Transcript

Emily Doron: We all know what the statute says, but judges are human. So I would never prepare for trial assuming that the court is going to rule the way that you want, on the exclusion or admission of discovery documents based on this rule.

Voiceover: You’re listening to The Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, Attorney Holly Draper.

Holly Draper: Welcome back, everyone, to The Texas Family Law Insiders podcast. Today, I am welcoming back Emily Doron, senior attorney at The Draper Law Firm. Emily is a former prosecutor and trial lawyer extraordinaire, so I have asked her to join me today to talk about evidentiary exclusion under Rule 193.6 of the Texas Rules of Civil Procedure.

I spoke on this topic at Family Law 101 this past August. So if you’re interested in some more detailed information, you can dig for my paper on that. But hopefully we can do a good run-through today and help everyone out. So thanks for joining me, Emily.

Emily: Thanks for having me.

Holly: So I know that I will be the first to admit that when I was asked to speak on this topic for Advanced, I was like, what’s rule 193.6? It wasn’t Advanced, it was 101. But I didn’t know what this rule was. It was something that I put into practice regularly, but I really didn’t know the nuts and bolts of the rule, which I think is really helpful. So what exactly does rule 193.6 say?

Emily: So it basically lays out what happens if you don’t turn over discovery timely. And so it says that a party that fails to make amend or supplement a discovery response in a timely manner may not introduce into evidence that information, if it was not timely disclosed, and cannot offer the testimony of a witness other than a party who was not timely identified. And there are two exceptions, and that’s if there was good cause for the failure, or if it will not unfairly surprise or unfairly prejudice the other parties.

Holly: So the key on these exceptions is that the burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence, and the court’s finding must be on the record. So this can lead to some appellate, reversible issues if you aren’t really careful with meeting the burden, making sure the finding is supported by the record.

And the court can grant a continuance or temporarily postpone the trial to allow for supplementation. I think that’s an important piece of this rule, because it’s something as a lawyer who’s trying to keep it out, you want to think about. I’ve seen judges say, well, would you rather have a continuance so it’s timely, or would you rather go forward with this evidence? So be prepared for that question.

Emily: Yeah, absolutely. And I’ve seen a couple of judges not want to make a record as far as meeting that good cause or lack of unfair surprise. Even when specifically asked, they’ll kind of skirt that issue. And so, making sure that you lay that foundation and follow up with the judge to actually make the finding is proven more difficult than I expected, but you have to make that record.

And as far as the continuance or postponement, I’ve had judges say the same. I’ve noticed that if it’s truly a gross violation of this rule, as in, they never turned something over or never turned anything over, judges aren’t interested in giving them that option. But when it’s a small document or something short and quick that we can review, that’s generally the response I get as well.

Holly: So what triggers exclusion of evidence under this rule?

Emily: So it’s a couple of different things. First, like I just mentioned, is a full failure to respond. That could be because they don’t respond at all. It could be they respond to some but not all, or that they don’t respond timely. And all of those would fall under this category, and it’s just where the judge wants to rule on each. A couple of other examples are failing to disclose experts or other witnesses.

So if disclosures apply, or there are standing orders, or there’s a trial order, a scheduling order, those are all different things that you have to look at, because those would all fall under this rule. And I’ve seen some people only look at the discovery rules, the standard ones, and miss a court order or miss a standing order, and therefore violate these requests.

Holly: And I think it’s easy to know that you should be trying to exclude things when someone wholly fails to respond. It’s harder to know when someone has produced a lot and they have responded, but maybe they didn’t produce everything. Or they didn’t identify a certain person as a potential witness, and they try to call that person on the stand.

So it is important to know, what did they produce? What did they not? If there are Bates numbers on things that can be a lot easier to be able to identify if it actually was produced. Unfortunately, everyone doesn’t do that. So the better you know your file, the better you’re going to be able to object if they try and slip something in at trial.

