The Duty to Supplement Discovery

WDC Journal Edition: Spring 2013
By: Danielle N. Rousset & Christopher John Koppes, Jeffrey Leavell S.C.

I. Introduction

You finally finished culling through piles of documents and conducting numerous meetings with your client in order to respond to interrogatories. You obtain your client’s signature, place the responses in the mail, and breathe a sigh of relief that the onerous task is complete. Or is it? It is easy to forget that both Wisconsin and federal law impose a duty to supplement discovery responses under certain situations and the failure to do so can result in serious sanctions. This article provides a tutorial for both Wisconsin and federal practitioners on when the duty to supplement arises, possible sanctions for disregarding the duty, and practical tips to ensure compliance with the duty to supplement discovery.

II. Wisconsin Law

A. Wis. Stat. § 804.01(5)’s Duty to Supplement

Wisconsin’s duty to supplement discovery responses is governed by Wis. Stat. § 804.01(5), which states:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:

(a) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to all of the following:

1. The identity and location of persons having knowledge of discoverable matters.

2. The identity of each person expected to be called as an expert witness at trial.

(b) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which 1. the party knows that the response was incorrect when made, or 2. the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(c) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

1. When is the Duty Triggered?

As Wis. Stat. § 804.01(5) directs, there is no duty to supplement discovery responses with after-acquired information unless one of the specific situations addressed in the statute applies. Thus, a party’s duty to supplement arises when that party has information of additional persons having knowledge of discoverable matters or the identity of expert witnesses that will testify at trial.[1] The duty to supplement the identity of expert witnesses exists even if the expert is acquired after the discovery response is served.[2] The burden on parties to supplement the identity of lay and expert witnesses is minimal and the statute serves the purpose of eliminating the “need for repetitious demands.”[3] It is good practice to ensure that any expert you intend to call at trial has been formally disclosed to the opposing parties.

A party’s duty to supplement also arises when the party learns its response was not correct to begin with or if the original response, although correct when made, is no longer true and failure to amend would constitute a knowing concealment.[4] Notably, Wis. Stat. § 804.01(5) does not require supplementation of discovery responses when new information is subsequently acquired and does not conflict with prior discovery responses.[5] Finally, the duty to supplement discovery responses may arise by agreement of the parties or through new requests for supplementation of prior responses.[6]

The duty to supplement discovery responses generally applies only to parties; however, if a non-party provides additional information to a party’s attorney, the attorney must determine whether the duty to supplement has been triggered.[7] Although an expert witness is not a party, the duty to supplement under Wis. Stat. § 804.01(5)(b) nonetheless applies to expert witnesses because they are under a party’s control.[8]

If the duty to supplement arises, it is not fulfilled or satisfied when the information is revealed through other discovery methods. For example, the court of appeals in Michael A.P. v. Solsrud held that information later revealed through deposition testimony does not obviate the duty to supplement prior requests to admit.[9] It is best practice to ensure your supplementations are formally and properly made.

2. “Seasonably” Supplement

The statute states a party is under a duty to “seasonably” amend its responses. The statute does not define “seasonably,” nor is there Wisconsin case law interpreting the term. “‘Seasonably’ can be interpreted as meaning within a reasonable time of discovering the names of additional experts or witnesses or the information needed to correct an earlier answer. This does not allow waiting until the significance of the new facts is realized.”[10]

B. Consequences of Failure to Supplement

Failure to supplement discovery can subject a party to sanctions. Pursuant to Wis. Stat. § 804.12(4), a violation of Wisconsin’s duty to supplement statute gives the trial court discretion to impose the sanctions[11] listed in Wis. Stat. § 801.12(2)(a)1, 2 and 3. Wis. Stat. § 804.12 is “arguably the most important rule in the discovery chapter for it ‘supplies the sanctions necessary to deter parties from either unjustifiably evading full disclosure or simply refusing to respond to discovery at all.’”[12]

Wis. Stat. § 804.12(4) states, in part:

If a party…fails…seasonably to supplement or amend a response when obligated to do so under s. 804.01(5), the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under sub. (2)(a)1., 2. and 3. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by s. 804.01(3).

