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Apr 27

How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial

The wife’s objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife’s production request made by the husband was not ruled on by the trial court.  Also, the husband’s attorney said that his response stated the documents were available at his office for inspection and the wife’s attorney never came to look at them.  The wife would have had to prove that the documents were not really made available for inspection.  Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel.  This case also says that if the other party objects to your discovery request, you must get a court ruling on the objection before you can complain it was not produced.  However, remember TRCP 193.4(c) that says a party may not use in any hearing or trial any material withheld from discovery under a claim for privilege without timely amending and supplementing.  Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013.

Category:Discovery, Trial |

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