On January 1, 2020, after 35 years since the last holistic revision of the civil court rules, the civil litigation system in Michigan moves into a new era. With these changes, Michigan not only catches up with national developments but in some cases embraces the cutting edge. Do not make the mistake of thinking these are mere tweaks – to steal a quote from U.S. Supreme Court Chief Justice John Roberts, “The amendments may not look like a big deal at first glance, but they are.”1 Attorneys must not only learn the new rules, but appreciate the underlying goals of the revisions. The judiciary is likewise engaged in an educational process because, textual changes aside, these rules officially signal a paradigm shift in how civil litigation will be conducted in Michigan courts. The good news is that the rules preserve all that is good and necessary about discovery while accentuating efficiency, and at the same time increasing access to our courts for those seeking redress. Everyone should be able to get behind that.
What was Wrong with the Old Rules?
Thirty-five years is a long time. Most of us were using rooftop antennae to watch TV – fuzzy outcomes and hard to adjust. These revisions upgrade those antennae to 4k streaming. While various portions of the rules were updated over the years, they had not been reviewed as a whole, or revised with the totality of the discovery process in mind. The rules also did not keep up with some of the real-world aspects of litigation, nor were they optimized to assist parties, lawyers and judges administer cases both fairly and effectively.
Since 1985, and particularly over the past decade, the consensus from judges, lawyers and the public has coalesced around the appreciation of the impact of the cost of discovery on the civil justice system. Discovery continues to be important. However, it is broadly perceived as too expensive; too often abused and the source of time-consuming conflict; an obstacle to the use of the courts, thus limiting access to justice and sapping vitality from the judicial system; and it distorts administration of judicial resources. In conducting its work, the State Bar committee that proposed these rule changes worked from a vision of a civil litigation system where litigation is more cost-effective, courts are more accessible and affordable, the rules aid case management and enable judicial officers to be informed and efficient, and the system accentuates to parties and lawyers that cooperation and reasonableness are key principles in the course of civil litigation.
Case Management and Proportionality
These are the two through-lines of these amendments. The old concept of discovery had two main features. First, the presumptive rule – often in practice, even if not sanctioned by the letter of appellate decisions – was that information or documents often were deemed discoverable even if there were only a remote possibility they would lead to the discovery of relevant evidence. While the courts never sanctioned fishing expeditions, the liberal policy in favor of discovery often made any rationale a sufficient rationale. The issue is not that, in some cases, this broad discovery in fact paid off and revealed something useful. The issue is that, for the civil justice system as a whole, the de facto discovery paradigm imposed a daunting cost upon all parties – a cost that could keep individuals and small businesses out of court due to concerns about discovery costs imposed by the other side, and which led some defendants (mainly businesses) to flee the court system for arbitration, where the perception was that discovery was more modulated. It also contributed to the demise of actual trials because parties couldn’t afford to go that far through the process. This article cannot do justice to the various critiques of discovery in the civil litigation system (see the resources listed in the sidebar); suffice to say, a consensus eventually developed that there must be a better way.
Exacerbating the situation was the fact that many state court trial judges took a laissez faire attitude toward discovery – either by choice, out of exasperation, or due to lack of resources. Many strongly signaled that parties should keep all discovery disputes out of their courtroom, a mien sometimes adopted as a response to overzealous, uncooperative and game-playing lawyers (and parties). When discovery motions were heard, some judges had not enough time or patience to slog through the issues, and so just went with the presumptive rule – allow the discovery, figuring that most cases settle, and for those that do not, it will get figured out at trial. The combined effect of these dynamics was that to get to an outcome – whether summary disposition, trial or settlement – everyone had to run through the bramble bushes, and often came out worse for the wear but not necessarily any closer to resolution.
The spirit behind the revised rules begins with rules’ overall foundation stone – MCR 1.105. It now expressly states that the rules are to be administered and employed “by the parties and the court to secure the just, speedy and economical determination of every action.” The change, which mirrors the change to Fed.R.Civ.P. 1 effective December 2015, is an overall signal that all participants – parties, counsel and court – must collaborate to make our system thrive.
Courts are expressly vested with various case management tools. MCR 2.301(C) now states what had previously been implied: “The court may control the scope, order
and amount of discovery, consistent with these rules.” To execute this case management obligation, MCR 2.401 has been expanded. Subrule (B) signals to the court and the parties various issues that might be considered in an early scheduling conference to help guide the overall life of the case. Subrule (C) requires that either the court or a party may initiate a process for collaboration between the parties to establish a discovery plan – again, designed to identify issues early and allow the parties and court to be ahead of, rather than behind, potential issues. If electronically stored information (ESI) is going to be an issue, new subrule (J) creates a novel process – the first in the nation – to allow the parties and the court to address the issues before they get out of control in terms of expense and motion practice.
