§ Rule 37(c) Failure to Disclose; False or Misleading Disclosure; Untimely Disclosure

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Rule 37(c). Failure to Disclose; False or Misleading Disclosure; Untimely Disclosure

    (1) A party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown. A party or attorney who makes a disclosure pursuant to Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorney's fees of such investigation or discovery. In addition to or in lieu of these sanctions, the court on motion of a party or on the court's own motion, and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B) and (C) of subdivision (b)(2) of this Rule and may include informing the jury of the failure to make the disclosure.

    (2) A party seeking to use information which that party first disclosed later than sixty (60) days before trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:

        (i) that the information would be allowed under the standards of subsection (c)(1) notwithstanding the short time remaining before trial; and

        (ii) that the information was disclosed as soon as practicable after its discovery.

    (3) A party seeking to use information which that party first disclosed during trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:

        (i) that the information could not have been discovered and disclosed earlier even with due diligence; and

        (ii) that the information was disclosed immediately upon its discovery.

    APPLICATION

    The text of this rule which is effective March 1, 1997 is inapplicable to cases which are set for trial between March 1 and April 30, 1997.