Emily: Absolutely. And I think doing that deep dive of every single document discovered is always necessary, but especially to make sure that things aren’t being offered that you didn’t have the opportunity to review.

On heavy discovery cases, I like to make an outline or a spreadsheet of what I have gotten and what I think I’m missing that they may use so that I know if I’ve gotten a document and they can’t just offer it before I can remember, oh, have I seen this? Or is it just similar to something I already got? And so in heavy discovery cases, I absolutely find that helpful to do.

Holly: You mentioned about designating experts. One of the things some people will forget to do is to designate themselves timely as an expert for attorney’s fees purposes. I often see that it’s not a surprise if someone isn’t designated for attorneys’ fees because you pled for attorneys’ fees in your answer, your counter petition, or your petition. But don’t take that risk. Designate yourself for attorney fees in every case timely, so that you don’t run the risk of that being excluded.

Emily: Absolutely, and I’ll always make that objection to make the record, but I haven’t found a judge that’ll keep it out. That doesn’t mean you should ever miss that deadline, though.

Holly: Another piece that people can miss is failing to timely supplement discovery, and that doesn’t just mean supplementing by the discovery deadline. The rules require supplementation anytime there’s new information, so don’t wait to supplement and think about that when you’re possibly thinking about exclusion.

Is this a document that should have been handed over a year ago and they sat on it for a year? You may or may not be successful if it was submitted by the discovery deadline, but if it’s bad for your client, I would certainly make the argument that it was not timely disclosed.

Emily: Yeah, absolutely. I actually like to self-calendar in mini deadlines for myself to just go back and see, did we get anything new from our client? Is there something that we should have gotten new from our client that needs to be turned over?

Because otherwise, I think sometimes we can forget to supplement those things, not necessarily out of bad faith, but just because we have other things going on. So scheduling in those mini deadlines for myself tends to help.

Holly: Another thing to think about. I don’t know how long this will be something that needs to be on our radar, but I think it still does, ar pre tr-ial disclosure deadlines. When was your case filed? What disclosure rules apply?

Does your particular court have its own pre-trial disclosure requirements? Failing to disclose things in that particular case, maybe you didn’t have to disclose them in another case, but this particular case might require it. So make sure you know what does this court based on when this was filed, require?

Emily: Absolutely.

Holly: So let’s dig in a little bit on the exceptions for what will let evidence in. The first exception is good cause. Tell us a little bit about what that entails.

Emily: Sure. So this can be a couple of things. Was the delay justified for some reason, or are these truly new facts that no one knew about and it wasn’t intentional? A couple of other things the court can look at are health issues or family emergencies that caused the delay. But case law narrows those down pretty quickly.

Incomplete information provided by a client may feel like an argument you want to make for good cause, but I don’t necessarily think it helps. I think it’s, while it’s their job to provide it to us, it’s also our job to make sure we have it. So I wouldn’t rely on, well, they didn’t give it to me as an exception.

Negligence or oversight, I don’t think is going to be enough. I’ve never seen it be enough. I would say that that’s, again, something that falls into the category of our job of making sure it doesn’t happen. But the justified delay, a discovery of new facts, or health issues or family emergencies are really the only ones we can rely upon.

Holly: So what about the second exception of no unfair surprise or prejudice?

Emily: Sure. So the real question is, did the other side know to expect it? You know, have you talked to opposing counsel about it? Is it in your pleadings? Like we talked about just a minute ago, attorney’s fees. There’s no undue surprise by someone testifying about attorneys’ fees.

If they pled for attorneys’ fees and their attorney is present, you should expect that. You should still object, but you should expect it. Same things I’ve seen come up are a CPS investigator being called. Well, they knew the investigation was happening. They’ve communicated with the investigator, and they’ve seen the record.

So, is putting them on the stand a surprise? And so those are all things to consider. Also, does the opposing party themselves already know about it? So if they act surprised by a document, but then they testify that they’ve seen it before that could essentially remove that undue surprise.

