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June 2019

Supreme Court Amends Discovery Rules

By:  Christopher J. Ryan, Esq.

On June 19, 2019, the Supreme Court issued an order amending multiple Court Rules in ways that will significantly alter the daily practice of attorneys engaged in civil litigation. 11 of the 16 rules contained in subchapter 2.300 (addressing discovery in civil proceedings) were amended. The amendments take effect January 1, 2020. This article highlights some of what we feel to be the more significant changes that will impact our daily practice.

Overall, the amendments incorporate many federal rules and seem to make the discovery rules more practical and meaningful. For example, as discussed in more detail below, while the number of interrogatories is limited, the need for unlimited interrogatories is decreased given the requirements that the parties exchange in initial disclosures. Additionally, there are now stricter penalties for providing vague, evasive, or incomplete answers. We view this as a good thing; we would rather receive 10 pages of meaningful information than 100 pages of useless information.

Initial Disclosures
Perhaps the most significant change is the requirement that the parties exchange initial disclosures, as required in federal court. There are some limited exceptions to the initial disclosure requirements not discussed in this article.  Additionally, the parties can stipulate that initial disclosures will not be exchanged, and the court can also opt not to require them.

Assuming they will be required, which appears to be the default, initial disclosures must occur before a party may seek other discovery.

Plaintiff must serve initial disclosures within 14 days after any opposing party files an answer to the complaint. Defendant must serve initial disclosures within 14 days after the plaintiff’s disclosures are due, or within 28 days after filing an answer, whichever is later.

A party’s initial disclosures must be based on information that is “then reasonably available to the party.” It is not an excuse that the party has not fully investigated the case, or that the party challenges the sufficiency of another party’s disclosures. The disclosures must be signed by an attorney or unrepresented person and served on all parties. They should not be filed with the court, but a proof of service should be.

The initial disclosures must contain the following (note that there are special additional disclosures applicable to no-fault cases that are not summarized below):

  • the factual basis for the party’s claims or defenses;
  • legal theories, including citations to relevant legal authority if necessary to understand the claim or defense;
  • the name, address, and telephone number of each individual likely to have discoverable information along with the subjects of that information that the party may use to support the claim or defense;
  • copies, or a description by category and location, of all documents, electronically stored information, and tangible things in the party’s possession, custody, or control, that may be used to support a claim or defense and a description by category and location of all such documents and things not in the party’s possession that may be used to support a claim or defense;
  • computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents on which each computation is based;
  • a copy or opportunity to inspect a copy of pertinent portions of any insurance agreement, including self-insured retention and limitations on coverage;
  • anticipated subject areas of expert testimony;
  • for personal injury cases, plaintiff is required to produce executed medical record authorizations for all persons in possession of medical information relating to the condition at issue in the case;

Litigants would be wise to take the initial disclosure requirements seriously. Like its federal counterpart, the new Michigan rule states that if a party fails to serve a disclosure, another party may move to compel disclosure and for “appropriate sanctions.”

“Appropriate sanctions” is not specifically defined. However, the amendments state that if a party fails to provide information or identify a witness as required by the initial disclosure rules or rules concerning the duty to supplement, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. The amendments state that the court may also order payment of expenses, including attorney fees, caused by the failure, may inform the jury of the party’s failure, and may impose other appropriate sanctions.

Although there is ample federal precedent to cite as guidance, with no binding Michigan precedent to turn to, time will tell just how much detail is required or expected at the time of initial disclosures, and under what circumstances the court will be justified in imposing certain sanctions.

Limitations on Discovery
The amendments contain two simple yet significant changes limiting discovery.  First, the amendments limit the depositions of a party to one day of seven hours.  Second, the amendments limit the number of interrogatories that may be sent to 20.

Specifically, the rule states that “each separately represented party may serve no more than twenty interrogatories upon each party.” The rule seems to be carefully worded to prevent an attorney who represents multiple clients from sending separate sets of interrogatories to each opposing party on behalf of each client (s)he represents. However, the rule also states that an attorney may serve up to 20 interrogatories on each opposing party regardless of whether those opposing parties share counsel. Interestingly, there does not seem to be any limitation on the number of requests for production or requests for admission.

