Hunter Lewis | Practical Discovery Tips for Family Lawyers

We’re excited to welcome Hunter Lewis to the “Texas Family Law Insiders” podcast. Hunter is a Partner at Duffee + Eitzen, LLP, and is the Chair of the Family Law Section of the Dallas Bar Association. 

Today we are talking to Hunter about the Discovery process including:

  • The new discovery rules in Texas family law
  • How and when to use different discovery tools
  • Avoiding abusive discovery tactics
  • And more

Mentioned in this episode:


Hunter: I like to remind my clients, there’s a chance that the other side knows nothing about nothing. No matter what your opinion is on them. They really may know nothing about nothing and they’re entitled to discover.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited to welcome Hunter Lewis today as our guest on the Texas Family Law Insiders podcast. Hunter is a partner at the Dallas based law firm of Duffee and Eitzen. He graduated from Baylor University School of Law in 2010. And he’s an experienced Family Law litigator and appellate attorney. He’s active in local and statewide Family Law organizations and holds multiple leadership positions. Hunter is the chair of the Family Law Section of the Dallas Bar Association, and serves on the legislative bill review and auction committees for the Texas Family Law foundation. He’s also on the mock trial committee of the Dallas association of young lawyers. He has repeatedly been selected as a Texas super lawyer and the best lawyers in America is a member of the National Advocates top 40, under 40. And has been recognized by D Magazine as one of the best lawyers under 40. Thank you so much for joining us today.

Hunter: Well, Holly, thank you for that wonderful introduction as well, a mouthful and things coming out. But I really appreciate you having me.

Holly: All right. So why don’t you tell us a bit about how you got started in family law?

Hunter: Sure. Well, I would say it’s a little known fact, but it’s probably not a little known fact that one of your first guests on your podcast was my mother Marilea Lewis, who was a judge in the family law district courts in Dallas County for many years. It’s funny, I actually I went to law school thinking that I wanted to practice some area of litigation, but never wanted to practice Family Law, right, you don’t really want to fall in what your family does. And my mother, I had heard all of the stories and hurt for all of the war room stories of practice before that, and I just really wasn’t certain that was for me. And I’ll tell you, I actually in law school, I started working for a family law firm that also had a criminal section. And I’m very quickly realized that criminal that’s absolutely not for me, I didn’t like the blood, although now I found that in family law, there is also worked with a firm that handled bankruptcy and trusts and estates.

Again, a fascinating subject, but really wasn’t for me. My heart was in it for meeting people and meeting them where they are needs work and being able to help their families and see how we can really, you know, effectuate the practice of law for those in need. And I think the really cool thing about family law is that we’re able to, you know, really jump in and see the, you know, results of what we’ve been working so hard on very quickly, and also deal with real people. So I kind of fell into it, actually, my background was I was studying to be a performer. I actually thought I wanted to pursue a theater career. And again, it just translated very easily into a litigation heavy career. And I guess the stars aligned. I’m not sure if that’s what you call the practice of family law, but the stars aligned in family law, and I ended up in a practice that I just adore.

Holly: So can you describe your current practice?

Hunter: Oh sure. Sure. So right now I’m a partner as he said at Duffee and Eitzen and I would say about 90% of my practice is strictly Family Law litigation. That’s across the board being litigation in suits defecting and paternity suits and divorce actions, and enforcement’s modifications, etc. I also do a lot of drafting on premarital and post marital agreements. I have about a 10% of my practice is reserved for appeals. I’m actually somewhat phasing that out, but I do enjoy it. And I will take the occasional appeal at this point. Overall, I think my practice is just a general litigation practice in the family law. So really, any family law matters that come to the table.

You know, I’ll dabble in some estate planning. I’ll dabble in some trusts and some wills. But overall, it’s really just more of a general family law practice. I’ve actually recently started to try to focus my practice more so on the litigation side specifically. There was a big push when I first started practicing over 10 years ago for alternative dispute resolution. And I love ADR. I also love the fact that there are people out there who are much better at it than myself. And specifically with regards to Collaborative Law, which has been kind of growing again, I’ve really seen an uptick in Collaborative Law. I don’t handle those types of cases. There are those that my firm I’m considering getting trained, but overall, I’m much more litigation strong, and I would say the majority of my practice is sold in litigation.

Holly: So why are you phasing out your appellate practice?

Hunter: Well, several reasons. One, honestly, the work it takes to build an appellate practice. And I know you’re aware of that, as some of your cases have been incredible as of late, really the work it takes to focus on an appellate brief dealing with the just the issues involved in an appellate practice, it really does take away from litigation, heavy practice. I think it really can cause me to devote too much time in one area. And I think with my caseload right now, and with the types of cases I’m bringing in, I would much more prefer to focus on the trial court level, and leave the briefing and the research and the tireless hours to wonderful people like yourself, who loves that type of work, and I think really have a passion for it.

Interestingly, I always tell people, there are two reasons why I got into law, I didn’t want to do math, which unfortunately, we end up doing everyday with child support. And I didn’t really want to write a lot, because I thought that a litigation practice would be much more litigation heavy, and less motion practice heavy. I have since learned that is not the case. But appellate side of things, absolutely. is much more writing heavy and truthfully, again, for the way I would like things to come out. And for the time it takes I would just prefer I think more to stick with the litigation side.

