One of the many things young lawyers are taught when preparing written responses to discovery is to reserve the right to supplement or amend the responses at a later date. This common reservation of rights is included and often forgotten. But this reservation of rights can turn into a requirement under the Delaware Court of Chancery rules under certain circumstances. Rule 26(e)(2) requires a party to “seasonably” supplement a discovery response if the party obtains information upon the basis of which (a) the party knows the response was incorrect when made or (b) the party knows the response was correct when made but is no longer true and a failure to supplement “is in substance a knowing concealment.” Written discovery is often served early in the discovery process, so as the discovery record and other knowledge grows, it is often the case that answers given early in the case no longer become accurate. When the duty to supplement arises, and what a “seasonable” supplementation means has received scant attention in written opinions, which, not surprisingly, often leads to lawyers pushing the envelope on what “seasonably” means under the rule. In OptimisCorp v. Waite, C.A. No. 8773-VCP (Del. Ch. Jan. 28, 2015), however, the Court of Chancery had the opportunity to provide some rare guidance on when the duty to supplement arose and the outer limits of a “seasonable” supplement.
In OptimisCorp, the plaintiffs alleged the defendants and unnamed participants engaged in a conspiracy to, among other things, attempt an unlawful takeover of OptimisCorp. After the close of discovery, the parties cross-moved for summary judgment. In support of their motion for summary judgment, the plaintiffs submitted affidavits from three individuals, two of whom had entered into settlement and cooperation agreements with the plaintiffs several months before. The plaintiffs had not previously identified these individuals as co-conspirators and had not identified the third affiant as a person with knowledge. A few weeks later, the plaintiffs “supplemented” their interrogatory responses to incorporate the information in their summary judgment brief, including the three new affidavits. Later, the plaintiffs moved to amend their complaint to identify the two affiants with cooperation agreements as co-conspirators.
