Respecting the ongoing duty to supplement written discovery responses

Posted Friday, February 5th, 2016 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

South Carolina case law recognizes the fundamental importance of discovery to preparing a lawsuit for trial:

The primary objective of discovery is to ensure that lawsuits are decided by what the facts reveal, not by what facts are concealed. The entire thrust of our discovery rules involves full and fair disclosure, to prevent a trial from becoming a guessing game or one of surprise for either party. In this respect, the discovery process is designed to make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.

In re, Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10, 19 (2001) (citations omitted)

The gist and gravamen of the discovery rules mandate full and fair disclosure to prevent a trial from becoming a guessing game or one of ambush for either party. The rights of discovery provided by the Rules give the trial lawyer the means to be prepared for trial. Where these rights are not accorded, prejudice must be presumed…

CEL Products, LLC v. Rozelle, 357 S.C. 125, 591 S.E.2d 643, 646 (Ct.App. 2004) (citations omitted)

One of the procedural methods for insuring that discovery achieves these purposes is the ongoing duty to supplement most discovery as set forth in Rule 26(e), SCRCP, subtitled 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 his response to include information thereafter acquired, except that requests for discovery under Rules 31, 33, 34, and 36 shall be deemed to continue from the time of service until the time of trial of the action so that information sought, which comes to the knowledge of a party, or his representative or attorney, after original answers have been submitted, shall be promptly transmitted to the other party.

The types of discovery mentioned above that require supplementation are Depositions Upon Written Questions (Rule 31), Interrogatories (Rule 33), Requests for Production (Rule 34), and Requests for Admissions (Rule 36). Basically most written discovery requests have an ongoing duty of supplementation.

Failure to supplement discovery can limit the inclusion of evidence or create credibility problems at trial. Often a response to discovery will be to the effect of “to be supplemented.” Sometimes that is a legitimate initial response, as often discovery requests are issued that a party cannot answer until that party conducts its own discovery. However failing to supplement that response before trial can lead to problems at trial.

A party who testifies about an issue where that party’s sole or final response to a discovery request was “to be supplemented” may be limited in his or her testimony at trial, as that party failed to supplement his or her response when the “information sought” came “to the knowledge of a party, or his representative or attorney.”

Other times a party will testify differently at trial than that party responded in discovery. Often that party will excuse the difference between the discovery response and the trial testimony by claiming new knowledge postdating the discovery response. Rule 26(e) eliminates that as a valid excuse. A useful cross-examination for a party employing that excuse is:

  • Q. You answered discovery on [date]?
  • Q. Today you give a different answer to that question?
  • Q. When did you learn this information leading you to answer differently?
  • Q. Please read out loud this first paragraph of Rule of Civil Procedure 26(e)?
  • Q. You would agree you didn’t do this?
  • Q. You could have let me know this information as soon as you learned it?
  • Q. You didn’t do that?
  • Q. Instead you waited until trial to let me and my client know of this new/different information?
  • Q. You would agree that it’s unfair to wait until trial to supply this information when you could have supplied it when you learned it? [you really don’t care how the witness answers this as the witness appears unreasonable if he or she denies it]
  • Q. You would agree that your failure to follow the rules has unfairly prejudiced my ability to try this case? [again the witness’ response is helpful either way]
  • Q. You would agree that your failure to follow the rules has unfairly prejudiced my client’s rights? [yet again the witness’ response is helpful either way]

Respect the continuing duty to supplement written discovery responses. In preparing for trial one should meet with one’s client a month or so beforehand to review discovery responses and determine what needs to be updated or supplemented. Then one should do so. When faced at trial with an opposing party who failed to update or supplement discovery responses and now provides different information, the above script is a useful cross-examination technique.

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