.7 Notice providing that “any and all documents and materials produced in response to written discovery may be used as evidence . . . at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating the document and/or materials produced in discovery.”
Ford Motor Company objected to Plaintiff’s attempted notice, arguing that Plaintiff’s blanket, nonspecific “notice” was in violation of both the spirit and letter of the law and did not constitute “actual notice” of which document(s) “will be used” as required by Rule 193.7. After the trial court granted Plaintiff’s Motion to Compel, overruling Ford Motor Company’s objection, Ford Motor Company filed a Petition for Writ of Mandamus.
Rule 193.7 provides that “[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—within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used—the party objects to the authenticity of the document, or any part of it, stating the specific basis for objection.”
Applying the rules of statutory construction, the Court of Appeals held that a blanket, nonspecific designation of all documents produced and purported notice of potential use does not comply with the plain language of Rule 193.7.
The Court explained that the rule’s use of the terms “actual notice” and “will be used” have meaning and are not inconsequential, and those terms “do not contemplate a preemptive and prophylactic notice regarding self-authentication of ‘any and all’ documents produced that ‘may’ be used at a pretrial hearing or at trial.”