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Jul 2019
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July 30, 2019

A Look at the Coming Changes to Michigan’s Civil Discovery Rules

On June 19, 2019, the Michigan Supreme Court approved the broadest changes to Michigan’s Civil Discovery Rules since their enactment in 1985. The amendments will take effect on January 1, 2020.

Their adoption culminates a process that began in 2016 with the issuance of the State Bar of Michigan (“SBM”) 21st Century Practice Task Force Report, which recommended changes to Michigan’s Civil Discovery Rules to reduce the expense and burden of discovery, widely seen as an impediment to access to the civil justice system. Recognition of these problems with civil discovery had already led to significant changes to the Federal Rules of Civil Procedure as well as to many other state court civil procedure rules.

The SBM Civil Procedure & Courts Committee recommended, and the Court encouraged, the formation of the Civil Discovery Court Rule Review Committee (“Committee”) to study the problem and propose revisions to Michigan’s Civil Discovery Rules. The Committee began its work in 2016. The Committee drafted a proposed rules package that was approved and submitted to the SBM Representative Assembly in September 2017. The Representative Assembly overwhelmingly approved the Committee’s proposal in April 2018 and recommended its adoption to the Court.

The Court solicited public comments on the proposed rules, and held a public hearing on them on May 22, 2019 before giving them final approval. 

The changes include:
 
  • Requiring parties, counsel and the court to take the dictates of MCR 1.105 seriously “to secure the just, speedy and economical determination of every action”
  • Adopting initial disclosure requirements and presumptive limits on interrogatories and depositions
  • Tying relevance to information concerning “claims and defenses” and adopting a proportionality standard in MCR 2.302(B) to determine the appropriate scope of discovery
  • Adopting a clear standard for the imposition of sanctions for the loss of electronically stored information (ESI)
  • Encouraging early and regular judicial case management, including the use of discovery plans, ESI Conferences, discovery mediation and appointment of a discovery mediator/ESI expert 

In this newsletter, we will highlight the most significant changes and provide a quick “bullet point” analysis and practice tips. 

To see the complete rules package along with Committee comments, visit www.wnj.com/WarnerNorcrossJudd/media/files/uploads/Documents/Rules.pdf.

Construction - MCR 1.105

Amended Rule:

These rules are to be construed, administered and employed by the parties and the court to secure the just, speedy and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.

Analysis:
 
  • Adopts the language of current Federal Rule of Civil Procedure (FRCP) 1 
  • When adopting federal law, Michigan courts use federal case law as an interpretive guide  
  • Federal case law is persuasive, not binding
  • In federal court all discovery rules must be interpreted in light of Rule 1
  • Federal courts look for an appropriate balance between Rule 1 and liberal discovery policy 

Practice Tip: 

Let this Rule be your North Star whenever you draft discovery requests, respond or object to discovery requests or file or oppose discovery-related motions. 

Required Initial Disclosures - MCR 2.302(A)

Amended Rule:

The “general rule” found at MCR 2.302(A)(1) requires disclosure of certain “core” information without awaiting a discovery request, which includes the factual basis and legal theories underpinning a party’s claims or defenses; the identity of witnesses a party may use to support its claims or defenses; a description by category (or copy) of all documents, ESI, etc., a party may use to support its claims or defenses whether or not the information is in the party’s possession, custody or control, a computation of damages claimed along with information underlying the calculation; a copy of, or opportunity to inspect, insurance, indemnity or other agreements under which another party may be responsible to pay for all or part of a judgment; and the anticipated subject matter of expert testimony.

Initial disclosures required in specialty cases are set forth at MCR 2.302(A)(2)-(3). Actions exempt from the initial disclosure requirement are set forth at MCR 2.302(A)(4).

Analysis:
 
  • Initial disclosure requirement primarily based on Federal Rule of Civil Procedure 26(a)(1)
  • Only Macomb and Oakland County business courts currently have initial disclosure requirement
  • Designed to get basic information out sooner
  • Disclosures “based on the information then reasonably available to the party”
  • Duty to make a “reasonable inquiry” prior to submitting disclosure
  • Signature certifies that disclosure is “complete and correct as of the time it is made”
  • “Duty to disclose” is not synonymous with the “duty to produce”
  • Documents not in a party’s “possession, custody or control” must be disclosed
  • Disclosure obligation not excused by opposing party’s failure to disclose or insufficient disclosures
  • Disclosures are subject to the duty to supplement
  • “Knowing concealment” no longer required to sanction for failure to supplement

Practice Tip:

Don’t let disclosure deadlines bite you. Ideally, plaintiffs will have their disclosures ready by the time suit is filed. Defendants and other parties should begin working on their disclosures as soon as their time starts running – and maybe sooner where the litigation is “reasonably foreseeable.”

