Newly Discovered Evidence

Rule 60(b)(2) lets a court relieve a party from a final judgment on "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)."¹ The clause addresses a different problem from the honest slips covered under clause (1). Here the loser usually has no lapse in the first proceeding to explain; a fact bearing on the case surfaces only after judgment, and the question is whether the system will take account of it. It will, but only in a narrow set of cases, because Rule 60(b) writes a limited exception into the principle of finality. Its specific grounds and time limits reflect a decision that, in those circumstances, the desire for truth and justice outweighs the value of immediate finality, and the time limits assure that finality is postponed rather than avoided.² Three requirements define the set: the evidence must have existed at trial, reasonable diligence must not have found it in time, and it must be likely to change the result.

The clause borrows its yardstick from Rule 59(b), and the borrowing shows where the ground sits among the post-judgment tools. Newly discovered evidence is a recognized basis for a new trial,³ so a loser who finds it while a new-trial motion is still available should make that motion. A loser who finds it after the window has closed can no longer use Rule 59(b), and Rule 60(b)(2) supplies the fallback.⁴ The borrowed language also protects the new-trial deadline. If clause (2) reached evidence that a diligent party could have found while a Rule 59(b) motion was still open, the deadline would mean little, because the loser could wait and then ask for the same relief. Tying the clause to Rule 59(b) reserves it for evidence that reasonable diligence could not have produced by then.

The rule's text names only diligence. The other two requirements come from the definition of the term and from the test courts apply to new-trial motions. Evidence qualifies as newly discovered only if it existed at the time of trial but was then unknown to the party, which excludes events that happen afterward.⁵ The evidence must also be material, meaning likely to produce a different result, because reopening a judgment burdens a winner who has relied on it, and the burden has no point if the outcome would not change.⁶ Each requirement screens out a different kind of motion. The existence requirement keeps a judgment from staying open while new developments keep arriving. The diligence requirement stops a party from profiting from lax preparation. The materiality requirement screens out new information that would change nothing. Existence at trial comes first.

Evidence Existing at Trial

Rule 60(b)(2) speaks of newly discovered evidence, and the first requirement courts draw from that phrase is that the evidence already existed when the case was tried.⁷ The standard definition supplies the other half: the evidence existed at the time of trial but was then unknown to the party.⁸ The movant must therefore show that the evidence, and the facts to which it relates, existed at the time of trial, and must separately show that reasonable diligence could not have uncovered them in time.⁹ The text points the same way: something that came into being after trial cannot have been discovered afterward, because nothing yet existed to find. Existence is the first screen a court applies, and a motion that fails it never reaches the diligence question.

The limit follows from the nature of litigation. If a development after trial could reopen a judgment, a case could be revived whenever events moved on, suits would never end, and the winner could never rely on the result.¹⁰ The limit also fits the way personal-injury damages are awarded. A lump-sum award is the court's estimate, made at trial, of what the injury will cost over the plaintiff's future, and the system accepts that later events will make the estimate look too high or too low. That windfall to one side, or harm to the other, is the price of awarding damages in a single sum; it does not change the fact that the award was appropriate when entered.¹¹

Both results follow the examples courts give: a new treatment that could reduce the plaintiff's damages and a later examination showing a greater injury are not grounds for relief.¹² The first development helps the defendant and the second helps the plaintiff, yet the rule applies identically, because it turns on when the fact came into being and not on whom it favors. When an exam stem supplies a post-verdict fact, ask when the fact arose; the movant's surprise at learning it is beside the point.

Meeting that requirement only opens the door. The landowner must still show that reasonable diligence could not have produced the survey in time, and must show that the survey is likely to produce a different result.¹³ Because evidence that existed at trial was often within reach of someone who asked, many motions that clear the existence screen fail the next one. The next two parts take those requirements in turn.

Reasonable Diligence

Rule 60(b)(2) reaches only evidence that, "with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)."¹⁵ Reasonable diligence means the care a party in the movant's position would ordinarily take in looking for evidence, and the requirement defeats most clause (2) motions that clear the existence screen. A movant can show that the evidence existed at trial and was unknown, and still lose because a party exercising ordinary care would have found it. The rule measures the search against the time for a new-trial motion, but the showing is usually framed around the trial itself: the movant must have been reasonably diligent in looking before and during trial, and must show that the evidence could not reasonably have been found before the trial ended.¹⁶

The movant carries the burden of proving that the evidence could not have been found earlier.¹⁷ The burden falls there because the facts of the search lie within the movant's own knowledge. Only the loser knows which requests it made, whom it asked, and which leads it left alone, and a winner cannot fairly be asked to prove what the loser failed to do. Liberal discovery sharpens the point. Document requests, interrogatories, depositions, and subpoenas let a party reach what its opponent and outsiders hold, so a loser who says that evidence existing at trial was unfindable must explain which tools it used and why they failed. The requirement also presses each side to prepare fully for the first trial, because a winner who has relied on the judgment should not have to retry a case over a fact the loser could have uncovered.

