IN THE



## S UPREME 

## C OURT O F THE 

## S TATE OF 

## A RIZONA

E MMA S PRING
, Plaintiff/Appellant

,

v.

T IMOTHY R. B RADFORD , D.C. Defendant/Appellee

.

No. CV

- 17

- 0068

- PR

Filed October 23 , 2017

Appeal from the Su perior Court in Maricopa County

The Honorable David M. Talamante, Judge

No. CV2011

- 098170

AFFIRMED

Opinion of the Court of Appeals, Division One

241 Ariz. 455 ( App. 2017)

A FFIRMED IN PART, VACATED IN PART

COUNSEL:

B. Elliot Grysen (argued), Grysen & Associates, Spring Lake, MI; and Scott E. Boehm, Law

Office of Scott E

. Boehm

, P

. C

. , Phoenix, Attorneys for Emma Spring

Mandi J. Karvis (argued), Robin E. Burgess, Winn L. Sammons, Sanders & Parks

, P

. C

. , Phoenix, Attorneys for Timothy R. Bradford

David L. Abney, Ahwatukee Legal Office

, P

. C

. , Phoenix; John Jeff rey Bouma, Cronus
Law PLLC, Phoenix; Patricia E. Ronan, Patricia E. Ronan Law, LLC, Phoenix; and Frank
Verderame, Randall A. Hinsch, Plattner Verderame

, P

. C

. , Phoenix, Attorneys for Amici

Curiae Plaintiff Law FirmsSPRING V

. BRADFORD Opinion of the Court

2 VICE CHIEF JUSTICE PELANDER autho red the opinion of the Court, in which CHIEF
JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, BOLICK

, GOULD

, and LOPEZ j oined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1 Arizona Rule of Evidence 615 (“the Rule”) generally provides that a trial

court, at a party’s request

, “must order witnesses excluded so that they cannot hear other witnesses’ testimony.” We hold that the Rule, when invoked, prohibits a party from providing prospective trial witnesses with transcripts of prior witnesses ’ trial testimony.
We further hold, however, that a violation of this prohibition is not presumptively prejudicial in a civil action; but even when no prejudice is shown, the trial court must

take some corrective action by tailoring an appropriate remedy under the circumstances. Finally, we hold that although expert witnesses are not automaticall y exempt from the
Rule, under Rule 615(c), a trial court must permit a witness to hear (or read) a prior witness’s testimony if a party shows that such an exception is essential to that party’s

claim or defense

.

I.

¶2 Emma Spring sued Timothy Bradford , D.C., for medical malpractice. Spring alleged that Bradford negligently performed a chiropractic adjustment that damaged her cervical spine.

¶3 Each party hired tw o expert witnesses to t estify at trial. Spring retained

Dr

. Alan Bragman to address whether Bradford’s chiropractic adjustment complied with the applicab le standard of care and Dr. Daniel Lieberman to address whether that

treatment caused Spring’s spinal injury. Bradford hired D r. Robert Iverson as his

standard

- of

- care expert and Dr. Allan Hamilton as his causation expert . During pre trial discovery, both parties submitted disclosure statements relating to the ir respective expert witnesses as required by Arizona Rule of Civil Procedure 26.1(a)(6). In addition,

Drs

. Bragman, Lieberman, and Iverson were deposed

.

¶4 B efore any witness testified on the first day of trial

, the court (with both parties’ agreement) invoked the Rule excluding any prospective trial witnesses from the courtroom during other witnesses’ testimony

. In her case

- in

- chief, Spring presented expert testimony from Drs. Bragman and Lieberman.

¶5 In the defendant’s case

- in

- chief, Bradford presented testimony from

D r

. Hamilton. During cross

- examination, Spring’s counsel first learned that Bradford’s counsel had provided Dr. Hamilton with a transcript of Dr. Lieberman’s trial testimony. After Dr. Hamilton finished testifying, the trial court found that Bradford’s co unsel and

Dr. Hamilton had violated the court’s exclusion order. Before testimony resumed theSPRING V

. BRADFORD Opinion of the Court

3 next day, Spring’s counsel learned that Bradford’s counsel had also provided Dr. Iverson with a transcript of Dr. Bragman’s trial testimony. The trial court fou nd that, although
Bradford’s counsel did not act in bad faith, Bradford’s counsel and Dr. Iverso n had

violated the court’s order.

