April 26, 2000



99-22



Proposed Amendment of Rule
2.302 of the Michigan Court
Rules
_____________________________


          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.]

ICLE Editor's Note:

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.