Holly: And once again, just kind of want to point out, do not forget that the court must make a specific finding on the record as to good cause or no unfair surprise or prejudice if they are not going to grant your request to exclude the evidence.

Emily: Absolutely.

Holly: So let’s go through a few cases that are helpful related to this rule. First, we have a few cases upholding exclusion, and I’ll kind of go through these, and then you can talk about the ones with the exceptions.

Emily: Sounds good.

Holly: So the first case we have is Fort Brown Villas condo association versus Gillenwater. This is a Texas Supreme Court case. The Supreme Court upheld the exclusion of expert testimony because the party failed to properly designate the expert under Rule 193.6. Although the witness was mentioned, the designation was insufficient, as it lacked a summary of opinions.

The court emphasized strict compliance with disclosure deadlines and confirmed that this rule applies at both trial and summary judgment stages. So it can be really easy to list someone as an expert in your disclosures early and not put very much information. Because you think you might call this person as an expert, but you really haven’t done a deep dive.

Don’t forget to go supplement as soon as you have all the necessary information, or you could be excluded, even though you designated that expert. The next one is Sprague versus Sprague. This was out of the 14th District Court of Appeals in Houston. The Court upheld the exclusion of a late expert report, holding that a trial continuance does not extend discovery deadlines absent a court order.

No good cause or lack of surprise was shown. So just because you asked for and get a continuance if you do not also get an extension of the discovery deadlines, guess what? You still might be subject to that exclusion. Then last, we have Gibbs versus Bureau’s Investment Group. This is also out of the 14th district in Houston.

The court excluded an affidavit disclosed for the first time at trial. Despite relevance, the lack of timely disclosure rendered it inadmissible. No disclosure means no entry into evidence. Now, why an affidavit was admissible to begin with, I’m not really sure, but you know, this can apply to all different kinds of evidence. If you did not disclose it, it should not be getting in.

Emily: Yeah, and I’ve used Gibbs a couple of times in arguments, and it’s a pretty overarching case of, if you don’t turn it over, it’s not coming into evidence, period. Though the affidavit question has always thrown me a little bit.

Holly: Okay, so why don’t you run through the cases dealing with the exceptions to exclusion for us.

Emily: Sure. So the first one is Ray versus Reddick. It’s out of El Paso. In this one, the Court allowed a late attorney’s fees expert because the issue was raised in pleadings and didn’t surprise the other side. That one’s similar to what we just talked about a couple of minutes ago.

The second one is in the interest of A.M., and this is out of Dallas. And in this one, the court admitted transcriptions of three audio recordings disclosed for the first time at trial, and found no harm in doing so. Although father objected. Under Rule 193.6, the appellate court held that even if the admission was error, it didn’t cause harm.

And the last one is White versus Perez out of Fort Worth. And in this one, the court excluded common law marriage evidence due to the failure to timely answer interrogatories resulting in a directed verdict. And the Appellate Court affirmed, holding that 193.6 is exclusion of untimely disclosed evidence is automatic and does not require a separate motion or hearing.

Holly: So let’s go through some tips to help attorneys avoid having evidence excluded under this rule. What would you advise them to do?

Emily: The first is calendar everything. We are busy, and our minds are running a million miles an hour with all the cases, and there is no way to remember every single deadline if it’s not written down somewhere. So, calendar every single deadline. I like to calendar a couple of days or even weeks before to remind me of the deadlines, because if I’m just remembering on the day of then I’m probably going to be scrambling, and I don’t like to scramble.

So, including those warnings before a deadline, I find incredibly helpful. The second part of deadlines is, if you can’t meet it, reach out to opposing counsel. And I don’t mean 25 minutes before the deadline has passed or that day. I mean a couple of days before, reach out to them, because common courtesy is going to be that they give you an extension.

