R.I. Super. Ct. R. Crim. P. 16
R.I. Super. Ct. R. Crim. P. 16
2002 Committee Notes
While Rule 16 requires the disclosure of the names and addresses of witnesses, written statements by witnesses or, if there are none, summaries of expected testimony from witnesses, and written reports of physical or mental examinations or scientific tests or experiments, the Committee added new subsections (a)(6) and (b)(3) to insure full disclosure of the opinions to be provided by expert testimony, including the bases and reasons for the opinions and the qualifications of the expert witness. In addition to avoiding surprise at trial, full disclosure will assist counsel and the court in addressing the issues raised by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The additions required renumbering of some subsections.
In subdivision (g)(1), the time within which a defendant must file a request for discovery and inspection is enlarged to thirty (30) days after arraignment to allow additional time for defense counsel to prepare the motion. See, e.g., Rule 7(f), which allows 30 days after arraignment for defendant to file a bill of particulars, and Rule 9.1, which allows 30 days after defendant has been served with a copy of the information for filing a motion to dismiss the information.
1974 Notes
This memorandum is intended to review the attached draft of a new version of Rule 16 of the Rules of Criminal Procedure of the Superior Court. The proposed rule was submitted to the Advisory Committee of the Superior Court this past November and has been subjected to extensive discussion, criticism and revision. On April 26th, the Committee gave final approval to the attached rule and recommended its adoption by the Justices of the Superior Court.
The purpose of the revision is to provide for the fullest, reciprocal discovery in criminal cases in the Superior Court that is practicable as well as consistent with the Constitutional rights of defendants. Until fairly recently, there existed serious and widespread doubt concerning the constitutionality of requiring a criminal defendant to give discovery, even if only as a condition to obtaining discovery from the State. See 1 Wright, Federal Practice & Procedure, 523-528(1969); ABA, Standards Relating to Discovery and Procedure Before Trial 44-45 (Tent.Draft 1969) [hereinafter referred to as "ABA Standards"]. In 1970, however, the Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, resolved much of the doubt when it held that a defendant in a state proceeding could, consistent with the privilege against self-incrimination, be required on request to give pretrial notice of his intention to raise the defense of alibi as well as to supply the names of witnesses he intended to call in support of the defense. Although the Florida rule involved in the Williams case provided for reciprocal discovery, the Court did not expressly condition its approval of the rule on that ground. In June of 1973, the Court, in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, squarely held that a state rule which compelled a defendant to provide discovery with respect to the defense of alibi violates the Fourteenth Amendment if reciprocal discovery rights are not available to the defendant. Although the Court was dealing with a rule limited only to discovery of alibi defense, its statement concerning reciprocity would appear to be applicable to other aspects of discovery: "... in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.... It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State." 412 U.S. at 475-76, 93 S.Ct. at 2212-13.
Though the decision in Wardius requires that discovery be a "two-way street" it does not deal directly with the further question of whether a defendant who chooses not to seek discovery available to him can nonetheless be compelled to give discovery at the initiative of the prosecution. Obviously, the alibi discovery rules considered in Williams and Wardius were not conditioned on the defendant first seeking discovery and were specifically designed for the prosecution to initiate the process. Until quite recently, it was not at all clear whether a rule permitting more intrusive discovery of broader classes of materials and information at the initiative of the prosecution would fare as well merely because the defendant was afforded an equivalent right to seek discovery of prosecution materials. Very substantial self-incrimination problems were thought to lurk in such a scheme. It was assumed, however, as reflected in existing Rule 16 of the Federal Rules of Criminal Procedure, that if a defendant initiates discovery, then the prosecution can be provided with reciprocal discovery rights. This approach proceeds on a theory of waiver by the defendant of whatever privilege against self-incrimination he might otherwise possess to resist giving discovery. The adoption of Rule 16 in that form over the express doubts on this precise point of Justice Douglas, joined by Justice Black (39 F.R.D. 276-78(1966) ), was strong evidence that the Court would sustain more pervasive discovery by the prosecution than Federal Rule 16 currently allows, provided at least that the discovery process is initiated by the defendant.
