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Publications | July 30, 2019
3 minute read

Discovery Best Practices

Now that you’ve seen the approved amendments, you no doubt agree they will significantly change civil discovery in Michigan state courts. While these changes bring challenges, they also bring opportunities. 

DOES your organization expect to respond to discovery as a party to litigation, as a non-party under subpoena or through its involvement in a government investigation? If so, it is increasingly important for your organization to have a discovery compliance team and updated ESI best practices in place. 

EVEN IF your organization does have a compliance team and ESI best practices in place, these rule changes afford it an opportunity to revisit and fine-tune them. 

WHY? Because almost all of the amended rules provide your organization with the opportunity to reduce the scope of its discovery obligations and/or the opportunity to shift all or part of its cost of compliance. However, to take advantage of that opportunity, you need to be prepared.

Your Organization Should be Able to Answer to These Questions 

  1. Does your organization have a “core” team of personnel (in-house and/or outside support) to respond to litigation and credible threats of litigation? 
  2. Are employees trained to recognize and report potential pre-litigation triggers to the relevant point person in your organization? 
  3. When the duty to preserve has been triggered, is your organization prepared to manage the “legal hold” process and defensibly preserve potentially relevant ESI and other sources of information? 
  4. Is your organization prepared to interview “key custodians” in order to identify the most likely sources of potentially relevant ESI and other information?
  5. Has your organization prepared a “data map” of all custodians, sources and locations of ESI and physical documents? 
  6. Has your organization identified a point person to make the “reasonable inquiry” required to meet its “initial disclosure” obligations on a timely and consistent basis? 
  7. Has your organization identified a point person who is ready to participate in an ESI discovery conference and effectively assist counsel to negotiate the scope of preservation and discovery to limit business interruption and expense? 
  8. Is your organization prepared to demonstrate that ESI being requested by an opposing party is either “inaccessible” and/or “not proportional to the needs of the case”? 
  9. Does your organization know when and how data analytics can be utilized to reduce the burden and cost of identifying and reviewing potentially relevant ESI? 
  10. Are your employees trained on how to protect attorney-client and work product privilege when creating and sharing communications and other documents? 

If your organization answers “Yes” to all of these questions, congratulations! 

If your organization answers “No” or “Not Sure,” to any or all of these questions, there is work to be done. Warner’s Discovery Center would welcome the opportunity to provide you guidance and assistance. Please give us a call and let us help your organization make the most of the changes to Michigan’s Civil Discovery Rules.