Scope of Discovery - MCR 2.302(B)(1)

Amended Rule:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties’ resources and access to relevant information. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Analysis:
 
  • Relevance determined by “claims and defenses,” not “subject matter of the litigation”
  • To be discoverable information sought now must be relevant AND proportional to needs of case
  • Phrase “reasonably calculated to lead to the discovery of admissible evidence” has been deleted because it was used to unjustifiably expand the scope of discovery
  • Six proportionality factors provided for by the rule are not exclusive
  • “Amount in controversy” not to be given disproportionate weight 

Practice Tip:

Consider proportionality factors before drafting discovery requests. Narrowly tailor and target discovery requests to elicit information critical to proving/disproving facts at issue in the case by directing them to the most relevant individuals, data sources and time periods.

Limits - Interrogatories to Parties - MCR 2.309(A)(2)

Amended Rule:

Each separately represented party may serve no more than 20 interrogatories upon each party. A discrete subpart of an interrogatory counts as a separate interrogatory.

Analysis:
 
  • Interrogatory limit based on adoption of initial disclosure requirement
  • Initial disclosures should provide information otherwise the subject of interrogatories
  • 20 interrogatory limit is presumptive and subject to change by the court
  • Subparts necessarily related to the main question should be counted as one interrogatory 

Practice Tip:

Make sure subparts have some relation to the primary question in the interrogatory. For example, an interrogatory asking for a party to identify medical treatment received with subparts for doctors seen, locations, times and dates of treatment, types of treatment received and cost of treatments would be considered one interrogatory since the subparts elicit information around a common theme. However, a “contention interrogatory” with subparts seeking information supporting multiple claims/defenses would be treated as separate interrogatories.

Failure to Preserve ESI - MCR 2.313(D)

Amended Rule:

The rule authorizes sanctions against a party if ESI that should have been preserved is lost due to the party’s failure to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. Where the party acts with an “intent to deprive” another party of the use of the ESI in the litigation, the court may award severe sanctions, including dismissal or default. Otherwise, the court may only impose lesser sanctions no greater than necessary to cure the prejudice suffered.

Analysis:
 
  • Based on Federal Rule of Civil Procedure 37(e)
  • Duty to preserve still defined by Michigan common law
  • Applies only to ESI, not tangible/physical evidence
  • Applies only to parties
  • Similar to current Michigan law, but provides clearer guidelines for courts
  • Must show irretrievable loss of ESI subject to duty to preserve resulting from a party’s failure to take reasonable steps to preserve the ESI before sanctions can be considered by court
  • If prejudice results, court can order sanctions no greater than necessary to cure the prejudice
  • If court finds party acted with “intent to deprive,” may order severe “case terminating” sanctions
  • Negligence or gross negligence not sufficient to find “intent to deprive”
  • Prejudice presumed where party acted with "intent to deprive” 

Practice Tip:

When moving for sanctions under the Rule make sure to specifically address the four predicate findings the court must make: 
  1. A party failed to take reasonable steps to preserve ESI; 
  2. That should have been preserved; 
  3. Resulting in loss of the ESI; and 
  4. The ESI cannot be restored or replaced through additional discovery. 

If the court does not find favorably on any of these predicates, it cannot award sanctions. 

Discovery Planning - ESI Conference, Plan and Order - MCR 2.401(C) and MCR 2.401(J)

Amended Rules:

MCR 2.401(C) requires parties to confer and prepare a discovery plan if ordered by the court or if requested in writing by a party. The discovery plan must address the topics set forth in MCR 2.401(B). The court may enter a discovery order governing disclosure or other aspects of discovery under MCR 2.401(C)(3). A failure to participate in good faith in developing a discovery plan may result in sanctions pursuant to MCR 2.401(C)(4). 