Holly: I completely understand that. So speaking of litigation, today, we’re going to talk about every Family Lawyer’s favorite part of litigation, discovery.

Hunter: Absolutely. Can we can we use favorite in quotations?

Holly: Yes, yes. So we all know that there are new mandatory disclosure rules that went into effect January 1 of 2021. In your opinion, how has that changed traditional discovery practice?

Hunter: Well, I think it’s changed it in a lot of ways. There, again, being newer rules, there are several things that have changed with it. And you’re kind of seeing a lot of pushback, I would say, and I’m not sure if you’re seeing that your practice. But I absolutely am seeing that in mind. And I’m probably one of those that is pushing you back to be perfectly honest, with regards to a lot of the new discovery rules. Right now with the new discovery rules require that there be mandatory initial disclosures and production 30 days after the answer date. Which is essentially could be as quick as you know, if the answer is filed quickly, and you know, the answer is coming, could be as quick as 60 days into your case.

The issue I take with that is you have so much evidence that you would need to spend time building especially in cases such as ours, like a divorce suit, or a modification suit, that genuinely you would have an idea of what is there but the new disclosure rules require a significant amount of information, that information being two years worth of financial records. Significant amount of documents and or outlines of where those documents are found, and what those documents signify. Additional disclosures concerning experts and concerning who your witnesses will be that trial. Things like that, that maybe aren’t things that have been fully, I guess, examined upfront when filing a suit, I’ll tell you kind of the general practice, or at least what I see a lot of my practices.

When a client comes in the door, a client’s not coming in the door to say, hey, I’ve been planning this for six years, here’s the six years worth of information. Let me just hand you all of this information. My spouse has no idea but stockpiling 1000s of documents, right? They come in, and a lot of times they come in and say I don’t know what to expect, I need you because I need you to direct me in terms of what my options are, what a resolution could be what the law requires, and how we can get through this. A lot of times they say by agreement, it’s never by agreement. Get through these matters as expeditiously and cost efficiently as possible. And I think the new disclosure rules, while I would agree that they could allow for that. I think that requiring that much information upfront is really hurting the discovery practice, because it almost requires you to divulge information that may not be relevant to your case.

And obviously in discovery, relevance is not necessarily the standard standard is likely to lead to discuss information that is admissible, right? So again, it’s just requiring a lot more workup that may not be necessary in all cases. And part of the pushback I said, there are those like myself that are pushing back. A lot of my initial work I’m doing now with a lot of cases as I’m sending a request to attorneys that are on the other side that we actually stay under the old discovery rules. The reason for that is I believe it allows us to not only advanced amicably and without the need to exchange the information as quickly as the statute requires. It also allows us to narrowly tailor the focus of the state, say the parties do come in and say, hey, I have everything resolved in terms of financial issues.

We don’t have anything. Or we have a prenup, and it’s done. You’re not required to then produce those documents required under the initial disclosures that the new discovery rules require. And so I do have pushback there. But I also think in some cases, it could be helpful. So you know, the discovery rules are really changing how we strategically plan for divorce. Right. And again, I’m not sure if practices across the board are seeing that still, a lot of my colleagues have told me they are really something that I’m seeing that is on the rise right now in the practice, especially with regards to divorce cases, is people who come in that are starting to do the actual planning side of divorce, right divorce planning, as opposed to wanting to file. I have heard across the board that people are having clients come in who say, well, I’m ready to file, but I would like to file, you know, September 1 of this year to give me six months to plan or, you know, I want to file January 1, so I can have a full year to really get my ducks in a row.

And in those cases, the new disclosure rules actually, really are fairly easy to meet. Because, you know, here I am sitting here with clients who are saying, let’s go ahead and get all this in line, let’s go ahead and do all this. But if we don’t have that, then in my initial consult with clients, I’m now having to say, look, the new disclosure rules require significant evidence upfront, there is going to be a lot of legwork. What possibly could have been a much more financially affordable case, because of the nature of all these documents we have to get through and everything we have to process. Even though I’m going to put a lot of the onus on you as a client, I still think it’s going to increase the cost of your litigation, even if we’re not going to court solely because we have to get these in admissible form, get them in discoverable form so we can produce them, right. So you know, you’re seeing kind of the pros and cons of what it looks like across the board.

Holly: Yeah, in our practice, we are definitely doing a lot of abating the disclosures, at least kicking that down the kicking the can down the road a little bit to see if we can reach agreements or to see if we can narrow the scope of what everybody’s going to be producing to avoid that cost for our clients if it’s not really necessary.

Hunter: Well, let me ask you this something I’m seeing and I’m kind of curious to hear other people’s practices, I’m seeing kind of across the board have split, some people are actually including in their initial petitions, actual disclosure language, that may not necessarily be required by statute. I don’t necessarily think you have to serve that on somebody. But I’m curious as to if you have specific language, you’re kind of seeing you’re including. I think people include specific disclosure language, and then even include additional pages on their petition. Let’s say, here’s an outline of what you have to produce. And here is, you know, what we would like, have you seen kind of a trend and that being a newer practice as well?