In early 1970 the Advisory Committee on the Federal Criminal Rules circulated a preliminary draft of a proposed amendment to Rule 16 that provided an independent right of discovery for both the defendant and the prosecution. The Committee, recognizing the potential self-incrimination problems involved in permitting the prosecution to seek discovery in the absence of a prior discovery demand by the defendant, relied principally upon decisions upholding discovery by the state of the defense of alibi as support for the constitutionality of its proposal. 48 F.R.D. 607-609(1970). However, "[b]ecause of some uncertainty about the constitutionality of requiring the defendant to disclose evidence prior to trial," an alternative proposal was also circulated under which "the prosecution's right of discovery [is] conditional upon a prior request by the defendant for discovery of similar evidence from the prosecution." 48 F.R.D. 596 (1970). On April 23rd, however, the Supreme Court resolved the doubt when it promulgated Rule 16, to be effective July 1st, essentially in the form recommended by the Committee, permitting independent discovery by the prosecution. Thus, the question that has perturbed for so long has now been laid to rest.
The attached draft of proposed Rule 16 of the Rhode Island rules falls someplace between the views expressed in the federal Advisory Committee's principal and alternative drafts. Because of what was believed, at the time this rule was under consideration, to be the substantial, unresolved Constitutional issues under both the federal and Rhode Island constitutions in permitting independent discovery by the prosecution, the proposed rule was drafted to provide for discovery and inspection by the State only after a defendant seeks discovery. Moreover, in addition to the constitutional considerations, it was also deemed fairer and more acceptable to condition the State's right to discovery on the defendant initiating the process.
The proposed rule also introduces a significant change in the practice under existing Rule 16 by not only expanding greatly the range of discovery available to both sides, but by permitting the State to seek the entire range of discovery available to it once the defendant has initiated the process, regardless of the specific items he seeks to discover. Under the present version of Rule 16, which was patterned on the Federal Rule, the State is restricted to seeking discovery only of the same class of materials sought by the defendant. "The [existing] rule is said to represent a policy of encouraging mutual disclosure and making discovery a two-way street. In this light it has been suggested that if a defendant is granted discovery of the report of a psychiatrist for the State who has examined him, it is reasonable that the State should be given access to other psychiatric reports obtained by the defendant, while it would not be proper on the basis of the defendant's request for discovery of the psychiatrist's report to require him to produce books and documents not related to the subject of the psychiatrist's report." Note accompanying Rule 16, R.I.Super.R.Crim.P. Under subdivision (b) of proposed Rule 16, this would be completely altered by permitting the State to pursue the full range of discovery the rule makes available to it from a defendant "who seeks any discovery" under the rule. If, as noted earlier, it is constitutional to give the prosecution an independent right of discovery, as contained in the newly adopted federal rule, it must surely be permissible to give full discovery to the State if the defendant seeks some or all of the discovery available to him, so long as the range of items and information available to him is at least as broad as that made available to the prosecution.
Another major change introduced by proposed Rule 16 is the expansion of categories of materials and information made discoverable. These will be dealt with in detail below. It should be noted, however, that despite persistent doubts about the permissible range of discovery in criminal cases, many of these doubts appear to have been put to rest by statements in the Supreme Court's opinion in Wardius v. Oregon, 412 U.S. 470, 473-74, 93 S.Ct. 2208, 2211-12, 37 L.Ed.2d 82 (1973):
Notice of alibi rules ... are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.... The growth of such discovery devices is a salutory development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals....
When the proposed Rule 16 was originally submitted to the Advisory Committee of the Superior Court, a number of alternatives were also submitted and considered. One alternative related to discovery of alibi defense, which is now contained in subdivision (c). That provision could logically have been added to Rule 12 rather than made a part of Rule 16. However, if that were done, the State would possess a right to obtain information concerning this defense whether or not a defendant sought discovery from the State. On the other hand, if discovery of alibi was placed in Rule 16, it would be available to the State only if a defendant sought discovery. The Advisory Committee chose to place this provision in Rule 16 and make it subject to a defendant first seeking discovery from the prosecution.
