In the Wake of Low v. Henry: Is Pre-Suit Discovery Now a Reality in Texas.

Authors

John G. Lione Jr.
Ryan W. LioneFollow

Abstract

Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The significant portion of the Texas rules mandate an attorney must certify that any pleading or motion signed by him or her is being brought in good faith with sufficient evidentiary support or basis in law. Further, they require the suit not be brought simply to harass the other party or to cause delay or increase litigation costs. Pre-Low, attorneys could make allegations requiring evidentiary support, because attorneys are not expected to have all relevant evidence and information before discovery has begun. Following Low, however, attorneys must know making such allegations expose them to liability via sanctions if the evidence is ultimately not acquired during discovery. While the Texas Supreme Court has moved toward tightening the procedural rules, the Low decision may result in unintended, adverse consequences. It is possible the Court did not intend to further restrict litigation by implementing what amounts to a requirement for pre-suit discovery. The Court’s intention is irrelevant, however, as the requirement now has precedential value. Thus, while the Court may not have intended the cumbersome requirement, attorneys ought now to conduct themselves as though such restrictions were fully intended or else subject themselves to the possibility of sanctions.

Publisher

St. Mary's University School of Law

Recommended Citation

John G. Lione Jr. & Ryan W. Lione, In the Wake of Low v. Henry: Is Pre-Suit Discovery Now a Reality in Texas., 39 St. Mary's L.J. (2008).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol39/iss3/2