Holly: I haven’t seen it on the petition side. But whenever we’re dealing with somebody who’s going to be pro se, or we’re looking at giving a waiver of service to someone we are including language about they understand that there are these disclosure rules and that deadlines are going to be triggered by the filing of this waiver. I think it’s a little bit of a gray, you know, you don’t want to get too far down the path of giving legal advice to the other side. But at the same time, you want to make sure they know they need to do this, and you want the information.

Hunter: Right, right. Well, I’ll tell you actually interesting that you brought up the waiver. So when I send a form letter now to a pro se or really anyone I’m serving, but isn’t representative at the time with my form waiver, because I have a form letter that just says, Hey, I’m Hunter, I’ve been hired, and I’m serving you. And here are the documents, you know, that you were being served with. Sign the waiver and return it included in my waiver language. I’m actually including language in the waiver that says I waive the required disclosures and actually agree to fall back under the old discovery rules or abate discovery until such time as both parties get nervous or whatever the case may be. So I’m actually including that in my general waiver of service as well.

Holly: Sometimes we don’t necessarily want to abate it, especially our client doesn’t have a lot of financial information. So we want to make sure that other side is going to cooperate and get us those documents as quickly as possible.

Hunter: Well, and as you know, everybody cooperates with discovery, right?

Holly: Always. So outside of these mandatory disclosures, what other tools are in your discovery toolbox that you like to use on a regular basis?

Hunter: Well, I have several. And interestingly, there are some that I think are used as efficiently as they could be. One of those is a request for inspection of property. A lot of times people come to me and say, especially in a modification or in a divorce, with children, that they’re separated and so they would like to understand, you know, kind of the living environment of what’s happening at the other house. They’ve possibly never been inside, they’ve only been there for purposes of pickups and drop offs. And maybe not even that much. Maybe they’re doing pickups and drop offs just at school. And I’ve never actually seen the other side’s house at all. But in passing, right.

A lot of times what I like to do, as I like to do a request for inspection of property, and actually set a date for my client to go over and take pictures, just for purposes of one evidencing the safety and the nature of the property itself, but two it helps them with regards to inventorying and property if the parties have them split. Obviously, if the parties have been split and they’re in a divorce, there still could be community property located in one or both houses or residences. And so it’s good to have a visual representation of what that is. I mean, the number of times I’ve had people come to me and say, well, I have by way of example, I had a case in another county that the other side came in and said, well, I left $90,000 in cash in the house.

Well, where was it? It’s not there anymore. What do you do in that circumstance? Right? Well, part of that could be, go do an inspection of property and see if possibly, it was left in a safe and if the safe is still intact, and still there in and unopened, right. I really like that one, and you don’t see it often. And I really think it could be used more professionally than it is. Obviously, the request for disclosure we use often. I really like interrogatories. Interrogatories is again or underutilized. Interrogatories, you could ask up to a certain number of questions depending on which discovery level you’re in. But there is a caveat in the rule thatI think a lot of people don’t know.

And this is something that helps hands down in a lot of discovery. If you think that a case could possibly be won on summary judgment, or you think that there’s evidence that absolutely could be admissible in your suit, but you’re unsure if you can authenticate it. Interrogatories are actually allowed for purposes of authentication, for an indefinite number. Meaning I could send hundreds of interrogatories if I wanted to, just for purposes of authentication. And generally speaking, I really don’t see that used a lot either. And I use it really to help not only receive information, but also use the information I have to benefit my client.

Holly: So when you’re using interrogatories to authenticate something, can you explain what the interrogatory looks like? And then how you use it to authenticate the document as an exhibit or to use it in court?

Hunter: Sure. So for purposes of asking those questions, it’s funny, again, in motion practice, especially with summary judgments, a lot of times the same standard for authentication and a summary judgment affidavit, ie just laying the proper predicate is something you want to show him interrogatory. So generally speaking, in an interrogatory, what I do is I have the appropriate predicate for you know, by way of example a business record. Say it’s a record that the other parties had kept in their possession, like a financial record that I maybe can’t authenticate from the bank. So I’d like them to authenticate as their own business records.

Well, I would word a business record predicate as applicable to the receiving or responding party and discovering, and just lay out the appropriate predicate. The same thing is true a lot of times with pictures, and I think pictures are the one I use it most on. By way of example, you send a picture over and say, Is this a true and correct copy? Is this a fair representation or feeding fair and accurate representation? At the time and date this picture was taken? I specifically would say, you know, on January 1, 2021, is this what the kid’s bedroom looks like? Right? Is this what the kid’s closet looked like? Is this what your kitchen looked like? Showing you have no food, you know, things like that. And a lot of those actually, kind of go back to that request for inspection, the property that I said, right? Did you send someone over to take pictures of the property?

And then they’re going to say, Oh, no, no, the property didn’t really look like that. Go ahead and avoid all of that drama. I have heard that. I know, we’ll get into it later, I have heard countless arguments as to how the pictures don’t represent what actually the scene looks like, or how we have in some way tried to doctor pictures, which is funny, you know, when you hear those things, they’re like, it’s funny, you say that because as a lawyer, we’re still just learning how to learn to use zoom. I can barely, you know, I could barely Photoshop a background into the zoom presentation, let alone like Photoshop something into someone’s bank, statement right. And I know there are people out there that are very technologically savvy, but it’s always funny to me when people say things like that because we just don’t know how to do that.