MCR 2.401(J) allows the parties to agree to, the court to order, or a party to move the court for, an ESI conference in cases where ESI discovery is reasonably likely. The parties must address the topics set forth in MCR 2.401(J)(1). Thereafter, the parties must submit an ESI discovery plan to the court as prescribed by MCR 2.401(J)(2). The court may enter an ESI discovery order based on the plan, a written stipulation or motion, or on its own under MCR 2.401(J)(4). MCR 2.401(J)(3) requires “ESI competence” for any attorney participating in an ESI conference. 

Analysis:

MCR 2.401(C)
 
  • Adapted from FRCP 26(f)(3), but not mandatory in every case as under the federal rule
  • MCR 2.401(B)(1)(e)-(r) are new and cover, inter alia, disclosure and discovery-related topics
  • Sanctions allowed broader than under FRCP, which only provides for monetary sanctions

MCR 2.401(J)
 
  • No FRCP counterpart, but federal court local rules and state court rules have similar provisions
  • ESI discovery plan must address topics set forth in MCR 2.401(J)(1)(a)-(m)
  • Attorney or client representative at ESI conference must “be sufficiently versed in matters relating to their clients’ technological systems to competently address ESI issues.” 

Practice Tip:

Cooperation between counsel knowledgeable about the discovery/ESI issues in the case is essential to reap the benefits of the “meet and confer” sessions envisioned by these rules. It is in every stakeholder’s best interest to craft discovery plans focused on what is “relevant and proportional to the needs of the case.”

Mediation - Discovery Disputes - MCR 2.411(H)

Amended Rule:

The parties may stipulate to or the court may order the mediation of discovery disputes. The discovery mediator may be the same as the case mediator appointed under MCR 2.411(B). The court may also appoint an ESI expert under Michigan Rule of Evidence 706. Upon stipulation of the parties, the court may also designate the ESI expert to act as the mediator of ESI discovery issues. 

Analysis:
 
  • No direct FRCP counterpart, but similar to FRCP 53, which allows for appointment of Masters
  • No limitation on when the parties or the court can invoke mediation
  • Court-appointed ESI expert can with consent of parties act as discovery mediator
  • Address modifications to mediator limitations in MCR 2.411(C)(3) and MCR 2.412(D) in order appointing mediator

Practice Tip:

Engaging a mediator should not be a kneejerk reaction. Make sure it makes sense for your case. Otherwise, you may just be adding an unnecessary layer of delay and cost to the proceedings. 

Other Noteworth Changes

Practitioners should also note these changes to the Michigan Civil Discovery Rules.

Timing of Discovery

MCR 2.301(A)(1) & (4)

In cases where initial disclosures are required “a party may seek discovery only after the party serves its initial disclosures under MCR 2.302(A).” Additionally, the serving party must initiate discovery “by a time that provides for a response or appearance, per these rules, before the [established] completion date.”

Time Limit on Depositions
MCR 2.306(A)(3)

“[a] deposition may not exceed one day of seven hours.”

Discovery Subpoena to a Non-Party
MCR 2.305

The rule now applies only to non-party discovery. MCR 2.302(B)(6) allows cost-shifting for party discovery for both accessible and inaccessible ESI. MCR 2.506(A)(3) allows cost-shifting for non-party discovery only for inaccessible ESI. Generally non-parties are afforded greater protection from the burdens of litigation than parties, but not in this case. 

Award of Expenses of Motion 
MCR 2.313(A)(5)

When a court grants a motion for a protective order under MCR 2.302(C) or grants a motion to compel under MCR 2.313(A), it may not award sanctions if the moving party did not first attempt in good faith to resolve the issue with the opposing party.

Early Scheduling Conference and Order
MCR 2.401(B)(2)(a)(2)(iii)-(iv)

The court is authorized to make changes to the “timing, form or requirement for disclosures under MCR 2.302(A)” and to “the limitations on discovery imposed under these rules” and to decide “whether other presumptive limitations should be established.” 

Practice Tip:

READ and STUDY the revised rules! 

There’s a lot to unpack! 

For a more in-depth commentary on the revised rules, visit 
www.wnj.com/WarnerNorcrossJudd/media/files/uploads/Documents/Overview.pdf
 

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