The Michigan Supreme Court has adopted proposed changes to several Michigan Court Rules, at the recommendation of the State Bar of Michigan Civil Discovery Rule Review Special Committee. Those changes take effect January 1, 2020. To a large extent, the changes to the Michigan Court Rules now track the federal discovery rules. However, some of the adopted changes go even further and add different or additional requirements compared to the federal rules. The new discovery rules, adopted on June 19, 2019, are available to view here.
The rule changes are summarized as follows:
Michigan Court Rules 2.301 and MCR 2.302(A) has been amended to require parties to serve initial disclosures, similar to the initial disclosure requirements of Fed. R. Civ. P. 26(a). Under MCR 2.302(A)(1), all parties must, without awaiting a discovery request, disclose:
- (a) "the factual basis of the party's claims and defenses";
- (b) "the legal theories on which the party's claims and defenses are based, including, if necessary for a reasonable understanding of the claim of defense, citation to relevant legal authorities";
- (c) the name, address, and telephone number of individuals with discoverable information and the subjects of that information;
- (d) a copy and description by category and location of all documents and ESI in a disclosing party's possession that the disclosing party may use to support its claims or defenses;
- (e) a copy and description by category and location of all documents and ESI that not in the disclosing party's possession that the disclosing party may use to support its claims or defenses, and a description of the person who has possession, custody, or control of the material;
- (f) a computation of each category of damages claimed by the disclosing party and the basis for the computation, including an materials bearing on the nature and extent of the alleged damages;
- (g) a copy of any pertinent portions of insurance, indemnity, security equivalent, or suretyship agreement that may be available to satisfy a judgment; and
- (h) "the anticipated subject areas of expert testimony."
Other important information about initial disclosures includes:
- Initial disclosures must be served within 14 days by the party that files a complaint, counter-complaint, counterclaim, cross-claim, or third-party complaint.
- Initial disclosures must be served within 28 days by the party that files an answer to a complaint, counter-complaint, counterclaim, cross-claim, or third-party complaint. A later served or joined party must serve initial disclosers within 14 days after filing the party's first leading.
- A party must serve initial disclosures based on the information readily available to a party; however, "a party is not excused from making disclosures because the party has not fully investigated the case or because the party challenges the sufficiency of another party's disclosures or because another party has not made its disclosures."
- A party has a duty to supplement disclosures in a timely manner.
These new initial disclosures appear are a significant departure even from the federal rules, since parties in state court will now be required to identify the factual basis of a claim or a defense, legal theories (including case law), and anticipated expert testimony, at the onset of the case.
Additional Disclosures for First Party No-Fault Cases
In addition to the initial disclosures required by MCR 2.302(A)(1), MCR 2.302(A)(2) has been amended to add additional disclosures for cases asserting first-party claims for benefits under the Michigan No-Fault Act, MCL 500.3101, et seq.
MCR 2.302(A)(2) now requires a first-party no-fault plaintiff to disclose:
- (i) the identify of those who provided, medical, household, and attendant care services to plaintiff;
- (ii) all provider bills or outstanding balances for which the plaintiff seeks reimbursement;
- (iii) the name, address, and phone number of plaintiff's employers; and
- (iv) authorizations for medical records.
No-fault defendants must disclose: (i) a copy of the first-party claim file and a privilege log for redactions; and (ii) the payments the insurance company has made on the claim.
Scope of Discovery
MCR 2.302(B) has been amended to state that the scope of discovery is limited to "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." The amended rule changes the scope of discovery closer to the standard in the federal rules on proportionality, and no longer permits discovery of anything "reasonably calculated to lead to the discovery of admissible evidence."
Attorney-Client/Attorney Work Product Protection for Attorney-Expert Communications
MCR 2.302(B)(4) has been amended to bring the court rules more in line with the federal rules and to clarify that any communications between an attorney and an expert, including draft interrogatory answers, are privileged, except if they: (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify the assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
Discovery Plan and Early Scheduling Conference
MCR 2.401(B) has been amended to allow the court to consider various matters at an early scheduling conference that might aid in the disposition of the action. With approval of the court, the parties can agree to make changes to the timing, form, or requirements of discovery in a scheduling order.
MCR 2.401(C) has been amended to require the parties, upon court order or written request by another party, to prepare a proposed discovery plan, similar to the requirements of a Rule 26(f) conference and discovery plan. If a party or attorney fails to participate in good faith in developing a discovery plan, the court may order sanctions.
Final Pretrial Conference
MCR 2.401(H) has been amended to expressly state that a court may hold a final pretrial conference to facilitation preparation for trial, which can also be conducted as a settlement conference. The court rule now expressly states the court can require the parties to prepare a joint final pretrial order that addresses scheduling motions in limine, a statement of claims and defenses, undisputed facts, issues of fact and law to be litigated, evidentiary issues likely to arise at trial, a list of witnesses and exhibits, itemized statements of damages and items not in dispute, estimated length of trial, trial dates, alternative dispute resolution, possibility of settlement, rules governing trial, jury instructions, trial briefs, voir dire, and anything else the court deems appropriate.
MCR 2.401(J) has been amended to state that in cases reasonably likely to include the discovery of ESI, the court can order, on motion by a party, agreement of the parties, or on the court's own accord, the parties to participate in an ESI conference. The parties are required 14 days prior to an ESI conference to submit an ESI Discovery Plan addressing the issues on which the parties cannot agree, which may include: (a) a statement of issues in the case and a factual outline; (b) a schedule of discovery including discovery of ESI; (c) a defined scope of preservation of information and appropriate conditions for terminating the duty to preserve; (d) the forms in which ESI will be produced; and (e) the sources of any ESI that are not reasonably accessible because of undue burden or cost. The court may enter an order governing the discovery of ESI pursuant to the parties' ESI discovery plan, upon motion of a party, stipulation, or on its own. The attorneys that participate in the ESI Conference must be "sufficiently versed in matters relating to their clients' technological systems to competently address ESI issues."
Mandatory Mediation of Discovery Disputes
MCR 2.411(H) has been amended to now permit the parties to stipulate or the court to order the mediation of discovery disputes. An order referring to a discovery mediation must specify the scope of the issues or motions referred. An court can require that discovery disputes be first submitted to the mediator before filing a motion unless there is a need for expedited motion by the court. Additionally, in cases involving complex issues of ESI, the court may appoint an expert under MRE 706 or appoint them as an ESI mediator.
Limitations on Depositions and Interrogatories
MCR 2.306 has been amended to limit a deposition of a party to not exceed one day of seven hours. MCR 2.306(B) corporate representative depositions must be served at least 14 days prior to the scheduled deposition. Under the new rule, the party being deposed may now serve objections or file a motion for protective order as to the topics identified in the deposition notice.
MCR 2.309 has been amended to set a presumptive limit of 20 interrogatories to each separately represented party. MCR 2.309 also clarifies that a discrete subpart of an interrogatory counts as a separate interrogatory.
No Early Discovery Permitted and Clarification of Completion of Discovery
MCR 2.301(A) has been amended to limit the parties from serving discovery immediately at the onset of a case. Now, a party may only seek discovery after serving initial disclosures, unless modified by stipulation or court order.
MCR 2.301(B) has been modified to clarify that unless ordered otherwise, a date of completion of discovery means the serving party must initiate the discovery by a time that provides for a response or appearance before the completion date.