Rule 37: C: 1: And the Preclusion of Undisclosed Evidence: A Practical Guide

42 questions on rule 37, answered and cited by the UpLaw editorial team.

• Can an expert testify to an opinion that was not in the report?
• Can a party use at trial something it refused to identify in discovery?
• Can a preclusion objection be waived by delay?
• Can Rule 37(c)(1) exclude evidence at summary judgment?
• Can supplementation be used to add a new expert opinion after the deadline?
• Does Rule 37(c)(1) require bad faith or willfulness?
• Does the importance of the evidence help or hurt a party facing preclusion?
• Do the additional Rule 37(c)(1) sanctions require a separate motion?
• Do you need a motion to compel before seeking preclusion under Rule 37(c)(1)?
• How can Rule 37(c)(1) be both automatic and discretionary?
• How does a Rule 37(c)(1) motion differ from a Daubert challenge?
• How does Rule 37(c)(1) differ from the ESI spoliation rule?
• How do you demonstrate prejudice in a preclusion motion?
• How is preclusion different from Rule 403 exclusion?
• How much do the circuits' preclusion frameworks actually differ?
• How should a party build a preclusion motion?
• How should a party defend against a preclusion motion?
• How would a court analyze an undisclosed lost customer in a damages counterclaim?
• Is a preserved objection the same as failing to disclose?
• What are the Fourth Circuit's Southern States factors?
• What are the Patterson factors for preclusion in the Second Circuit?
• What are the Tenth Circuit's Woodworker's Supply factors?
• What counts as substantial justification for a disclosure failure?
• What did Design Strategies v. Davis hold about undisclosed damages theories?
• What disclosure duties does Rule 37(c)(1) enforce?
• What does Rule 26(a)(1)(A)(iii) require for a damages computation?
• What does Rule 37(c)(1) do?
• What happens to a damages theory that was never computed in discovery?
• What happens to an expert opinion first disclosed at deposition?
• What is the continuing duty to supplement under Rule 26(e)?
• What is the cultural lesson of Rule 37(c)(1)?
• What is the difference between Rule 37(c)(1) and Rule 37(b)?
• What is the difference between Rule 37(c)(1) and Rule 37(c)(2)?
• What is the usual vehicle for raising a preclusion argument?
• What must be in a Rule 26(a)(2)(B) expert report?
• What purposes do discovery sanctions serve?
• What sanctions beyond preclusion are available under Rule 37(c)(1)?
• When is a disclosure failure harmless?
• When will a continuance cure a late disclosure?
• Who bears the burden on a Rule 37(c)(1) preclusion motion?
• Why is the expert context the highest-stakes setting for preclusion?
• Why won't courts let a party spring undisclosed information at trial?