Wis. Stat. § 804.12(2)(a) states, in part:

The court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order;

2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence; or

3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

Read together, Wis. Stat. § 804.12(4) and Wis. Stat. § 804.12(2)(a)2 provide that if a party, or a certain person testifying on behalf of a party, fails to supplement a response which they were required to supplement, the court may impose sanctions. The purpose of these discovery sanctions is to ensure that “any party who seeks to evade or thwart full and candid discovery incurs the risk of serious consequences.”[13]

Wisconsin Stat. § 804.12 “does not require a violation of a discovery order to justify sanctions, [the] [f]ailure to comply with the statutory directive is sufficient.”[14] Sanctions can be in the form of prohibiting the introduction of certain evidence, limiting witness’s testimony, preventing designated claims or defenses, striking pleadings, holding certain facts established, dismissing the action or any part thereof, and the payment of reasonable expenses, including attorney’s fees, caused by the failure to supplement.[15] The list of available sanctions in Wis. Stat. § 804.12(2)(a) is “illustrative, not exhaustive, and the circuit courts have broad power to fashion equitable remedies appropriate to the individual circumstances of each case.”[16] Thus, a court may impose non-compensatory and monetary sanctions for the same offense.[17] Courts also look at “the existence or absence of prejudice [as] a relevant consideration in deciding whether a sanction is ‘just’ as required by Wis. Stat. § 804.12(2)(a).”[18] To protect yourself from the penalty of failing to supplement, disclose discoverable information as soon as you learn of the new information.

1. Prohibiting the Introduction of Evidence not Produced for Discovery

The failure to comply with the duty to supplement will not automatically result in exclusion of the new information. In Jenzake v. City of Brookfield, the defendant served interrogatories upon plaintiff requesting the identities of expert witnesses. The plaintiff responded “none to date” and never supplemented her responses, but nonetheless showed up at trial with an expert. The defendant moved for an order in limine precluding the testimony of plaintiff’s witness.[19]

The Jenzake court noted that even though prohibiting the introduction of expert evidence is one of the lesser sanctions allowed by Wis. Stat. § 804.012(2)(a)1. to 3., it is still a drastic remedy.[20] Precluding expert testimony is only appropriate if the moving party can show how the concealment resulted in hardship or unfairly affected the party’s ability to try the case. The moving party must also request a continuance for more time to prepare, in light of the surprise, or show how a continuance is not an appropriate remedy.[21] In Jenzake, the court denied the motion to exclude because the defendant failed to make a showing of hardship and did not request a continuance.[22]

2. Dismissal

Dismissal is a severe sanction and is only appropriate for conduct that is egregious or in bad faith and without a clear and justifiable excuse.[23] The court in Selmer Co. v. Timothy Rinn & Ganther Constr., Inc., held “[e]gregious misconduct is conduct that, though unintentional, is extreme, substantial, and persistent.”[24] However, egregiousness is not synonymous with bad faith. A party can be guilty of egregiousness without acting in bad faith.[25] On the other hand, a finding of bad faith automatically results in a finding that the conduct was intentional because bad faith, by its nature, cannot be unintentional.[26] When a party’s conduct in failing to supplement is not intentional, even if it is egregious, the court must explore alternative and less severe remedies.[27] However, if the disobedient party’s failure to supplement is intentional, dismissal is appropriate without exploring other alternatives.[28]

III. Federal Law

Like Wisconsin, the Federal Rules contain a duty to supplement or correct previous discovery responses. This duty is contained in Fed. R. Civ. P. 26(e). The intent of this requirement is to “increase[] the quality and fairness of the trial by narrowing the issues and eliminating surprise.”[29]

A. Rule 26(e)’s Duty to Supplement

Rule 26(e) creates a duty on all parties to supplement or correct a previous discovery disclosure after learning the disclosure was incorrect or incomplete.[30] Fed. R. Civ. P. 26(e) provides:

