Dan Quick, who served on the State Bar of Michigan Committee that reviewed the Michigan Court Rules on civil discovery and proposed the amendments effective January 1, 2020, has spent a lot of time helping Michigan lawyers prepare for the changes. (See my prior post for a rundown of the major amendments.) On September 5, 2019, Dan presented at the Oakland County Bar Association, along with Judges James Alexander and Shalina Kumar. Here are a few takeaways from the discussion:
- Take responsibility for operation of the justice system. Dan noted that the amended rules emphasize that the parties and judges have an equal responsibility to ensure the just and economical resolution of actions. See MCR 1.105. This theme of communication between parties (and their counsel) and judges underlies many of the other amendments. Under the new rules, judges will no longer be there to simply rule on discovery disputes or clean up messes after the fact; instead, they will be more involved from the beginning to help facilitate a smooth discovery process. MCR 2.301(C) specifically states that “the court may control the scope, order, and amount of discovery.”
- Prepare to front-load your work. Under the new rules, it’s not quite as easy to simply pay a filing fee and file an action. Because of the mandatory initial disclosures parties must serve before requesting any discovery, much of the work will need to be done up front. But that early work will avoid drawn-out disputes later. Dan cautioned that attorneys will need to adjust their long-standing practices and be prepared to handle workloads at different times during the course of a case. Generally, initial disclosures will be served before the parties attend the 2.401(B) early scheduling conference, which will allow for a much more productive discussion. Judges Alexander and Kumar also emphasized the importance of communicating early and often with the other side, maintaining that most discovery disputes could be resolved if the lawyers just talked to each other.
- Approach interrogatories differently. Dan pointed out that the 20-interrogatory limit (including “discrete subparts”) under new MCR 2.309(A)(2) is not that limiting if you consider all of the information that will be shared via initial disclosures. As to those discrete subparts, Dan said we have to wait and see how it plays out. In general, if the subparts are logically related to the primary question, they will not be treated as discrete. Dan gave an example of an interrogatory asking about a particular board meeting: when it was, who was there, what was discussed, etc. Those would likely be considered to be part of a single interrogatory.
- Respect the close of discovery. Dan emphasized that under amended MCR 2.301(B)(4), parties cannot request discovery that cannot be responded to before the close of discovery under the scheduling order. If discovery closes January 1, a party cannot file requests to admit on December 31. Discovery motions are still appropriate after the close of discovery, however.
- Don’t panic and remember there are opt-outs. As Dan pointed out (to audible sighs of relief in the audience), unless a rule or court order says otherwise, parties can opt out of the individual requirements. For example, parties could stipulate to interrogatories beyond 20 or to a deposition longer than one day of seven hours. In all cases, common sense should prevail.
Many thanks to Dan and Judges Alexander and Kumar for the great insights! Any other questions about the amendments or how they will affect your practice? Comment here or email me at firstname.lastname@example.org.