Opinion
ADM File No. 2007-36.
December 4, 2007
On order of the court, this is to advise that the Court is considering an amendment of Rule 9.208 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website, www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probably adoption of the proposal in its present form.
[Additions are underlined and deletions are in strikethrough.]
Rule 9.208 Evidence
(A)-(B)[Unchanged.]
(C) Discovery.
(1) Pretrial or discovery proceedings are not permitted, except as follows:
(a) At least 21 days before a scheduled public hearing,
(i) the parties shall provide to one another, in writing, the names and addresses of all persons whom they intend to call at the hearing,anda copy of all statements and affidavits given by those persons, and any material in their possession that they intend to introduce as evidence at the hearing,;and
(ii) the commission shall make available to the respondent for inspection or copying all exculpatory material in its possession, as well as any other material in its possession that it intends to introduce as evidence at the hearing.
(b) The parties shall give supplemental notice to one another within 5 days after any additional witness or material has been identified and at least 10 days before a scheduled hearing.
(2) A deposition may be taken of a witness who is living outside the state or who is physically unable to attend a hearing.
(3) The commission or the master may order a prehearing conference to obtain admissions or otherwise narrow the issues presented by the pleadings.
If a party fails to comply with subrules (C)(1) or (2), the master may, on motion and showing of material prejudice as a result of the failure, impose one or more of the sanctions set forth in MCR 2.313(B)(2)(a)-(c).
Staff Comment: This proposal would require all parties to a Judicial Tenure Commission proceeding that is scheduled for a public hearing to exchange material in their possession that they intend to introduce as evidence at the hearing. Currently, this requirement applies only to the Judicial Tenure Commission. The proposal also would require the parties to give supplemental notice of any additional material at least 10 days before a scheduled hearing.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by April 1, 2008, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. All comments will be posted on the Court's website. When filing a comment, please refer to ADM File No. 2007-36.