Legal Memorandum: Supplementing Discovery Requests–US

Issue: What is necessary in the 8th Circuit to sanction a party for failing to respond and supplement discovery requests.

Rule 26(e) of the Federal Rules of Civil Procedure requires a party to supplement its Rule 26 Initial Disclosure or its responses to written discovery requests “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.”  Fed. R. Civ. P. 26(e)(1)(A).  If the party fails to disclose or supplement its discovery responses, the party may be sanctioned under Rule 37(c)(1).  That rule provides:

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).

Fed. R. Civ. P. 37(c)(1).

Sanctions for failure to timely supplement are mandatory.  The typical sanction for a […]