Opinion
Appeal from Circuit Court, Conway County; Charles H. Eddy, judge.
Phillip H. McMath, Little Rock, for appellants.
Phil Malcolm, Little Rock, for appellee.
Prior report: 293 Ark. 179, 735 S.W.2d 705.
[293 Ark. 181-A] Rehearing denied.
GLAZE, Justice, concurs but would supplement the opinion for clarification.
Appellants complain in their petition for rehearing that this court, in its opinion, has engrafted a new requirement labeled "passive concealment" that the trial court must consider when ruling, under ARCP Rule 26(c), whether it should excuse a party's failure to supplement a response to discovery. The court's opinion states:
ARCP Rule 26(e)(2)(B) provides that a party is under a duty to supplement a response to discovery when the responding party "knows that the response though correct when made is no longer true and circumstances are such that a failure to amend the response is in substance a knowing concealment." This language gives the trial court considerable latitude to excuse failure to supplement when the response to an answer changes, and it requires at least passive concealment before imposition of a sanction. D. Newbern, Arkansas Civil Practice and Procedure, § 17-3.
[293 Ark. 181-B] Appellants' urge the court has incorporated a theory supported only by a civil procedure treatise with no citation of authority, and they could not have anticipated the "passive concealment" requirement. They cite King v. Carden, 229 Ark. 929, 319 S.W.2d 214 (1959) as controlling, and, based on that holding, submit that this court could have affirmed the case at bar without discussing passive concealment and by simply stating that no prejudice occurred from appellee's failure to supplement his answers prior to trial. I agree with appellants' assessment on this point.
In our opinion, we pointed out that, under ARCP 26(e)(2)(B), a party is under a duty to supplement a response to discovery when the party "knows that the response though correct when made is no longer true and circumstances are such that a failure to amend the response is in substance a knowing concealing." (Emphasis mine.) While I understand a "knowing concealing" may trigger a court's sanction under Rule 26, I am uncertain whether a "passive concealment" should, especially since it is unclear what that term encompasses or means. Clearly, that term is not mentioned or defined in Rule 26. If, for example, a passive concealment means a concealment in which a party did not participate but was one about which he should have had knowledge, I am doubtful Rule 26 sanctions would apply.
I suppose we could attempt in this decision to define passive concealment and distinguish or compare such a term with those now appearing in Rule 26. At least, for clarity's sake, we should do just that if this court chooses to add that terminology as words of art for attorneys who must consider and apply Rule 26.
While I agree that the trial court did not abuse its discretion in ruling that appellee's evidence should be admitted at trial, I do agree with appellants that we should exclude the "passive concealment" requirement we mentioned in our opinion. Therefore, I would deny appellants' petition for rehearing but modify the court's opinion deleting the passive concealment references. At the least, we should define the term "passive concealment" if it is left a part of this court's opinion.