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:
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/Warner/media/files/uploads/Documents/Rules.pdf.
Construction - MCR 1.105
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.
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)
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).
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)
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.
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)
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.
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)
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.
When moving for sanctions under the Rule make sure to specifically address the four predicate findings the court must make:
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)
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.
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)
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.
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 Noteworthy 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
“[a] deposition may not exceed one day of seven hours.”
Discovery Subpoena to a Non-Party
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
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
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.”
READ and STUDY the revised rules!
There’s a lot to unpack!
For a more in-depth commentary on the revised rules, click here.