Section 3. Topics Addressed in Scheduling Orders

Tenn. R. Civ. P. 16.01 provides some guidance on what topics can be addressed in a scheduling order, but the list is not meant to be exclusive.  Indeed, the initial Advisory Commission Comment to Tenn. R. Civ. P. 16 explains that: “[T]he rule introduces into state practice the familiar pretrial procedures used in the federal courts.  The use of the procedure lies within the discretion of the court.”

Thus, the topics addressed frequently depend on (a) the nature of the case; (b) the complexity of the case; (c) the number of parties to the case; and (d) the experience and sophistication of the lawyers and the judge.  Other things being equal, a scheduling order will be more detailed and cover more topics as the case complexity and / or the amount in controversy increases.

Here is a non-exclusive list of the matters that may be addressed in a scheduling order:

1. A deadline to amend the pleadings. The pleadings frame the issues in the case, and thus it is important to have a date for the pleadings to be “closed,” remembering of course that any deadline in a scheduling order can be extended for good cause shown.  Typically, the deadline established should be late enough in the course of litigation to allow a diligent party an opportunity to do discovery and amend a pleading accordingly but not so late so as to result in the change of the trial date or cause discovery to be re-opened or repeated.

Since one must usually file a motion to amend pleadings, it is preferable for the order to make it clear that the deadline indicated in the scheduling order is (a) the date a motion must be filed; (b) the date that leave to amend is granted; or (c) the date the amended pleading is actually filed with the clerk.  An ambiguous deadline will lead to unnecessary stress and expensive motion practice. It is recommended that the parties ask the court to establish a deadline for filing the motion to amend the complaint or answer, since the parties cannot control when such motion might actually be heard or when an appropriate order will be entered. This is particularly important for cases pending in our more rural counties, where judges must “ride the circuit,” and obtaining a prompt hearing date can more difficult.

Once again, there will be circumstances that arise from time to time that will constitute “good cause” for allowing an amendment of a pleading, even though the deadline established by the scheduling order has expired.  In exercising its discretion in determining whether to grant a motion to amend a scheduling order to allow a party to amend a pleading, it is suggested that, in addition to looking at why the deadline was missed, the court should consider the same factors that it would consider in determining whether to grant a motion to amend in the absence of a scheduling order, namely: (1) whether undue delay will occur as a result of the proposed amendment; (2) whether the opposing party has sufficient notice; (3) whether the moving party is acting in bad faith; (4) whether the moving party has failed to cure deficiencies in previous amendments; (5) whether the opposing party will suffer undue prejudice; (6) the circumstances giving rise to the proposed amendment; and (7) the futility of the amendment.  Of these factors, the most important is the proposed amendment’s potential prejudicial effect on the opposing party.^[1]

Not to be forgotten is the language of Tenn. R. Civ. P. 15.02:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. Provided, however, amendment after verdict so as to increase the amount sued for in the action shall not be permitted. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved [sic] thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice that party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Thus, notwithstanding the language of a scheduling order establishing a deadline for a motion to amend pleadings, what happens at a trial may result in an amendment to the pleadings or a determination that additional issues were tried by consent.  If counsel wants to avoid that result, counsel  needs to (a) be aware of the issues raised by the pleadings; (b) be prepared to object to the introduction of evidence that is relevant to issues other than those raised by the pleadings; and (c) be prepared to object to statements of opposing counsel that attempt to raise issues other than those raised by the pleadings.^[2]

2. A deadline for the completion of fact discovery. A deadline for completion of fact discovery is often broken down into deadlines for fact discovery and deadlines for expert witness disclosures and depositions.  Sometimes there are separate deadlines for service of written discovery.  What is appropriate depends on the case, but once again, clarity in establishing dates and what must be accomplished by that date is important.  For example, does a deadline that fact discovery be complete by a certain date mean that interrogatories can be submitted on that date or must they be served thirty days or more earlier so that the answers are due no later than that date? Anxiety and disputes about the answer to this question can be avoided by being more precise in the drafting process.

Another controversy that can arise with such provisions is whether the deadlines apply to medical examinations pursuant to Tenn. R. Civ. P. 35 and requests to admit pursuant to Tenn. R. Civ. P. 36.  While both of these rules are discovery devices and thus should fall within discovery deadlines generally, it makes sense to address them specifically to avoid any confusion as the case progresses.