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due

The duty to supplement or correct is broad, encompassing prior written responses to interrogatories, requests for production, requests for admission, and all other pretrial disclosures ordered by the court.[31] In federal court, discovery does not need to be supplemented or corrected if the new information is provided at deposition.[32]

Gutierrez v. AT&T Broadband, LLC,[33] provides an illustrative example of deposition testimony serving to correct otherwise deficient discovery. In Gutierrez, the Seventh Circuit was asked to review a district court decision refusing to strike certain affidavits the defendants offered in support of their successful summary judgment motion.[34] One of the affidavits was from a witness not in any of the defendants’ discovery responses or offered in response to the plaintiff’s Rule 30(b)(6) deposition notice.[35] However, this witness’s name and details of her job responsibilities had been discussed in detail at an earlier deposition.[36]

Finding the plaintiffs had notice of this witness prior to the close of discovery, the court allowed the affidavit to stand.[37] The court held that while parties are obligated “to seasonably supplement their Rule 26(a) disclosures and interrogatory responses, such amendments are required only in certain circumstances, such as when the additional information ‘has not otherwise been made known to the other parties during the discovery process….’”[38] The mention of a previously undisclosed person’s name, title, and responsibilities at deposition provided sufficient notice to other parties despite the failure to disclose the person’s name in discovery responses, permitting the person to offer evidence at trial.[39]

1. Expert Witnesses

Rule 26(e)(2) does not provide an unlimited opportunity for a party to extend expert designation and report deadlines. The Eastern District of Wisconsin addressed this very issue in Thermal Design, Inc. v. Guardian Building Products, Inc.[40] In that case, the plaintiff disclosed a supplemental expert report on October 7, 2011.[41] Plaintiff’s initial report was disclosed on May 27, 2011, and the rebuttal report was disclosed on August 15, 2011.[42] The defendant moved to strike the supplemental report as untimely while the plaintiff claimed it was merely complying with its duty to supplement under Rule 26(e)(2).[43] In discussing Rule 26(e)(2), the court stated:

The purpose of supplemental disclosures is just that—to supplement. Such disclosures are not intended to provide an extension of the expert designation and report production deadline. Supplemental expert opinions that threaten to belatedly send the case on a wholly different tack should be excluded.[44]

The court ultimately determined the supplemental report was merely a refinement of the expert’s prior opinions on damages and the new opinions “relate to the same issues on which a battle of the experts has been ongoing since the outset of the litigation and on which both experts will have an opportunity to elaborate in their trial testimony.”[45] As outlined in Thermal Design, experts pose their own set of challenges under Rule 26(e), and counselors should be particularly alert when meeting expert witness discovery obligations.

2. Timeliness

The Federal Rules require parties who have responded to earlier discovery to supplement or correct responses in a timely manner if the party learns that the response is incorrect or incomplete in some material respect.[46] Like the duty to “seasonably” supplement under Wisconsin Law, the duty to “timely” supplement or correct previous discovery responses is not explicitly defined by statute or case law. Broadly, the closer a party waits until the start of a court proceeding to supplement or correct, the more likely it is that the supplementation or correction is not “timely.”

Courts have found supplementation untimely where a request was made in February 2010 and the responses were still not provided by May 2010.[47] Courts have also found supplementation untimely when a March 1975 interrogatory response was not supplemented until four days before a June 1976 trial date.[48] Without bright lines to provide guidance, the best practice is to supplement or correct as soon as you learn a previous response is incomplete or incorrect.

3. Duty After Close of Discovery

The duty to supplement or correct under Rule 26(e) does not automatically create an ongoing duty to supplement earlier discovery responses following the close of the discovery period.[49] In Thompson v. Retirement Plan for Employees of S.C. Johnson & Sons, Inc., plaintiffs argued the defendants had an ongoing duty to supplement their earlier discovery responses by producing documents generated following the close of discovery nine months earlier.[50] The Eastern District disagreed, finding the language of Rule 26(e) did not support such a “broad and continuous” duty to supplement or correct after the close of discovery, but rather the duty to supplement or correct following the close of discovery is only triggered under particular circumstances where the opposing party stands to be unfairly disadvantaged or surprised if discovery is not supplemented.[51] While the duty to supplement is somewhat lifted at the close of discovery, it may be difficult to judge whether a court will find the opposing party was unfairly disadvantaged or surprised. When in doubt, the best practice is to supplement.

