by Tate Hemingson and Elizabeth Griffin
Exclusion of late-disclosed witnesses and evidence is a surprisingly common pitfall that can sink a case. Under the Texas Rules of Civil Procedure, untimely-disclosed evidence is automatically excluded unless certain exceptions are met. What follows are the key issues to consider when confronted with late-disclosed evidence, whether you are fighting to keep it in or out.
First, make your initial discovery responses timely. Thirty days is the standard deadline for most written discovery, but it can differ for experts. The scheduling order, if there is one, controls the expert designation deadline. If not, Rule 195.2 requires expert designation by the later of 30 days after receiving a request for disclosure or 90 days before discovery ends.
Second—and here is where trouble often starts—make sure to timely supplement your discovery responses. Problems often arise with bare-bones initial disclosures that are not fully fleshed out until just before trial. This opens the door for the other side to claim untimely disclosure.
What is timely? Rule 193.5(b) provides a clear-as-mud standard requiring that amendments be made “reasonably promptly after the party discovers the necessity for such a response.” Whether an amendment was “reasonably prompt” is case specific, but be careful: there is a built-in presumption against reasonable promptness if an amendment is made less than 30 days before trial. Calendaring a reminder to supplement well before the 30-day mark will provide a head start in fighting an uphill battle against the presumption. An even better practice is to update disclosures throughout the case. It may be hard to argue “prompt” amendment if you waited to disclose the evidence for six months after you learned of it.
But let us pretend the evidence was untimely disclosed and the other side objects. What happens? Rule 193.6(a) mandates automatic exclusion. This means exclusion of the witness or evidence is not a sanction, but a direct consequence of the untimeliness—unless an exception can be met.
Rule 193.6 permits the court to allow untimely evidence if the offering party can show either (1) good cause for the late disclosure or (2) that the late disclosure will not unfairly surprise or prejudice the other party. The party seeking to admit the evidence bears the burden of proof. Both standards are fact-specific, but good cause is generally harder to prove (mere “inadvertence of counsel” will not suffice).
Lack of unfair surprise or prejudice is more frequently argued and often turns on how close to trial the disclosures were made and what the other side already knew about the evidence.
But even if the offering party cannot show good cause or a lack of unfair surprise or prejudice, the rule permits the court to grant a continuance to allow the opposing party time to conduct any necessary discovery.
Careful attention to these procedures is critical to obtaining a favorable result or at least preserving any error for appeal. The following is a summary of key steps to follow if you encounter an untimely disclosure issue.
If You Failed to Timely Disclose:
- Do not just argue that the disclosure was timely. Argue, at least in the alternative, that there was good cause for any late disclosure and a lack of unfair surprise or prejudice to the other side.
- Get a hearing, on the record, and present evidence to support your arguments.
- If you can’t show good cause or lack of unfair surprise or prejudice, request a continuance.
- If the court excludes your evidence, make an offer of proof.
If the Other Side Failed to Timely Disclose:
- Move to exclude the witness or evidence.
- To show unfair surprise or prejudice, explain what discovery or preparation the untimely disclosure prevented you from doing.
- Do not announce “ready” for trial if the late disclosure renders you “not ready” and be careful about refusing an offer of continuance—both can be argued to show a lack of prejudice.
- If untimely evidence is allowed, continue to object at trial. (E.g., if the court allows a late-designated expert to testify over your objection, object to admission of the expert’s report to avoid an argument that the testimony was harmless.)
- If the motion to exclude is successful, be ready to object if the other party later attempts to introduce the excluded evidence.
Big fights can brew over exclusion of key pieces of evidence or testimony that may be challenged as untimely. These tips are a start to winning those fights no matter which side you are on.