Now, does that mean they always will? No. nd does that mean you should ask every single time? No. But it happens. Things come up. I know that at least the way I practice is I understand that we all live lives, and I will do my best unless it’s going to negatively hurt my client or our case.

But that means you need to reach out and ask, and do so early, as soon as you realize it. The second piece. Is do everything early. Designate your experts early. I know some people like to do it last minute of the last stage for some surprise, and they think that the other side is going to forget because they did that, but you’re setting yourself up for failure.

So designate your experts early. If you don’t have all the information, that’s okay, use placeholders and fill it in as you know it. And then as soon as you know that information, fill it in and update it. I would also say serving supplemental responses immediately when you get that information.

Sometimes I may hold it a day or two to confirm that there’s nothing else, but I don’t like to hold information for a significant amount of time. First of all, it will make your judge really mad if they found out you’ve had it for weeks or months, but also you’re less likely to remember. You’re going to be scrambling, or it may not get turned over, and then in trial, you’re not gonna be able to use it.

So, supplement when you receive it, supplement early, supplement often. And the last one for me is over disclose. I’m never going to sit in a courtroom and argue that hiding information or failing to disclose was the right call. Over disclose. Disclose when you have it, it’s always safe for exclusion.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So we’re all human. Every lawyer out there has probably accidentally missed a deadline, and if they say they haven’t, then I don’t believe them. So, we need to talk about, what can you do if that happens to you and you have made a mistake, you missed a deadline, your paralegal accidentally calendared it wrong.

Whatever happened, it’s been missed. So I would say, first, produce the discovery information as soon as you realize your mistake, and ask for an agreement to allow for late disclosure or production. Now the other side does not have to agree. Oftentimes, it would be smart not to agree.

If they missed the deadline, there would have to be a really good reason for me to agree, because that is going to harm my client. Because now this stuff’s going to get in. Assuming you don’t get an agreement, which is probably the case, I would move for continuance or move for leave to do late production, or late responses or whatever.

Don’t wait until you get to trial, because if you show up at trial, you’re gonna have to be ready to go. And you may or may not get that continuance. And I would guess, chances are you’re probably not going to.

So if you can move for a continuance right away, get it set for a hearing, if the other side won’t agree, and get in front of that judge, fall on the sword and beg for it to be extended. And definitely be sure to argue that there is no unfair surprise or prejudice, because, you know, they got it 29 days before instead of 30.

Emily: Yeah, absolutely, I’d do exactly the same.

Holly: So, what should you do if the court is keeping your evidence out?

Emily: You should make an offer of proof. Protect your record, and then keep fighting your case, because that’s the most you can do at that point.

Holly: This is a mistake as an appellate lawyer that I see a lot of attorneys make. They as soon as they’re overruled or a judge makes a decision that something’s not coming in, they give up and they don’t. They just move on. If you don’t make an offer of proof, you cannot come back on appeal and complain that the judge should have let that evidence in.

Now I do see judges who don’t want to let you make an offer of proof, but you need to object to that and ask for it. I also see judges who will say you can make your offer of proof at the end. So it’s really important, if that happens, do not forget. It’s early in your trial. You’ve got hours to go. You might have days to go, and when you get to the end, if you don’t make that offer of proof, you’ve now just waived that argument for an appeal.

Emily: Yeah, yeah. I actually keep different color sticky notes to remind myself to do things throughout trial. And so I’ll keep one color that’s a reminder of make sure you wrap this up before you close your case, because you’re not going to remember.

Even if you have a half day left, if you have two days left, your brain is going to be on other things. And so I find that keeping those notes and I put it in front of everything, it doesn’t go under anything, to make sure I don’t forget to make that record.

Holly: So what if you are the one who is trying to keep out the other side’s evidence because they missed a deadline or they didn’t respond to discovery? So it was mentioned before, you don’t need a file motion or anything like that. So I think you and I have a little bit of a difference of opinion about the best time to bring it up. When do you like to bring it up?