Holly: So then you get the other side to respond to their interrogatory and say yes, you know, it’s true and accurate representation of the room and it was taken on about this day and I took the picture etc. When you turn around and use that exhibit in court, are you able to get it in through your client or you have to get it in through that party and then you’re using the interrogatories as kind of a of impeaching them, if they change their tune? How do you do that?

Hunter: I generally actually get it in through my client by virtue of this is what was received. And here’s a sworn copy. Meaning if I have the sworn signature page on the interrogatory, of what was received, do you recognize the signature as the signature of your spouse or significant other? Did you come to become familiar with it, you know, through the course of your living together, seeing that person sign checks, etc, I generally can get it in through my clients, if the other side is going to be testifying longer. And we look like we’re on time limits, I can get it in through them too. But really, it’s something that you can get in for both parties. I truly think, because I with the actual appropriate knowledge, it’s either going to be an admission by a party opponent at some level, or it’s going to be a document that the other party is going to start to. So I think we get it both ways.

Holly: Do you find that opposing attorneys are usually then willing to stipulate to the administrator the authentication of certain exhibits if you have gone through those steps in advance?

Hunter: You know, I would like to say yes. I always want to say that attorneys are easy to work with. But for any number of reasons, a lot of times we see in litigation, that’s still with that in place. Attorneys aren’t willing to stipulate. And you know, there are reasons you sometimes wouldn’t be willing to stipulate it could be a timing thing. It could be, you know, any number of reasons. Right. But I would like to say that overall, yes. If I have the full formal predicate laid out in a sworn statement from the other side, but yes, overall, I do generally get agreements. Like I said, again, it really depends on what you’re using it for, right? If it’s something that is so prejudicial, you could raise all sorts of other objections anyway. And sometimes it is, right, it just depends on what the nature of the exhibit is, what the nature of the disclosure actually was, or to be in response to the interrogatory was.

Holly: Alright, so do you have other tools that we haven’t talked about that you are a little bit unique, or that you really like to use in discovery?

Hunter: So one thing I really do like to use, and I’m actually presented with Judge Emily Miskel on this before is a lot of discovery geared towards electronically stored information, specifically with requests for production. I think now we are in a place where everything is virtual, or at least the majority of it is. And so understanding kind of the ins and outs of how you get to electronically stored information, is something that I think is important for all practitioners. I will say that there are great articles out there. And in fact, Judge Miskel herself wrote a great article as of late concerning how you get to a lot of information, specifically from social media platforms. And man, that is a gold bank, if you can get to it, right. Some of the stuff you get from, from Facebook and from Instagram. It’s just it’s invaluable.

But there are pleading requirements, there are things that I think are important. And I think it’s kind of a crossover from what I use to discovering what to use in pleadings. It’s important to remember that a lot of times by way of example, mental health records, right, for purposes of obtaining mental health records and discovery, your pleadings have to support the need for that on a relevance level. And so if you have pled for the parties being joined, managing conservators and everything’s hunky dory, why then would a court allow you to get to mental health records, if you haven’t really been for it? So what I do is, before I even get to step two of discovery, I start with step one, which is making sure my pleadings aligned with what my client is saying and the needs of my case moving forward.

Because you know, how many times do you have clients come in that say, I would actually love to have her or his mental health history? Because I know there were some issues in the past, I would love to have their medication history, there are issues in the past. Okay, well, if your pleadings don’t align with that, and you’re suggesting that these parties are fine, it’s just going to be who’s going to be primary, but it’s a toss up for JMC and we’re good, you’re probably not going to get there with a core. So that is something that I do is I have standard pleadings that I actually use that kind of comports or conform to what my requirements are in discovery. And then in discovery, I then make sure that I have specifically requested and narrowly tailored requests for that information.

Again, electronically stored information is absolutely the best. With that, though. I can’t tell you the number of people who asked me and I’m sure you probably get this question, too, of how do you get information on the electronic side from third party providers by way of, you know, a third party subpoena. By way of trying to reach out to, you know, financial institution, things like that. A lot of those rules are very, very strict with regards to what the compliances and so I think that one of the other evidentiary tools for purposes of discovery that I am very cautious about but I do use frequently is third party subpoenas and the actual notice requirements in third party subpoenas right. Obtaining third party discovery, you see it done incorrectly more times than correct.

Across the board the number of times I’ve had to file a motion to quash or file some kind of response to the answer when, by way of example, someone has served a third party some discovery request, and didn’t copy me on it. And then they did show up in discovery say, oh, by the way, the bank gave me three years worth of statements. I didn’t copy you on, you know, the Notice of Intent to issue a subpoena, or I didn’t copy you on this subpoena? Well, the rules specifically require that, right. And because of that, there could be an evidentiary exclusion. So it’s just understanding really going to the text of the rules itself, and then understanding all of these available discovery avenues for you to get information.

Holly: What about who do you think about depositions? I would they’re discovery tool that I really think only a small handful of lawyers use very much. And many Family Lawyers rarely, if ever do them. And most often, it’s only if they come up against the handful of lawyers who use them all the time. So what are your thoughts on using depositions in family law cases?

