Discovery Control Plans in Divorce Cases

What is a Discovery Control Plan? 

Three levels of “Discovery Plans” are found under Texas Rules of Civil Procedure Rules 190.2-190.4. Each section has its own requirements for who falls under what level and how discovery will be organized and completed. In order to get a better understanding of what a “Discovery Control Plan” is, we will discuss three pertinent questions about them: (1) What are they?; (2) Why?, and; (3) How do they work?

What Are Discovery Control Plans?

In order to get a better understanding of what a discovery control plan is, let us briefly discuss discovery. Discovery is a procedure where all the relevant information is exchanged between the parties in order to provide a fair trial to both sides. It just lays out the information either party has, so that everyone understands the facts of the case and is able to present an informed case in court.

From what we now know about discovery, we can discern that a discovery control plan is how discovery will be organized and conducted within a divorce. It takes the broad concept of discovery and reigns it into a particular situation for individual parties. The process is meant to make a very complicated process simpler and more predictable for those involved, and for the most part, it accomplishes its goals.

Why the Levels?

There are three levels of discovery plans in Texas and they are all governed by the Texas Rules of Civil Procedure. It can be done by the parties under rules 190.2 or 190.3 or it can be done by court order under rule 190.4. To sum it up for you, the levels were established to further organize the proceedings. A single discovery plan for all divorce proceedings may be unfair to a lot of people because divorce can be a time consuming and difficult process for everyone involved. Amount of assets the parties have is one example of why levels are necessary and helpful. They are so helpful that amount of assets is a prerequisite in the first two levels. Most people have more than $50,000 in assets, but for those who have less than that, the division of assets is likely to be a whole lot less time consuming than for a divorce including $10 million worth of assets. Shouldn’t there be an easier route for parties in that situation? Yes, and there is under level one.

For parties that have over $10 million, it might be a good idea to go with a level three plan although they technically do not have to do so) because the division of assets might be more difficult and require some modifications to the discovery process.

How Do They Work?

Most divorce proceedings take place under level two because it is the “catchall” level. Whatever does not fit into level one or level three, falls necessarily into level two. For practical reasons it occurs this way. Usually a divorce involves more money and assets than the $50,000 limit set by level one or it involves children (or both), so it has to go to level two or three. But a level three plan is usually tailored to specific circumstances of the case that require modifications to either a level one or two plan. So, most plans fall into level two sort of naturally. Level three plans are tailored to the circumstances of the particular suit. Rule 190.4(a). They are issued by a court when either party makes a motion, or when the court deems it necessary. Effectively this means that the parties can submit an agreed order for the court to consider, but the court can modify the agreement if it sees fit to do so. Id. The Court can do this because it is within the Court’s discretion to do so. Id.