Texas Family Law Insiders Podcast - Episode Summary

Episode: Evidence Exclusion Strategies and Real-World Tips for Texas Family Law Attorneys
Host: Holly Draper
Guest: Emily Derone, Senior Attorney at the Draper Law Firm
Date: November 5, 2025

Episode Overview

This episode dives deep into the nuts and bolts of Rule 193.6 of the Texas Rules of Civil Procedure, specifically discussing strategies for excluding evidence in Texas family law cases due to discovery violations. Hosted by Holly Draper with guest Emily Derone, it delivers practical insights, real-world examples, and appellate considerations for family law practitioners navigating evidentiary hurdles.

Key Discussion Points & Insights

1. Understanding Rule 193.6 [01:00]

• Scope of Rule: Prohibits parties from introducing evidence not timely disclosed or witnesses not timely identified, with two exceptions: (1) Good cause, or (2) No unfair surprise or prejudice.
• Discovery Violations: Applies to late, incomplete, or wholly missing discovery responses.
• Judicial Discretion: Judges may allow a continuance to remedy the violation—practitioners should be prepared for this possibility.

Quote: “I would never prepare for trial assuming that the court is going to rule the way that you want on the exclusion or admission of discovery documents based on this rule.” – Emily Derone [00:00] & [29:11]

2. Making the Record [01:58]

• The burden lies on the party seeking to introduce the evidence to prove an exception applies.
• The court must make specific findings on the record for appellate preservation.

Quote: “The key on these exceptions is that the burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence. And the court’s finding must be on the record.” – Holly Draper [01:58]

3. Triggers for Exclusion [03:39]

• Full or partial failure to respond, failure to timely supplement, failure to designate experts or witnesses, and not complying with standing or scheduling orders.

Insight: Always know your file; create outlines or spreadsheets to track what’s been produced. Detailed records help lodge precise objections at trial.

4. Timely Supplementation [06:17]

• Supplement "anytime there’s new information," not just by the final discovery deadline.
• Set internal "mini deadlines" to routinely check for updates from your client.

5. Pretrial Disclosure Nuances [07:17]

• Rules can vary by court—know which disclosure rules and deadlines apply based on case filing date and local court orders.

6. Exceptions Allowing Evidence [08:07]

• Good Cause: Must show justified delay or truly new, previously unknown facts. Health emergencies may qualify; client oversight alone does not.
• No Unfair Surprise/Prejudice: Did opposing counsel know? Was the issue in pleadings? Did the witness or evidence surface in communication or via other means?

Quote: “Negligence or oversight I don’t think is going to be enough... justifying the delay, discovery of new facts, or health issues and emergencies are really the only ones we can rely upon.” – Emily Derone [08:07]

Case Law Highlights

a. Cases Upholding Exclusion [10:08]

• Fort Brown Villas Condo Ass’n v. Gillenwater: Expert testimony excluded for failing to designate properly. Strict deadline compliance is necessary.
• Sprague v. Sprague: Continuance does not equal extended discovery deadlines. Failure to show good cause or lack of surprise leads to exclusion.
• Gibbs v. Bureau’s Investment Group: Affidavit first disclosed at trial was excluded; “no disclosure means no entry into evidence.”

Quote: “I’ve used Gibbs a couple of times...it’s a pretty overarching case of if you don’t turn it over, it’s not coming into evidence. Period.” – Emily Derone [12:33]

b. Cases Permitting Exceptions [12:51]

• Ray v. Reddick: Late attorney’s fees expert allowed due to lack of surprise.
• In the Interest of AM: Transcripts admitted at trial; any error found not to be harmful.
• White v. Perez: Exclusion of evidence automatically applied due to discovery failure; no motion or hearing required.

Practical Tips & Strategies

1. Avoiding Exclusion [13:58]

• Calendar Every Deadline: Include advance reminders. Proactive calendaring prevents last-minute scrambles.
• Act Early: Designate experts and supplement as soon as possible—overdisclose rather than underdisclose.
• Early Communication: If missing a deadline is unavoidable, alert opposing counsel early to seek courtesy extensions.

Quote: “Calendar every single deadline. I like to calendar a couple of days or even weeks before...if I’m just remembering on the day of, then I’m probably going to be scrambling and I don’t like to scramble.” – Emily Derone [13:58]

2. If You Miss a Deadline [16:21]

• Immediately produce the missing discovery or evidence.
• Request opposing counsel’s agreement for late disclosure—if not granted, promptly move for continuance or leave.
• Argue the absence of unfair surprise or prejudice if the delay is minimal.

3. Protecting the Appellate Record [18:04]; [19:00]

• Always make an offer of proof if evidence is excluded—never give up on the record.
• Judges may resist, but insist—without it, the issue cannot be raised on appeal.

Quote: “If you don’t make an offer of proof, you cannot come back on appeal and complain that the judge should have let that evidence in.” – Holly Draper [18:12]

4. Objecting to Opposition’s Evidence [19:49]; [22:16]

• Be strategic: If there’s a complete failure, object from the outset; for limited issues, object as evidence is offered.
• Repeat objections each time; running objections are not valid for appellate preservation.
• Balance thorough records with time constraints in trial.

Quote: “Running objections are not a thing. Right. No matter how many times a judge tells you that they are, they are not a thing. And if you want to have a preserved record for appeal, you have to object every single time.” – Holly Draper [21:09]

5. Handling Discovery Objections and Motions to Compel [25:42]

• If opposing party only objects and produces nothing, consider moving to compel—especially if you need the evidence for your case.
• Weigh the cost/benefit for your client and your actual need for the evidence (do you want it, or just want to keep it out?).

Notable Quotes & Memorable Moments

• “Over disclose. Disclose when you have it... It’s always safe for exclusion.” – Emily Derone [16:03]
• “We all know what the statute says, but judges are human... Being prepared to know that judges don’t always get it right is invaluable.” – Emily Derone [29:11]
• “Just because you’re right on the law doesn’t mean it always goes that way.” – Holly Draper [29:47]

Important Timestamps

• Rule 193.6 Basics – [01:00]
• Exceptions to Exclusion – [08:07]
• Case Law Examples – [10:08]–[12:51]
• Practical Tips – [13:58]
• Missed Deadlines – [16:21]
• Protecting the Record – [18:04]
• Objection Strategies – [19:49]–[22:16]
• Motions to Compel – [25:42]

Final Takeaways

1. Preparation is King: Prepare assuming things will not go as planned; over-prepare on discovery and record-making.
2. Know the Rule and the Judge: Procedural rules don’t guarantee judicial outcomes—be ready for human unpredictability.
3. Preserve and Protect: Always make a full record for appeal—no shortcuts.
4. Cost vs. Benefit: Evaluate the practicality and necessity of every motion or objection for your client’s situation.

For in-depth written material, refer to Holly Draper's paper from the August Family Law 101 presentation.