Thus, if the case involves personal injuries and it is possible that the defendant will want a medical examination of the plaintiff by an expert of defendant’s choosing, the scheduling order should establish a deadline for that examination to occur and the report to be served.  Ideally, this deadline should occur before the date by which plaintiff is required to depose treating physicians or medical experts. Why? So that the plaintiff’s doctor(s) will have the opportunity to comment on the opinions reached by the defendant’s examining doctor.  Any contrary course of action either (a) deprives the plaintiff’s doctor of the opportunity to comment on the opinions reached by defendant’s examining doctor or (b) requires plaintiff to re-depose plaintiff’s doctor for the sole purpose of commenting on the opinions of the defendant’s doctor.  The latter creates unnecessary expense.

3. Dates for adding other parties or, in cases that invoke the law of comparative fault, asserting fault of others.  In some instances, it is possible that the initial parties in the case will seek to add additional parties or, in cases involving comparative fault, indicate that those not a party to the action should be deemed to bear some or all of the fault causing the injuries or losses complained of by the plaintiff.  A realistic period of time should be permitted to allow the fact investigation reasonably necessary to permit this decision to be made, but that time period must be consistent with the goal of the just, speedy and inexpensive resolution of the case. In a perfect world, discovery would be structured in such a way as to flush out as soon as reasonably possible the facts necessary to allow a party plaintiff or defendant to make an informed judgment about whether one or more other parties should be added in the litigation.

For example, a defendant in a case where comparative fault applies may want to consider alleging fault against a non-party, but needs to do some discovery before making the decision on whether to make the allegation.   The defendant should be granted a reasonable period of time to investigate the facts, including depositions as appropriate, so that a determination can be made whether such allegation would be supported by the facts and would be wise from a strategic standpoint. However, there should be a date established by which the defendant must make a decision as to whether he, she or it is going to allege the fault of a party or non-party, because doing so (or not doing so) influences trial dates, settlement, and the expense of the proceeding.^[3]  Exactly when the deadline should be set depends on the nature of the case and the circumstances.^[4]  That said, assuming plaintiff’s counsel discloses the identity of witnesses to the event at issue and has made a plaintiff with knowledge of the event available for a deposition, there is little reason for the deadline for a defendant to identify the fault of co-defendants or non-parties more than six months after a complaint has been served.   It is not unfair to require a defendant to timely utilize the tools of the discovery process to determine whether to assert the fault of others.

The above assumes that plaintiff has been transparent in disclosing witnesses and other evidence sought by defendant using one or more discovery tools.

4. Discovery of electronically-stored information. This is a topic usually addressed, if at all, in commercial litigation matters. Detailed discussion of this issue is left to other texts.

5. Limits on duplicative discovery. It is appropriate for the parties to agree or for a judge to order that duplicative written discovery not be served by multiple parties to another party.  This may be accomplished by a provision in the scheduling order mandating cooperation in creating a single set of discovery from all parties aligned on one side of the “v”, or a set of core discovery served by one party with the other parties granted the right to serve additional discovery on non-duplicative matters.  If the parties decide or the judge orders a limitation on duplicative written discovery, it is appropriate to include language in the scheduling order that makes it clear that the answering party has a duty to supplement responses to that discovery under Tenn. R. Civ. P. 26.05, even if the party serving that discovery is no longer a party to the case.  This provision is necessary to allow each party to rely on discovery responses given to discovery served by a co-party.

6. Expert witness disclosure deadline. This deadline ensures the timely exchange of expert witness disclosures under Rule 26.

It is not uncommon for scheduling orders in simple cases to require that the plaintiff serve expert witness disclosures before the defendant is required to do so.  This is not unwise; normally, the plaintiff has the burden of proof on the most if not all of the issues and it makes sense to require the party with the burden of proof on an issue to disclose experts first.  A full and fair disclosure gives the opposing party a clearer understanding of the plaintiff’s theory of the case, and thus the opposing party’s expert can better address the issues in his or her own disclosure.