Hunter: You know, I would definitely not qualify myself as one that uses them all the time. I think they are very fruitful. But in certain circumstances. A lot of times when I’m taking depositions, I am taking depositions from either executives at businesses that maybe have some, I guess, component or tie to the case, ie husband’s boss is going to testify to, you know, the benefits received in the ownership and the business, things like that. Some of that information, you may not structurally be able to determine by way of actual written discovery, meaning you can’t discover it by the documents themselves.

But a lot of times I find the discovery here to be that depositions are really helpful in circumstances where you’re going to trial, and you just don’t think you have received enough discovery from the other party. What I like to say is, I like to say if I have reviewed everything the other party has produced, and then believe that they can support their pleadings and support their position. I don’t necessarily need a deposition. But if I’m going to trial, and I, you know, I have 200 documents from the other side, they’re really not producing a lot else. We could drag this thing on and on. But we have, you know, a trial setting in the next 45 days or so, I may ask for a quick deposition, just like you get some of those answers that we haven’t been able to fully flesh out by virtue of written discovery.

So I think that’s a good tool. I also think there are times where there may be available witnesses out of state that are outside of subpoena range, that you may be able to coordinate by way of letters rogatory, and taking some form of either deposition on written questions or depositions themselves. But I’ll tell you, again, as Family Lawyers and litigators like we both are, you’ve seen just as I have the number of times, just as when a witnesses on the stand, and they become non responsive and argumentative, and really don’t want to answer a question. I find that trying to control a witness in a non courtroom environment, you probably get a little more of that, right. I mean, that’s the biggest issue I see with depositions is you’re sitting there and it’s herself, your client, the deponent. And that the other side, there’s no judge there to rule on objections.

And so the issue you have is, say they’re making lots of objections, or even instructing their client not to answer certain questions. What are you going to do? Okay, I’m going to suspend the deposition and run the court and get to court to rule on this. Okay, great. So you’re basically saying, well, today was a waste? We’re going to have to come back and do it again. Is this as fruitful as we really think it could be? And probably not? Truthfully, you know, again, there have been some great depositions that I’ve taken in my time, but overall, a lot of times, I don’t necessarily see the strongest use for it, if you can get information other way. Other areas.

Holly: I agree completely on that. I know there are some attorneys who they are going to use every minute of that six hours, and they are going to ask so many pointless, irrelevant questions, and they got every issue under the sun just to torture them just to torture the other side. I personally feel like the tool of the deposition is almost most useful in the threat of a deposition, where you know, let’s say we have adultery as a possible issue in a case. And husband would really rather not depose the girlfriend, or if there’s an issue, let’s say the girlfriend is an employee at the same place, the husband is an employee, they probably really really don’t want the boss to be deposed. Or you know, as to be requesting that type of information. So I often use it a lot as a tool to get the other side to negotiate more fair more favorably then actually having to take those depositions.

Hunter: And I definitely don’t disagree with that strategy at all. Because sometimes, you know, again, it kind of goes back to our very first conversation. If you have a reasonable lawyer on the other side, and you’re having those discussions on, well, overall, we could go to mediation and try to resolve this. But if we fail at mediation, I’m going to have to meet, you know, depose girlfriends, two, three, and four, and his mama to see if his mama knew about girlfriends, two, three, and four, and you know, all these things, right? That turns into a much more leveraged position, especially in mediation. And I don’t disagree with that.

But again, the fact that you’re going to prove things, you know, and I think I’ve been doing this long enough to say, when you have somebody who comes in and complains, husband’s been cheating on me for years and years and years. Okay, I understand it’s a tough situation to be in, is that going to give you 100% of the community, estate that you believe you deserve? Not a single situation in which that’s true, there’s just not right. So you’re right, I think it’s more of a more of a settlement leverage than anything else. Because at the end of the day, the fact that somebody entertains six different sexual positions, which I got at deposition isn’t gonna change the fact that did you cheat? Yes, or no? You know, bottom line, right? I mean, it’s worse if it’s in front of the kid, but hey, right.

Holly: So, unfortunately, there are some attorneys who make a habit of engaging in what I would consider to be abusive discovery tactics. And, you know, sometimes it seems like an attempt to strong arm a party into settling. Sometimes it’s an attempt to bleed the opposing party dry. Sometimes it’s just the other attorney’s a jerk, and that’s the way they operate. What do you do if you feel like the attorney on the other side is abusing the discovery process?

Hunter: There are two things I do generally. And I think first it goes back to preparation. You have to know your case before you get involved in your case. And that is something I can tell you the number of lawyers, wonderful lawyers that I call that I say, hey, it’s 10 are just checking in on this case, tell me kind of what your client is thinking. And the number of times I’ve made that call after my client has served and the other side has told me, and I just don’t really know what my client wants, amazes me, but it’s true. I don’t think people take enough time to really build up what their case is, prior to entering litigation, which I think the initial disclosure rules now are really requiring you to do. I would say first to head off abuse of discovery, understand your case, right.

