Judge orders state to correct witness list, presses parties toward mediation in dam litigation

Judge James Redford of the Michigan Court of Claims on Wednesday declined to rule from the bench on plaintiffs’ motion about whether assistant attorney general Nathan Gamble is a “likely necessary” witness, but ordered state defendants to amend a prior interrogatory response within one week and pressed both sides to pursue mediation or face a court-ordered settlement conference.

The hearing centered on a filing the court described as plaintiffs’ motion identifying defense counsel Nathan Gamble as a potentially necessary witness in consolidated litigation over actions by the Michigan Department of Environment, Great Lakes, and Energy and the Department of Natural Resources concerning Boyce Hydro and Wixom Lake. Judge Redford said he had read the briefs and would not rule immediately, but said the state defendants must supplement their May 13, 2024, answer to interrogatory No. 4 by close of business one week from Jan. 22, 2025.

Why it matters: Listing opposing counsel as a witness raises discovery and privilege issues that can affect who may serve as trial counsel and what testimony is discoverable. Both sides told the court they expect further fact development before deciding whether Gamble must be deposed; the judge emphasized sequencing and the need to complete other depositions and document review first.

Plaintiffs’ position Jason Thompson, appearing for the class plaintiffs, told the court plaintiffs were not seeking to disqualify Gamble at this time and that the briefs used the phrase “likely necessary witness” as an initial showing to justify taking his deposition later if warranted. “We are not seeking to disqualify Mr. Gamble,” Thompson said. He said plaintiffs intend to take many other depositions first and that listing Gamble followed the court’s instruction to disclose potential witnesses.

Defense position Defense counsel objected that the plaintiffs had not shown any non‑privileged, material information that only Gamble could provide. “You just don't get to depose opposing counsel,” defense attorney Mr. Cool told the court. Attorney Richard Kuehl argued the briefing lacked a “particularized basis” showing Gamble possesses non‑privileged information that cannot be obtained from other witnesses, and said plaintiff counsel had not yet deposed the many state employees listed in the exhibits.

Interrogatory cited in court The court reviewed a portion of the defendants' discovery responses dated May 13, 2024, in which the defendants identified numerous DNR and EGLE staff and listed Nathan Gamble as “provided legal counsel to EGLE and DNR.” Plaintiffs and the court noted the Department of Attorney General previously had been a defendant in related filings and that the earlier response may no longer reflect current parties. After discussion, defense counsel agreed to be allowed to file a supplemental answer to Interrogatory No. 4, and the court set a one‑week deadline for that supplement.

Settlement facilitation and scheduling Judge Redford told the parties he expects the lawyers to attempt facilitated settlement discussions in March 2025 and said he will, if necessary, order a settlement conference with a judicial officer in April that will require representative counsel and settlement‑authorized individuals to participate. “If I do not have specific dates during the month of March ... then the court ... will be ordered to a settlement conference with a judicial officer,” the judge said. Plaintiffs’ lead liaison for communications, Ms. Almond Road, told the judge, “On behalf of the plaintiffs, we welcome the opportunity to proceed with facilitation in this case.”

Other procedural matters The parties reported completion (or near completion) of a large document review—counsel referenced roughly 30,000 documents produced or reviewed—and confirmed that no depositions so far had been completed. The court scheduled a status conference for Feb. 3, 2025, and said it would consider whether the pending “necessary‑witness” motion requires a separate opinion once supplemental discovery responses and the status conference occur.

What the court ordered and next steps - The state defendants may file a supplemental answer to Interrogatory No. 4 by close of business one week from Jan. 22, 2025. - The parties are to contact the agreed facilitator and make at least one or two March 2025 dates available for substantive facilitated sessions; if facilitation does not proceed, the court will order a settlement conference in April. - The status conference remains set for Feb. 3, 2025; the court will revisit whether a decision on the necessary‑witness question is required then.

The judge recessed the hearing after roughly 55 minutes and said he will not rule immediately on the necessary‑witness issue until the parties supplement discovery and confer further at the February status conference.