In more complex cases, however, it is not uncommon for the plaintiff to have the burden of proof on some issues and one or more defendants to have the burden of proof on other issues.  For example, assume that Plaintiff sues Hospital A in a health care liability action.  Defendant alleges in its answer that Plaintiff’s injuries were caused by the negligence of an earlier facility that treated Plaintiff, Hospital B.  Under the law of comparative fault, Plaintiff can add Hospital B as a party defendant but Hospital A will have the burden of proving the case against Hospital B.  Thus, Hospital A will have the burden of calling expert witnesses to establish that Hospital B negligently caused or contributed to cause Plaintiff’s injuries.

In this type of situation and other situations involving the pleading of an affirmative defense which must or may involve expert testimony, the party that has the burden of proof should be required to disclose expert testimony before the party that does not.  Using the example set forth in the preceding paragraph, the scheduling order should provide that Plaintiff is  required to disclose expert witnesses it has against Hospital A and Hospital B, and Hospital A should have to disclose experts against Hospital B on the same date.  Why?  Because each have the burden of proving liability and causation against those they have asserted caused harm.^[5]

Thus, it is better practice to set expert disclosure deadlines based on who has the burden of proof on an issue and not simply looking to whether a party is a plaintiff or a defendant. Doing so gives all parties – plaintiffs, defendants, and co-defendants alleged to be at fault by another defendant – a level playing field on expert disclosures. Disclosures of experts by a party without the burden of proof on the issue can take place 30 to 45 days later.

Sometimes a scheduling order will require that a defendant’s expert disclosures be delayed until after the plaintiff’s experts have been deposed.  It is difficult to understand why such a provision would ever be a part of a scheduling order – doing so only builds months of delay into the pretrial process.

The alleged rationale for delaying a defendant’s expert disclosures is that expert disclosure of the plaintiff is presumptively presumed to be so poor that the defendant cannot gain a true understanding of the nature and extent of the proposed testimony without a deposition of the expert and thus cannot know how to disclose experts without the benefit of a deposition of the expert.  However, there are other, sufficient remedies for poor expert disclosures that do not require delaying a case based on the assumption that a plaintiff’s expert disclosure will be inadequate.  Moreover, to the extent that expert depositions are taken (the law does not require depositions of experts), it makes sense for each deponent to have a clear understanding of the proposed testimony of the opposing party’s expert so that he or she can comment on it at his or her deposition (if any).^[6]

There are several types of measures and sanctions available to judges who believe that a party has not given full and fair expert witness disclosures,^[7] and a judge who consistently and uniformly uses them to punish those who violate the rule concerning expert disclosures will see an improvement in the quality of expert witness disclosures and a halt to motion practice on the subject.  Unfortunately, there are some lawyers who will do as little as they can get away with concerning expert disclosures (and other matters), and these lawyers know which judges will enforce the rules of civil procedure and which judges will not.  In addition, the lawyers (and their clients) harmed by such conduct also know which judges will enforce the rules and which will not, and thus will not ordinarily spend the time or money seeking enforcement of the rules from judges who have a history of not enforcing them.  This in-turn emboldens the rule-violators and actually increases rule violations because it causes those otherwise inclined to follow the rules to ignore them (or at least approach them more casually) because they perceive no downside risk to ignoring them.

In the opinion of the author, the civil justice system works best when the rules of procedure are followed by lawyers and enforced by judges.  Scheduling orders which assume lawyers will not follow the rules punish lawyers (and their clients) who do follow the rules by increasing expense and delay.

7. Expert witness deposition deadline. If depositions of experts are to be taken, a deadline for doing so should be established.  If the court or the parties are not certain whether depositions of experts will be taken, it is prudent to include a deadline for expert depositions if the decision is made to depose experts.

It is good practice for scheduling orders to require each party to provide, at the time of the disclosure of the expert, several dates that the party’s expert can be deposed. Doing so increases the likelihood that the depositions can be put on the books of busy trial lawyers sooner rather than later, thus speeding up the resolution of the case.

8. Medical deposition deadline. It is prudent to set a deadline to take medical depositions of treating physicians or other providers that will be used at the trial of personal injury or wrongful death cases.  Ordinarily, this deadline is set relatively close to the trial date to delay the significant expense of these depositions until the parties have had sufficient opportunity to have realistic settlement discussions.  That said, if there is a serious question about the cause-in-fact of the plaintiff’s injury, it may be prudent to have an earlier deposition of the treating physician or other provider.