¶6 In determining an appropria te remedy for the violations, the trial court did not presume prejudice but instead placed the burd en on Spring to show actual prejudice. Finding that Spring had not establish ed any prejudice, the court denied her requests to strike Dr. Hamilton’s testimony and to preclude Dr. Iverson from testifying. Although it

allowed Dr. Iverson to testify, the co urt indicated that Spring could request that portions of Dr. Iverson’s testimony be stricken if his opinions at trial varied from those disclosed in his deposition. Spring did not identify any such variance. The trial court also indicated

that if Bradford had asked, the court probably would have excepted both sides’ expert

witnesses fr o m the Rule. Lastly, t he trial court provided the jury with two curative instructions relating to Bradford’s violations of the Rule

.

¶7 The jury returned a verdict in f avor of Bradford. Sprin g moved for a new

trial based on, among other things, Bradford’s violations of the Rule . The trial court

deni ed the motion , finding that “the corrective instructions given during trial to the jury along with the opportunity for cro ss

- examination prevented actual prejudice to Plaintiff

. ”

¶8 The court of appeals affirmed. Spring v. Bradford , 241 Ari z. 455, 457 ¶ 2 (App. 2017). The court held “that, by its terms, Rule 615 does not automatically exempt expert wit nesses from exclusion,” b ut a superior court may nevertheless “ exercise its

discretion ” under Rule 615(c) “to allow an expert witness to observe other testimony (or to review transcribed testimony).” Id

. ¶ 1. The court reasoned tha t although no “ blanket exemption for experts ” exists, Rule 615 authorizes a trial court “ to allow an exception to exclusion if a party ‘shows’ the witness’s presence to be essential.” Id

. at 459 ¶ 13

. B ecause “Bradford’s counsel did not request that the court exercise its discretion to allow

an exem ption for expert witnesses,” however, the court of appeals concluded that “the superior court did not err by finding that Bradford violated Rule 615 by providing trial transcripts to the defense experts without first requesting exemp tion from exclusion.” Id. at 460 ¶ 16

.

¶9 In considering whether the trial court erred “by declining to apply a presumption of prejudice resulting from Bradford’s t echnical Rule 615 violations,” id. at

461 ¶ 20, the court of appeals found no error because “a party asserting Rule 6 15 error in a civil case must show prejudice.” Id. at 460 ¶ 17 (citing Kosidlo v. Kosidlo , 125 Ariz. 32, 35 (App. 1979), abrogated in part on other grounds by 125 Ariz. 18 (1979))

. T he court of appeals

also found no error in the trial court “appropriately address[ing] the minimal scope of resulting prejudice through a jury instruction, rather than by striking the [defense] experts’ testimony.” Id

. at 457 ¶ 2.SPRING V

. BRADFORD Opinion of the Court

4 ¶10 We granted review to address two recurring issues of statewide importance: (1) whe ther prejudice should be presumed in a civil case when a party or

witness violates a court’s exclusion order under Rule 615, and (2) what a party must show

for the Rule 615(c) exception to apply to a witness. We have jurisdiction under article 6,

section 5(3) of the Arizona Constitution and A.R.S. § 12

- 120.24

.

II.

¶11 We review the interpretation of court rules de novo. State v. Fitzgerald

, 232 Ariz. 208, 210 ¶ 10 (2013). But we review for abuse of discretion a trial court’s choice of appropriate remedy for violation of an order excluding witnesses. See State v. Jones

, 185 Ariz

. 471, 483 (1996) ( finding no abuse of discretion in trial court’s refusal to strike

witness’s te stimony or declare a mistrial for alleged violation of the Rule’s parallel criminal procedure rule, Ariz. R. Crim. P. 9.3(a)). W e likewise review a trial court’s denial

of a motion for a new trial for abuse of discretion. Am. Power Prods., Inc. v. CSK Au to, Inc.