Emily: So it depends on the situation. If they have completely failed to provide anything, have not responded to anything, I’m bringing it up from the moment we start that case, because at that point, I don’t think, generally speaking, a judge is going to give them more time to remedy something that’s such a gross disregard for the statute.

If it’s limited items or they were just disclosed late, I’m going to object to those as they try to use them. I don’t want the judge to say, okay, we can have 20 minutes to go look at that document, but at the same time, I want to make sure our record is clear. And so, depending on which scenario I go with, I’m also making the objection regularly and often.

I keep a breakdown of the case law, the argument in the statute, so that every time the other side tries to offer a piece of evidence, call a witness, ask a type of question they shouldn’t be because of these violations, I am making my full objection every single time. And I will tell you, I’ve gotten a lot of eye rolls from judges because the objection is not a two-word answer, and it takes 30 seconds or 45 seconds to lay my objection.

But the judge also knows what I’m doing, and I find that they are more likely to rule appropriately if they know we’re laying the proper foundations. It also reinforces that what actually they’re violating, and it’s not just inconvenient, but truly a complete disregard for the statute and what everyone else is operating under.

Holly: And that’s a really good point about judges might not like it that you’re wanting to object over and over to this type of thing. And I will see judges saying, I’m gonna give you a running objection to that. And I see a lot of trial lawyers make the mistake of they just don’t want the judge to be annoyed.

The judge has said, I could have a running objection, so they just go with that and they stop objecting. Running objections are not a thing. No matter how many times the judge tells you that they are they are not a thing. And if you want to have a preserved record for appeal, you have to object every single time. And I know nobody wants to annoy the judge. Nobody does.

And some judges get annoyed, but you know you just have to be respectful in the way that you do it, and remind them, I’m sorry, Judge, to preserve the record, I’d have to object every time. It is what it is. If it’s something that’s not really a problem, then maybe you don’t object to it. But if it’s bad for your client, you absolutely have to object every time.

Emily: I’ve actually even seen some really, really talented litigators, just say to the judge, well, can I have a running objection on that? And I want to tell them, hey, that’s not going to work, but it’s not my job to I’m not going to correct that. I think that most judges also recognize after you’ve done it a couple of times, that you’re going to do it every single time.

I find that a hard part of it is the time limits. If you’re limited to 20 minutes or 30 minutes or an hour aside, using 30 or 45 seconds every time this comes up can really hurt your case. So even if I have to be succinct and just say like I objected under this statute, this case law and this instead of citing every single part of it, I do still find it necessary to make those objections.

Holly: So I generally like to bring it up, especially if somebody wholly failed to respond, or they responded to everything late. If I’m going to try and keep a lot out or say that they can’t call any witnesses, I do like to bring it up during the opening. And part of that, there are a few reasons.

Number one, I don’t want the other side even really letting the judge know what some of this evidence is, or what these witnesses might say if they’re not going to be able to testify. And I also kind of want the judge to know that the other side has screwed up, and put that out there to the court.

They should have absolutely nothing they can do in this trial today, other than put their own client on and cross the other parties. But there are some risks to doing it during your opening or right at the beginning as part of sort of preliminary issues. What are those risks?

Emily: I’d say the biggest one is the judge giving them more time to correct. Whether that’s a couple of days or a couple of weeks or a full-blown continuance of 60 days out or more. In some courts, that’s the biggest risk is that you’ve got this golden ticket of they can’t present any evidence, and you’re giving the court an opportunity to allow them to correct it.

I am finding that in cases where they’ve truly done nothing or disclose things days before trial, right? Not 29 days or 28 days, but days before, and it’s 1000s of pages or not at all. Judges are not giving them that. They are irritated that the other side didn’t comply. And if I’m going to make that early objection, I’m going to make that part of it, is we all have the same rules.

We all have the same statutes. We’re all aware of them. We met ours. They didn’t do theirs. And so that’s a risk, though. That is a remedy that the court can give. It’s specifically allocated in the statute, is that they can be given more time to remedy.

