United States: Don't Be Late To Designate: Deadlines Under Rule 193.6

Deadlines abound in litigation. The one requiring timely responses to discovery requests—including disclosure of witnesses and experts—is one of the most important.

Thirty days is standard for responding to most written discovery requests. But, under Texas Rule of Civil Procedure 195.2, experts must be designated either (1) as ordered by court in a scheduling order or (2) by the later of 30 days after the request is served or 90 days before discovery ends (for parties seeking affirmative relief—60 days for all others).

Amendments and supplements of responses—including witness designations—must also be timely. Under Rule 193.5(b), amendments are timely if made "reasonably promptly after the party discovers the necessity for such a response."

What is "reasonably promptly"? An amendment made less than 30 days before trial is presumably not reasonably prompt. Other than that, it depends on the facts.

What if a deadline is missed or an amendment is not reasonably prompt? Rule 193.6 provides for the automatic exclusion of evidence or testimony that was not timely disclosed. There is one exception—automatic exclusion does not apply to the testimony of a named party.

But a party can still present late disclosed evidence or testimony if (1) there was good cause for the untimely response or (2) the other party will not be unfairly surprised or prejudiced.

Good cause is more than "inadvertence of counsel." Whether the other side was unfairly surprised or prejudiced by an untimely disclosure frequently turns on how close to trial the disclosure was made and what the other side knew about the disclosed evidence or witness before the untimely disclosure.

Finally, a party that cannot show either good cause or lack of surprise or prejudice can seek a continuance to allow the opposing party to conduct discovery on the new information. Rule 193.6(c).

If a court admits untimely disclosed evidence, a prejudiced party can appeal. If a court excludes the evidence, mandamus may be available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.