, 239 Ariz. 151, 154 ¶ 10 (2016).

¶12 “We interpret court rules according to the principles of statutory

construction.” State v. Aguilar , 209 Ariz. 40, 47 ¶ 23 (2004). Under those principles, if a rule’s “language is subject to only one reasonable me aning, we apply that meaning. When the language can reasonably be read more than one way, however, we may consider the [rule ] ’s subject matter, legislative history, and purpose, as well as the effect of different interpretations, to derive its meaning.” Bell v. Indus. Comm’n , 236 Ariz. 478,

480 ¶ 7 (2015) (internal citation omitted)

. And when “interpreting Arizona’s evidentiary rules, we look to federal law when our rule is identical to the corresponding federal rule.”

Hernandez v. State , 203 Ariz. 196, 198 ¶ 10 (2002).

¶13 Arizona’s Rule 615 , which parallels Federal Rule of Evidence 615 in all material respects, provides that “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so o n its own.” (emphasis added). The Rule has pre

- statehood, common

- law roots

. See State

v. Sowards , 99 Ariz

. 22, 26 (1965). But like its federal count erpart, our Rule differs from

its common

- law antecedent by making the sequestration of witnesses mandatory when requested by one of the parties. See Territory v. Dooley , 3 Ariz. 60, 61 (1889) (describing exclusion as “solely a matter of discretion”)

. Of the five exceptions to Rule 615’s general
rule of exclusion, only one is relevant here. Under Rule 615(c), a court is not authorized

to exclude “ a person whose presence a party shows to be essential to presenting the party’s claim or defense.”

¶14 The purpose of Rule 615 is “to prevent witnesses from ‘tailoring’ their testimony to that of earlier witnesses and to aid in detecting testimony that is less than

candid.” United States v. Ell , 718 F.2d 291, 293 (9th Cir. 1983) (quoting Geders v. United

States , 425 U.S. 80, 87 (1976)) ; see also Opus 3 Ltd. v. Heritage Park, Inc.

, 91 F.3d 625, 628SPRING V

. BRADFORD Opinion of the Court

5 ( 4 th Cir. 1996) (stating that sequestering witnesses is “one of the greatest engines that the

skill of man has ever invented for the detection of liars in a court of justice ” (quoting 6 John H. Wigmore, Wigmore on Evidence § 1838, at 463 (James H. Chadbourn ed., 1976)) )

. Excluding witnesses from trial discourages and exposes “fabrication, inaccuracy, and collusion.” Fed. R. Evid. 615 advisory committee’s note to 1972 propos ed rules; see also

Sowards , 99 Ariz. at 26 (“The purpose of excluding witnesses from the trial is to encourage the discovery of truth, and detectio n and exposure of falsehood.”).

¶15 Rule 615 applies in both civil and criminal cases. See Ariz. R. Crim. P. 9.3

cmt. to 1989 amend ment (stating that under Rule 615 “the trial court in both civil and criminal cases no longer has discretion and sequestration is a matter of right”) ; cf. Allison

v. O v ens , 4 Ariz. App. 496, 501 (1966) (noting that the common

- law “ ‘ rule’ excluding witnesses from the courtroom during trial” applied to both criminal and civil cases), vacated in part on other grounds , 102 Ariz. 520, 524 (1967) . And because the Rule does not differentiate between types of witnesses, it applies to both expert and fact witnesses. See,

e.g. , Morvant v. Constr. Aggregates Corp. , 570 F.2d 626, 630 ( 6 th Cir. 1978). Thus, the court of appeals correctly held that, “by its terms, Rule 615 does not automatically exempt expert witnesses from exclusion .” Spring , 241 Ariz. at 459 ¶ 15 ; see also United States v.

Seschillie , 310 F.3d 1208, 1213 (9th Cir. 2002) ( noting that expert witnesses are not always exempt from Rule 615’s general provision even though they often may be deemed “essential” for purposes of the Ru le’s exception).

