This week marked the most fundamental change in Michigan law in over 20 years as the Michigan Supreme Court adopted extensive amendments to the Michigan Court Rules governing civil discovery. These amendments are an important step towards aligning the Michigan Court Rules with the Federal Rules of Civil Procedure, namely Fed. R. Civ. P. 26, and will drastically change the practice of law in Michigan.
Highlights of the newly adopted rules that take effect on January 1, 2020, include:
- Initial Disclosures: Like Fed. R. Civ. P. 26(a)(1)(A), MCR 2.302(A)(1) now requires Michigan litigants to exchange initial disclosures that contain the factual basis, legal theories, and identities of witnesses that support a party’s claim or defense, along with a copy or description of documents supporting a party’s claim or defense. The amended MCR 2.302(A)(1) also requires the defendant to produce a copy of its insurance policy or pertinent portions thereof or make the policy available for inspection by the plaintiff, if the defendant has insurance coverage in the event of a damages award.
Unlike Fed. R. Civ. P. 26, however, this amendment requires parties to identify “anticipated subject areas of expert testimony” in their initial disclosures. Additionally, insurers in first-party No-Fault cases will also need to disclose plaintiff’s PIP file and payments made on plaintiff’s claim. MCR 2.302(A)(2).
Analysis: Requiring the early exchange of supporting information and documentation may lessen the need for extensive discovery later, thereby reducing the overall cost of litigation. Moreover, the amendments to MCR 2.302(A)(1) requiring the exchange of initial disclosures bring Michigan in line with Federal courts and with the many states whose rules follow Federal requirements.
- Proportionality: MCR 2.302(B)(1) modifies Michigan’s scope of discovery by adding a “proportionality” requirement, removing the previous standard that information “reasonably calculated to lead to the discovery of admissible evidence” is discoverable. The factors determining proportionality mirror those in Fed. R. Civ. P. 26.
Analysis: This limitation on the scope of discovery in Michigan state court is a welcome development for defendants who routinely face overly broad and burdensome discovery requests from plaintiffs. At least in the short-term, the proportionality requirement is likely to lead to an increase in discovery motion practice, as parties litigate what is considered to be “proportional to the needs of the case.” It is also likely that, as in federal court, many practitioners and judges will initially try to retain the previous “reasonably calculated” standard. It is important that corporations make certain to apply the correct standard and, where necessary, correct judges and plaintiff's counsel who may try to maintain the now outdated status quo.
- Limitation of Interrogatories: Each party is limited to 20 interrogatories, including discrete subparts. MCR 2.309(A)(2).
Analysis: This limitation requires parties to be surgical in their approach to written discovery and will reduce the time and money spent by corporate defendants responding to endless sets of interrogatories. However, the new rules contain no limit on document requests or requests for admissions.
- Medical Authorizations: In personal injury disputes, MCR 2.302(A)(3) now entitles defendants to fully executed medical record authorizations using a form provided by the state or agreed upon by the parties.
Analysis: This is a welcome deviation from the federal rules. Requiring signed, blank medical authorizations will put an end to the frequent and often dragged-out battles with plaintiffs to sign authorizations and will forestall plaintiffs' attempts to produce their own copies of medical records. Consequently, defendants may quickly ascertain plaintiff’s medical condition, which will expedite the work of defense experts and, potentially, case settlement.
- Discovery Planning: MCR 2.401(C) allows the parties to hold a discovery planning conference and prepare a joint discovery plan upon order of the court or written request of any party. The discovery plan must address all known discovery issues and propose deadlines for the service of disclosures and completion of discovery. Once ordered, a party may only request a change to these deadlines upon a showing of good cause. If the parties disagree to certain provisions of the discovery plan, they may submit a stipulation or motion to the court. The court may also enter sanctions against any party or attorney who fails to participate in a good faith preparation of the discovery plan.
Analysis: Like many of the changes to the Michigan Rules that have been adopted from their federal counterparts (See Fed. R. Civ. P. 26(f)), this amendment will require Michigan litigants to analyze the needs of their case from the outset and carefully plan the scope and timing of discovery. Parties may no longer move discovery deadlines simply because they failed to serve discovery within the allotted time. Furthermore, the potential for sanctions against either a party or an attorney who fails to participate in good faith in the development of a discovery plan will require all parties to assess their discovery needs early and take their discovery obligations seriously.
- ESI Conference / ESI Plan: Parties may now request, or the Court may order, the parties to participate in an ESI conference and draft an “ESI Plan.” MCR 2.401(J)). The rule also requires that attorneys who participate in the ESI Conference have sufficient knowledge of their client’s technological systems in order to address ESI issues. Counsel may also bring a client representative to assist with such discussions.
Analysis: While this change, which is not mirrored in the Federal Rules, will provide knowledgeable ESI attorneys with an advantage over their less-ESI-savvy counterparts, it may also require corporate defendants to disclose more information about their document storage systems and intended search processes than before.
- Failure to Preserve ESI: MCR 2.313(D) has also been modified to mirror the federal rules (See Fed. R. Civ. P. 37(e)) and dictates that the remedy for the failure to preserve ESI must only be sufficient to cure any prejudice to the requesting party, unless the court finds that the failure to preserve was intentional and meant to deprive the other party of the information requested.
Analysis: This rule should, in theory, prove helpful in minimizing the draconian sanctions that courts have previously rendered for inadvertent failures to preserve relevant data. However, federal courts have seemed reluctant to follow the requirements of Fed. R. Civ. P. 37(e), often relying on their “inherent authority” to navigate the limitations on sanctions under Rule 37(e). Michigan judges may find similar ways to sanction defendants for the inadvertent deletion of ESI.
Other notable changes to the Michigan Court Rules that will take effect in 2020 include allowing the parties to mediate their discovery disputes upon court order or agreement of the parties (MCR 2.411(H)); limiting the length of depositions to one 7-hour day (MCR 2.306(B)(3)); changes to the rules governing the issuance of subpoenas to non-parties (MCR 2.305); and requiring discovery to be served sufficiently in advance of the discovery cut-off date to allow the answering party to respond within the time allotted under the rules (MCR 2.301(B)).
Click here to read the full extent of the amendments adopted by the Michigan Supreme Court.
For more information and to discuss the impact of these changes in more detail, please contact any of Bowman and Brooke's attorneys in the Detroit office.