Also, subdivisions (a)(7) and (a)(8) of proposed Rule 16 are to an extent redundant of Rule 26.1. Under Rule 26.1 the State must provide a defendant with written or recorded statements of prosecution witnesses, as well as their criminal records, after they have been examined on direct. Under (a)(7) and (a)(8) of the proposed rule the State must, prior to trial and upon defendant's request, provide statements and criminal records of witnesses whom the State expects to call. The Advisory Committee considered whether, in light of the breadth of discovery available under those provisions, Rule 26.1 ought to be repealed. It decided, however, that the rule ought to remain in effect in order to provide a defendant who has not sought discovery under proposed Rule 16 with at least the same benefits presently available in criminal trials in the Superior Court. Where, however, a defendant utilizes Rule 16, then Rule 26.1 should not be effective. A minor modification of Rule 26.1 to accomplish that end has been recommended for approval by the Court and is enclosed.
Finally, the materials made subject to disclosure under subdivisions (a)(4) and (a)(5) include everything that presently might be available to a defendant under the tangible evidence statute. G.L.1956 (1969 Reenactment) § 12-17-16. There is a significant difference between them however. Under the statute there is no reciprocity requirement; thus, if it is not repealed and a defendant were to choose not to avail himself of discovery under the proposed Rule 16, he would still be entitled to limited disclosure of those items of tangible evidence covered by 12-17-16. See State v. Ricci, 107 R.I. 582, 268 A.2d 692 (1970). Despite this consideration, the Advisory Committee voted to recommend that repeal of the statute be sought.
Finally, it should be noted that even though under proposed Rule 16 a defendant may choose to forego discovery proceedings against the prosecution and thereby prevent the State from getting discovery from him, the State remains under the obligation not to suppress "evidence favorable to an accused ... where the evidence is material either to guilt or punishment...." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). Although due process requires the State to make such disclosure, the scope of this requirement remains far from clear. See, e.g., Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); 8 Moore's Federal Practice pp. 16-64 to 16-75 (Cipes ed. 1973).
Analysis of Rule 16. Proposed Rule 16 represents a major departure from the present rule. For one thing, the proposed rule eliminates the requirement of a motion by a party seeking discovery. Instead, under subdivisions (a), (b) and (c) the discovery process is initiated by written request between the parties. The only occasions on which motions should be necessary are when a party moves pursuant to subdivision (f) for a protective order, or in the event a party has failed to honor a request and the requesting party moves pursuant to (g)(1) to compel discovery, or a party moves pursuant to (g)(2) to extend the time for serving or complying with a request for discovery. If the rule works properly, most discovery will take place without the need for intervention by the court. This should relieve both the parties and the court of needless effort.
Discovery by Defendant. The most striking change contained in the proposed rule is the addition of various categories of materials and information that are made subject to pre-trial discovery. The items made discoverable under (a)(1), (a)(2), (a)(3) and the part of (a)(5) relating to test results are presently discoverable as of right by a defendant under existing Rule 16. The items made discoverable under (a)(4) are within the category of items presently discoverable by a defendant under Rule 16(b), but only upon a showing of materiality and reasonableness. None of the discovery made available to the defendant under the remaining portions of the proposed rule--(a)(6), (a)(7), (a)(8) and (a)(9)--is presently available under Rule 16.
With respect to the materials made discoverable under proposed (a)(4), a requirement that a defendant demonstrate materiality and reasonableness (as is presently required under Rule 16(b) ) in order to obtain discovery and inspection of books, papers, documents, etc., which are to be used by the State at the trial, was deemed to be inconsistent with a scheme of maximum and unencumbered discovery. Thus the "good cause" requirement has been deleted.
Subdivision (a)(5), which provides for discovery of reports of examinations and tests contains an additional provision which expands discovery to "tangible objects still in existence that were the subject of such tests or experiments." The purpose of this provision is, where possible, to assure to the opposing side an opportunity to have its own tests done on a physical object (e.g., a gun, a blood-stained garment, etc.) that is involved in the case. To protect against loss or alteration of the object, discovery is made "subject to an appropriate protective order under paragraph (f)" of the rule.
