Michigan Streamlines Litigation Discovery
The Michigan Supreme Court recently approved what Chief Justice Bridget M. McCormack has called “the most comprehensive effort to improve civil discovery rules in at least a generation.” The rule changes will take effect on January 1, 2020. Practitioners and in-house counsel should take note of these significant changes to existing civil litigation practice. The business community should welcome this attempt to streamline lawsuits, reduce unnecessary expense, and curtail the opportunity for harassment.
A major theme of the rule changes is proportionality. The new rules make clear that the scope, cost, and burden of discovery must be commensurate with the issues at stake in the case. An April 21, 2018 State Bar Committee Report explains that the changes are intended to send a “powerful signal” that “allows proportionality to modulate what is discoverable in the first instance, rather than allow proportionality to be only a defensive concept. . . .”
These rule changes should provide significant protection against abusive, “scorched-earth” litigation tactics. New Rule 2.302(C) makes explicit the court’s power to “control the scope, order, and amount of discovery, consistent with these rules.” New Rule 2.302(B) provides that discovery must be “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.”
Consistent with the emphasis on increasing efficiency and eliminating abuse, new Rule 2.306(A)(3) limits depositions to one day and seven hours, and new Rule 2.309(A)(2) limits interrogatories to twenty, including subparts. New Rule 2.411(H) provides for mediation of discovery issues, either by stipulation or order of the court. New Rule 2.302(B)(4) makes clear that communications with experts, “regardless of the form of the communications,” are privileged except as expressly noted in the rule.
New Rule 2.301(A) provides for initial disclosures in most cases, modeled in large part after federal practice. The parties may not conduct discovery prior to these initial disclosures other than by stipulation of the parties or order of the court. These disclosures will facilitate the cooperative exchange of relevant information and should enhance the opportunity for the early resolution of disputes.
The new rules also significantly update and modernize Michigan’s discovery rules related to Electronically Stored Information (ESI). This topic is increasingly important in the digital era and could be the subject of a separate article. New Rule 2.302(B)(5) eliminates this provision from former rules MCR 2.302(B)(5) and 2.313(E): “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” New Rule 2.313(D) instead provides that where a party fails to take reasonable steps to preserve ESI and there is prejudice to the other party, a court “may order measures no greater than necessary to cure the prejudice.”
And where a party acts with an “intent to deprive” the other party of the information, the court may impose discretionary sanctions including a presumption that the information was unfavorable to that party or dismissal of the action. MCR 2.401(J) provides for an ESI conference in suitable cases and an ESI Discovery Plan.
The overhaul and modernization of Michigan’s civil discovery rules is a welcome development and one that should be noted by all stakeholders.
Joseph E. Viviano