Nothing puts a fire under me like a lawyer taking an absurd or unnecessarily difficult position about discovery, particularly when it clearly flies in the face of the rules of civil procedure. And it happens all the time. You may have noticed a trend here, whether it’s filing bogus Requests for Admission or refusing to accept service of discovery by email. So let’s embark on the latest absurdity and cut it off at the pass for the next guy – what is your duty to supplement discovery responses?
Me: We just discovered your guy owns a couple of businesses that he’s started since the accident. But you’ve been telling us he can’t work.
OC: Well, he can’t do the same kind of work he was doing before the accident.
Me: I’m going to need you to produce his business records, tax returns, etc.
OC: It’s past the discovery cut-off.
Me: We requested this stuff a year ago in our original discovery requests. You had a duty to supplement it.
OC: We don’t have to supplement it because the businesses didn’t exist when we responded to discovery.
Me: What?! That’s not how that works.
Alabama Rule of Civil Procedure 26(e)
Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the witness’s testimony. (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made, or (B) knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
Summary: If you provide a complete response to a discovery request, you don’t have to supplement discovery responses at a later date unless …
- You’ve been asked to identify the name and location of someone with discoverable knowledge, or you need to disclose your expert; OR
- You gave an initial response that was incorrect when you made it; the response was true when you made it, but it’s not true now; OR
- The court instructs you to or the opposing party asks you to supplement your responses.
Federal Rule of Civil Procedure 26(e)
Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court.
Noteworthy: Uncle Sam assumes a party’s not going to lie in your initial discovery responses; the State of Alabama knows otherwise. See Ala. R. Civ. Proc 26(e)(2)(A). Additionally, in 2015, Federal Rule of Civil Procedure underwent significant changes, along with many of the other federal discovery rules: 2015 Amendments to the Federal Discovery Rules.
The Takeaway: Supplement Discovery Responses
Don’t be that guy who plays discovery games. Even if you “win” in the short-term by making opposing counsel’s life needlessly difficult or you’re successfully keep something concealed that could have hurt your case, your colleagues know what you’re doing, and these things have a way of catching up to you. Or maybe you’re just incompetent and don’t actually know the discovery rules, so you just balk every time something comes up – there’s a remedy for that too. Read the rules.
But whatever you do, don’t involve the court every time there’s a discovery dispute. Or if you haven’t yet had the opportunity to watch a judge have a come-apart and that’s just an itch you need to scratch, then do involve the court with your discovery disputes. But in so doing, you’d better be sure you’re correct before going into the courtroom.
Photo by Ramon Rosati.