¶16 We agree with the courts below that defense counsel’s conduct in providing the transcribed trial testimony of Spring’s experts to Bradford’s expert witnesses before their testimony violated the purpose and spirit, if not the express terms, of Rule 615. Although the Rule expressly only prohibits witnesses from “ hear [ ing ] other witnesses’ [ trial ] testimony

, ” the Rule’s purpose would be frustrat ed if a prospective witness were permitted to read other witnesses’ trial testimony. Bradford has never argued otherwise, and federal courts have recognized that Rule 615 is violated not only when a witness is present in the courtroom and hears another witness’s testimony, but also when a witness reads transcripts of another witness’s testimony. See, e.g. , United States v. Jimenez , 780 F.2d

975, 980 & n.7 (11th Cir. 1986).

III.

¶17 The primary issue, then, is identifying which party should bear the burden of proving the existence, or absence, of prejudice from a violation of the Rule. Relying on

State v. Roberts , 126 A riz. 92 (1980) , Spring argues that Bradford’s violations create a presumption of prejudice. Like the courts below , however, we conclude that no such presumption applies here.

¶18 In Roberts , a criminal case, the defendant challenged his convicti on on theSPRING V

. BRADFORD Opinion of the Court

6 ground that the trial court improperly denied his “motion to invoke the rule on exclusion of witnesses” under Arizona Rule of Criminal Procedure 9.3(a). 1 126 Ariz. at 94. This

Court held that “failure to honor an exclusionary request is presume d prejudicial unless the absence of prejudice is clea rly manifest from the record

. ” Id

. We reasoned that, although it is possible in some cases to “conclude with assurance that a defendant was definitely not prejudiced by the failure to exclude,” there a re cases when it is not possible “to conclude that the failure to exclude was definitely prejudicial or definitely not prejudicial to a defendant.” Id. In those cases of possible prejudice, we stated that “a rule requiring an actual showing of prejudice works an injustice.” Id

. B ut cf. K o sidlo

, 125 Ariz. at 35 (stating, pre

- Roberts , that trial court’s failure to grant a party’s request in a domestic

relations case to exclude witnesses under Rule 615 did “not require reversal” because the requesting party “failed to show prejudice”).

¶19 Although Roberts spoke in broad terms, we have no reason here to revisit its holding because we find that case materially distinguisha ble

. U nlike in this case, the

trial court in Roberts violated a party’ s right to ex clude witnesses by erroneously denying the party’s request to exclude and incorrectly stated that the Rule is “discretionary

, ” 126
Ariz. at 94, whereas here the trial court properly applied the Rule, but a party and his expert witnesses violated it

. We pr eviously noted this distinction in State v. Perkins , 141 Ariz. 278, 293 (1984), overruled on other grounds by State v. Noble , 152 Ariz. 284 (1987), in

which two fact witnes ses violated the trial court’s exclusion order. Despite those
violations, this Court upheld the trial court’s refusal to strike one offending witness’s testimony and to preclude the other from testifying, “absent an abuse of discretion and evidence of pre judice to appellant’s case.” Id. at 29 3

– 94 . We distinguished Roberts

because it “concerns the situation in which a court refuses a party’s request to invoke the rule, and not the situation in which the rule is invoked and then violated by a witness .”

Id. at 294 (emphasis added).

¶20 Thus, as in Perkins , the situation here “is governed not by Roberts ,” but rather by the proposition that reversal is unwarranted absent an abuse of the trial court’s

discretion and demonstrated prejudice to the non

- violating pa rty. Id

. ( first citing State v. Schlaefli , 117 Ariz. 1, 3

– 4 (1977) ; and then citing State v. Hadd , 127 Ariz. 270 , 277 (App. 1980) ) ; see also Ell , 718 F.2d at 293

– 94 (distinguishing a trial court’s failure to comply with Rule 615, where prejudice is presum ed, from a witness’s violation of a court’s

1 Arizona Rule of Criminal Procedure 9.3(a) provides that “[t]he court may, and at the request of either party shall, exclude prospective witnesses from the courtroom during opening statements and the testimony of other witnesses.” The comments to this rule indicate that “Rule 9.3(a) retains the manda tory s equestration rule” set forth in Rule 615.

