A Lawyer’s Duty to Supplement Discovery

A party who has responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosures or response to include information thereafter acquired in the following circumstances:

(1) A party is under a duty to supplement promptly its disclosures if the party learns that in some material respect the information disclosed 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.

(2) A party is under a duty to amend promptly a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional information has not otherwise been made known to the other parties during the discovery process or in writing. Rule 4:1(e)

Rule 4:1(e) and the analogous federal rule, FRCP 26(e), differ slightly, most notably in the language describing the timeliness of the duty to supplement. The federal rule describes the duty in terms of “at appropriate intervals” and “seasonably,” rather than “promptly,” as required by Rule 4:1(e).

Both rules require a party who learns a prior disclosure or response is in some material respect incomplete or incorrect, to supplement. Whether the information is material will be analyzed on a case by case basis. Most certainly information affecting the opinions of experts, the identity of witnesses known only to a particular party, medical information relating to plaintiff’s claims or injuries and information bearing on liability will be considered material. The federal rule imposes a specific deadline for supplementation of expert opinions. FRCP 26(e)(1).

The term “promptly” as used in Rule 4:1(e) is as of yet undefined, but a reasonable interpretation would required the disclosure upon receipt of the new information. Whether sanctions are imposed for delayed supplementation will undoubtedly depend on the burden imposed on the recipient to react to the new information, and what opportunity is afforded the recipient of the new information to prepare adequately for trial.

Rule 1:18 provides for the trial court, after notice, to enter a Pretrial Scheduling Order. The form of the order is set forth in Section 3 of the Appendix of Forms for Part One, found in the Rules of the Supreme Court. The Scheduling Order provides in that “[t]he parties have a duty to seasonably supplement and amend discovery responses pursuant to Rule 4:1(e). Seasonably means as soon as practical.” By amendment effective January 1, 2001, the word “promptly” was substituted for “seasonably” in Rule 4:1(e). This amendment suggests an intention to add a sense of urgency to the obligation to supplement. Furthermore, the Uniform Pretrial Order states that “[n]o provision of the Order supercedes the Rules of the Supreme Court of Virginia governing discovery.” To the extent the Pretrial Order conflicts with Rule 4:1(e), the Rule will control.