B. Consequences of Rule 26(e) Violation

The failure to comply with the requirements of Rule 26(e) is governed by Rule 37(c)(1), which states:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi)

Additional sanctions are provided in Rule 37(b)(2)(A)(i)–(vi):

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party.

For failing to make a required supplemental disclosure under Rule 26(e), the sanction of exclusion is automatic and mandatory unless justification or harmlessness is shown.[52] The district court has broad discretion to determine whether a failure to disclose is harmless or substantially justified, and will consider such factors as: “(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.”[53]

David. v. Caterpillar, Inc.,[54] provides a useful general discussion of the factors Seventh Circuit courts will weigh to determine whether a failure to supplement or correct discovery is harmless or substantially justified. In David, the Seventh Circuit was asked to review a district court decision allowing a witness to testify at trial despite plaintiff’s failure to supplement her Rule 26(a)(1) disclosures to identify a witness as having knowledge related to her claims.[55] The Seventh Circuit examined the record and found the witness had been listed as a potential witness nearly a year and a half before trial, defendant had interviewed the witness and learned the subject of his testimony prior to trial, did not seek a continuance, and was able to rebut directly the witness’s testimony at trial.[56] On these facts, the Seventh Circuit upheld the district court’s determination that the defendant had not been prejudiced by the witness’s testimony at trial.[57] In sum, to protect yourself from the consequences of failing to supplement, you should periodically review discovery requests and supplement quickly as new information is received.

IV. Conclusion

Satisfying your duty to supplement in Wisconsin or the federal system can be challenging, but the alternative carries a far higher cost. The duty to supplement can quickly overwhelm when time is limited. Do not wait until the eve of trial to start looking over what discovery must be provided to your opponent. It is best practice to periodically review discovery requests served on you throughout the discovery process with these rules in mind to ensure compliance. Another reason to ensure compliance with the duty to supplement is to prevent impeachment at trial of your witnesses if the information they previously provided is no longer accurate. Remember, ambush by trial, although compelling and dramatic, is only popular on television and in the movies.

[1] Wis. Stat. § 804.01(5)(a).

[2] Jenzake v. City of Brookfield, 108 Wis. 2d 537, 541, 322 N.W.2d 516 (Ct. App. 1982).

[3] Id. (citing Graczyk, The New Wisconsin Rules of Civil Procedure Chapter 804, 59 Marq. L. Rev. 463, 476-77 (1976)).

[4] Wis. Stat. § 804.01(5)(b).

[5] Robert B. Corris, et al., Wisconsin Discovery Law and Practice, § 1.36 (4th ed. 2011).

[6] Wis. Stat. § 804.01(5)(c).

[7] In re Estate of Glass, 85 Wis. 2d 126, 146, 270 N.W.2d 386 (1978).

[8] State v. Pletz, 2000 WI App 221, ¶ 24, 239 Wis. 2d 49, 619 N.W.2d 97.

[9] Michael A.P. v. Solsrud, 178 Wis. 2d 137, 153, 502 N.W.2d 918 (Ct. App. 1993).

[10] Robert B. Corris, et al., Wisconsin Discovery Law and Practice, § 4.42 (4th ed. 2011).

[11] In re Estate of Glass, 85 Wis. 2d at 146-47 (The imposition of sanctions rests with the discretion of the court.).

[12] Jenzake, 108 Wis. 2d at 542 (quoting Graczyk, The New Wisconsin Rules of Civil Procedure Chapter 804, 59 Marq. L. Rev. 463, 523 (1976)).

[13] Wis. Stat. Ann. § 804.12(4), Judicial Council Committee’s Note, 1974.

[14] In re Estate of Glass, 85 Wis. 2d at 146.

[15] Wis. Stat. §§ 804.12(4), 804.12(2)(a).

