(a)Generally(1) Except as otherwise provided in this Rule, discovery is governed by the relevant Rules in Title 2, Chapter 400.(2) The Chair of the Commission, rather than a court, may limit the scope of discovery, enter protective orders permitted by Rule 2-403, and resolve other discovery issues. Cross reference: For the issuance of subpoenas pertaining to discovery proceedings, see Rule 18-409.1(b).
(3) Investigative Counsel and the judge have the obligation to respond to the other's discovery requests addressed to them. Committee note: A judge's failure to cooperate in discovery may warrant an amendment to the charges in accordance with Rule 18-431 (g).
(4) Investigative Counsel, the Commission, and the judge have a continuing duty to supplement information required to be disclosed under this Rule.(5) The Commission shall preclude a party from calling a witness, other than a rebuttal witness, or otherwise presenting evidence upon a finding, after the opportunity for a hearing if one is requested, that (1) the witness or evidence was subject to disclosure under this Rule, (2) the party, without substantial justification, failed to disclose the witness or evidence in a timely manner, and (3) the failure was prejudicial to the other party. For purposes of this Rule, the parties are Investigative Counsel and the judge against whom charges have been filed.(b)Open File. Upon request by the judge or the judge's attorney, at any time after service of charges upon the judge, (1) the Executive Counsel of the Commission shall allow the judge or attorney to inspect and copy the entire Commission record and (2) Investigative Counsel shall (A) allow the judge or attorney to inspect and copy all evidence accumulated during the investigation and all material, information, and statements as defined in Rule 2-402(f), (B) provide summaries or reports of all oral statements for which contemporaneously recorded substantially verbatim recitals do not exist, and (C) certify to the judge in writing that, except for material that constitutes attorney work product or that is subject to a lawful privilege or protective order issued by the Commission, the material disclosed constitutes the complete record of Investigative Counsel as of the date of inspection.(c)Exculpatory Evidence. Whether as part of the disclosures pursuant to section (b) of this Rule or otherwise, no later than 30 days prior to the scheduled hearing, Investigative Counsel shall disclose to the judge all statements or other evidence of which Investigative Counsel is aware that (1) directly negates any allegation in the charges, (2) would be admissible to impeach a witness intended to be called by Investigative Counsel, or (3) would be admissible to mitigate a permissible sanction. This obligation includes exculpatory information that is included in Investigative Counsel's Report to the Board.(d)Witnesses. No later than 30 days prior to the scheduled hearing, Investigative Counsel shall provide to the judge the names and addresses of all persons, other than a rebuttal witness, Investigative Counsel intends to call at the hearing. No later than 25 days prior to the scheduled hearing, the judge shall provide to Investigative Counsel the names and addresses of all persons, other than a rebuttal witness, the judge intends to call at the hearing.Md. R. Jud. & Judi. Appts. 18-433
This Rule is in part derived from former Rule 18-407(g) (2018) and is in part new.
Adopted May 15, 2019, eff. 7/1/2019; amended July 8, 2021, eff. 10/1/2021; amended Nov. 28, 2023, eff. 1/1/2024.