Discovery Sharing in Texas: Litigant Confidentiality v. Litigation Costs

Abstract

Texas courts have long allowed discovery sharing between similar cases. Discovery sharing has a multitude of systemic benefits — not the least of which is reducing pretrial litigation costs. Despite these advantages, some contend that the Supreme Court of Texas should forbid the practice in cases involving trade secrets. But the court should not limit discovery sharing — doing so runs contrary to Texas and federal efforts to reduce undue litigation expenses.

This Article is the first significant piece of scholarship to evaluate these arguments in light of historic and recent efforts to make Texas and federal pretrial procedure more efficient. After evaluating both pro- and anti-sharing positions, the Article concludes that sharing furthers pretrial efficiency without unduly compromising trade secret and other proprietary information.

The Article proceeds in four parts. First, it examines the development of discovery sharing as a routine practice in Texas courts. Second, the Article considers some common arguments against discovery sharing. Third, it briefly examines the relationship between sharing and efforts to reduce pretrial costs, both in the Texas and federal court systems. Finally, the Article concludes that sharing is a practice that both reduces costs and is compatible with litigants’ proprietary information interests, even in cases involving trade secrets.

Keywords: discovery, trade secret, discovery sharing, protective order, Rule 26(c), Rule 192.6, proportionality, trade secret privilege, Rule 507