CHAPTER 5 - 5-6 Amendment and Supplementation

• Jurisdiction: United States

5-6 Amendment and Supplementation

Texas Rule 193.5(a) governs a party's duty to amend or supplement written-discovery responses.¹⁸⁸ It requires a responding party to amend or supplement two types of discovery responses: (1) responses to written discovery that sought the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses; and (2) written-discovery responses on all other matters, unless the other parties have been made aware of the corrective or additional information in writing, on the record at a deposition, or through other discovery responses.¹⁸⁹ Thus, under the Rule, amendment or supplementation is always necessary for written discovery that seeks identification of persons with knowledge of relevant facts or trial and expert witnesses. But amendment or supplementation is required for other discovery responses only when the responding party has not otherwise provided the information or documents to the requesting party in writing or on the record at a deposition.¹⁹⁰

Once a requesting party ceases to be part of the action (e.g., through settlement or dismissal), the remaining parties have no duty to supplement written discovery served by the former party because the duty to respond to discovery requests is owed only to the party who served them.¹⁹¹ And in multi-party litigation, a non-requesting party is entitled to rely on responses to another active party's written-discovery requests. Accordingly, a failure to amend or supplement nonetheless may result in an exclusionary sanction when an undisclosed witness or other evidence is offered only against a party who did not request the information.¹⁹²

Texas Rule 193.5 refers to both "amending" and "supplementing" written-discovery responses¹⁹³ but does not explain the difference between them or specify when one, rather than the other, is required. Legally, an "amended response" is one that wholly replaces an earlier one, whereas a "supplemental response" is one that provides additional information to the earlier one without replacing it in its entirety.¹⁹⁴ Because Texas Rule 193.5's predecessor, former Texas Rule 166b(6), only provided for supplemental discovery responses, care should be taken in labeling subsequent discovery responses because an opposing party can argue that the introduction of "amended responses" to the discovery lexicon was intentional and necessarily means that such a response is one that entirely replaces the earlier one. If so, objections made in an earlier response that are omitted in an amended one arguably have been waived and information disclosed in an earlier response that is omitted in an amended one arguably should be excluded under Texas Rule 193.6 as having not been timely disclosed.

The duty to amend or supplement written-discovery responses arises when "a party learns that the party's response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct[.]"¹⁹⁵ The amendment or supplementation must occur "reasonably promptly after the party discovers the necessity for such a response."¹⁹⁶ Thus, Texas Rule 193.5(b) requires a responding party to supplement continuously, rather than waiting until thirty days before trial, as under former Texas Rule 166b(6).¹⁹⁷ The 30-day requirement is still the final deadline for amendment or supplementation because Texas Rule 193.5(b) "presume[s] that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly."¹⁹⁸ But the opposite...