[16] Hur v. Holler, 206 Wis. 2d 335, 343, 557 N.W.2d 429 (Ct. App. 1996).

[17] Id. at 343-44 (“The use of one remedy available under § 804.12 does not preclude the use of any other § 804.12 remedy.”).

[18] Zarnstorff v. Neenah Creek Custom Trucking, 2010 WI App 147, ¶ 52, 330 Wis. 2d 174, 792 N.W.2d 594 (citing Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 15, 405 N.W.2d 661 (Ct. App. 1987)).

[19] Jenzake, 108 Wis. 2d at 539.

[20] Id. at 542 (citing Fredrickson v. Louisville Ladder Co., 52 Wis. 2d 776, 784, 191 N.W.2d 193 (1971)).

[21] Id. at 545.

[22] Id. at 544.

[23] Selmer Co. v. Timothy Rinn & Ganther Constr., Inc., 2010 WI App 106, ¶ 35, 328 Wis. 2d 263, 789 N.W.2d 621 (citing Sentry Ins. v. Davis, 2001 WI App 203, ¶ 20, 247 Wis. 2d 501, 634 N.W.2d 553); see also Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991).

[24] Selmer Co., 328 Wis. 2d 263, ¶ 36 (citing Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 14, 265 Wis. 2d 703, 666 N.W.3d 38).

[25] Sentry Ins. v. Davis, 2001 WI App 203, ¶ 21, 247 Wis. 2d 501, 634 N.W.2d 553.

[26] Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691, 271 N.W.2d 368 (1978).

[27] Hudson Diesel, Inc., v. Kenall, 194 Wis. 2d 531, 545, 535 N.W.2d 65 (Ct. App. 1995).

[28] Id. at 542-43.

[29] Colon-Millin v. Sears Roebuck, 455 F.3d 30, 37 (1st Cir. 2006).

[30] Fed. R. Civ. P. 26(e) (2012); see also generally 6-26 Moore’s Federal Practice, Civil, § 26.131.

[31] Id.

[32] 6-26 Moore’s Federal Practice, Civil, § 26.131 (citing Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 54 F.3d 478, 482 (8th Cir. 1995) (Although the fact that expert witness was expected to testify on causation was not identified in Rule 26(e) disclosure, court permitted disclosure because scope of testimony had been addressed at expert witness’s deposition.)); see also Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 731 (7th Cir. 2004).

[33] 382 F.3d 725.

[34] Id. at 731.

[35] Id. at 732.

[36] Id.

[37] Id.

[38] Id. at 733 (citing Fed. R. Civ. P. 26(e)(1), (2)); see also David v. Caterpillar, Inc., 324 F.3d 851, 856 (7th Cir. 2003).

[39] Gutierrez, 382 F.3d at 733.

[40] 2011 U.S. Dist. LEXIS 124435 (E.D. Wis. Oct. 25, 2011) (unpublished decision).

[41] Id. at *2.

[42] Id.

[43] Id.

[44] Id. at *3 (internal citations and quotations omitted).

[45] Id. (quoting Mintel Int’l Group, Ltd. v. Neergheen, 636 F. Supp. 2d 677, 685 (N.D. Ill. 2009)).

[46] Fed. R. Civ. P. 26(e)(1)(A); see also Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 (7th Cir. 2008).

[47] Hicks v. Avery Drei, LLC, 654 F.3d 739, 741, 744-745 (7th Cir. 2011).

[48] Holiday Inns, Inc. v. Robertshaw Controls Co., 560 F.2d 856, 857-58 (7th Cir. 1977).

[49] See Thompson v. Retirement Plan for Employees of S.C. Johnson & Sons, Inc., 2010 U.S. Dist. LEXIS 78865 (E.D. Wis. July 13, 2010) (unpublished decision).

[50] Id. at **2-3.

[51] Id. at **3, 4-6.

[52] Salgado v. GMC, 150 F.3d 735, 742 (7th Cir. 1998).

[53] David, 324 F.3d at 857.

[54] 324 F.3d 851.

[55] Id. at 856.

[56] Id. at 857-858.

[57] Id. at 858.