Pursuant to the Medical Practice Act (the Act), Texas Civil Statutes, Article 4495b, §4.03(d), after the initiation and filing of a formal complaint under the Act, §4.03, or upon the filing of the board's initial pleading in any other contested matter, the following discovery rules shall apply.

1. (1) Preliminary discovery. Not later than 30 days after receiving a written request from an opposing party, the responding party shall provide to the requesting party the following:

   1. (A) a preliminary list of the names and last known addresses of potential witnesses which the responding party reasonably anticipates may testify in its case-in-chief;
   2. (B) a list or copy of all documents, records, photographs, moving pictures, films, videotapes, audio recordings, and other such material in the possession of the responding party which the responding party intends to offer in its case-in-chief, and a reasonable opportunity to inspect and copy such items;
   3. (C) a list identifying all tangible items in the possession of the responding party which the responding party intends to offer in its case-in-chief, and a reasonable opportunity to inspect such items; and
   4. (D) a list of the names and last known addresses of any experts the responding party anticipates calling to testify in its case-in-chief.

2. (2) Experts. Upon written request, a list identifying all of the following documents and tangible items pertaining to the responding party's experts, or copies of such documents and tangible items, shall be provided to the requesting party before the initial deposition of such an expert, or no later than five days prior to the hearing on the case if no deposition of the expert has been taken:

   1. (A) documents and tangible items which have been provided to any expert who is expected to testify in the case;
   2. (B) documents and tangible items which have been made or prepared by any expert used for consultation if such documents and tangible items form the basis, either in whole or in part, of the opinion of an expert who is expected to testify in the case; and
   3. (C) a report from each expert who is anticipated to testify in the case which generally synopsizes the expected testimony of the expert.
3. (3) Inspection and copying. Documents and tangible items which are identified in a discovery response, but not provided, shall be made available for inspection and copying at a reasonable time and place upon the written request of an opposing party.

4. (4) Depositions.

   1. (A) The taking and use of depositions shall be governed by APA or by an agreement between the parties either on the record or in a writing signed by the parties or their representatives. Except by an agreement between the parties either on the record or in a writing signed by the parties or their representatives, depositions shall be conducted and completed no later than five days prior to the scheduled hearing date. Failure of a properly noticed witness who is a party to the case to attend a deposition for the purpose of taking the testimony of that party witness, or the failure of such a witness to attend such a deposition as agreed to by the parties on the record or in a writing signed by the parties or their representatives, may result in the imposition of the sanctions and remedies set forth in paragraph (5) of this section.
   2. (B) In the event that, as provided for in the Administrative Procedure Act, an original deposition transcript is not returned by a deponent or a deponent's counsel, or is not filed by a deponent, a deponent's counsel, or other individual, officer, or entity in possession of or last known to be in possession of the original transcript, a party to the contested case pending before the board or the State Office of Administrative Hearings shall be entitled to have a certified true copy of the deposition transcript filed under seal at the agency where the case is pending by the officer or a court reporter who transcribed the deposition testimony or their designee. Such a copy shall be presumed to be authentic unless an objecting party is able to rebut such a presumption by a preponderance of competent evidence.

5. (5) Remedies and sanctions. A failure to comply with a discovery request to the extent required by board rule, the Act, or as agreed to between the parties in a discovery agreement, may be remedied and sanctioned by ordering any or all of the following:

   1. (A) granting of a continuance;
   2. (B) limitations or restrictions on the admissibility and use of evidence, to include exclusion of evidence;
   3. (C) payment by a party of the actual travel, lodging, and court reporter costs, but not attorney fees, incurred by an opposing party as a result of the failure to comply with the discovery requirements under board rule;
   4. (D) imposition of a scheduling order providing for discovery deadlines necessary to remedy the failure to comply with discovery requirements under board rules; and
   5. (E) remedies and sanctions agreed to by the parties in writing or on the record.

6. (6) Good cause. Good cause for failure to comply with a discovery request to the extent required by law, board rule, or as agreed to between the parties in a discovery agreement may justify the imposition of less severe remedies or sanctions which might otherwise be imposed. Good cause shall include, but is not limited to, the following:

   1. (A) lack of knowledge of the existence of the information or material;
   2. (B) lack of access to or control of the information or material; and
   3. (C) act of God or providence.

7. (7) Calculation of deadlines and time limits.

   1. (A) For purposes of discovery under board rules, deadlines and time limits shall be based on calendar days; however, when a deadline falls on a Saturday, Sunday, or official state holiday, the deadline shall be extended to the next calendar day which is not a Saturday, Sunday, or official state holiday.

   2. (B) Discovery requests promulgated less than seven days prior to the scheduled hearing date shall not require a response unless agreed to by the parties on the record or in a writing signed by the parties or their representatives; however, other discovery requests promulgated at a time prior to the scheduled hearing date which by their timing allow less than the applicable deadline period for a response shall not require a response until submitted for approval by motion of the requesting party to the administrative law judge and approved in whole or in part by order of the administrative law judge. Any such approval shall provide for one or more of the following:

      1. (i) modified response deadlines;
      2. (ii) a continuance of the hearing date charged to the party requesting discovery; or
      3. (iii) such reasonable requirements which are necessary to minimize any anticipated burden or inconvenience to the responding party as a result of the lateness of the discovery request.
8. (8) Discovery agreements. Discovery requirements governing board proceedings may be modified by agreement of the parties either on the record or in a writing signed by the parties or their representatives.
9. (9) Ordered modification of discovery. Modification of discovery requirements under board rules may be ordered by an administrative law judge pursuant to an agreement of the parties or the discovery provisions under board rules pertaining to remedies and sanctions.
10. (10) Official notice. No later than three days prior to the date of the hearing, the parties shall exchange lists specifying all matters which each party will seek to have officially noticed at the hearing.
11. (11) Final witness list. No later than five days prior to the date of the hearing, the parties shall exchange final lists identifying the names and last known addresses of the witnesses each party intends to call to testify in its case-in-chief.
12. (12) Waiver of privilege/confidentiality. The provision of any information or material in response to a discovery request which may be the subject of a privilege or confidentiality requirement under the Act or other applicable law shall not constitute a waiver of any such privilege or confidentiality requirement with respect to other such information or material not provided.
13. (13) Supplementation. Upon receiving new information or material, or upon otherwise determining that an inaccuracy exists in a previous discovery response, each party shall supplement such responses as soon as practicable.

Source Note:The provisions of this §187.17 adopted to be effective January 5, 1988, 12 TexReg 4916; amended to be effective December 24, 1993, 18 TexReg 9192; amended to be effective August 2, 1995, 20 TexReg 5240.