The second significant change was to MCR 2.302(B) and the definition of “scope of discovery.” Looking to, but not exactly copying, the 2015 change to Fed.R.Civ.P. 26, the rule expressly adopts the concept that the discovery sought must be “proportional to the needs of the case.” It is beyond the scope of this article to explain the evolution of this language in the federal system or to comment in detail upon the reason for the textual changes. In short, the express inclusion of the concept of proportionality, while novel textually, in fact mirrors longstanding practice and case law, albeit signaling more strongly its central role, especially in light of the deletion of the language “reasonably calculated to lead to the discovery of admissible evidence.” All readers are strongly recommended to review the advisory committee notes to the 2015 Fed.R.Civ.P. 26 changes2 that, among other things, describe the reason for deletion of this language.3 It is also important to emphasize that the change is not “intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.”4 As for the factors listed, they are non-exclusive, but one must appreciate that what is important in a case is not limited to the monetary amount in controversy.5
Once discovery is underway, various other tools have been added, which are addressed below. Notably, all sanctions provisions have been amended to delete mandatory sanctions provisions (that were often ignored) in favor of judicial discretion.6 Sanctions related to ESI have been amended to be less onerous and more flexible.7 If stipulated to by the parties or ordered by the court, discovery disputes are now subject to facilitation,8 although only the court retains authority to actually resolve discovery disputes.
Changes to the Timing and Flow of Discovery
Good lawyers think three moves ahead and plan accordingly. But in the real world, this isn’t always possible or realized. The new rules nudge parties to pay more attention to their cases early on, while attempting to reduce (seemingly inevitable) disputes down the road.
The new rules specify in MCR 2.301 when discovery starts and (in the absence of a court order stating something different) when it ends. What happens in between is largely up to the court and the parties. That is to say, while the new rules adopt various presumptive procedures and limits on discovery, all of them may be stipulated out of by the parties or via court order.9 Each case is different; so should be the discovery process around it. These new rules embrace that flexibility.
One major change in the rules is to get more information out quickly in the case. In adopting required initial disclosures,10 the intent was to eliminate the need for certain rote written discovery (via interrogatory and/or document request), while getting basic information out quickly, so parties could assess their liability and strategy earlier in the process. Importantly, the rules counsel against games of “gotcha” around these disclosures. Parties are required to produce specified information up front, which is simply information “then reasonably available” to the party.11 While there is a duty to supplement, it exists only when “in some material respect” the disclosure is inaccurate or incomplete and the subject information has not already otherwise been disclosed in discovery.12 Lastly, under MCR 2.313(C)(1), sanctions never apply if the failure to supplement was substantially justified or harmless and, in any case, the court has full discretion on whether and what sanction might apply. In totality, the rules require the disclosure regime to be carried out in good faith and eschews gamesmanship by either the disclosing or receiving party.
In terms of the substance of the initial disclosures, the rules go beyond their federal analog in various respects. For no-fault and personal injury cases, special additional disclosures are required for basic information that would, in any event, eventually be required.13 These were adopted from Wayne County local rules and expanded.
Changes to Specific Discovery Devices
The new rules make changes to various specific discovery devices. Once again, some of these reflect practices adopted in other jurisdictions, but in other places the rules adopt novel devices designed to drive efficiency and avoid unnecessary disputes.
MCR 2.305 and 2.306 have been revised to clarify that discovery sought from third parties is governed by one set of rules, while discovery from parties proceeds under the traditional rules. MCR 2.506 has been revised accordingly, adding provisions regarding subpoena objections. The rules have been modified to provide greater clarity as to the rights of non-parties who are subpoenaed, to provide for documents-only subpoenas, and as to how discovery disputes involving third parties are resolved. Sometimes nettlesome issues as to a third-party’s obligation to appear in light of either the third party’s or a party’s objections14 and another party’s receipt of subpoenaed documents15 are now resolved.
Deposition practice remains largely unchanged. The rules now specify that a deposition is limited (as always, absent stipulation of the parties or court order) to a single day of seven hours.16 The rules governing both party and non-party representative depositions have been revised to clarify the process and provide for a mechanism for objections as to topics to be identified and resolved.17
Interrogatories are now presumptively limited to 20 to each other party.18 Interrogatories were deemed the most misused and least valuable aspect of written discovery, and with the adoption of initial disclosures, now less necessary. Like the federal rule, a “discrete subpart” counts as a separate interrogatory. Here, as noted in the official comment to the rule, the intent was to allow parties and the court to benefit from the maturation of the definition of “discrete subpart” from the federal courts. The specific guidance provided in the comment derives from the consensus rule that “courts generally agree that interrogatory subparts are to be counted as one interrogatory ... if they are logically or factually subsumed within and necessarily related to the primary question.”19 Courts have further articulated this approach as: “if the first question can be answered fully and completely without answering the second question” then the second question is totally independent of the first and not factually subsumed within it.20 However:
“[r]egardless of which verbal formulation of “discrete subparts” is used, these tests must be tempered by a “pragmatic approach” that asks whether an interrogatory “threatens the purpose of Rule 33” by combining several lines of inquiry into one interrogatory. Under this pragmatic approach, courts must evaluate “discrete subparts” by balancing the competing purposes of Rule 33(a)(1): allowing reasonable latitude in formulating an inquiry to elicit as complete an answer as possible, while at the same time not allowing the multiplication of interrogatories which would defeat the purposes of Rule 33's limits.21”
A Few Things Not (Really) Changed
The committee had no desire to simply adopt federal practice, as the rule revisions make clear. In this regard, there are no presumptive limits on the number of depositions, there is not a requirement of written expert reports, and there is express privilege log requirement. However, the rules allow the parties to agree to such devices if they make sense for their case, and prompt the court and the parties to at least consider whether to provide for expert reports22 or to have parties produce privilege logs.23 The rules do clarify that certain communications between counsel and experts are exempt from discovery24 so as to avoid disputes in that area that sometimes arise.
