Model Rules for Judicial Disciplinary Enforcement

Section III. Disciplinary Proceedings
Rule 22. Discovery

  1. Witnesses. Within [20] days of the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons known to have knowledge of the relevant facts. Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair's designee, who can authorize withholding of the information only for good cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the judge. The chair's review of the withholding request is to be in camera, but disciplinary counsel must advise respondent of the request without disclosing the subject of the request. The hearing panel shall set a date for the exchange of the names and addresses of all witnesses the parties intend to call at the hearing. Disciplinary counsel and respondent may take depositions only of witnesses to be called at the hearing and other witnesses who are unavailable to testify. Depositions of other persons may be taken only with permission of the chair of the hearing panel or the chair's designee and only for good cause shown.
  2. Other Evidence. Disciplinary counsel and respondent shall exchange:
    (1) non-privileged evidence relevant to the formal charges, documents to be presented at the hearing, witness statements and summaries of interviews with witnesses who will be called at the hearing; and
    (2) other material only upon good cause shown to the chair of the hearing panel.
  3. Exculpatory Evidence. Disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges.
  4. Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this Rule.
  5. Completion of Discovery. All discovery shall be completed within [60] days of the filing of the answer.
  6. Failure to Disclose. The hearing panel may preclude either party from calling a witness at the hearing if the party has not provided the opposing party with the witness's name and address, any statements taken from the witness or summaries of any interviews with the witness.
  7. Resolution of Disputes. Disputes concerning discovery shall be determined by the hearing panel before whom the matter is pending. The decisions of the hearing panel may not be appealed before the entry of the final order.
  8. Civil Rules Not Applicable. Proceedings under these Rules are not subject to the {state rules of civil procedure} regarding discovery except those rules relating to depositions and subpoenas.

Commentary
All references in this Rule to "hearing panel" include hearing officers and subpanels of the hearing panel if the hearing panel has appointed a hearing officer or subpanel to conduct the hearings. "Witnesses to be called at the hearing" include witnesses whose testimony will be presented by deposition.

Liberal exchanges of non-privileged information should be encouraged, since they facilitate the trial of the charges. However, the hearing panel should monitor closely the extent of discovery permitted and the time for obtaining such discovery in order to prevent counsel from using discovery as a means of delay. Discovery orders should not be appealable before the entry of a final order in the proceeding.

Under this rule, the number of persons who may be deposed is limited to avoid building delay into the process and to protect persons who will not testify at trial. Subpoena power is covered in Rule 14.

In determining whether to preclude a party from calling a witness at the hearing for failure to disclose required information, the hearing panel may take into consideration the prejudice to the party calling the witness if the witness is not called and the extent to which the opposing party will be prejudiced by the lack of advance disclosure.

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