EVIDENCE NOT TIMELY DISCLOSED IN DISCOVERY IS “AUTOMATICALLY INADMISSIBLE” ABSENT PROOF OF GOOD CAUSE OR OF LACK OF SURPRISE OR PREJUDICE

Cornejo v. Jones
Dallas Court of Appeals, No. 05-12-01256-CV (January 29, 2014)
Justices O’Neill, Lang-Miers (Opinion), and Evans

In re Staff Care, Inc.
Dallas Court of Appeals, No. 05-13-01477-CV (January 31, 2014)
Justices Moseley, Lang-Miers (Opinion), and Evans 
In two decisions last week, the Court of Appeals reaffirmed that Rule 193.6 means what it says: when a party deliberately does not respond to discovery requests in a timely manner, the belated or undisclosed evidence is “automatically inadmissible” at trial, unless that party (i) establishes good cause for failing or waiting to respond or (ii) proves lack of unfair surprise or unfair prejudice. If neither exception is established, the trial court has “no discretion”; it must exclude the undisclosed or tardy evidence. In Cornejo, the Court reversed a judgment for defendant, entered on a jury verdict, because the trial court had allowed that defendant to testify even though he had not answered contention interrogatories. Then, in In re Staff Care, the Court refused mandamus relief to a plaintiff whose damages evidence and witnesses had been stricken because that plaintiff waited until the very end of the discovery period to respond to a request for disclosure of the amount and method of calculating its economic damages, even though the request had been pending for about two years.

In Cornejo, an automobile collision case, Cornejo sued Jones. Shortly after Jones answered, Cornejo served him with contention interrogatories asking, among other things, for Jones’s version of what caused the collision. Just before trial began, Cornejo objected to Jones’s testifying because Jones had never answered the contention interrogatories. When Cornejo conceded he had never sought to compel answers, the trial court overruled the objection and allowed Jones to testify. Ultimately, the jury returned a verdict for Jones. The Court of Appeals reversed, finding that the trial court should have excluded Jones’s testimony under TEX. R. CIV. P. 196.3(a) because Jones had ignored the contention interrogatories.

The Court explained that although “[r]ulings on the admissibility of evidence generally are reviewed on appeal for abuse of discretion,” under Rule 196.3 “the trial court possesses no discretion.” The evidence must be excluded unless the delinquent party carries its burden under Rule 196.3(b) to establish good cause for nondisclosure or lack of unfair surprise or prejudice if the evidence is admitted. Jones did not argue or present evidence that any of the Rule 193.6(b) exceptions applied. The Court rejected Jones’s various arguments that Cornejo had not preserved error. A party is not required to file a motion to compel discovery in order to secure the automatic sanctions of Rule 196.3(a). And having moved at the outset for the exclusion of Jones’s testimony, outside the presence of the jury, Cornejo was not required to make or secure a “running objection” throughout Jones’s testimony, or to forego cross-examining Jones once his testimony was allowed by the trial court. Finally, the appeals court rejected Jones’s argument that a named party’s testimony can never be excluded under Rule 193.6. While such testimony may not be excluded on the basis that the party did not identify himself as a person with knowledge of relevant facts, it may be excluded for other failures to answer discovery in a timely manner. So, finding Jones’s own testimony was the only evidence supporting the verdict, the Court of Appeals reversed the judgment and remanded. It did not say whether Jones—whose contentions had now been aired in his original trial testimony—would be allowed to testify if the case proceeded to trial again.

In re Staff Care was a mandamus proceeding involving a number of discovery and evidentiary rulings. One issue dealt with the decision of an associate judge, affirmed by the district court, striking all of Staff Care’s evidence of economic damages as well as the testimony of individuals it had identified as having knowledge of relevant facts. Staff Care had served amended disclosures providing its damages analysis and then identifying more than 200 persons with knowledge one and three days before the close of discovery, just over thirty days before trial. The requests for such disclosures, however, had been pending for about two years, and Staff care had delayed responding, provided no information at all until it served these disclosures shortly before the close of discovery.

The Court of Appeals denied Staff Care’s application for mandamus relief from the order striking its evidence. It rejected Staff Care’s arguments that its responses were timely, simply because they were made before the close of discovery and more than thirty days before trial. The Court said, “[T]here is no presumption that an amended disclosure made more than thirty days prior to trial is timely.” It also declined to adopt Staff Care’s contention that exclusion of its evidence amounted to a “death penalty” discovery sanction, requiring the consideration of less severe alternatives. The Court explained, “The rule [193.6(a)] is mandatory, and the penalty—exclusion of evidence—is automatic, absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice.” Staff Care’s arguments did not satisfy any exception that would excuse its deliberate delay in disclosing information about its claimed damages. The Court did find that excluding about 170 of the potential witnesses was improper because they had previously been disclosed in other aspects of the discovery process, and therefore there was no “unfair surprise” as to those witnesses, see TEX. R. CIV. P. 196.3(a)(2) & (b); but otherwise it left intact the orders excluding Staff Care’s evidence.

Neither Cornejo nor In re Staff Care addressed the trial court’s option under Rule 196.3(c) of continuing or temporarily postponing trial to allow opposing parties to conduct discovery regarding the new information.  

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