“Witness lists are an element of discovery.” Grubor Enterprises, Inc v Kortidis, 201 Mich App 625, 628 (1993). They serve the purpose of avoiding “‘trial by surprise.’” Id., quoting Stepp v Dep’t of Nat Resources, 157 Mich App 774, 779 (1987).
The parties must file and serve their witness lists within the time limits prescribed by the court under MCR 2.401(B)(2)(a). MCR 2.401(I)(1). The witness list should include the witness’s name, address (if known), whether the witness is an expert, and his or her field of expertise. MCR 2.401(I)(1)(a)-(b). However, only a general identification is necessary if the witness is a records custodian “whose testimony would be limited to providing the foundation for the admission of records[.]” MCR 2.401(I)(1)(a).
B.Sanctions for Failure to File Witness List
“The court may order that any witness not listed in accordance with [MCR 2.401] will be prohibited from testifying at trial except upon good cause shown.” MCR 2.401(I)(2). “While it is within the trial court’s authority to bar an expert witness or dismiss an action as a sanction for the failure to timely file a witness list, the fact that such action is discretionary rather than mandatory necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate.” Dean v Tucker, 182 Mich App 27, 32 (1990). Just because a witness list was not timely filed does not justify the imposition of such a sanction. Id. at 32. See Section 5.1() for additional discussion of the Dean case and a nonexhaustive list of factors to consider when determining what is an appropriate sanction.
A court’s decision to permit or exclude undisclosed witnesses is reviewed for an abuse of discretion. Kalamazoo Oil Co v Boerman, 242 Mich App 75, 90-91 (2000).