Ariz. R. Crim. P. 9.3 cmt. to 1989 amend ment

. (Current Rule 9.3 and its comments have been abrogated and replaced with a restyled, but substantively similar, Rule 9.3, effective January 1, 2018.) The differences between Rule 9.3(a) an d Rule 615 are not relevant here

.SPRING V

. BRADFORD Opinion of the Court

7 exclusionary order issued under the Rule, where “the appropriate sanction” is committed

to the trial court’s discretion ) ; United States v. Oropeza , 564 F.2d 316, 326 (9th Cir. 1977) (concluding that trial court did not err in allowing witness to testify, despite his violation of the Rule, when “no showing of prejudice” was made); Jones , 185 Ariz. at 483 (stating

that reversal for violation of Criminal Procedure Rule 9.3(a) is warranted only when the

non

- violating party “suffered prejudice”)

.

¶21 Generally, although Rule 615 does not distinguish between types of witnesses, violations involving fact witnesses are more likely to be prejudicial than violations involving expert witnesses. As the court of appeals observed, “[n]o presumption of prejudice is generally necessary in the context of purely expert witnesses because disclosure of their expert reports and pretrial depositions establish a basis for assessing actual prejudice in the form of altered opinions.” Spring

, 241 Ariz. at 460 ¶ 18;

see also Hill v. Porter Mem’l Hosp.

, 90 F.3d 220 , 222

– 24 (7th Cir. 1996) (concluding that a

trial court acted within its discretion in permitting the defendant’s expert witnesses to testify after they received transcripts of the pla intiff’s expert witness’s trial t estimony

because the defense expert s testified to the same opinions they had expre ssed in their pretrial reports and depositions, and thus the plaintiff could not show prejudice)

.

¶22 Those observations highlight another import ant distinction between

Roberts and this ca se. Roberts involved a material fact witness changing his story after hearing the trial testimony of two other witnesses. 126 Ariz. at 94

– 95. Here, in contrast,

there is no indication that either of Bradford’s expert witnesses materially altered their opinions based on their review of the other experts’ prior testimony, or that their trial testimony varied from their prior reports or deposition. C f. State v. Swillie , 357 N.W.2d

212

, 215 (Neb. 1984) (noting that in the context of a Rule 615 violation, “[p]rejudice is

established where the witness’ [ s ] testimony has changed or been influenced by what he

heard from other witnesses”).

¶23 To support her asserted presumption

- of

- prejudice standard when

“delibe rate or intentional misconduct” makes “ascertaining prejudice practically impossible, ” Spring also cites Leavy v. Parsell , 188 Ariz. 69 (1997). In Leavy , “defense counsel engaged in deliberate, serious misconduct” by repeatedly violating the trial

court’s pretrial orders. Id. at 70

– 72. There

, we ruled that “prejudice should be inferred” when a party’s counsel engages in misconduct, and

(1) the misconduct is significant, especially if the record establishes knowing, deliberate violations of rules or court orders that a litigant may confidently expect to be observed by his or her adversary; (2) the misconduct is prejudicial in nature because it involves essential and important issues, but the extent is impossible to determine in a close case; and (3) the mi sconduct is apparently successful in achieving its goals.SPRING V

. BRADFORD Opinion of the Court

8 Id. at 73.

¶24 Leavy is inapposite. In that case counsel directly violated the trial court’s pretrial orders three times “with malic e a forethought” and improperly commented on some highly prejudicial

, inadmissible evidence at least eleven times. Id. at 71 (internal quotation marks omitted)

. The conduct invo lved in this case is not comp arable to

counsel’s egregious, “significant misconduct affecting the essential rights of a litigant” in Leavy

. Id

. at 73. Here, a lthough Bradford’s counsel knowingly and deliberately furnished the transcripts of Spring’s experts’ trial testimony to his own experts, the trial court determined that his actions, though violating the Rule, were not in bad faith.

¶25 In addition , this is not a case in which the extent of any prejudice from the violations “is impossible to determine.” Id. Rather, any significant deviation between Bradford’s experts’ trial testimony and their prior reports and deposition testimony could

have been easily established. Although the trial court gave her the opportunity, Spring made no showing that Bradford’s expert witnesses changed their testimony based on their review of Spring’s expert witnesses’ trial testimony.