9. Proof deposition deadline. If it is anticipated that depositions are going to be used at trial in lieu of live testimony, there should be a reasonable cut-off date for those depositions to be taken. Of course, from time-to-time the unexpected unavailability of a witness may arise at the last minute or even during the trial itself, but the “good cause” provision of Rule 16 protects all parties from harm in such situations.

10. Declaration of intent to present remote video evidence. The pandemic has impacted the trial of jury and non-jury cases forever, and it is highly likely that more and more trials – even trials held with most participants physicially in the courtroom – will include one or more witnesses testifying via remote video.

Tenn. R. Civ. P. 43.01 permits “the presentation of testimony in open court by contemporaneous audio-video transmission from a different location.”  If it is foreseeable that a party may  utilize such technology at trial, it is reasonable to have the scheduling order set a deadline for the party to file a motion to permit the testimony of a witness to be taken via remote video.

Of course, like every deadline in a scheduling order, any imposed deadline can and should be modified for good cause.  For example, a party may fully intended to have Witness A from Colorado attend the trial in person, only to find out that Colorado is supposed to be hit with a massive snow storm that will greatly complicate air travel.  Under such circumstances, the  a Rule 43.01 motion to permit Witness A to testify via remote video should not be declared untimely because it is filed after the date set forth in the scheduling order.

11. A deadline for filing and hearing of motions.  It is not uncommon for scheduling orders to include a deadline for filing summary judgment motions, especially where the issue is not addressed in the local rules of court. Deadlines for motions to compel answers to discovery can also addressed in scheduling orders, and if so, it is prudent to set such a deadline shortly after the date for closing fact discovery (because some depositions may be taken or a deadline for responding to written discovery may be near the end of the fact discovery deadline).

12. Dates for mediation, pretrial conferences, and trial.  Some scheduling orders address each of these issues, and some address none of them.  The complexity of the case may require multiple scheduling orders, with a trial date being set only after some amount of discovery has been accomplished.

In ordinary cases, it is almost always a mistake to delay setting a trial date until discovery is complete.  This method of docket management forces the parties to incur all the costs of the discovery phase of litigation and then put the case on the back burner until the court can hear the trial.  This is particularly a problem for lawyers (and thus the clients of lawyers) who have cases in multiple judicial circuits, some of which permit cases to be set for trial relatively early in the litigation process and others who insist that discovery be complete before a trial date is set.

Waiting to set a trial date until discovery is complete can also be very problematic in cases where the facts are constantly changing even during litigation.  In those situations, it is virtually impossible to completely conclude discovery because as soon as it appears that you have, some new relevant issue or fact comes to light, the parties move to amend their pleadings, and the litigation starts all over again.

For example, in a divorce/child custody case, it is not uncommon for one party to want to drag out the proceedings.  Sometimes one party is waiting for the other to commit some act that will prejudice the other in the eyes of the court (i.e., get a DUI, violate a restraining order, fail to pay pendent lite support, etc.). Sometimes he or she wants extra time to clean up their act (or at least appear to) before the judge sees them at trial.  Sometimes one party is fortunate and gets more pendente lite child support/alimony than they would likely be awarded at trial.  He or she knows the money will probably be reduced or even eliminated if they go through with the divorce, and therefore takes steps to drag out the proceedings so that the money flow will continue. If one delays setting trial in these cases until discovery is complete, it may be almost impossible to set a trial date because there will always be some new information that needs to be “discovered” before trial can be set.

The parties need to know that the judge expects the scheduling order to be followed – it is, after all, a scheduling order, not a scheduling suggestion.  A reasonable scheduling order that the parties know will be enforced by the trial judge (absent a showing of good cause) greatly increases the likelihood that the deadlines will be met and reduces the likelihood of a continuance.  If the judge enforces the deadlines in the order, he or she will quickly see that motions to continue trial dates will rarely occur without good reason.  Scheduling orders and firm trial dates are an essential part of docket management.

A date for mediation (or a deadline by which mediation should be completed) may be set in the scheduling order.  The court has the power to order the parties to mediation, whether the parties believe that mediation is appropriate or not.^[8]  The trial judge cannot, however, order “binding mediation.”^[9]

There are occasionally squabbles about what date should be selected for trial and the extent to which the schedule of any one lawyer should impact the trial date.  Some lawyers maintain an enormous caseload, load up their calendars with trial or deposition dates, and then announce they are unable to appear for a trial in a given case for fifteen, eighteen, or even twenty months out because of prior “commitments” even though the case reasonably could be ready for trial in six months.

