Part IV — Discovery and Evidence

Chapter 13 — Discovery Strategy

Defense Objectives

1. Primary Goals

  1. Pin Down Plaintiff’s Intoxication Evidence: Force plaintiffs to specify exactly how they will prove “obvious intoxication at the time of service.” Under Raoger, eliminate reliance on circumstantial evidence and demand direct observational proof.
  2. Identify Service Timeline: Lock in the identity of the actual server, manager, and precise timeline of alcohol service.
  3. Build the Safe Harbor Record: Collect training certificates, employee handbooks, policies, and discipline history to prove compliance under Tex. Alco. Bev. Code § 106.14.
  4. Explore Comparative Responsibility: Develop evidence of the intoxicated patron’s negligence, the plaintiff’s own conduct (e.g., knowingly riding with a drunk driver), and other establishments that contributed.
  5. Contain Damages: Probe prior medical, employment, and claims history to undercut causation and damages exposure.

Written Discovery Strategy

1. Interrogatories

  • Identify every establishment visited within 24 hours prior to the crash.
  • Identify all witnesses who claim the patron appeared intoxicated, with detailed descriptions of what they observed at the time of service (post-Raoger emphasis).
  • Itemize all categories of damages claimed, with supporting documents (medical, employment, property).
  • State the factual basis for alleging service by defendant’s employees and how intoxication was “obvious” to the provider at the time of service.

Requests for Production

  • Point-of-sale (POS) records, itemized receipts, tabs, and merchant logs.
  • Surveillance video from the date in question.
  • TABC license, compliance, and investigation records.
  • Personnel files reflecting training and certifications.
  • Medical bills, prior claims, insurance files, and social media posts (for damages containment).

Requests for Admission

  • Admit that defendant was not a statutory “provider” under Alco. Bev. Code Ch. 2 § 2.01(1).
  • Admit that patron consumed alcohol at locations other than defendant’s premises.
  • Admit that no witness observed the patron show obvious intoxication at the time of service (critical post-Raoger admission).
  • Admit that Safe Harbor training was required and completed.

Practice Tip: Use RFAs to create clean records for Rule 91a and summary judgment. If plaintiff refuses to admit, their denial can later be used to impeach credibility. Post-Raoger, focus RFAs on the absence of direct observational evidence.

Depositions

2. Patron

  • Establish consumption history (timing, type, and quantity of drinks).
  • Lock in testimony on appearance and demeanor at the bar.
  • Obtain admissions regarding self-responsibility and comparative fault.
  • Post-Raoger: Challenge any conclusory statements about condition at service that lack specific observational detail.

Plaintiff

  • Probe awareness of driver’s intoxication.
  • Explore comparative responsibility: voluntary passenger defense, reckless behavior, or contributory negligence.
  • Elicit details of damages claims, employment history, prior injuries.

Servers & Managers

  • Confirm Safe Harbor compliance: training, policies, refusal practices.
  • Testify to lack of visible signs of intoxication at service.
  • Reinforce that overserving was never encouraged.
  • Post-Raoger: Emphasize contemporaneous observations and real-time decision-making.

Law Enforcement

  • Distinguish crash-scene intoxication from time-of-service condition.
  • Pin down timing of field observations and BAC testing.
  • Highlight gaps between service and the accident.
  • Under Raoger: Emphasize that no officer observed the patron at the time of service.

Experts

  • Toxicologists: Pin down assumptions, expose Raoger limitations on retrograde extrapolation without observational anchors.
  • Economists/medical experts: Cross on damages causation and alternative explanations.
  • Hospitality experts: Support Safe Harbor compliance and industry-standard practices.