Now that it has been well over a year into the implementation of the new Michigan Court Rules on civil discovery, effective January 1, 2020, I thought it was time to check back in with some of our contributors to see how things are going. (For some of their very early impressions, see this post from around this time last year.)
COVID-19 impact and streamlined processes
When assessing initial implementation issues with the new rules, few could have imagined the additional complications the COVID-19 pandemic would create in the court system and lawyers’ day-to-day interactions. However, the increased planning and streamlining opportunities in the new rules have actually dovetailed well with some of the remote aspects of litigation during COVID-19.
Bernie Fuhs, shareholder at Butzel Long, notes that “in the past year, even with COVID, I’ve personally seen better compliance with the new discovery rules. The attorneys, especially in the business court, are doing a better job with preparing and serving initial disclosures, working together on joint case management plans (or CMC plans), and not sending massive sets of discovery requests before initial disclosures. Further, even after initial disclosures, attorneys seem to be doing a better job respecting the interrogatory limits.”
Judge Christopher Yates of the Kent County Circuit Court has noticed this shift, too, reporting that “attorneys have quickly embraced the requirement of initial disclosures,” which has “already streamlined and simplified the discovery process.” Aaron Burrell, member at Dickinson Wright, agrees, noting that things seem to be “going more smoothly now that everyone is adjusting.” Burrell points to the certainty about the end of the discovery period, as well as planning conferences and initial disclosures, although he does see the danger of attorneys “falling more and more into boilerplate responses.” Steve Sinas, partner at the Sinas Dramis Law Firm, says that although “the disclosure requirements under the new court rules result in more work for parties when litigation is initiated … it seems to be leading to a more efficient discovery process and improvement in the overall flow of litigation.”
Jay Yelton, partner at Warner Norcross + Judd, is “encouraged by the increased utilization of the discovery planning and ESI [electronically stored information] conference provisions set forth in MCR 2.401.” He notes that “with courts being closed or limited during the pandemic, attorneys have had to communicate and cooperate about determining the scope of discovery instead of immediately filing a discovery motion. Hopefully this practice will continue well beyond the pandemic because negotiated discovery plans are often more effective and less expensive than plans ordered by a court.”
Grappling with proportionality
Yelton has found that “courts and parties are increasingly understanding and utilizing the new proportionality limitation on discovery, which is set forth in MCR 2.302(B)(1),” in part crediting attorneys’ familiarity with similar changes to the federal rules. He also thinks the understanding of proportionality has developed organically in the face of massive amounts of electronically stored information: “Because the quantity of data and data sources continue to increase dramatically every year, practitioners increasingly realize that identifying and producing all potentially relevant data has in fact become impossible.”
However, Judge Yates cautions that “attorneys have tended to use the concept of proportionality in a reactive way as a response to paper discovery, rather than in a proactive way by asking for early discovery conferences aimed at achieving proportionality from the inception of the discovery process.”
Fuhs also thinks there is an opportunity for more judges to schedule hearings on dispositive motions earlier so that the parties can narrowly tailor discovery and “save the court and the parties time and money.”
Protecting substantive rights of the parties
Sinas has been concerned from the outset that “the technical requirements under the rules will somehow negatively affect the way in which parties can pursue their substantive rights or defenses in civil litigation.” COVID-19’s disruption of litigation generally has made it difficult to assess whether this has actually occurred. While Sinas has “not had any specific experiences of the new court rules having much of a negative or positive impact on the substantive outcome of cases,” he predicts that we “will know more about that issue as courts open and trials begin to happen again.”
If you have additional insights or questions about the new discovery rules and their implementation, please comment here or contact rebekahp@icle.org.