Texas Bar Journal • July/August 2026

Navigating Discovery Objections Under Rule 193.6

Disclosure pitfalls and trial consequences.

Written by Jillian Schumacher

Objections to evidence based on the failure to disclose or respond to discovery are on the rise. Last year, intermediate courts of appeals in Texas issued an opinion mentioning Texas Rule of Civil Procedure (TRCP) 193.6 more than once each week. When a party fails to fully disclose evidence or timely respond to discovery, Rule 193.6 states that the evidence shall automatically be excluded from trial unless the proponent of the evidence proves (1) good cause for the failure to fully disclose the evidence or (2) introduction of the evidence will not cause any unfair surprise to the opposing party.1

Rule 193.6 is mandatory. The penalty in the rule—exclusion of evidence—is automatic, absent a showing of good cause, lack of unfair surprise, or lack of prejudice.2 The rule seems straightforward. And, in many cases, it is. For example, when applied to documentary evidence, the rule and its corresponding burden of proof make sense. If a party seeks to admit an exhibit into evidence, that party should know the exhibit needed to be produced in discovery. If the proponent of the evidence did not produce the evidence, it also should know it will need to prove an exception to Rule 193.6 to admit the evidence at trial. But Rule 193.6 is less straightforward when it is applied to initial disclosures and evidence of attorney’s fees.

Rule 194.2, titled “Initial Disclosures,” governs initial disclosures that must be made to the opposing side at the beginning of the lawsuit, within 30 days of a party’s answer or first general appearance in the case. These disclosures include but are not limited to: the legal theories and factual bases of the responding party’s claims or defense, the amount and any method of calculating economic damages, and the name, address, and telephone number of persons having knowledge of relevant facts.3 Rule 195.5 requires a party disclose information relating to any testifying expert, including the “subject matter on which the expert will testify,” and the “general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them.”4

Though these disclosures must be made at the beginning of a case, sometimes as litigation progresses, a party’s answers to the initial disclosures may change. When this occurs, the party may find itself subject to an objection under Rule 193.6 that the party may not have anticipated. For example, in Diamond Hydraulics, Inc. v. GAC Equip., LLC,5 a party sought to supplement an expert disclosure because the original expert was no longer available for trial. Similarly, in Buckhead Inv. Partners, Inc. et al. v. Brompton Community Housing Dev. Corp.,6 an expert filed a supplemental report refining the expert’s calculations in response to rulings on summary judgment.

In both of these cases, the need to supplement the expert report or disclosure arose due to events that occurred during the normal course of litigation. In both cases, the opposing side objected under Rule 193.6, and the trial court excluded any evidence based on the supplemental report.

In Buckhead, the 1st Court of Appeals in Houston reversed the exclusion of the evidence, reasoning that the changes to the report were allowable refinements in the expert’s opinion, but in Diamond Hydraulics, the party’s substituted expert was excluded.7

As litigation progresses and parties engage in discovery, a party’s understanding of its case can change as well. But if any of the party’s new positions vary from those stated in its initial disclosures, the initial disclosure may be insufficient. Similarly, even if the party’s position does not change throughout the course of discovery, reasonable people and judges can disagree about whether a disclosure is detailed enough to cover evidence a party seeks to admit.

For example, in Hsu v. Conterra Servs., LLC,8 and Markham v. Citizens Bank, N.A.,9 the parties disagreed about whether disclosures relating to the amount of interest owed pursuant to contracts were sufficient to prevent an unfair surprise at trial. In Hsu, a party contended that the plaintiff ’s reference to statutory interest owed under the Prompt Payment Act was insufficient to provide notice of the amount of pre-judgment interest owed.10 In Markham, a party contended that referencing an agreement with a schedule of damages was insufficient to disclose the amount of damages owed.11

If a disclosure arguably lacks sufficient detail, Rule 193.6 provides the opposing party with a strategic decision. The party may either (1) put the disclosing party on notice about the deficiency either through special exceptions, meeting and conferring, or a motion to compel, or (2) wait and surprise the disclosing party at trial with an objection under Rule 193.6. The purposes of the rule can be turned on their head when an opposing party objects for the first time at trial to witness testimony based on an insufficient initial disclosure, and the proponent of the evidence may find itself without sufficient recourse to respond to the surprise objection. Similarly, a party may not anticipate an objection to changed expert testimony that responds to changes in the case that occur during discovery.

A Rule 193.6 objection can be determinative in a case because the rule operates automatically and exclusion of the evidence is mandatory. The consequence of the rule is akin to a death penalty sanction, but unlike in the context of the discovery sanctions, there is no requirement that the consequence be tailored to deter the discovery conduct and no requirement that the consequence be just. Additionally, unlike the sanctions context where the party seeking exclusion bears the burden of proof, in the context of Rule 193.6, the party defending against the objection bears the burden of proof.

Given the frequency of these objections and their potential to determine issues at trial, lawyers need to assess their cases with an eye toward whether their disclosures and discovery responses still are correct and sufficient as trial approaches. Lawyers also must be prepared to respond to the objection and create an appropriate record for review.12

Responding lawyers need to consider and be ready to present evidence addressing (1) whether the production or disclosure was sufficient to comply with the discovery rules, (2) whether there was good cause for any failure to comply, and (3) whether the failure to comply will cause unfair surprise. The record needed to prove these points likely involves discovery-related evidence and is likely different than exhibits addressing the merits of the claim.

If responding lawyers are unable to put together this record on the fly, they should consider moving for a continuance to have time to put together a record or evidence relating to the exclusion or seek reconsideration of the ruling and proffering evidence at that time to put the best possible record before the trial court to allow for appellate review.

Lawyers who are familiar with Rule 193.6 and think about their disclosures and discovery responses as trial approaches will be in the best possible position to avoid this objection in the first place or respond to the objection in a way that protects their clients’ position.

JILLIAN SCHUMACHER, partner in Daniels and Tredennick, is an appellate lawyer who is certified in civil appellate law by the Texas Board of Legal Specialization. Before entering private practice, she spent more than half a decade in public service as a judicial law clerk on two appellate courts. Schumacher enjoys speaking and writing on appellate topics and serving the bar community. Notably, she has served as chair of the Houston Bar Association Appellate Section and as editor in chief of the Appellate Lawyer.