Eric M. Kociba on Latest Changes to Civil Discovery Rules
By Steve Thorpe
The Michigan Supreme Court has adopted significant changes to several Michigan Court Rules at the recommendation of the State Bar of Michigan Civil Discovery Rule Review Special Committee. “This package of rule changes represents the most comprehensive effort to improve civil discovery rules in at least a generation,” said Chief Justice Bridget M. McCormack. These changes will take effect January 1, 2020. Eric M. Kociba specializes in complex commercial litigation, business transactions, and vendor disputes. He also has experience as in-house counsel at two large companies, including a national fuel distributor with revenues of more than $1 billion.
Thorpe: The State Bar of Michigan’s Representative Assembly stated that these changes will make discovery more cost effective and efficient. What do you think the rules do to accomplish that goal?
Kociba: The Rules seek to get rid of several problems with the existing procedures behind discovery. For instance, the three most significant changes appear to remove some of the practice’s more time-consuming problems.
First, interrogatories are limited to 20, including subparts. We won’t be spending weeks trying to answer dozens or even hundreds of “contention interrogatories.”
Second, the amendments will require initial disclosures, so that key information about the case is turned over at the outset of the case, instead of waiting until halfway through discovery.
Third, the scope of what can be discovered will not be as unlimited, the amendment adopts the federal definition of discovery.
These are only a few of the changes. In the amendment, I count over a dozen substantial changes to the language of the Michigan Court Rules.
Thorpe: How will initial disclosures work?
Kociba: Initial disclosures are going to require a lot of information to be exchanged “up front,” and far sooner than we are used to disclosing that information. In the majority of cases, plaintiffs will be required to furnish disclosures within 14 days after the answer is filed. Defendants file disclosures 14 days later, or 28 days after the answer if the plaintiff fails to file them.
The amendment also specifies that a party cannot seek discovery until after those disclosures are filed, and that the disclosures can be sought through a motion to compel.
As to what types of information must be disclosed, both Michigan and federal courts require initial disclosure of significant witnesses, supporting documents, a damages calculation, and insurance information. Michigan adds to the list a requirement for a factual basis for the party’s claims and defenses, legal theories and authority, anticipated subjects of expert testimony, and in personal injury cases, executed medical record authorization forms.
Thorpe: The State Bar of Michigan’s Representative Assembly has said these changes will make proportionality a key consideration throughout the discovery process. Agree?
Kociba: Yes, and this is one of the key changes. Proportionality is a concept of whether materials are actually useful and necessary given the scope and issues in the lawsuit. Under the existing rules, proportionality is not mentioned. If you think something should not have to be produced, you’d argue that the discovery is not relevant, and that the discovery is an undue burden. That is because the existing court rule allows discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Then even if the request went beyond that, it could still be valid if it were “reasonably calculated” to lead to discoverable information. The new rules get rid of that language.
After January 1, 2020, materials are discoverable when they are both relevant and proportional to the needs of the case. The “reasonably calculated” language is gone. Instead, parties will be arguing that materials are (or are not) proportional to the case.
Thorpe: What do the rules say about pretrial hearings?
Kociba: The rules had always contemplated at least two pretrial hearings, an early conference at the outset of the case and a final pretrial conference closer to trial. Both hearings remain at the discretion of the court. However, the amendment will add considerations to be discussed at pretrial, which may be helpful in establishing when the parties will argue motions in limine and exchange the final pretrial items such as witness lists, exhibits and jury instructions. Also, the court will be able to call for discovery plans and electronic discovery plans. In either case, the court will be able to require that the parties hold conference about how discovery will proceed. Arguably, the courts have always had this power, but the amendment makes this a specific ability of the court.
Thorpe: What does the amendment do to electronic discovery issues?
Kociba: The Court’s amendment incorporates federal concepts about electronic discovery and the loss of electronic data. Under the amended rule, a party has the same duty to preserve electronic information as it does any other types of information. Proportionality is also added as one of the considerations for whether a duty to preserve the information exists.
But a larger change is that electronic information has its own section among the provisions discussing sanctions. When sanctioning a party for failure to preserve electronic items, a Court cannot order measures any greater than necessary to cure the actual prejudice caused by the loss of that information. Outright dismissal, default, or adverse instructions will only be allowed if a party acted with an intent to deprive another party of the lost information.
Thorpe: How might these changes affect clients?
Kociba: The new rules may not affect clients directly, but lawyers will need more information and they will need it earlier. While attorneys certainly needed information to file complaints and answers, they will need more detail to answer initial disclosures so quickly after those pleadings are filed.
Additionally, if the amendment speeds up written discovery by limiting the countless contention interrogatories, then it is possible that clients may see depositions much sooner.