As a lawyer, you want to know what claims you’re making and what claims you can strongly defend. And yes, I understand. Throughout your suit suit, more claims may become available right? You may discover more ways. You may discover more reimbursement claims, you may discover the paramour, you may discover all sorts of things. But at the time of filing, you yourself should know, what are the big takeaways for my client? Does my client have significant significant property? can I prove it? Does my client have an understanding that there may or may not be a large community estate? And or what are the kid issues? And how do we support those. So then when discovery is commencing, you then know how to narrowly tailor not only your responses, but also your objections.

The second step of that is, when you see someone is either serving and an ordinate amount of discovery requests just purely for harassment sake. Say it here. I am one of those that I would say 90% of things can be settled out of court. I really, truly believe they can. But sometimes there are taking what I call ticky tack issues and discovery tends to be one of them. Where if somebody has served in an ordinate amount of discovery requests and thinks they really need all of this overtly harassing discovery, you’re not going to change their minds, you’re not going to be able to call the winner and say you just served me 700 requests to production, could you withdraw 650? Right, they’re probably not going to do it, nor would their client be happy that they just build them for all this discovery. And then you’re saying, oh, you know what, let’s take it off the table. So I say is, I’ll say, you go ahead and wait your 30 days, or whenever you make your response for discovery. And then you go ahead and set a hearing on your requests and the discovery.

And what I mean by that is, say you have 700 requests for production. In those requests, I can almost guarantee you there’ll be things that require a protective order, and if nothing else, it’s probably going to require a protective order for purposes of harassing discovery, right, which you’re allowed to seek. Go ahead and get that on the docket, because we need to nip those things in the bud. Otherwise, you’re going to end up in a six month back and forth of peace that she said they’re not producing, they are producing there may be producing, hey, let’s wait another month and see if they do produce right. Don’t waste your client’s time and money doing that. Just get it set for hearing. Because if nothing else, you can bump the hearing if you really get what you want. We’re taking off right but that’s going to hold the other lawyers feet to the fire and show them you’re serious.

But at the same time, it’s also going to get you to an end result much quicker than hopefully mutual discussions continuously on discovery. Which really does tend to be, especially for larger estates or kid issues to have significant issues tends to be what happens a lot of times in litigation. I mean, more of our I can say, more of our conversations, unless there are truly exigent or emergency type circumstances in these cases, revolve around hey, you didn’t give me what I asked for. Hey, I’m gonna need you to prove this claim. So I can talk rationally with my client about it, hey, I need all this information to get to mediation. Yeah, all of that could be headed up by a quick compel hearing or hearing on a motion for protective order. You know, as soon as discovery comes back.

Holly: Of course, judges always say they don’t like to deal with discovery disputes. And so you know, you hesitate to file the motion to compel order motion of a protective order, because you don’t want to make judge mad to you, and get the judge against you in the case. But you know, and the other frustrating thing is that, let’s say, for example, I had a case where the prior order required mediation before serving discovery. The other side serves discovery, refuses to abate it until we mediate. So now I have to go file a motion protective order, have a hearing on that, but I might not be able to get a hearing before the deadline. So then you have to object and go through that whole process of responding, because you haven’t been able to get in court quickly enough.

Hunter: Right. And obviously, we’re especially in COVID times with our Zoom situation, you are seeing that now. Courts are starting to fill back up. But it’s still challenging to get a setting because the courts have, you know, such backlog on their dockets for the you know, several weeks, if not months, we didn’t necessarily have hearings, and they were trying to figure it out. So I don’t disagree with you. And especially with regards to knowing your judge, right? Know, if your judge is one of those that is comfortable. There are some judges that are more comfortable ruling on discovery issues than not. But again, the problem I take with that is that you kind of have to draw that line in the sand.

Of, at what point is this detrimental to my client financially to continue communications and continue trying to negotiate when the end game is not there? And you and I both know, unfortunately, there are lawyers out there who just aren’t reasonable, or just like to play hardball or whatever, you know, whatever term they’re using, at that day. Maybe they’re just what does the term everyone uses for being as zealot, zealous advocate? Like there’s a difference between being a zealous advocate, and just stirring the pot and creating work that is unnecessary. There really is right. So again, you have to manage a case by case. But I think really understanding the nature of getting before the court quickly to nip that in the bud.

Truthfully, I have seen that work a lot better than not, you know, if the case has finances, you obviously could agree to a discovery master or someone to control those circumstances. You also could agree to, I guess, a special charge to sit in that place, and have a special judge rules purely on discovery type issues, you know, again, 95% of our cases can’t afford that. Right. And in a perfect world, it’d be great if we could, but we can. And so I think that really is the nature of how we do that. But I would caution practitioners, and I think he probably went to I don’t use generally speaking, I don’t use sanctions often. And I think that is something that I do see all too frequent, is that a lot of times the initial response, I mean, I’ve seen even just initial responses to motion to modify is deny, dismiss sanctions, right on discovery. This is an abuse of discovery sanctions. Well, I wouldn’t go so far as saying it’s sanctionable to abuse discovery. I would go so far as to say if someone has served you what he believed to be harassing discovery, get the court to tailor it.