Trial judges should not permit this to occur.  While the civil justice system should reasonably accommodate the schedules of lawyers, it should not allow a lawyer who accepts too much work to force everyone to wait until he or she can try the case on his or her schedule.  When a judge allows this to occur, the judge is punishing the other parties in the case who have a right to have their cases tried on a timely basis.

Let me hasten to add that I am not suggesting judges should force lawyers to cancel scheduled vacations, etc. just to accommodate trial dates requested by opposing counsel.   But a lawyer who does not have availability to schedule a trial date for twelve or more months simply has too much to do, and he or she should not be permitted to grind the progression of a case to a halt simply because of his or her schedule.  The right to free speech does not allow one to cry “fire” in a crowded theater, and the purported “right” to counsel of one’s choice in a civil proceeding must be balanced against the right of the other parties (and the public interest) to have the matter brought to an end.

Finally, a scheduling order may set a date for a final pretrial conference.  This topic is discussed in Chapter 2.

13. Identification of witnesses and exhibits. If the scheduling order sets a trial date, it may include deadlines for exchange of witnesses and exhibits.  This subject may also be addressed in the local rules of court and it is prudent either to incorporate the local rules on these subjects into the scheduling order by reference or, if different deadlines will apply, to provide that the scheduling order takes precedence over any local rules to the contrary.

14. Motions in limine. If a trial date is set in the scheduling order and if the case is such that it is reasonable to assume that motions in limine will be filed, it makes sense to establish deadlines for (a) filing motions in limine; (b) filing responses to motions in limine; and (c) setting a hearing date for the motions.  Typically, the hearing date for motions will be the same date as the final pretrial conference. Except in complicated cases, motions in limine should be heard no more than a week before trial if possible.  Why?  Practically speaking, the parties do not fully explore potential motions until the trial date draws near, and forcing the parties to develop such motions too early will increase litigation expense (because the parties will work up the case earlier and then be forced to prepare again as the trial draws near).

15. Designation of Testimony to Be Used at Trial. It is possible that one or more depositions will be used in a party’s case-in-chief at trial.  If so, it makes sense for the party using the deposition to designate which portions of which depositions will be used at trial, and to have counter-designations made by the adverse party.   Of course, some of the deposition testimony may have been taken subject to an objection, and thus there should be a process in place for resolving any of those objections.

The deadlines put in place for addressing these issues should take into account the need (if any) to edit any videotaped depositions for use at trial.  Such work can usually be done within a week without paying “expedited charges” from the editing service.

Judge Thomas W. Brothers of the Sixth Circuit Court for the 20th Judicial District of Tennessee (Davidson County) has an excellent method to ease the process of deposition designations and ruling on objections to proposed testimony.^[10] If the entire deposition is being offered into evidence, the objecting party notes the specific objection by page and line and the basis (using the Tennessee Rule of Evidence rule number if possible) on an Excel spreadsheet created for that purpose that uses conditional formatting (a basic component of the software). Judge Brothers then reads the deposition testimony to which an objection is raised, and rules on the objection.  If an “x” is placed in the “Sustained” column, the entire line becomes red and the parties know that testimony on the indicated pages and lines has been excluded.  If an “x” is placed in the “Overruled” column, the entire line becomes green and the testimony is admissible. The use of colors helps the reader readily identify what portions of the depositions need to be redacted.

Judge Brothers does not ordinarily permit oral argument on every objection raised to deposition testimony.  Instead, he reads the objection and rules.  He then shares his work product (the Excel spreadsheet containing his rulings highlighted with the appropriate colors) with the lawyers, and gives them the right to address any ruling on a particular portion of testimony with which they disagree.  If a party proposes to introduce only a portion of the deposition, that is noted on the Excel spreadsheet so that he can consider the objection in the context of what testimony is being offered.

As indicated, this is a very efficient method of addressing objections to deposition testimony.  Appendix A includes a black-and-white sample of Judge Brothers’ spreadsheet and three sample scheduling orders.

16. Jury instructions. Most scheduling orders that set a trial date will include a deadline for filing proposed jury instructions.  This deadline should be set before the final pretrial conference but, like a motion in limine deadline, not so early as to impose extra litigation costs on the parties.  The scheduling order may also set a date for a discussion of the jury instructions (known as a “charge conference”).

