Opinion
No. 99-22.
April 26, 2000.
Orders Entered April 26, 2000:
On order of the Court, this is to advise that the Court is considering amendment of Rule 2.302 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives. Before adoption or rejection, this proposal will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The rule would be amended as follows.]
Rule 2.302 General Rules of Discovery
(A) [Unchanged.]
(B) Scope of Discovery
(1) — (3) [Unchanged.]
(4) Trial Preparation; Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a) (i) A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) A party may take the deposition of a person whom the other party expects to call as an expert witness at trial.
(iii) On motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions (pursuant to subrule [B][4][c]) concerning fees and expenses as the court deems appropriate.
(b) — (d) [Unchanged.]
(C) — (H) [Unchanged.]
Staff Comment: The proposed amendment of MCR 2.302(B)(4)(a) would eliminate subrule (iii), which says that further discovery regarding experts may be ordered "by other means". That language was based on a former version of FR Civ P 26 that did not have a separate provision for depositions of experts. With depositions specifically allowed under MCR 2.302(B)(4)(a)(ii), subrule (iii) may be unnecessary and could be viewed as permitting discovery procedures not contemplated by the rules. See Reed Dairy Farm v Consumers Power Co, 227 Mich. App. 614 (1998).
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated 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 this proposal may be sent to the Supreme Court clerk by August 1, 2000. When filing a comment, please refer to our file No. 99-22.