Day on Torts
Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery. Here is the text of the rule:
A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.
As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.
This rule is particularly effective when your opponent fails to give complete answers to expert witness interrogatories. Judges should prohibit a party who fails to disclose opinions of an expert or the bases for those opinions from testifying to those matters at trial.
It can also be used when your opponent fails to disclose a fact witness or fails to turn over documents that were covered by a Rule 34 document request.
Of course, if you do a shoddy job of answering expert interrogatories you will have a hard time complaining about the incomplete answers of your opponent. But, if you follow the rule, the judge should require your opponent to do the same, and should enforce the default sanction.
Sometimes a person who intentionally or carelessly does a poor job answering expert witness interrogatories will say that the movant could have learned the additional information if he or she had taken the expert’s deposition. That’s right: the argument is that it is the movant’s fault for not spending thousands of dollars to get information that was supposed to be provided by answers to expert witness interrogatories. Your response to that argument is that you have no duty to spend your time and money to determine if your opponent has followed the rules of procedure and that you had a right to rely on the interrogatory answers in determining what the expert was going to say at trial.
If you decide not to depose your opponent’s experts, this language in a letter to your adversary after you receive answers to the expert witness interrogatory will help you with your trial judge.
I have your answers to expert witness interrogatories. I assume that the answers are complete and that I have been provided with all information required under Rule 26. If the answers are incomplete in any way, or if supplementation of the answers is required by Rule 26.05, please do so as soon as possible.
Based on your answers, I have elected not to depose your experts. However, please be advised that in the event that your expert attempts to testify to any substantive matter not included in your answers to expert witness interrogatories I will ask the Court to exclude such testimony under Rule 37.03(1).
This rule is relatively new and judges in some areas of the state need to be educated about it. Lawyers should not be permitted to sandbag opponents by giving shoddy expert witness disclosures or withholding documents.