17. Deadline to supplement discovery responses. Although the rules of civil procedure impose a duty to supplement discovery responses, and provide for sanctions if responses are not timely supplemented,^[11] a scheduling order may set a specific date by which counsel are obligated to review prior answers to discovery and supplement them if necessary. Such a deadline would not excuse a failure to supplement at a later date if the duty to supplement was triggered under Tenn. R. Civ. P. 26.05(1) or (2).^[12]

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    1. Newcomb v. Kohler Co., 222 S.W.3d 368, 384 (Tenn. Ct. App. 2006); Hardcastle v. Harris, 170 S.W.3d 67, 81 (Tenn. Ct. App. 2004) (the reason for the delay is mentioned expressly in this decision). ↵
    2. There may be tactical reasons why a lawyer may choose to allow an issue not raised in the pleadings but raised by an opponent at trial to be tried. The words in the text should not be construed to require a trial lawyer to always object to admission of evidence on issues not raised in the pleadings. ↵
    3. Rule 3.2 of the Tennessee Rules of Professional Conduct provides that “[a] lawyer shall make reasonable efforts to expedite litigation.” The Comment to that rule appropriately notes that “[d]ilatory practices bring the administration of justice into disrepute.” When a defendant in a comparative fault case alleges fault against a non-party, a special statute often (but not always) applies to allow the plaintiff the right to add the non-party as a party defendant notwithstanding the expiration of the statute of limitations. Tenn. Code Ann. § 20-1-119. ↵
    4. For example, Tenn. Code Ann. § 20-1-119 does permit a plaintiff in a comparative fault case to add a non-party as a party defendant notwithstanding the expiration of the statute of limitations but does not extend a statute of repose. The setting of a deadline for alleging the fault of nonparties should require a defendant to declare and plead any fault against a non-party well before the expiration of the statute of repose so that the plaintiff can determine whether or not to add the non-party as a party defendant. ↵
    5. To be precise, Plaintiff may elect to have expert witness testimony against Hospital B or may rely on Hospital A to prove fault against Hospital B (because Hospital A asserted the fault of Hospital B as an affirmative defense). But, if Plaintiff elects to present expert testimony against Hospital B, it is fair to require Plaintiff to disclose it before Hospital B discloses experts. ↵
    6. In some jurisdictions there are actually two rounds of depositions of plaintiff’s experts: one based on the original disclosure, and a second deposition after the plaintiff’s expert has a chance to see (and wants to comment on) the defendant’s expert disclosure or expert deposition. This practice is a tremendous waste of time and money and should be abandoned. ↵
    7. For example, a judge who finds on a motion to compel that an expert witness disclosure is inadequate can issue an order requiring a more complete disclosure. The judge can also exclude testimony from the expert on those issues that were not properly disclosed. (See Mayo v. Shine, 392 S.W.3d 70-71 (Tenn. Ct. App. 2012) and Tenn. R. Civ. P. 37.03 (failure to properly disclose or supplement gives rise to a default sanction that the witness or information is excluded from evidence unless the failure is harmless; other remedies also available). Alternatively, the judge can allow the adverse party two opportunities to depose the offending party’s expert, the second deposition at the cost (including attorney’s fees) of the offending party. ↵
    8. Tenn. Sup. Ct. R. 31 (3)(b). ↵
    9. Team Design v. Gottlieb, 104 S.W.3d 512, 524 (Tenn. Ct. App. 2002). ↵
    10. This method is used when there are multiple depositions and a significant number of objections that need the Court’s attention. If there is a single deposition or a couple of depositions with just a dozen or so objections, Judge Brothers follows the more traditional approach to handling designations and objections. ↵
    11. E.g., Cuddeford v. Jackson, No. W2019-00539-COA-R3-CV (Tenn. Ct. App. April 16, 2020) (where plaintiff failed to produce a photograph of an accident scene in response to requests for production, despite a consent order compelling a response to the discovery requests, the Court of Appeals affirmed the exclusion of a portion of defendant’s deposition testimony that plaintiff wanted to use at trial as a sanction). ↵
    12. “A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:

    (1) A party is under a duty seasonably to supplement the party's response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters; and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of that testimony.

    (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made; or (B) knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

    (3) A duty to supplement responses also may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.” ↵