§ 40-47-118 — Discovery; exchange of information and evidence; depositions; prehearing motions.

(A) Discovery is not permitted in a medical disciplinary proceeding except as provided in this chapter. Within twenty days of an answer being filed, the Office of General Counsel, or its designee, and the respondent or counsel shall exchange the names and addresses of all persons known to have knowledge of the relevant facts. Except as provided in Section 40-47-190, the name and address of the initial complainant or a confidential informant must not be exchanged unless the person is expected to testify in the proceeding. The Office of General Counsel, or its designee, or the respondent or counsel may withhold information only with permission of the presiding officer, 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 respondent. The presiding officer's review of the withholding request must be en camera, but the party making the request shall advise the opposing party of the request without disclosing the subject of the request. The presiding officer shall set a date for the exchange of the names and addresses of all witnesses the parties intend to call at the hearing. (B) The Office of General Counsel, or its designee, and respondent or counsel shall exchange: (1) notwithstanding Section 40-47-190, evidence relevant to the formal charges, documents to be presented at the hearing and statements of witnesses who will be called at the hearing, except evidence privileged pursuant to other state law. For purposes of this item, 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 of any of these, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded; and (2) other material only upon good cause shown to the presiding officer of the panel. (C) Copies of transcripts of testimony taken by a court reporter pursuant to this section may be obtained by the parties from the court reporter at the expense of the requesting party and are not required to be made available to the requesting party by the opposing party unless not otherwise available. (D) Depositions are only allowed if agreed upon by the Office of General Counsel, or its designee, and the respondent or counsel, or if the presiding officer grants permission to do so based upon a showing of good cause. The presiding officer may place restrictions or conditions on the manner, time, and place of an authorized deposition. Depositions must be completed not later than fifteen days before a scheduled hearing. A deposition request filed less than fifteen days before a scheduled hearing must not be granted absent a showing of exceptional circumstances. (E) A party may take the deposition de bene esse of a supporting witness who will be unavailable to testify at hearing without order of the presiding officer and as a matter of right under due process of law. Other parties must be notified and afforded the opportunity to participate in the deposition de bene esse upon not less than ten days notice, unless sooner ordered by the presiding officer or agreed to by all participating parties. The admissibility of a deposition de bene esse or portion of the deposition must be determined by the presiding officer or board not less than five days prior to the time it is to be offered into evidence. (F) Prehearing motions must be made to the presiding officer in writing and must state the grounds for relief and the relief sought. Motions pertaining to the hearing must be filed not later than ten days before the hearing date, unless otherwise ordered by the presiding officer. Any party may file a written response to the motion within five days unless the time is extended or shortened by the presiding officer. (G) Notwithstanding any other provision of this section, the Office of General Counsel, or its designee, shall provide the respondent with exculpatory evidence relevant to the formal charges. (H) Both parties have a continuing duty to supplement information required to be exchanged under this section. (I) If a party fails to disclose timely a witness's name and address, statements by the witness, or other evidence required to be disclosed or exchanged pursuant to this section, the panel or presiding officer may grant a continuance of the hearing, preclude the party from calling the witness or introducing the document, or take other action as may be appropriate. If the Office of General Counsel, or its designee, has not disclosed timely exculpatory material, the panel or presiding officer may require the matter to be disclosed and grant a continuance or take other action as may be appropriate. (J) Disputes concerning depositions and the disclosure or exchange of information must be determined by the panel or presiding officer. Review of these decisions are not subject to an interlocutory appeal and must be challenged by filing objections to the panel's report within fifteen days from the service of the report. Failure to file objections to the panel report constitutes acceptance of the ruling on the issue.

Legislative History

HISTORY: 2006 Act No. 385, SECTION 1.