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Rule 193.6. Failing to Timely Respond - Effect on Trial (Aug. 1998)
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who Was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.
(c) Continuance. Even if the party seeking to introduce the evidence or call the witness fails to carry the burden under paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response.
Added by order of Aug. 4, 1998, eff. Jan. 1, 1999.
|Prior Amendments||Future Amendments|
|Nov. 9, 1998, eff. Jan. 1, 1999|
Notes and Comments
Comments to 1999 change:
1. This rule imposes a duty upon parties to make a complete response to written discovery based upon all information reasonably available, subject to objections and privileges.
2. An objection to written discovery does not excuse the responding party from complying with the request to the extent no objection is made. But a party may object to a request for "all documents relevant to the lawsuit" as overly broad and not in compliance with the rule requiring specific requests for documents and refuse to comply with it entirely. See Loftin v. Martin, 776 S..W.2d 145 (Tex. 1989). A party may also object to a request for a litigation file on the ground that it is overly broad and on its face seeks only materials protected by privilege. See National Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993). A party who objects to production of documents from a remote time period should produce documents from a more recent period unless that production would be burdensome and duplicative should the objection be overruled.
3. This rule governs the presentation of all privileges and work product. It dispenses with objections to written discovery requests on the basis that responsive information or materials are protected by a specific privilege from discovery. Instead, the rule requires parties to state that information or materials have been withheld and to identify the privilege upon which the party relies. The statement should not be made prophylactically, but only when specific information and materials have been withheld. The party must amend or supplement the statement if additional privileged information or material is found subsequent to the initial response. A party need not state that material created by or for lawyers for the litigation has been withheld as it can be assumed that such material will be withheld from virtually any request on the grounds of attorney-client privilege or work product.
4. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex. R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992), to the extent the two conflict.
5. Any party can request a hearing in which the court will resolve issues brought up in objections or withholding statements. The party seeking to avoid discovery has the burden of proving the objection or privilege.
6. The self-authenticating provision is new. Authentication is, of course, but a condition precedent to admissibility and does not establish admissibility. See Tex. R. Evid. 901(a).
Nov. 9, 1998, eff. Jan. 1, 1999