21 Miss. Code. R. 201-6.6

Current through December 10, 2024

Rule 21-201-6.6 - Discovery

Subject to the exceptions set forth below, if either party requests discovery, the party opposite must disclose and permit the requesting party to inspect, copy, test, and photograph upon written request and without the necessity of an order by the hearing officer the following which is in the possession, custody, or control of the party opposite, the existence of which is known or by the exercise of due diligence may become known to the party opposite:

A. Names and addresses of all witnesses in chief proposed to be offered by the party at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;

B. Copy of any written or recorded statement of the respondent and the substance of any oral statement made by the respondent;

C. Copy of the criminal record of the respondent, if proposed to be used to impeach;

D. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;

E. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and

F. Any exculpatory material concerning the respondent.

The hearing officer may limit or deny disclosure authorized herein if he or she finds that there is a substantial risk to any person of physical harm, intimidation, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the requesting party. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda which contain the opinions, theories, or conclusions of either party's attorneys or members of legal staff.

Both the commission and the respondent have a duty to timely supplement discovery. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or the other party's attorney of the existence of such additional material, and if the additional material or information is discovered during a hearing, the hearing officer shall also be notified.

The attorney receiving materials on discovery is responsible for those materials and shall not distribute them to third parties. Upon a showing of cause, the hearing officer may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party's attorney to make beneficial use thereof.

When some parts of certain material are discoverable under these rules, and other parts are not discoverable, as much of the material should be disclosed as is consistent with the rules. Material excised or redacted pursuant to judicial order or order of the hearing officer shall be sealed and preserved in the records of the hearing officer, to be made available to the circuit court in the event of an appeal.

In the event there are matters arguably within the scope of a party's discovery request or an order for discovery, and the opposing party is of the opinion that the requesting party is not entitled to discovery of same, the opposing party shall, as soon as is reasonably practicable, file with the hearing officer a written statement describing the nature of the information or the materials at issue as fully as is reasonably possible without disclosure of same and stating the grounds for objection to disclosure. Subject to the limitations otherwise provided in these rules, determinations such as whether the matters requested in discovery are relevant to the case, exculpatory, possible instruments of impeachment, and the like, may be made only by the party requesting or to receive the discovery.

Upon request of any person, the hearing officer may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the hearing officer enters an order granting relief following a hearing in camera, the entire record of such hearing shall be sealed and preserved in the records of the hearing officer, to be made available to the circuit court in the event of an appeal.

If at any time prior to a hearing on the merits it is brought to the attention of the hearing officer that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the hearing officer may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as he or she deems just under the circumstances.

If during the course of a hearing on the merits, either party attempts to introduce evidence which has not been timely disclosed to the opposing party as required by these rules, and the opposing party objects to the introduction for that reason, the hearing officer shall act as follows:

A. Grant the opposing party a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and

B. If, after such opportunity, the opposing party claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the hearing officer shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the opposing party to meet the non-disclosed evidence.

The hearing officer shall not be required to grant a continuance for such a discovery violation if the party attempting to introduce such evidence withdraws its efforts to introduce the evidence.

Willful violation by an attorney or party of an applicable discovery rule or an order issued pursuant thereto may subject the attorney or party to appropriate sanctions by the hearing officer.

21 Miss. Code. R. 201-6.6

Sections 25-4-15, 25-4-17 and 25-4-107, Miss. Code of 1972.