And then if they continue with it, then that might be evidence of abuse, you know, abuse of discovery, right? You don’t ever really know what the other side’s true intention is. And that’s really what I like reminding all of my clients is the fact that someone’s served 200 requests for production, it could just be they absolutely have no clue about anything. You know, I like to remind my clients, there’s a chance that the other side knows nothing about nothing, no matter what your opinion is on them, they really may know nothing about nothing, and they’re entitled to discover. Right. So I think for me, like I said, I think it’s a we don’t jump to conclusions quickly. But you go ahead and get it before the court so you can nip those issues in the bud if you need to.

Holly: Yeah, I agree. 100% on sanctions. It’s, I’m personally offended when the other side throws that out there. I feel like it’s an attack on my integrity as an attorney and my professionalism. And so I am very hesitant to throw that out against other attorneys even though there are certainly times when I have when I consider it. But I could probably count on blood, you know, two fingers the number of times I’ve actually requested sanctions against another attorney. And it’s because the whatever they’ve done is so egregious that there isn’t any other way to deal with it.

Hunter: Agreed. And you know what? It’s unfortunate because sometimes, sometimes the discovery is that abusive. I had someone tell me the other day that they believed that for purposes of a deposition, they could depose my client for an in basically an indefinite period of time solely to ask discovery questions, and it doesn’t count towards their six hours of deposition time. And, you know, again, I’m looking at it like, okay, well, if you would just provide me the rule that you are referencing, I can evaluate that. And obviously, there’s just no response and the continued threat, right. And in circumstances like that, where I want to say, you know, it’s really not a rule.

And if there were a rule, you could provide this to me in discovery. But if we’re going down this path, again, what can I do? Well, I don’t certainly don’t want to get to a deposition and sit there for hours and hours, then have to leave and get all sorts of crazy objections. And, you know, dealing with that and wasting my money, or my client’s money and my time, I would rather have the court go ahead and cut it off. And if you know, served with a notice on something like that, I would set it really quickly, right.

So there are cases where some of that really is unfounded, and it’s not unheard of, and I’m sure in your practice, you’ve seen it too. It’s not unheard of to have things come across, you’re like, man, I didn’t think that was a thing. I was uncertain that was that area of law then you look it up and you’re like, nope, I was right. It really wasn’t. You know, and even so far as the biggest thing I see with discovery, and and i’m not sure i would say it’s necessarily a discovery of us is, unfortunately, I see a lot of times where lawyers are very, very quick to get discovery out, and they don’t read their discovery. And so there are so many typographical errors and errors, actually, in the form of discovery that they made, or asking for the wrong thing, or I mean, I mean, I’ve seen things where lawyers asked for different clients, you know, information for their client, John Smith, and this is Susie Q, you know, like that has no relevance whatsoever. Right?

So things like that. But like you said, in circumstances like that, if you’re in a situation where the lawyer did that, I agree. I think lawyers should just be able to call and say, hey, look, let’s talk about your discovery real quick. Do you want to try again? Because I can tell you in 30 days, my response is going to be, we don’t have anything responsive, because this was done poorly, this procedure was done incorrect you know, whatever the case may be right. Instead of doing that, and embarrassing you in front of your client, why don’t you just try again, right?

Holly: Yeah, I see that a lot where it’s like, did your paralegal prepare this and you didn’t look at it, and it just got sent out. And these are all strict form questions that are not relevant to our case whatsoever. I like that. Next time it happens, I’m going to call the other side up and say, do you want to try again?

Hunter: Writing. Listen, I for whatever reason, right? For whatever reason, that happened, I don’t want to blame a lawyer or a paralegal or whatever the case may be. But there’s also, you know, there is such gamesmanship. I mean, because there are definitely lawyers out there that would then see that and then wait 30 days and send the response and give you nothing saying you did it incorrectly. I can tell you just as much as courts hate seeing people use discovery as an abuse with like, you know, innumerable amounts of production requests, etc. They also don’t like that kind of ticky tack stuff, either, right?

They don’t like you playing these. Oh, well, you spelled John Smith’s, name with two h’s. So that’s not the right John Smith. So I’m not producing anything in response to discovery, right? I’ve seen lawyers do that. Courts are not gonna love that. They’re just not. Right. And do you really want to stand there with a smile on your face in front of a judge and say, oh, they misspelled my clients name in 100 requests. They get nothing. Right. You know, I don’t I don’t think any lawyer wants to stand there and do that.

Holly: So are there any legitimate ways to try and shut down abusive discovery right out of the gates?

Hunter: Well, you know, it just depends, right? Again, it depends on the nature of the case. If you see this case, being something that could lead into abuse of discovery, you know, one of the cases that I see with a lot of abuse of discovery, and I’m not sure if it’s necessarily intentional or not, is long term marriages, when you have parties who have been married for 20 plus years, and so they’re going to need financial statements that really do seem excessive, if you’re like, okay, well, is there truly relevance on this? Is there really, you know, right. I think the first thing you can do is always have that discussion with your opposing party and say or opposing counsel and say, what are the needs of this case? What do you actually need right.

Before you serve me a request for 25 years plus of documents? What do you actually need. And then when you get discovery that you then think is you know, in some way abusive, maybe if you can’t have that conversation, then you still pick up the phone and say, hey, do you really need 25 years of phone records? I can tell you not only do the phone companies not keep it, what are you going to find, but millions of phone numbers? Right? I think that’s probably communication, that’s probably the best way to head it off upfront. But then again, knowing that you have people that aren’t willing to communicate, obviously, for purposes, like I said, of setting a hearing, I think it’s really good to go ahead and pay for your communications.

