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Lawyers Weigh In on Implementation of New Discovery Rules

By Rebekah Page-Gourley posted 03-09-2020 08:08

  

Judges and lawyers across Michigan are grappling with the big civil discovery rule changes that went into effect January 1, 2020. After a few months with the new rules, practitioners are feeling some growing pains. I heard from several ICLE contributors about their experience under the new rules, the opportunities they see, and the challenges they’re facing.

Compliance concerns

No one expected the process to integrate seamlessly overnight, but Bernie Fuhs, a shareholder at Butzel Long, has been surprised by the confusion. He notes that some practitioners are simply not following the new rules; for example, some are continuing to send discovery requests without filing the required disclosures. Aaron Burrell, a member at Dickinson Wright, predicts that the transition will take time, especially when it comes to long-established practices. He points out that compliance with the new rules requires changes to some of the most routine practices, like noticing depositions from “day-to-day” (which is now improper given MCR 2.306(A)(3)’s limitation of depositions to “one day of seven hours”).

Uncertainty about application to pending cases

Burrell also notes that there is uncertainty over how the rules apply to cases pending before January 1, 2020, a sentiment echoed by Steve Sinas, a partner at the Sinas Dramis Law Firm. Sinas notes that in his pending cases, he has not gotten a directive from the courts about whether the old rules or new rules apply. He explains that he has not objected to interrogatories exceeding the new numerical limits in those cases because he is unsure how application of the new rules would affect his own responsibilities. “Most practitioners and courts are treating the cases pending before 2020 as being governed by the old rules. It appears people are practicing their own self-interested restraint on arguing that the new rules apply to old cases,” he says.

Although the new rules do not explicitly address the issue, Judge Christopher Yates of the Kent County Circuit Court has indicated his belief that the new rules should apply to pending cases to the extent it makes sense. Successful and practical integration of the new rules will necessarily vary from court to court, and if there is confusion, it may be helpful for attorneys to ask the court for clarification about which rules apply in a given case.

Implementing the new disclosure requirements

New cases also present challenges. Sinas, who primarily handles no-fault cases, says his experience is noticeably different at the outset of a case: “In the past, we always strived to have everything figured out when we filed,” but there was no requirement to formally explain all of the elements and damages. Now it is more stressful at the beginning, which “hopefully means less work later in the case.”

Sinas acknowledges that the rules are intended to boost the efficiency and efficacy of the litigation process but has some misgivings about the “deadlines and technical requirements,” which he hopes “do not ultimately have the ironic effect of complicating our client’s pursuit of civil justice.” He also has concerns about how the rules will apply in cases where a client’s medical condition is constantly changing, which can affect the nature of the claims and damages they should be pursuing. Ideally, this eventuality will be prevented by MCR 2.302(E), which provides for the duty to supplement disclosures and responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

Discovery mediation opportunities

Jay Yelton, a partner at Warner Norcross, says the biggest change he’s making in light of the new changes is expanding his mediation services to focus on e-discovery. He believes that “discovery mediation under MCR 2.411(H) could be a valuable tool for courts and litigators to better handle over-broad or expensive discovery requests and discovery motions.” He’s also exploring more ways to use technology to reduce the burdens and expenses of discovery.

Next steps

Attorneys are looking to each other and the courts for guidance with respect to application of the rules to new and pending cases. As Dan Quick, a member at Dickinson Wright, has noted, MCR 1.105 gives parties and judges an equal responsibility to ensure the just and economical resolution of actions. Quick explains, “The most significant opportunity and challenge is getting across the point that the status quo should no longer be acceptable.” When attorneys start to take things like initial disclosures and the new case management provisions seriously, Quick says there will be progress. But that progress also depends on attorneys and judges coming to an understanding about the rules applicable to pending cases and their good-faith adherence to the new rules going forward.

If you have questions or experiences to share, please comment or email me at rebekahp@icle.org.

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