Notice of Intent to Use Unfiled Discovery As Evidence
In Salmon v. Miller, 958 S.W.2d 424, 428 (Tex.App.--Texarkana 1997, pet. denied), the proponent of the evidence was the movant and the appellee on appeal. See Salmon, 958 S.W.2d at 426.
The movant filed a notice of intent to use unfiled discovery as summary judgment evidence. See Salmon, 958 S.W.2d at 427 n.3.
The notice did not contain any specific references to the unfiled discovery.
Additionally, the actual documents relied upon were not before the trial court until one month after summary judgment was rendered. See Salmon, 958 S.W.2d at 427.
The issue before the Texarkana Court was not whether the trial court could strike all evidence not specifically referenced in the summary judgment motion, but rather, could the trial court consider evidence the movant only alleged to have in its possession. See Salmon, 958 S.W.2d at 428.
The Texarkana Court concluded that the party that wished to rely on the unfiled discovery must convey to the trial judge the substance of the evidence. See id.
This could be done by filing copies of the evidence or by citing specific language from the discovery to the trial court. See id.
In any case, "'it is incumbent upon the party relying on unfiled summary judgment evidence to show by a record that the substance of unfiled discovery was presented to the trial court before it ruled on a motion for summary judgment.'" Salmon, 958 S.W.2d at 428-29, citing E.B. Smith, 850 S.W.2d at 624.
Rule 166a(d) provides three methods to present unfiled discovery before the trial court.
First, a party may file the discovery with the trial court. Second, a party may file an appendix containing the evidence.
Finally, a party may simply file a notice with specific references to the unfiled discovery.