CHAPTER 5 - 5-7 Consequences of Failing to Timely Respond, Amend, or Supplement

• Jurisdiction: United States

5-7 Consequences of Failing to Timely Respond, Amend, or Supplement

Under Texas Rule 193.6, a party's failure "to make, amend, or supplement" a written discovery response, including a required disclosure, in a timely manner will prevent the party from introducing in evidence the undisclosed material or information and from using the testimony of an undisclosed witness (other than named parties), unless the responding party shows "good cause" for the failure to disclose or the failure "will not unfairly surprise or unfairly prejudice the other parties."²⁰³ Texas Rule 193.6's purposes are "to promote responsible assessment of settlement[,] . . . prevent trial by ambush[,]"²⁰⁴ and "give the other party the opportunity to prepare rebuttal to expert testimony."²⁰⁵ Despite recognizing that the exclusion of evidence under Texas Rule 193.6 is a harsh consequence,²⁰⁶ the courts have held that it is not a "death-penalty sanction."²⁰⁷

Because Texas Rule 193.6 addresses the duty to respond to discovery, it is not triggered without a discovery request or a disclosure requirement necessitating a response.²⁰⁸ Thus, for example, a party cannot use the Rule to justify the automatic exclusion of material or information at trial not produced before trial, if the party did not serve any discovery requests seeking the material or information and the material's or information's production was not otherwise prompted by required disclosures.²⁰⁹

Texas Rule 193.6's evidentiary exclusion applies equally to trial and summary judgment proceedings.²¹⁰ Accordingly, a trial court may exclude summary judgment evidence, including expert evidence, that was not provided in response to written discovery before the summary judgment hearing.²¹¹ Texas Rule 193.6, however, is inapplicable to non-merits hearings.²¹²

Although the evidentiary exclusion is automatic²¹³ and a motion for sanctions or to compel generally is not a prerequisite to its application,²¹⁴ a requesting party should not lie behind the log and claim that ambiguities or minor deficiencies in written-discovery responses require the exclusion of the testimony or other evidence. Rather, the better practice is for a requesting party, who believes that a response is deficient, to move to compel a proper one.²¹⁵

Moreover, Texas Rule 193.6(c) allows a trial court, rather than excluding the evidence or witness, to grant either a continuance or a temporary postponement to allow immediate supplementation and any needed additional discovery.²¹⁶ Thus, the Rule provides great flexibility to the court.²¹⁷ The Rule also does not prohibit imposing appropriate sanctions for discovery abuse, if exclusion is not ordered. For example, the court might combine a postponement or continuance with a monetary sanction to compensate the other parties for any delay or added expense.

To exclude an undisclosed witness or other evidence, the opposing party must make a timely objection, either in a pretrial motion to exclude or when the witness or evidence is offered in a summary judgment proceeding or at trial.²¹⁸ Once the objection is made, the party offering the witness or evidence has the burden to establish good cause or lack of surprise or unfair prejudice, which must be supported by the record.²¹⁹

The good-cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances.²²⁰ The Texas Supreme Court has held that "[c]ounsel should not be excused from the requirements of the rule without a strict showing of good cause."²²¹

The following factors, standing alone, do not constitute good cause: inadvertence of counsel, lack of surprise, and the uniqueness or importance of the evidence at issue.²²² In Alvarado v. Farah Manufacturing Co., the Texas Supreme Court explained why these factors do not constitute good cause:

The reasons in each instance are intuitive. If inadvertence of counsel, by itself, were good cause, the exception would swallow up the rule, for there would be few cases in which counsel would admit to making a deliberate decision not to comply with the discovery rules. Determining whether a party is really surprised by an offer of testimony not formally identified in discovery is difficult. The better prepared counsel is for trial, the more likely he is to have anticipated what evidence may be offered against his client, and the less likely he is to be surprised. It would hardly be right to reward competent counsel's diligent preparation by excusing his opponent from complying with the requirements of the rules. . . . Finally, if good cause could be shown simply by establishing the unique importance of the evidence to the presentation of the case, only unimportant evidence would ever be excluded, and the rule would be pointless.