As a side note, with regard to requests for admission, the new rules state that the request must clearly identify in the caption and before each request that it is a request for admission. The goal here seems to be to prevent gamesmanship. At one point or another, we have all seen someone try to bury a request to admit in a set of interrogatories.

Scope of Discovery
The general scope of discovery was amended and now considers various factors including the complexity of the case and the amount in controversy. The amendment appears to give the trial judge more leeway to decide whether certain discovery should be had even though it may be relevant and otherwise permissible.

Communication with Experts
The amendments state that communication between a lawyer and an expert is protected, except if the communication: (1) relates to compensation of the expert, (2) identifies facts or data provided by the lawyer that the expert considered informing the opinions expressed, or (3) identifies assumptions provided by the attorney that the expert relied on in forming the opinions to be expressed.

Duty to Supplement
The new rule states that a party has a duty to supplement initial disclosures/interrogatories if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known during the discovery process.

Subpoenas to a Non-Party
For subpoenas requesting documents and depositions, the subpoena must provide a minimum of 14 days after service for the requested act. A subpoena requiring a witness to appear at a trial or hearing must be served at least 2 days before the appearance. If a non-party files a motion objecting to a subpoena, the obligation to respond is stayed until the motion is resolved.

Discovery Planning Conference/Early Scheduling Conference
If required by the court, or requested in writing by another party, the parties must confer among themselves and prepare a proposed discovery plan at a Discovery Planning Conference. The plan must address disclosure and discovery matters and proposed deadlines for completion. The discovery plan may be submitted to the court as part of a stipulation or motion, but the rule still gives the court authority to set a scheduling order even if the parties agree to a different timeline. In fact, if the proposed discovery plan differs from the deadlines set by a court’s scheduling order, the parties must still show “good cause” to request a change in that scheduling order. Given this, we see little utility to a Discovery Planning Conference absent support from the trial court. If, however, the court is willing to take the parties’ conclusions into account when setting discovery deadlines, then the process would become much more useful.

Similar to the Discovery Planning Conference, the amendments contemplate an Early Scheduling Conference. This gives trial courts flexibility to confer with the parties to discuss issues such as ADR, staging of discovery, time necessary for discovery, possibility of obtaining admissions of fact and of documents to avoid unnecessary proofs at trial, timing of initial disclosures, and whether to require expert reports.  That’s right – expert reports. The court rules now permit courts to order the parties to produce expert reports. Expert reports have been required in federal court for years but rule 26 of the Federal Rules specifies what the report needs to contain. Perhaps by design, the new Michigan rule contains no such guidance. Presumably, if the court orders expert reports, it will be up to the judge to decide on the required content.

Final Pretrial Conference
Final pretrial conferences are still optional for the court to hold, but if they do: “at least one lead attorney who will conduct the trial for each party and any unrepresented parties shall attend the conference.”

Discovery Mediators
The amendments permit courts to require discovery disputes to be submitted to a mediator before being filed as a motion, unless there is a need for expedited attention by the court. This appears to be a more formal adoption of the “Discovery Masters” used in some circuits. The amendment provides a lot of flexibility to the mediator about how and when the mediation sessions are to be conducted.

Electronically Stored Information “ESI”
The amendments contain a number of provisions about ESI.  First, the court rules impose penalties for failure to preserve ESI. Second, the amendments contemplate an ESI conference as agreed to by the parties or ordered by the court. Issues to be discussed include preservation plans, identification of ESI, the form in which ESI will be produced, what metadata will be produced, and the timing of production of ESI. If the parties have an ESI conference, an ESI discovery plan must be submitted within 14 days.

The amendments also require that the attorneys who participate in an ESI conference “be sufficiently versed in matters relating to their clients’ technological systems to competently address ESI issues.” Don’t worry if you’re not a computer whiz: The rule permits attorneys to bring a client representative or outside expert to assist.

The new amendments to the court rules will impact the day-to-day discovery practice of many litigators. In theory, the amendments limit the quantity of discovery, but enhance the quality by providing stricter penalties for failing to disclose early on. Time will tell how strictly courts enforce the amendments and corresponding penalties. Given the similarities between the federal rules and the new Michigan amendments, we suspect Michigan courts will turn to federal precedent for guidance until case law in Michigan develops.