It is within the discretion of the trial court to permit a party, after having rested, to reopen its case and supplement the record before judgment has been rendered.11 A court may decline to permit a party to reopen its case, however, where the additional evidence sought to be introduced is merely cumulative of evidence already in the record.12 Although the decision whether or not to permit the introduction of additional evidence at a later stage is within the discretion of the court, as a general matter the admission of late-submitted evidence is not favored.12.1
In a non-jury case, the court may, upon request, reopen the record after trial if so doing will serve the interests of fairness and substantial justice. In making that determination, the court may consider, among other factors, (i) the materiality of the evidence to be admitted, i.e., is it likely to affect the outcome or is it merely cumulative, (ii) the moving party’s ability to have introduced the evidence at trial and diligence in locating the evidence, (iii) the length of time that has passed between the conclusion of trial and the request to reopen the record, (iv) the need for judicial efficiency, and (v) prejudice to the opposing party.12.2
11. Pepe v. State, 171 A.2d 216, 219 (Del.), cert. denied, 368 U.S. 31 (1961); Emerson v. Universal Products Co., 179 A. 383, 384 (Del. Super. 1934), aff’d, 179 A. 387 (Del. 1935). This is distinguished from seeking a new trial after judgment on the ground of newly-discovered evidence.
12. Chalfant v. Reinhardt, 113 A. 674, 675 (Del. 1921).
12.1. Pope Investments LLC v. Benda Pharmaceutical, Inc., C.A. No. 5171-VCP, slip op. at 3, Parsons, V.C. (Del. Ch. July 26, 2010).
12.2. Carlson v. Hallinan, 925 A.2d 506, 519-20 (Del. Ch. 2006); Lola Cars Intern., Ltd. v. Krohn Racing, LLC, C.A. Nos. 4479-VCN & 44896-VCN, slip op. at 2, Noble, V.C. (Del. Ch. Apr. 23, 2010).
© 2010 David L. Finger