The Tennessee Supreme Court has approved amendments to the rules of appellate procedure, civil procedure, juvenile procedure, and evidence. The rules will not take effect until they are approved by the General Assembly. The proposed effective date is July 1, 2006.
The most significant change concerning the duty to supplement discovery. The proposed rule is as follows:
“(1) 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.”
The Advisory Commission Comment says that new
Rule 37.03(1) “expressly provides sanctions for failure to supplement or amend discovery responses. The usual sanction will be exclusion of evidence at trial. Courts already have this power under the common law. Lyle v. Exxon, 746 S.W.2d 694 (Tenn. 1988), and Ammons v. Bonilla, 886 S.W.2d 239 (Tenn. Ct. App. 1994).”
This will be a significant change in the law, and a good one.