¶26 More apropos to our anal ysis and t o providing a useful framework for considering claims of prejudice is American Power Prod ucts, Inc

. I n considering Arizona

Rule of Evidence 606 and a bailiff’s improper communication with deliberating jurors, we stated that “our rules charge the trial judge with deciding, based on the available evidence, whether the error likely ‘ affect[ed] the substantial rights of the parties’ such that refusing to order a new trial would be ‘inconsistent with substa ntial justice.’”

239 Ariz. at 155 ¶ 17 (alteration in original) (quoting Ariz. R. Civ. P. 61). We further stated that when an “improper communication creates a structural defect in the trial that deprives a litigant of an essential right, the trial judge must conclusively presume prejudice.” Id. at 156 ¶ 17. In all other cases, however, “the moving party is not required to prove actual prejudice, but is required to demonstrate the objective likelihood of prejudice.” Id

.

¶27 Like the improper bailiff conduc t at issue in American Power Prod uct s , a Rule 615 violation “may render it impossible to prove the extent of any prejudice,” but that fact “does not warrant a presumption of prejudice and ordering a new trial in all cases.”

Id. at 155 ¶ 16

. Instead, considering the Rule’s purpose , the nature

, scope , and willfulness
of a Rule 615 violation, and the framework set forth in American Power Prod uct s , we conclude that a rebuttable presumption of prejudice should apply only in those limited

cases in which a witness’s Rule 615 violation is substantial and , as in Roberts

, makes proving the existence of prejudice nearly impossible. Again, that is not the situation here.

In all other cases , the moving party must at least prove that a witness’s Rule 615 violation gave rise to an “objective likelihood of prejudice.” Id

. ¶ 17. On this record, the trial court did not err in implicitly finding that standard unmet here.SPRING V

. BRADFORD Opinion of the Court

9 ¶28 In sum, we agree with the court of appeals that the trial court “did not abuse

its discre tion in assessing the impact of the Rule 615 violations or in fashioning an appropriate remedy.” Spring , 241 Ariz. at 461 ¶ 24. Spring cross

- examine d Bradford’s experts regarding their receipt and review of her experts’ prior trial testimony and was permitted to argue that point to the jury. In addition, the trial court instructed the jury with regard to Bradford’s two violations of the Rule, informing the jurors that Bradford had an “affirmative duty” to abide by Arizona’s court rules and “not to disclose trial testimony to anticipated witnesses prior to their testimony”; that Bradford’s counsel (without knowledge of the court or Spring’s counsel) breached that duty by disclosing to his experts the prior trial testimony of Spring’s corresponding experts; and that in weighing the testimony of Bradford’s experts, the jurors should consider that each defense expert “was presented in advance with trial testimony and expected questions of

Plaintiff’s counsel.”

¶29 As the court of appeals observed, “[p]ote ntial remedies for violating an exclusion order include contempt, allowing cross

- examination regarding the violation, instructing the jury regarding the violation, or under the right circumstances, precluding the testimony.” Spring , 241 Ariz. at 461 ¶ 22 ; cf. Allison , 4 Ariz. App. at 500

– 01 (upholding

a trial court’s preclu sion of two material fact witnesses’ testimony for violation of the common law rule of exclusion)

. In light of the jury instructions the trial court gave, the opportunity Spring was aff orded to show that the defense experts’ testimony was altered or affected by Bradford’s violations of the Rule, and the lack of any demonstrated prejudice, the trial court did not abuse its discretion in denying Spring’s request to strike or preclude their testimony. Cf. Jones , 185 Ariz. at 483 ( stating that “[ i ] f a witness violates rule 9.3(a) , the trial court has discretion when deciding whether to admit that witness’s testimony”). Nor did the court abuse its discretion in denying Spring’s motion for a new trial.

IV.

