Rule 56.01(e) of the Missouri Rules of Civil Procedure requires parties to a litigation to supplement responses to interrogatories, requests for production, and requests for admission “if the party learns that the response is in some material respect 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.” This has come to be known as the “continuing duty doctrine”.
The rule does not mention deposition testimony, and there is no other rule that creates a duty to supplement deposition testimony. But a recent decision of the Missouri Court of Appeals suggests that the “continuing duty doctrine” applies to the deposition testimony of a party’s representative.
In Burlison v. Dep’t of Public Safety, the Southern District considered an appeal and cross appeal from an award of the Labor and Industrial Relations Commission in a worker’s compensation case. 478 S.W.3d 577 (Mo. App. S.D. 2016). The cross appeal came from the employer who sought review of the Commission’s adoption of the Administrative Law Judge’s (ALJ) decision to exclude two surveillance videos of the former employee’s activities at the worker’s compensation hearing. During discovery, the former employee deposed the employer’s representative, and the deposition notice included a request for production, including any surveillance videos taken of her.
At his deposition, the employer’s representative testified that there had been no surveillance video taken of the former employee. However, sometime after the deposition, the employer hired an investigator to conduct surveillance of the former employee, and took video of her activities on two occasions. At the hearing, the employer attempted to cross examine the former employee using the two videos. The former employee objected on the grounds that the videos had not been disclosed prior to the hearing. The ALJ sustained the objection, finding that the videos were not admissible because the employer had a duty to supplement its representative’s testimony under Rule 56(e) but failed to do so. The Southern District affirmed the Commission’s award, agreeing that the employer had committed a discovery violation and that the surveillance videos were properly excluded by the ALJ.
The Court of Appeals relied on two older appellate decisions interpreting an earlier but similar version of Rule 56(e). One was Crompton v. Curtis-Toledo, Inc. in which the Eastern District Court of Appeals applied the continuing doctrine duty to preclude introduction of a fact witness at trial by a party who failed to supplement deposition testimony involving the identity of that witness. 661 S.W.2d 645, 650 (Mo. App. E.D. 1983). In Crompton, the court acknowledged that the rules say nothing about supplementation of deposition testimony, but cited to the spirit of the discovery rules “that the rules of discovery were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgment therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel.” The other case relied upon by the Southern District was Gassen v. Woy in which the Western District applied the continuing duty doctrine to the deposition testimony of an expert where the expert witness changed their opinion before trial. 785 S.W.2d 601, 603-04 (Mo. App. W.D. 1990).
The lesson of Burlison is that if you want to use something at trial, you have to disclose it during discovery, even if it means supplementing your client’s deposition testimony.