Practicing law is hard. I am always struggling and juggling everything that needs to be done, and it seems that answering and supplementing discovery responses is the one thing that is the easiest to put off until later. I have been one of those lawyers who initially answered discovery, only to later dump all supplemental responses on the opposing party 30 days before trial. It wasn’t done out of malice. Sometimes, that 30th day pretrial gets here before you know it.
Well, this past week, the Dallas Court of Appeals issued an opinion in In the Interest of A.R.M., 05-17-00539-CV, which should serve as a reminder to timely supplement your discovery responses with more deliberation.
A.R.M. was a divorce coupled with Dad’s suit to terminate Mom’s parental rights. Mom obtained a recording of a child as well as some drawings of the child some 8 months before trial. A request for production that had asked for drawings and recordings had been served on Mom a couple of years earlier. Another request for production that asked for drawings and recordings was served on Mom a couple of months after she obtained the recording and drawings. Mom produced the recording or drawing shortly before the 30th day before trial—more than two years after the first request and about six months after the second request.
Dad objected to the admission of the evidence on the grounds that it was not timely provided. Mom argued that, because it was produced more than 30 days before trial, it was timely produced. The trial court excluded the evidence on the grounds that it was not provided reasonably promptly.
The Court of Appeals found that the trial court did not abuse its discretion. The supplementation rule, TEX. R. CIV. P. 193.5(b), provides
An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly.
Although the supplementation occurred more than thirty days before trial, the Court reasoned “there is no presumption that an amended disclosure made more than thirty days prior to trial is timely.” Citing In re Staff Care, Inc., 422 S.W.3d 876, 881 (Tex. App.—Dallas 2014, orig. proceeding).
LESSON: Even though everybody does it, don’t wait until the last minute to supplement. Take time to routinely supplement throughout the case. You’ll protect your client. You’ll protect your license. You’ll sleep better at night. And, as an added benefit, you’ll make more money.
NOTE: Mom had several lawyers throughout this case, but her trial attorneys who attempted to introduce the evidence were not hired until shortly before trial.