To relax the good cause standard in [former Texas] Rule 215.5 would impair its purpose. Counsel should not be excused from the requirements of the rule without a strict showing of good cause.²²³

Also, insufficient to establish good cause for the late designation of experts is the incompetence of a party's prior counsel and prior expert witness.²²⁴ But a party's good-faith efforts to locate a potential witness or inability to anticipate the use of a witness's testimony at trial may support a finding of good cause for failure to timely disclose the witness.²²⁵

In assessing whether the admission of undisclosed or untimely disclosed evidence will unfairly surprise or prejudice other parties, courts "focus on whether the evidence will cause unfair surprise or prejudice, and not on whether the 'issue' to which the evidence is directed will unfairly surprise or prejudice the other parties."²²⁶ The existence of unfair surprise or prejudice tends to be a fact-specific determination.²²⁷ But some general rules apply. For example, the "fact that a party needs an expert to establish its cause of action does not establish that other parties will not be unfairly surprised by the late designation of an expert."²²⁸ Moreover, "[offering other parties an opportunity to depose a late-designated expert also does not ensure the absence of unfair surprise or prejudice."²²⁹ In addition, the fact that the trial court could have reopened discovery or granted a short postponement to ameliorate any unfair prejudice or prejudice is not dispositive of the issue.²³⁰ Finally, consistent with Texas Rule 193.6's purposes, some courts have held that "to establish the absence of unfair surprise or prejudice, the party seeking to call an untimely disclosed witness or introduce untimely disclosed evidence must establish that the other party had enough evidence to reasonably assess settlement, to avoid trial by ambush, and to prepare rebuttal to expert testimony."²³¹

On appeal, a trial court's exclusion or admission of testimony or other evidence is reviewed for an abuse of discretion.²³² The erroneous admission or exclusion of the testimony or other evidence is reversible "only if the error probably though not necessarily resulted in [the rendition of] an improper judgment."²³³ Accordingly, "[r]eversible error does not ordinarily exist for erroneous exclusion or admission of evidence which is not controlling on a material issue dispositive of the case."²³⁴

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^[203] Tex. R. Civ. P. 193.6(a)-(b); accord Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (per curiam) ("Under Texas Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are inadmissible as evidence."); Hsu v. Conterra Servs., LLC, 01-20-00182-CV, 2021 Tex. App. LEXIS 1813, at *8-9, 2021 WL 921672 (Tex. App.—Houston [1st Dist.] Mar. 11, 2021, no pet.) (mem. op.) (same); Paniagua v. Weekley Homes, LLC, No. 05-19-00439-CV, 2021 Tex. App. LEXIS 265 at *25, 2021 WL 118663 (Tex. App.—Dallas Jan. 13, 2021, pet. filed) (mem. op.) (same); Martinez Jardon v. Pfister, 593 S.W.3d 810, 826 (Tex. App.—El Paso 2019, no pet.) ("A party who fails to make a timely discovery response may not introduce in evidence the material that was not timely disclosed, unless it makes a showing of good cause and lack of unfair surprise or prejudice to the opposing party."); In re A.C., No. 02-18-00129-CV, 2018 Tex. App. LEXIS 8656 at *23, 2018 WL 5273931 (Tex. App.—Fort Worth Oct. 24, 2018, pet. denied) (mem. op.) (same); Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798, 808 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that the "[R]ule mandating exclusion of witness testimony for failure to disclose witness does not apply to a named party" and that "[t]his court has held that a trial court may not exclude the testimony of a corporate representative at trial, even if the corporation fails to disclose the representative as a witness in its discovery responses") (citing cases); Sadeghian v. Wright, No. 06-18-00062-CV, 2019 Tex. App. LEXIS 354 at *13, 2019 WL 255741 (Tex. App.—Texarkana Jan. 18, 2019, pet. denied) (mem. op.) ("[T]he parenthetical reference '(other than a named party)' 'essentially states that named parties can testify at trial even if they do not list themselves as a fact witness in response to requests for disclosure[, but] . . . does not state or imply that parties are not required to respond to interrogatories or other types of discovery requests.'" (quoting Cornejo v. Jones, No. 05-12-01256-CV, 2014 Tex. App. LEXIS 966, at *6, 2014 WL 316607 (Tex. App.—Dallas Jan. 29, 2014, no pet.) (mem. op.))); Mid Continent Lift & Equip., LLC v. J. McNeill Pilot Car Serv., 537 S.W.3d 660, 670-77 (Tex. App.—Austin 2017, no pet.) (affirming the trial court's exclusion of an expert on attorneys' fees who was designated late); Ashmore v. JMS Constr., Inc., No. 05-15-00537-CV, 2016 Tex. App. LEXIS 13201, at *21, 2016 WL 7217256 (Tex. App.—Dallas Dec. 13, 2016, no pet.) (mem. op.) (same); Estate of Toarmina, No. 05-15-00073-CV, 2016 Tex. App. LEXIS 6239, at *4-5, 2016 WL 3267253 (Tex. App.—Dallas June 13, 2016, pet. denied)...