law-exclusion of evidence mandatory | failure to disclose witness, evidence in discovery |

AUTOMATIC EXCLUSION RULE

The rules of civil procedure provide that “[a] party who fails to make, amend, or
supplement a discovery response in a timely manner may not introduce in evidence the
material or information that was not timely disclosed, or offer the testimony of a witness
(other than a named party) who was not timely identified.” Tex. R. Civ. P. 193.6(a).

The only exceptions to this exclusionary rule require the trial court to find either that there
was good cause for the failure to timely supplement the discovery response or that the
failure to timely supplement the discovery response will not unfairly surprise or unfairly
prejudice the other party. Id. There is no exception for an ordinary rebuttal witness whose
use could reasonably have been anticipated by the party. Moore v. Mem'l Hermann
Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.-Houston [14th Dist.] 2004, no pet.).


CASES INVOLVING AUTOMATIC EXCLUSION OF EVIDENCE
RULE

Fort Brown Villas II Cond Ass'n. v. Gillenwater, No. 07-1028 (Tex. Apr. 17, 2009)(premises
liability suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated
witness, mandatory exclusion at trial vs. in relation to summary judgment)
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN
CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County;
13th district (13-06-00478-CV, ___ SW3d ___, 11-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals’ judgment and renders
judgment.
Per Curiam Opinion
(Justice Johnson not sitting)

Also see:
Texas Causes of Action and Defenses  |  2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams  
|
Texas Caselaw Topics Pages | Texas Opinions Homepage |