Subdivision (a)(6) is totally new in Rhode Island practice. Under it the State must provide a written list of the names and addresses of those persons it expects to call as witnesses at the trial. This is essentially the same as the newly promulgated Federal Rule 16. The Advisory Committee did, however, consider an alternative, based largely on Rule 3: 13-3(7) of the New Jersey criminal rules, under which the State would be required to provide the defendant with a list of all persons known to it who have "relevant evidence or information." The Committee rejected that version for a number of reasons: first, it appeared to create points of contention with respect to what the State knew as to persons possessing information as well as what is "relevant" information; second, it was deemed to be a potential snare that could make valid judgments of conviction vulnerable because the State had failed to identify a person who had relevant information even though such was not helpful to defendant. On balance the Committee felt that the gain to a defendant from the New Jersey type provision was not sufficient to offset the potential problems such a rule might create. The Committee felt that in light of the prosecution's obligation under the due process clause of the Fourteenth Amendment (see Brady v. Maryland, supra) to inform the defendant of persons known to the State to possess exculpatory information, a New Jersey type provision would not be worth the perceived risks.
In considering a provision for discovery of witnesses, the Committee was cognizant of the oft-stated view that discovery of the identity of prosecution witnesses leads to intimidation and perjury. Although fear of these consequences has created resistance to broadening discovery, there is little, if any, firm evidence to demonstrate that exchange of this information leads to the predicted consequences. See 1 Wright, supra, pp. 493-500. In fact, the federal Advisory Committee, in recommending its proposed revision of Rule 16, under which the federal government is required to give the names of witnesses whom it intends to call at the trial, notes that as of 1970 at least eighteen states provided for some form of similar disclosure. 48 F.R.D. 603-04. The absence of reports of serious problems arising for prosecutors operating under such rules suggests that this difficulty has been exaggerated. Moreover, under subdivision (f) of the proposed rule a procedure is provided either for limiting discovery or for perpetuating the testimony of witnesses.
Subdivision (a)(7) provides for pre-trial discovery of recorded grand jury testimony of persons whom the State intends to call as witnesses and of any other written or recorded verbatim statements of such persons. In the event the State does not possess recorded testimony or statements, then it is required to give a summary of the expected testimony of the witness. This provision is broader than existing Rule 26.1 in its grant of discovery of grand jury testimony and in moving up the time of discovery of witness' statements to the pre-trial phase of the proceeding. Permitting discovery of any "relevant recorded" grand jury testimony of a prospective witness would abolish the present requirement that defendant show "particularized need" in order to obtain such testimony. State v. Ouimette, 110 R.I. 747, 298 A.2d 124, 134-35(1972); State v. Lerner, 112 R.I. 62, 308 A.2d 324, 332-33(1973); State v. Palmigiano, 112 R.I. 348, 309 A.2d 855, 862-63(1973). Elimination of the "particularized need" requirement would follow the lead of the United States Courts of Appeals for the Second and Seventh Circuits. See 1 Wright, supra, p. 185.
Permitting discovery of these statements prior to trial not only enhances the concept of full and completes exchange of information for purposes of investigation and preparation, but will also prevent delays during the trial. Under existing Rule 26.1, the defense is provided with a witness' statement only after direct examination has been concluded. If the statement is lengthy, a recess is frequently necessary in order to give counsel an opportunity to study the statement before commencing cross-examination. Proposed (a)(7) should avoid such delays where discovery is sought by a defendant.
The portion of (a)(7), requiring the prosecution to give a summary of expected testimony of witnesses who have not testified before a grand jury and for whom there is no written or recorded statement, is entirely new. It should be noted, however, that since the summary of expected testimony will not be a "statement" of the witness, it cannot properly be used by the defense for impeachment purposes. If an opposing attorney should attempt to use a summary for impeachment purposes, the Court should sustain an appropriate objection.
