Discovery Rule Amendments: A Rundown

By Rebekah Page-Gourley posted 06-20-2019 14:39

  

We all knew that big changes to the Michigan Court Rules on civil discovery were coming, and ready or not they’re here now! The Michigan Supreme Court adopted the amendments on June 19, 2019, with an effective date of January 1, 2020. The SBM Civil Discovery Rule Review Special Committee developed these broad amendments with an eye toward modernizing the discovery process and improving efficiency and access to justice. The amended rules parallel many of the Federal Rules of Civil Procedure on discovery, including mandatory initial disclosures, a requirement that discovery be proportional to the needs of the case, and a seven-hour limit on depositions.

Who’s Impacted?

The amendments will require an overhaul of the way most Michigan practitioners conduct civil discovery in circuit court. The rules state that discovery in district court is available only by leave of the court or by stipulation, MCR 2.301(A)(2), and discovery is not permitted in small claims court or in civil infraction actions, MCR 2.301(A)(3). District court actions (and a variety of other special types of actions) are exempt from the new mandatory disclosure rules. MCR 2.302(A)(4)(b). Note that the amendments include particular discovery provisions for proceedings involving juveniles, as well as a new rule for filing confidential materials in domestic relations actions, MCR 3.229, and new MCR 5.131(B) outlining requirements for discovery proceedings and mandatory disclosures in probate court.

Initial Disclosures

The hope is that the requirement for initial disclosures will reduce the amount of time wasted requesting and fighting over basic information. But the rules frontload a lot of the work, so be prepared to hit the ground running. Plaintiffs must serve their initial disclosures 14 days after the answer is filed, and defendants have 14 days after the opposing party’s disclosure are due or 28 days after filing the answer (whichever is later). MCR 2.302(A)(5). Be sure to review MCR 2.302(A)(2)’s special requirements for initial disclosures in no-fault cases (including copies of first-party claim files and applicable claims) and MCR 2.302(A)(3)’s requirements for other personal injury cases (including executed medical record authorizations). MCR 2.302(A)(4) outlines cases exempt from initial disclosures, including actions in district court, actions to compel or stay arbitration, and personal protection proceedings.

Limits on Written Discovery

Be careful drafting discovery requests. The new rules limit the number of interrogatories to 20 (or 35 in domestic relations actions), including discrete subparts. MCR 2.309. Regarding those “discrete subparts,” the Staff Comment to the order states: “Generally, subparts are not separately counted if they are logically or factually subsumed within and necessarily related to the primary question.… [P]arties and courts should also pragmatically balance the overall goals of discovery and the admonition of MCR 1.105.” We’ll have to see how the rule gets enforced in practice. With regard to requests for admission, MCR 2.312(A) now requires clear identification in the caption and before each request that it is a “Request for Admission.”

Electronically Stored Information

The amended rules also include a number of new provisions related to electronically stored information (ESI). For example, MCR 2.302(B)(6) allows the court to allocate the expense of discovery of ESI and limit the frequency or extent of such discovery. And MCR 2.401(J) outlines special rules for ESI conferences, discovery plans, and orders. Note, too, that the rule requires attorneys participating in the ESI conference to “be sufficiently versed in matters relating to their clients’ technological systems to competently address ESI issues” and allows counsel to bring in client representatives or experts to assist in that regard. In other words, ignorance of tech issues is no excuse!

Other Amendments

The 45-page order includes many more amendments, including special provisions for juvenile proceedings and discovery in probate court, and new MCR 3.229 regarding filing confidential materials in domestic relations actions. Be sure to review it in its entirety. We’ll be updating our resources and planning new ones in response to these changes. Please get in touch with us if you have questions or concerns now, or as you start to implement these practices.

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