Exclusion of Defendant Not Identified In Response to Interrogatory

In Smith v. Southwest Feed Yards (Tex. 1992) the supreme court reversed the trial court's exclusion of a defendant who had not been identified in response to an interrogatory seeking the names of persons with knowledge of relevant facts. See Smith, 835 S.W.2d at 91-92. We distinguish that case by noting that the customer who was not listed in response to one interrogatory had otherwise been identified as a person with knowledge of relevant facts in answer to a subsequent interrogatory and in a pretrial order and was thus permitted to testify as a fact witness. See id. at 91. In that case, the supreme court reversed the court of appeal's decision upholding exclusion of a defendant who had not been identified in response to one interrogatory seeking the names of persons with knowledge of relevant facts. In so doing the court did not exclude parties from the sanctions of former Rule 215 for failure to respond to or supplement a discovery request: "A party cannot disregard procedural rules and still insist upon an absolute right to testify in all circumstances." Id. at 90. Indeed, the court reiterated its prior holding that litigants should be able to prepare for trial relying on who has been identified as a possible witness in a proper discovery request. See Smith, 835 S.W.2d at 91 (citing Broadway Nat'l Bank, 784 S.W.2d at 671). Rather, the court noted that Smith, although not listed in response to one interrogatory, had otherwise been identified as a person with knowledge of relevant facts in answer to a subsequent interrogatory and in a pretrial order. See id. The supreme court admonished the trial court to consider the substance of the entire discovery response where it was adequately revealed that the defendant was a person with knowledge of relevant facts. Id. Significantly, the supreme court did not excuse a party from meeting the good cause requirement of former Rule 215 before admitting testimony from an undisclosed witness: "The importance attached to a party's ability to testify in his or her own behalf constitutes only an additional factor that a trial court must consider in making its good cause determination." Id. at 90. And the fact that a party has been fully deposed will not suffice to establish good cause for admitting such evidence. See Smith, 835 S.W.2d at 91 (citing Broadway Nat'l Bank, 784 S.W.2d at 671).