Michigan’s New Discovery Rules Part 4

By Doug Chalgian on September 19, 2019

In addition to the limitations imposed by the definition of the scope of discovery, the new rules specifically limit certain discovery tools, and more thoroughly address the discoverability of electronically stored information (“ESI”).

Specific Limitations

The new MCR 2.306(A)(3) and 2.306(3) place a seven hour limit on the deposition of a party.

The new MCR 2.309(A)(2) limits the number of interrogatories allowed (without court order) to 20. Each substantive subpart of an interrogatory will be counted separately.

Electronically Stored Information

The term “ESI” is defined at the new MCR 2.310(A)(2) as “electronically stored information, regardless of format, system, or properties. The new MCR 2.310(A)(1) includes ESI in the definition of “documents.”

The new MCR 2.302(B)(6) provides rules regarding the right to demand electronically stored information, rules that again balance the cost and accessibility of such records against their potential value and the reasonableness with which they can be recovered. In the new rule MCR 2.313(D), penalties can arise for the failure of a party or their counsel to take reasonable steps to preserve ESI that might be relevant to a case, which penalties can include jury instructions which direct that the jury presume the missing information was unfavorable to the offending party.

In addition, in cases involving significant ESI discovery issues, a court can require (or party can request) and ESI status conference and discovery plan. MCR 2.401(J).  Pursuant to the new MCR 2.401(J)(3), the attorney who attends this conference must be “sufficiently versed in matters relating to their clients’ technological systems” or have an outside expert present as well.

Tighter Reins

In addition to discovery changes discussed above, additional rule changes are designed to impose tighter controls on litigation and to provide courts with greater oversight. The new tools include more detailed scheduling conference and pretrial conference orders, as well as a rule requiring parties to work together on discovery plans.

A revised MCR 2.401(B) provides trial courts with an extensive 18 point checklist of issues to be addressed at the initial scheduling conference. A similarly detailed checklist is provided for courts’ to use when conducting the final pretrial conference.

In addition, a court can order, or a party can request, that the parties work together and stipulate to a discovery plan. MCR 2.401(C).  Such a plan must address “all disclosure and discovery matters.”

Other Notable Changes

The new MCR 2.301(B) clarifies that discovery requests must be issued so that the responding party has the time allowed for a response to pass before the close of discovery. That means, it isn’t good enough to issue a discovery request before the close of discovery.  This issue comes up often.

Obligations to supplement discovery, including the initial required disclosure are detailed in the new MCR 2.302(E)(1)(a), and penalties for failing to supplement are addressed in a new MCR 2.313(C).

New rules have been inserted that provide a process to non-parties who receive subpoenas to challenge the reasonableness of those requests. MCR 2.305

A new rule MCR 2.411 provides a process for mediation of discovery disputes.

mm By: Doug Chalgian
Doug Chalgian

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