Holly: So I had an interesting issue brought up to me after I spoke on this at Family Law 101 by another attorney, I’m curious what your thoughts are on this. He said, so let’s say that the other side responded to discovery with objections, and they haven’t given you anything substantive.

The question clearly requested documents related to x, they just objected, and now they want to use documents related to x in court. Do you think that you have to file a motion to compel in order to request those documents, or do you think you can still keep them out, because you know they objected to this, and now they’re trying to use it.

Emily: I’ve actually had this exact conversation with a couple of people at the firm, and my thought is, if they have made legal objections, I’m going to file a motion to compel to get a ruling on those. That’s because if the judge agrees with their objection or disagrees with their objection, they need time to produce it, and I don’t want the answer to that question to be handled in a courtroom when we’re already there for trial and our client has already spent all this money and this time in this stress to get ready.

So I think it depends on your judge. I think it depends on the objection. And did they object to 100% of your questions and didn’t provide anything? That’s going to irritate a judge when one of the questions is, give me your attorney’s invoices.

There’s no real objection to that, but if they’ve only objected to specific ones, and it is arguably valid, but we haven’t argued it or litigated it, I could see a judge sustaining that and then still letting it in. So for me, I’m gonna file a motion to compel. I’m gonna get in front of the judge early so I can prepare adequately with my client.

Holly: So I think it really depends on what the discovery request was and what the objections are. So if you specifically say, produce copies of all CPS reports related to the child and the parties, and they just object that that’s overly burdensome or whatever, and they try to use it. I think I’m not going to file a motion compel. I’m just going to argue because I don’t care about having it. I just don’t want them to use it, you know.

But if you filed a more, much broader discovery request that was just asking very generically for all documents that have anything whatsoever to do with the child for the last 15 years, and they object that it’s overly broad, underly burdensome, etc, and you don’t do anything about that, and then they don’t produce the CPS report. Arguably, that did fall under that question, but the question was so broad that I think the objection was proper.

Emily: And that’s also part of my case evaluation in every set of discovery is, I know I requested it and either you objected or simply didn’t provide it, but we know it exists. Is my goal to have that document, or is my goal to stop you from using it? And so that’s always a part of a motion to compel for me, or evaluating if one’s appropriate. If I actually need the document to proceed, I’m going to get it.

If I don’t want to let it in, that evaluation may be different. It may also depend, like you said, on the way the question was asked and what the objection was. Was it an actual legitimate objection? Was my question good, or was it really bad? So those are all parts of the evaluation, but whether I want to offer it or keep it out, is a huge part of that evaluation.

Holly: And you also have to think about, how much money does this client have? Can this client afford to go fight a motion to compel, and what do we think we’re going to get out of it? And that’s a big balancing act. I mean, dealing with discovery disputes is expensive, and not everyone can afford that. And if it’s an attorney who just flat out objects to everything, you know, I’m probably not going to file a motion to compel in that situation. I’m going to try to keep it out.

Emily: Yeah, absolutely.

Holly: So that pretty much covers everything that I had on this topic. Do you have any last tips for attorneys if they’re trying to keep the evidence in or keep the evidence out?

Emily: I think my biggest tip would be, we all know what the statute says, but judges are human. So I would never prepare for trial assuming that the court is going to rule the way that you want on the exclusion or admission of discovery documents based on this rule.

I have seen judges let things in that I’ve never had the opportunity to review, and I have seen them keep out evidence that absolutely should have been admitted. And so being prepared to know that judges don’t always get it right is completely invaluable.

And I think that everybody has to be aware that just because you’re right on the law doesn’t mean it always goes that way, and to be prepared to handle it no matter which way it goes. 100%

Holly: 100%. Well, thanks so much for hopping on with me today. And for our listeners, if you enjoyed this episode, go subscribe and leave us a review so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.