Subdivision (a)(8), providing for disclosure of the conviction records of the defendant and prospective prosecution and defense witnesses, differs in two major respects from existing Rule 26.1. First, the disclosure is to be made prior to trial rather than after the witness has testified. Second, it requires disclosure of the defendant's own conviction record as well as the record of the witnesses he expects to call. The desirability of pre-trial disclosure is essentially the same as noted in the discussion of subdivision (a)(7). The requirement for disclosure of the defendant's record is taken from the newly adopted version of Federal Rule 16. The federal Advisory Committee gave the following reasons for that proposal: "A defendant may be uncertain of the precise nature of his prior record and it seems therefore in the interest of efficient and fair administration to make it possible to resolve prior to trial any disputes as to the correctness of the relevant criminal record of the defendant." Providing the defendant with an opportunity to correct any errors would be particularly significant for plea bargaining purposes. If the State is proceeding on an erroneous report of prior convictions, it might be less willing to consider a disposition agreeable to the defendant. Correcting any such errors may be helpful in bringing about a mutually acceptable disposition. Moreover, providing a defendant with the records of his own witnesses before trial will better assist in defendant's preparation of his case as well as avoid disputes and surprises at the trial. Possessing this information may also assist in making intelligent choices with respect to plea.
Finally, subdivision (a)(9) requires the prosecution to provide discovery of warrants and related papers that have been executed in connection with the particular case. Although, pursuant to Rule 41, the average defendant will have received these papers when a warrant was executed, there are instances when a defendant might not have. For example, where the defendant was not on the premises at the time of the search, or if the search involved interception of wire or oral communications pursuant to G.L.1956 (1969 Reenactment), §§ 12-5.1-1 through 12-5.1-16. Providing defendants with discovery of these materials at an early stage in the proceedings should assure that suppression motions will be made and disposed of prior to the trial.
Discovery by the State. Perhaps the most significant change that the proposed rule will introduce is the expansion of discovery by the State. Under subdivision (c) of existing Rule 16, the State is afforded a relatively narrow right of discovery. First, as in the case of the proposed rule, the prosecution's right of discovery is conditioned on the defendant seeking discovery first. Further, the scope of the State's discovery is presently limited to items similar to those sought by the defendant. Finally, under the existing rule the items discoverable by the State are limited to "scientific or medical reports, books, papers, documents, tangible objects ... which the defendant intends to produce at the trial and ... upon a showing of materiality to the preparation of the State's case and that the request is reasonable."
Under subdivision (b) of the proposed rule, the State's right to discovery would still depend upon the defendant seeking discovery under subdivision (a); however, once the defendant seeks discovery of any items, the State is then entitled to discover and inspect any or all of the information and items enumerated in this subdivision. Thus, under the proposed rule the State will no longer be restricted to discovering only the equivalent of particular items sought by the defendant.
Second, the requirement that the State demonstrate "particularized need" and "reasonableness" is eliminated. Instead, the State may discover any information and materials enumerated in the proposed rule that are intended to be used by the defendant at the trial.
Finally, as in the case of discovery by a defendant, the State is to proceed by written request rather than by motion.
Subdivision (b)(1) is similar to existing Rule 16(c) insofar as it authorizes discovery of books, papers, documents and tangible objects. Added to the list of items discoverable under this provision are photographs, sound recordings and buildings or places. These additions make it co-extensive with subdivision (a)(4). The items discoverable under this provision are, as under existing Rule 16, those which are intended for use by the defendant as evidence at the trial. The Committee considered an alternative provision which would have required a defendant to make available "any relevant" books, papers, etc. For some of the same reasons mentioned in the discussion of subdivision (a)(6), it was deemed best to restrict discovery to items which a defendant intends to use as evidence at the trial. This accords with the newly promulgated Federal Rule 16.
Subdivision (b)(2), permitting the State to discover results or reports of "physical or mental examinations ... and of scientific tests and experiments," is to that extent essentially the same as existing Rule 16(c), which permits discovery of "scientific or medical reports." Under the proposed rule only those written reports or results prepared by a person whom the defendant intends to call as a witness are discoverable. This restriction was included to assure that defendants will not be deterred from seeking expert assistance in fear that they will have to give discovery to the State of adverse reports.
The final portion of this subdivision, providing for discovery of "tangible objects still in existence that were the subject of such tests or experiments" is new. As noted in the discussion of subdivision (a)(5), "[t]he purpose of this provision is, where possible, to assure to the opposing side an opportunity to have its own tests done on a physical object (e.g., a gun, a blood-stained garment, etc.) that is involved in the case."
