Texas Court of Appeals Issues Important Clarification on the Procedure for Self-Authentication under Rule 193.7

January 11 2023| News| | By Jim Bartlett

Texas Rule of Civil Procedure 193.7 sets forth a procedure for self-authentication of documents used against a party which produced them. In summary, the rule provides that documents produced by a party (the “Producing Party”) are self-authenticated for use against the Producing Party unless that party objects in writing or on the record within 10 days (or a shorter or longer period ordered by the court) after the Producing Party “has actual notice that the document will be used.” Since its enactment in 1999, Rule 193.7 has spawned boilerplate, blanket add-ons to petitions and answers, typically to the effect of “you are given notice that any and all documents and materials you produce in this case may be used against you.” However, according to a recent opinion from the Corpus Christi Court of Appeals, this type of notice does not meet the requirements of the rule.

In re Ford Motor Company, No. 13-22-00083-CV, 2022 Tex. App. LEXIS 6440 (Tex. App.—Corpus Christi—Edinburg Aug. 26, 2022, orig. proceeding) arose from a vehicle-pedestrian accident in which plaintiff was hit by a Ford F-250. Plaintiff sued Ford, alleging that the truck should have been equipped with a pedestrian detection system. Plaintiff’s petition included a blanket Rule 193.7 notice informing Ford that “any and all documents and materials produced in response to written discovery may be used as evidence in this case,” including “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 objected that the notice “constituted a ‘blanket, nonspecific attempt’ to invoke Rule 193.7,” and did not provide notice “as contemplated by Rule 193.7.” At the time of Ford’s objection, it had not yet produced any discovery in the case. Ford further stated authenticity objections and requested plaintiff to “specifically identify all documents [she] intends to use at any proceeding to provide Ford actual knowledge that such documents may be used at trial and to allow Ford an opportunity to object as allowed under Rule 193.7.” After a hearing, the trial court granted plaintiff’s motion to compel and ordered Ford to “‘state which of the documents it admits to the authenticity of and which of the documents it does not, and why, within [thirty] days.’” Ford sought mandamus.

The Corpus Christi Court of Appeals conditionally granted mandamus, and directed the trial court to vacate its order on plaintiff’s motion to compel. In short, relying on the “plain meaning of the text of Rule 193.7,” the court of appeals determined that the “preemptive and prophylactic” notice provided by plaintiff with her petition failed to meet the rule’s requirement that “actual notice” be provided of specific documents that “will” (as opposed to “may”) be used at a hearing or trial. In other words, according to the court of appeals, Rule 193.7 notices provided before the opposing party has produced documents do not comply with the rule, and general notices that documents “may” be used are likewise insufficient.

In light of In re Ford Motor Company, the best approach going forward seems to be: (a) the early identification of documents from the opposing party’s production that a practitioner desires to use at a hearing or trial; and (b) the immediate provision of “actual notice” to the opposing party of specific documents produced by that party that “will” be used at hearings and trial. That should suffice to start the clock as to the opposing parties’ objections, if any, to the authenticity of the specific documents made the subject of notice.