Lesson From The Fifth Circuit – Don’t Wait To Spring Your Best Evidence On Your Opponent At A Deposition

On December 12, 2016, the Fifth Circuit Court of Appeals upheld a district-court decision sanctioning two attorneys ($1,000 each) for “certifying that their clients’ initial disclosures under Federal Rule of Civil Procedure 26(a)(1) were complete and correct even though the disclosures failed to mention evidence that [the attorneys] later used during a deposition.” The decision (in Olivarez v. GEO Group) is available here. It contains an interesting discussion on whether evidence is “substantive” versus “impeachment” (as evidence used “solely for impeachment” is not subject to Rule 26’s mandatory-disclosure requirement). But the main lesson coming from the decision is that it’s best not to take your chances on whether Rule 26 requires you to disclose the evidence to your opponent without awaiting a discovery request—just produce it, instead of waiting until later in the case to spring it on your opponent.