I think that’s the one thing that a lot of people forget, which is, if you have something that you think is abusive, it’s okay to have that communication, you know, kind of off the record with the lawyer saying, hey, whatever. But I think you do need to put something in writing that says, you know, for our discussion, or even after review of your discovery, I have made note of the following requests, these requests seem to be outside of the scope, would you agree to limit those requests? Or will I need to seek a protective order? And if that’s the case, and they respond and say, No, we really want those documents, and you don’t think they’re relevant, okay? Or they’re not subject to what is needed for the case? Okay. Go ahead and send your responses. But like I said, go ahead and get that backup data of a protective order. So you ask them really, you know, limiting instructions from the court.

Holly: Do you think it’s better to get that protective order on the front end, then to respond to those requests with your objections and wait and see if the other side is really going to push it?

Hunter: I guess it’s just case by case truthfully on that one. Because I, I would like to say that a lot of times, I want to have my protective order upfront, because I can tell you, by way of example, I had a case that I litigated, that lasted 4 years, that really was document heavy, multi, multi million dollar companies, multiples of them. And so we would send over information. And then the information would then lead to more requests, because they said, oh, now we see this, maybe there’s more, right. And there really never was a lot more.

But what couldn’t have been resolved up front by just having the judge say, well, what I believe to be discoverable in this case is and let’s narrowly tailor this. Turned into something like 10, or 12 different full sets of requests for production over the course of a year and a half, two years that had we done that upfront, it may have narrowed the case more. But again, there were reasons in that circumstance that we didn’t do that. But I think overall, looking back, if I had the choice, I probably would have gotten that result upfront, and set that hearing much sooner, because I think at the end, it really would have resolved a lot of those issues instead of continuous discovery battles.

Holly: So we’re just about out of time. But one question I like to ask all of my guests on the podcast is if you could give one piece of advice to young Family Lawyers, what would it be?

Hunter: Oh, well, I think it goes back to kind of the first thing I said, which was just communicate. Someone told me when I started practicing, the best thing to do is pick up the phone. And I will tell you, I live by that. Call the other side, communicate not only with your client, but with the other attorney, you may not like the person, you may have a bad rapport, you may think this person is overly aggressive, whatever the case may be, but trying to have communications. As lawyers were supposed to, you know, really be there for our clients. But it’s not personal between us, right? There is no personal relation to this case, that in any way we should be invested. And it’s a tough lesson to learn.

And it does take years to learn that truthfully, because I can tell you, when I started practicing, I wanted to win every case. And I just wanted to you know, get in court. I wanted to dominate every case, right. But you learn after doing this for a while. But truthfully, we’ve all been there. And we understand that we need to advocate for our client. But there are ways to have communications and ways to move a case long without creating animosity between counsel, especially if there’s animosity between other, you know, parties in the suit. So I would say absolutely communicate number one thing, and also be reasonable, really be reasonable, even with the least amount of experience as a family lawyer, you know, baby lawyer right out of law school, you would very easily understand what the court’s dynamics are. Right.

There are presumptions in law in Texas, that are across the board possession access presumptions, support presumptions. Understand that as a young lawyer, the court you’re in overarching, will probably look at those presumptions. And I say that because there are courts now that are saying they probably have different presumptions that they’re looking at. But I really do think that understanding that if you’re reasonable, and you understand that the courts going to start kind of at a baseline somewhere, again communication and you can get cases solved even in the hardest cases, right? You and I both know and in fact, you don’t have cases that neither one of us thought would really settle and what happens. We settle. And I think a lot of the reasons we settle are because we maintained open communications and we worked well together even if the parties didn’t.

Holly: That’s excellent advice. I agree. 100%. So where can our listeners go if they want to learn more about you?

Hunter: If they want to learn more about me, they can go to our firm website, which is Or they can shoot me an email [email protected]. And I’m always happy to answer questions. As the chair of the Family Law Section, I get questions regularly anyway. And I love being a resource for lawyers, young and old. And I love having resources available to me. I love having people that I can call and ask questions to. So again, I think as part of our practice, really, we should be open about discussing all sorts of matters with everybody. So I am an available resource to anyone who asked questions.

Especially on these new discovery rules, man, I’ve done a lot of research into them. And I have some good ideas about some things you can do to help with some of the new discovery rules. So I’m always happy to answer questions. And you know, such like you right, when I have questions about appellate stuff, I can give you a buzz because let me tell you, knowing, knowing the hard work you’re doing on that side, like I said, as I’m phasing out that part of my practice, that is wonderful having someone like you to say, hey, Holly, by the way.

Holly: Anytime, anytime. Well, thank you so much for joining us. I think there’s tons of great information for all of our listeners. And we’ll have to have you on again sometime because I think you were definitely a wealth of information.

Hunter: Well, I absolutely appreciate Thank you so much. And I would love to come back and I just I cannot thank you enough for including me this and including my mother in this and giving us the opportunity. So I just hope you have a wonderful week. And I look forward to talking to you soon.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle Family Law appellate matters. For more information, visit our website at

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