In re Adoption of A.A.T., a Kansas Supreme Court decision applying a state rule modeled on the federal text, shows how demanding the requirement is; its reasoning persuades a federal court without binding it.¹⁸ A natural father, M.P., sought to undo the adoption of his child after learning that the child's mother, N.T., had lied to him: she had told him she obtained an abortion, and she concealed both the birth and the adoption. The state's new-trial window was ten days, and when it closed M.P. still had not been told of either.¹⁹ The district court denied relief because M.P. had seen warning signs and should have acted to verify the claimed abortion, and the Kansas Supreme Court affirmed under an abuse-of-discretion standard.²⁰ M.P. had not asked N.T.'s mother because he did not want to speak with someone who disliked him. The court reasoned that the conversation may have been uncomfortable and awkward but was a step M.P. could have taken to verify or dispel his suspicions, so the evidence could have been discovered with "minimal diligence."²¹

Two features of that reasoning carry over to other cases. The question is what reasonable steps remained available, and the unpleasantness of a step does not excuse leaving it untried. Suspicion also works against the movant: a person who already doubts a story has an obvious next move, and courts treat leaving it untaken as a lack of diligence. The court rested its holding on diligence alone and expressly left open whether a person who did not take part in the original proceeding may invoke newly discovered evidence at all.²² A dissent took the view that reasonably assertive behavior by the movant should suffice when the opposing party controls access to the facts. That position names a real tension, since concealment by the other side is exactly what makes evidence hard to find, but the majority's analysis is the holding, and it shows how little concealment helps a movant who left an obvious inquiry untried.

What separates the supplier from M.P. is the search, because both faced a counterpart who was not telling the truth. The supplier used every reasonable avenue and was defeated by concealment, so the diligence requirement is met and the remaining question is whether the emails are material enough to change the result. M.P. left untried the one inquiry within his reach. Concealment of the purchasing director's kind may also fit clause (3), which reaches fraud, misrepresentation, or misconduct by an opposing party; a later section takes up that route.²³

Students commonly ask what the loser knew rather than what reasonable effort would have revealed. A stem saying the loser never knew of a document establishes only that the evidence was undiscovered; the question is whether it was undiscoverable. The analysis runs most reliably as a short sequence.

A movant who reaches step 3 with an obvious untried inquiry fails the requirement. One who reaches step 4 with a thorough record meets it and moves on to materiality, the subject of the next part.

Likelihood of a Different Result

Rule 60(b)(2) names two things about newly discovered evidence: it must have been unknown, and reasonable diligence must not have turned it up in time for a Rule 59(b) motion. It says nothing about what the evidence must accomplish once the movant has it.²⁶ Courts supply a third requirement. The movant must show that the evidence is material and likely to produce a different result if the judgment is reopened and a new trial ordered.²⁷ The Kansas Supreme Court read its state analogue the same way in In re Adoption of A.A.T.: newly discovered evidence must be material enough that its introduction would likely have changed the outcome, and the movant carries the burden of proof.²⁸

The requirement exists because a second trial costs the court and the winner, who has already relied on the first judgment, and finality yields only where the desire for truth and justice outweighs the value of immediate finality.²⁹ The existence and diligence requirements ask how the evidence came to be missing. This one asks what its absence cost, and the cost matters because a retrial pays off only if it would end differently. Evidence that would leave the verdict standing buys the movant nothing and costs the winner and the court a full retrial. The clause therefore stays closed to a loser who has found a marginally better case after the first trial decided the dispute.

Two kinds of late discoveries fail for that reason. Cumulative evidence adds another voice to proof the jury has already weighed and leaves the factual picture where the jury saw it. Evidence that reaches only a point on which the movant did not lose leaves the actual ground of decision untouched. The first scene combines both defects.

An exam stem that supplies a diligent, post-trial discovery still has to say what the evidence proves, and the answer depends on which issue the evidence reaches. The strength of the evidence does not settle the question; the issue it addresses and the proof the jury already had on that issue do.

The word likely sets the measure. The movant must show a probable change in result; a showing that the evidence might have swayed a juror falls short.³⁰ The Kansas decision also shows where this requirement falls in the order of analysis. The court recited the materiality standard and the movant's burden, yet it denied relief on diligence alone, because the movant could have uncovered the facts with minimal effort.³¹ A court need not reach materiality when an earlier requirement has already failed, which is why the movant must clear each requirement in turn.

The two preceding parts supplied the first two steps, and this part supplies the third. The fourth names the equitable concern running under the whole clause. A result that retrial would leave unchanged leaves no injustice to correct, so the fourth step tends to follow the third. A movant who fails any step loses the motion, and a movant who passes all four must still meet the time limits for Rule 60(b) motions, which a later section covers. Clause (3), the next ground, asks a different question: who caused the defect in the judgment. It reaches fraud, misrepresentation, or misconduct by an opposing party.³³