TierOne Converged
Networks, Inc. v. Parman
Dallas Court of Appeals, No. 05-12-00026-CV (July 9, 2013)
Justices Moseley (Opinion), Bridges, Lang-Miers
After trial had begun, defense counsel discovered an audio
recording that undermined plaintiff’s claim. Although counsel produced the recording to plaintiff’s attorney the next
day, the district court refused to allow the recording to be used at
trial. The Court of Appeals reversed,
finding the trial court abused its discretion in excluding the tape.
After the second day of a trial on claims that defendant TierOne converted preferred stock belonging to plaintiff Parman, TierOne’s counsel received (from a third party) an audio recording of an earlier telephone conversation in which Parman had expressly disclaimed owning that stock. Counsel produced the recording to plaintiff’s attorney the next day, after cross-examining plaintiff. The trial court excluded the recording under Tex. R. Civ. P. 193.6(a), which prohibits admission of untimely-produced evidence unless the court finds “good cause” for the late production or that the other party would not be unfairly surprised or prejudiced. The court also refused to recess the trial or grant a mistrial to allow discovery concerning the recording. The jury found for the plaintiff, and the court entered judgment accordingly.
After the second day of a trial on claims that defendant TierOne converted preferred stock belonging to plaintiff Parman, TierOne’s counsel received (from a third party) an audio recording of an earlier telephone conversation in which Parman had expressly disclaimed owning that stock. Counsel produced the recording to plaintiff’s attorney the next day, after cross-examining plaintiff. The trial court excluded the recording under Tex. R. Civ. P. 193.6(a), which prohibits admission of untimely-produced evidence unless the court finds “good cause” for the late production or that the other party would not be unfairly surprised or prejudiced. The court also refused to recess the trial or grant a mistrial to allow discovery concerning the recording. The jury found for the plaintiff, and the court entered judgment accordingly.
On appeal, TierOne argued that it
had produced the recording “reasonably promptly” after discovering it, in
compliance with Tex. R. Civ. P.
193.5(b), and that it had shown “good cause” for not producing it earlier. The appellate court agreed, and held exclusion
of the evidence was an abuse of discretion and probably led to an improper
judgment. The court rejected plaintiff’s
argument that by waiting until after cross-examining plaintiff to produce the
recording, the defense did not act “reasonably promptly.” Judgment was vacated and the case was
remanded to the trial court.