Subdivision (b)(3) and (b)(4) contain the most significant departures from the existing scope of discovery by the State. Under (b)(3) the defense would be required to give the State a list of any persons whom it expects to call at the trial "in the event the State presents a prima facie case." Under (b)(4) the defendant is required to give the State "any written or recorded verbatim statements" of persons whom it intends to call as witnesses, or, if it has no such statements, a summary of the testimony the person is expected to give. Both of these provisions are co-extensive with the discovery the State is required to give to a defendant under (a)(6) and (a)(7). If the principal assumption underlying the right of the State to obtain discovery from a defendant is correct--i.e., that the adversary process is not a "poker game" and should be a process "designed to enhance the search for truth" (Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970))--then permitting the State discovery of this information should not run afoul of the Constitution. Subdivision (b)(3) is essentially the same as the newly promulgated federal rule. Subdivision (b)(4) has no counterpart in that rule. The discussion of proposed (a)(6) and (a)(7)--permitting discovery by the defendant of the same type of material--is generally applicable here.
Notice of Alibi. Subdivision (c) of the proposed rule establishes a procedure for requiring a defendant to give notice of his intent to rely on the defense of alibi, a description of the place where he claims to have been at the time of the commission of the offense, and the witnesses he intends to call in support of this defense. In return, the State is required to give notice of the witnesses it intends to call to establish the defendant's presence at the scene of the crime. Discovery from defendant of this information is conditioned upon the defendant first seeking discovery under subdivision (a) and being provided by the State with particulars as to "the date and time when and the place where the offense charged is alleged to have occurred." This latter requirement is important because of the short form indictments permitted under Rule 7(c). Unless defendant is given specific information about the time and place of the offense, his ability to predict whether or through whom he will raise the defense of alibi may be impaired. Except for the requirement that defendant must first have sought discovery under subdivision (a) in order for the State to be able to seek disclosure concerning this defense, the proposal is essentially similar to the Florida provision approved by the Supreme Court in Williams v. Florida, 399 U.S. 78, 104-105, 90 S.Ct. 1893, 1908, 26 L.Ed.2d 446 (1970).
The time periods for complying with a request for discovery of this information were those that seemed appropriate. Under subdivision (g)(4) the Court can grant extensions of time where necessary.
General Provisions. Subdivision (e) provides that the failure of a party to call at the trial a person who had been designated as an intended witness, may not be commented upon. This provision is important in assuring that a party who has made full disclosure will not be prejudiced if circumstances at the trial make it inappropriate or unnecessary to call a person who at an earlier time seemed to be a likely witness. This provision does not, however, impair a defendant's right to comment generally on the State's lack of witnesses to support the charge, or where appropriate the State's right to make a similar comment.
Subdivision (f) provides for denying, restricting, or deferring discovery upon motion and sufficient showing. It also authorizes the Court in appropriate circumstances to order that the testimony of a person whom a party has designated as an expected witness be perpetuated by oral deposition for use at the trial by the moving party should the witness either become unavailable or change his testimony materially. This provision, which is based in part on the newly adopted Federal Rule, is intended to allay fears that witnesses for either side will be subjected to intimidation, harm, or bribery.
In most other respects, proposed subdivision (f) is similar to existing Rule 16(e).
Subdivision (g) establishes the procedure and timing of discovery under the proposed rule. The time period specified for defendant commencing the procedures, 21 days after arraignment, is the same as that contained in the existing rule. The proposed rule further provides that the response to a request for discovery is to be served within 15 days and state specifically with respect to each request whether discovery will be given and, if not, why. Under this provision the State is to serve its requests for discovery within 21 days after responding to defendant's request and defendant is to respond within 15 days. Under paragraph (3) a party who is dissatisfied by a response to a request for discovery may move for an order to compel compliance. Hopefully, such motions will be the exception. Finally, paragraph (4) authorizes the Court to grant extensions of time for serving requests and responses.
Subdivision (h), which imposes a continuing duty to make disclosure of information or material discovered after the initial response was served, is essentially the same as the first sentence of existing Rule 16(g).
Subdivision (i), which provides for sanctions in the event a party fails to make required disclosure, is essentially the same as the second sentence of existing Rule 16(g). It differs only by the inclusion of the additional sanction of refusing to admit in evidence the testimony of a witness whose identity or statement was not disclosed under subdivisions (a)(6) or (a)(7), or (b)(3) or (b)(4).