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Click here for the full text of this decision FACTS:Appellee La Madeleine of Texas Inc., individually and d/b/a La Madeleine French Bakery and Caf� and d/b/a La Madeleine, used a surveillance videotape and photos at trial to show that appellant Oscar Luis Lopez had testified falsely about the extent of his injuries. However, counsel for La Madeleine intentionally failed to disclose the existence of the tape and photos during discovery, despite a specific discovery request that La Madeleine produce any “tape recordings, pictures or videos of Plaintiff or any witness in this case.” After the trial court allowed La Madeleine to introduce the videotape and photos, the jury found La Madeleine was not negligent in causing Lopez’s injuries, and the trial court entered a take-nothing judgment. The trial court also denied Lopez’s motion for new trial and motion for sanctions based on La Madeleine’s failure to disclose the videotape used at trial. However, the trial court specifically found that La Madeleine’s counsel had no good cause for failing to supplement discovery and produce the materials. HOLDING:Reversed and remanded in part; the court affirms the trial court’s order on Lopez’s motion for sanctions. The videotape and still photos were inadmissible at trial unless the record shows that one of the exceptions to Texas Rule of Civil Procedure 193.6 applied: (1) that there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) that the failure to timely make, amend, or supplement the discovery response did not unfairly surprise or unfairly prejudice the other parties. See Tex. R. Civ. P. 193.6(a). The trial court ruled out the existence of the first exception, stating in its letter that it could not find good cause for La Madeleine’s failure to supplement discovery. Thus, the court concludes that the trial court impliedly found the failure to timely supplement the discovery response did not unfairly surprise or unfairly prejudice Lopez. Although it might be possible that untimely supplemented or amended discovery responses could cause surprise concerning the issues in a case, rule 193.6(a) relates to the discovery of evidence; its principal purpose-and most common application-is to protect a party from surprise concerning the existence of undisclosed evidence-not issues. The rule applies when the existence of evidence was not disclosed in a timely manner, whether or not such evidence related to an issue both parties knew existed in the case. Thus, a party who failed to disclose the existence of an eyewitness to an auto accident cannot argue the absence of surprise or prejudice on the grounds that his party opponent was aware that whether the traffic light was red or green was an issue in the case. Allowing the admission of undisclosed evidence as to a party’s conduct of his or her own affairs would largely extinguish the rule 193.6(a)’s exclusionary effect, and eviscerate the rule’s salutary effect of promoting full and complete discovery. The burden was on La Madeleine to show that its failure to timely disclose the videotape and photos in response to Lopez’s discovery requests would not unfairly surprise or prejudice Lopez. The record contains no such showing. The court concludes that the trial court erred in admitting the videotape and photos over Lopez’s objections. The videotape and photographs were relevant not only as to damages, but also as to the truth and veracity of Lopez as a witness. The court concludes the trial court’s error in admitting the videotape and photos probably caused the rendition of an improper judgment. OPINION:Moseley, J.; Whittington, Moseley and Lang-Miers, JJ.

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