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Breach of Contract Discovery Ideas

Posted on Tuesday, December 11th, 2012 at 2:20 pm by Williams Hart    

The law regarding a run of the mill two-party breach of contract case is fairly straightforward in Texas. A plaintiff must prove: (1) there is a valid, enforceable contract; (2) the plaintiff is the proper party to sue for the breach of contract; (3) the plaintiff performed, tendered performance, or was excused from performing its obligations under the contract; (4) the defendant breached the contract; and (5) the defendant’s breach caused the plaintiff injury. West v. Triple B Servs., 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex. App.—Houston [1st Dist.] 1991, writ denied). As such, the plaintiff’s discovery should focus on showing: (i) the parties formed an agreement that is valid and legal; (ii) the plaintiff fulfilled his obligations; (iii) defendant did not and has no valid excuse; and (iv) plaintiff suffered some injury as a result of defendant’s actions. I don’t advocate using standard discovery requests in any case, but the following concepts should get you thinking about the kind of evidence you will need to prove the elements of the claim.


Consider attaching a copy of the contract and asking the defendant to describe all of his factual contentions regarding:

  • Whether the contract is valid
  • What, if any, relationship the defendant has with the plaintiff
  • Any prior agreements between the parties
  • The material terms of the agreement
  • Whether plaintiff breached or did not comply with his/her requirements
  • Why the defendant did not breach the contract
  • Whether the defendant was excused from performing his obligations and why (i.e, impossibility, rescission, mutual mistake, etc)
  • Whether the contract was against public policy, illegal, or unconscionable
  • Whether defendant believes that the plaintiff performed compensable work related to the agreement
  • Defendant’s challenges to plaintiff’s claims for damages
  • Whether defendant believes the plaintiff failed to mitigate his damages

Document Requests

Consider requesting the following documents from the defendant:

  • Executed contract
  • Drafts of the contract
  • Working notes regarding the contract
  • Communications between plaintiff and defendant
  • Internal communications about the agreement
  • Documents showing the parties intent to modify the terms of the agreement
  • Other case specific documents that might show the harm plaintiff suffered (i.e., invoices, checks, receipts, shipping bills, etc.)


Consider attaching a copy of the contract and asking the defendant to admit the following:

  • That a contract existed
  • That the specific attached contract was the operative agreement
  • That the attached contract is a true and correct copy
  • That the signature is the defendants
  • That the contract was executed
  • That the defendant had the mental capacity to enter into an agreement
  • That the defendant could have complied with the obligations
  • That the parties never modified the agreement
  • That the plaintiff performed its obligations
  • That the defendant did not perform its obligations

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