(a) Initial Disclosure. Within 20 days of the filing of an answer, disciplinary counsel and respondent shall exchange:
(1) the names and addresses of all persons known to have knowledge of the relevant facts;
(2) non-privileged evidence relevant to the formal charges;
(3) the names of expert witnesses expected to testify at the hearing and affidavits setting forth their opinions and the bases therefor; and,
(4) other material only upon good cause shown to the chair of the hearing panel.
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 shall 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 the party making the request must advise the opposing party of the request without disclosing the subject of the request.
(b) Pre-Hearing Disclosure. Within 20 days of the date of the filing of an answer, the chair of the hearing panel shall set a date for the exchange of witness lists and exhibits no later than 30 days prior to the scheduled hearing. Disciplinary counsel and respondent shall exchange exhibits to be presented at the hearing, names and addresses of witnesses to be called at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded). Copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under Rule 25(h).
(c) Depositions. Depositions shall only be allowed if agreed upon by the disciplinary counsel and the respondent, or if the chair of the hearing panel or the chair's designee grants permission to do so based on a showing of good cause. The chair or the chair's designee may place restrictions or conditions on the manner, time and place of any authorized deposition.
(d) Exculpatory Evidence. Notwithstanding any other provision of this rule, disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges.
(e) Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this rule.
(f) Completion of Discovery. All discovery shall be completed within 60 days of the filing of the answer.
(g) Failure to Disclose. If a party fails to timely disclose a witness’s name and address, any statements by the witness, summaries of witness interviews, or other evidence required to be disclosed or exchanged under this rule, the hearing panel may grant a continuance of the hearing, preclude the party from calling the witness or introducing the document, or take such other action as may be appropriate. In the event disciplinary counsel has not timely disclosed exculpatory material, the hearing panel may require the matter to be disclosed and grant a continuance, or take such other action as may be appropriate.
(h) Resolution of Disputes. Disputes concerning discovery shall be determined by the hearing panel. Review of these decisions shall not be subject to an interlocutory appeal; instead these decisions must be challenged by filing objections or a brief pursuant to Rule 27(a).
(i) Pre-Hearing Conferences. The hearing panel may require the respondent and disciplinary counsel to participate in a pre-hearing conference in person or by telephone. Either party may request a pre-hearing conference. Scheduling of a pre-hearing conference is at the sole discretion of the chair of the hearing panel.
Amended by Order dated October 16, 2009, effective January 1, 2010.