¶30 We address one other point

, primarily for future reference

, relating to the second issue on which we granted review

. As noted above, one of the exceptions to Rule 615’s general exclusionary rule provides that the Rule “does not authorize excluding

. . . a person whose presence a party shows to be essential to presenting the party’s claim or

defense.” Ariz. R. Evid. 61 5(c). This exception “contemplates such persons as . . . an expert needed to advise counsel in the management of the litigation.” Fed. R. Evid. 615 advisory committee’s note to 1972 proposed rules. Generally, a trial court has discretion under Rule 615( c) in determining whether a particular witness’s presence is “essential”

and in permit ting an expert witness to hear (or read) other witnesses’ testimony. See, e.g.

, Malek v. Fed

. Ins. , 994 F.2d 49, 53

– 54 (2d Cir. 1993) ; Polythane Sys., Inc. v. Marina Ven tures

Int ’l , Ltd. , 993 F .2d 1201 , 1209 (5 th Cir. 1993); McGuire v. Caterpillar Tractor Co. , 1 51 Ariz.
420, 425 (App. 1986)

.SPRING V

. BRADFORD Opinion of the Court

10 ¶31 Bradford argues that because expert witness es are usually essential to the presentation of a party’s medical malpractice claim or de fense , they are always exempt from the rule of exclusion under Rule 615(c)

. Spring, on the other hand, argues that,

based on Rule 615’s plain language , “it is not the witness who must be essential,” rather it is “his or her presence (or reading of prior testimony).” Therefore, according to Spring, “the essential nature of any witness (expert or lay) is irrelevant under Rule 615(c) .”

¶32 The trial court seemingly agreed with Bradford’s interpretation of Rule 615(c), noting “that had [Bradford’s] counsel sough t permission, the court likely would have allowed both sides’ experts to review or observe trial testimony.” Spring , 241 Ariz.

at 459 ¶ 12. Similarly, the court of appeals stated that “the violations in question were
not the failure to exclude a witness, but rather Bradford’s counsel’s failure to ask permission for an exemption” under “the essential witness exemption of Rule 615(c),” a request the trial court indicated it likely would have granted in its discretion. Id. at 4 60 ¶ 19.

¶33 To the extent the cou rts below suggested that in a medical malpractice case, or in any case involving expert testimony, the Rule 6 15(c) exception necessarily applies and should be granted merely upon a party’s request, we disagree. Again, expert

witnesses are not automaticall y exempt from the general rule of exclusion in Rule 615.

See Seschillie , 310 F.3d at 1213. And

, a s the court of appeals correctly observed elsewhere in its opinion, before a trial court exempts a witness from the general rule of exclusion under Rule 615( c), the party “requesting the . . . exemption [ must ] make ‘a fair showing’ that ‘the expert witness is in fact required for the management of the case.’” Spring , 241

Ariz. at 459 ¶ 14 (quoting Mor vant , 570 F.2d at 630). This requirement appropriately

balance s Rule 615’s text and the policy in favor of sequestration with a party’s need to

exempt from a court’s exclusion order any witnesses whose presence (or reading of prior

testimo ny) is essential to presenting the party’s claim or defen se.

¶34 Contrary to Bradford’s assertion, the request and showing under Rule 615(c) must be made before, not after, a party engages in conduct that would otherwise

violate a court’s exclusion order , that is , before having a witness hear, or read, other

witness es’ trial testimony. Although Bradford failed to properly or timely request an exemption for his expert witnesses under Rule 615(c), that failure does not undermine the trial court’s appropriate handling of the Rule 615 issue or its fashioning a suitable remedy for Bradford’s violations in this case

.

¶35 Finally, although counsel must comply with orders of the court (including exclusionary orders issued under Rule 615), and trial courts should not countenance
willful violation of their orders, nothing in this opinion should be constr ued as limiting or interfering with a party’s appropriate trial preparation or strategy , including meeting with prospective trial witnesses

, generally discussing their anticipated testimony , and readying them for court appearance. We trust in the good faith, sound judgment , andSPRING V

. BRADFORD Opinion of the Court

11 professionalism of the Arizona bar in that regard.

V.

¶36 For the reasons stated above, we affirm the trial court’s judgment and order denying Spring’s motion for a new trial

. We vacate paragraphs 19 and 33

– 34 of the c ourt of appeals’ opinion but otherwise affirm.