What’s Next
While these rules are important and should effectuate change, they require real people – lawyers, judges and, yes, clients – to embrace them to actually make a difference. The initial goal of the bar is to work with attorneys and judges throughout the state to educate them with regard to the rule changes. (See sidebar.)
Some of the new rules place Michigan in the forefront, ahead of other states and the federal system, in adopting innovative tools to allow for civil litigation to be resolved fairly and efficiently. But, in the end, these are still rules that exist within the confines of our existing system of resolving civil disputes. Even if fully embraced, rules only get you so far. Many of the downsides of our civil litigation system are built into the system itself; it is a design problem. The bench and bar will continue to collaborate to help provide access to our justice system for all citizens and to allow it to perform its necessary functions. We invite your participation in this ongoing justice project through the State Bar of Michigan.
Thank Yous and Resources
The effort to reform these rules began in 2013. I would not be writing this article without the critical assistance and support of so many. The State Bar’s Civil Discovery Court Rule Review Special Committee truly represented the crème de la crème of our profession, a group of committed individuals who – with widely varied backgrounds – all got in the canoe and rowed in the same direction. We were assisted by subcommittees of equally committed lawyers, supported throughout by the bar (particularly Executive Director Janet Welch and Public Policy Counsel Kathryn Hennessey), and guided by Anne Boomer of the Supreme Court Administrative Office. Michigan Supreme Court Chief Justice McCormack and the rest of the Court were open to these changes and, once proposed, engaged with the public and moved expediently toward adoption.
In the footnotes and sidebar are various resources for inquisitive minds. These changes are part of a national trend and readers may be interested in both the meta-analysis of the civil justice system as well as rule changes adopted in various jurisdictions.
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Footnotes
1Chief Justice John G. Roberts Jr., “2015 Year-End Report on the Federal Judiciary,” at 15, https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (accessed August 29, 2017).
2See www.law.cornell.edu/rules/frcp/rule_26 for the advisory committee notes associated with the 2015 amendments.
3As noted by the advisory committee: “The former provision for discovery of relevant but inadmissible information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the ‘reasonably calculated’ phrase to define the scope of discovery ‘might swallow any other limitation on the scope of discovery.’ […] The ‘reasonably calculated’ phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that ‘Information within this scope of discovery need not be admissible in evidence to be discoverable.’”
4See, e.g., Vallejo v. Amgen, Inc., 903 F.3d 733, 743 (8th Cir. 2018) (“A party claiming requests are unduly burdensome cannot make conclusory allegations, but must provide some evidence regarding the time or expense required. Rule 26 requires a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”) (citations and quotations omitted).
5As noted in the federal advisory committee notes: “It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against other factors. The 1983 Committee Note recognized ‘the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.’ Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.”
6See, e.g., MCR 2.313(A)(5)-(6).
7MCR 2.313(D).
8MCR 2.411(H).
9MCR 2.302(F).
10MCR 2.302(A).
11MCR 2.302(A)(6).
12MCR 2.302(E)(1)(a)(i).
13MCR 2.301(A)(2) and (3).
14MCR 2.305(A)(4).
15MCR 2.305(A)(7).
16MCR 2.306(A)(3).
17MCR 2.305(A)(6) and 2.306(B)(3).
18MCR 2.309(A)(2).
19Athwal v. Nijjer, No. C17-00740RSL, 2018 WL 1156233, at *3 (WD Wash, March 5, 2018) (citations omitted).
20Phoenix Process Equip Co v. Capital Equip & Trading Corp, No. 3:16CV-00024-RGJ-RSE, 2019 WL 1261352, at *4 (WD Ky, March 19, 2019).
21Id (citations omitted).
22MCR 2.401(B)(1)(k).
23MCR 2.401(J)(1).
24MCR 2.302(B)(4)(e)-(f).
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Daniel D. Quick, of Dickinson Wright PLLC, is the 87th president of the Oakland County Bar Association.
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State Bar of Michigan:
The State Bar has set up a webpage with many resources, including a listing of seminars and programs around the state. Michbar.org/civildiscovery
The original report of the Civil Discovery Rule Reform Committee that was presented to the Representative Assembly in 2017 provides a detailed description of the process of drafting these rules with expanded commentary on the source and reasons for many of the of the proposals. A link to it is on the State Bar home page.
Oakland County Bar Association:
Oakland County Circuit Court Chief Judge Shalina Kumar and State Bar committee members Hon. James Alexander and Dan Quick presented a live seminar on the new rules on Sept. 5. A video recording of that seminar is available on the OCBA website.
Federal Judicial Center: www.fjc.gov
• A good general clearinghouse on federal rule amendment-related articles
• See also the annotated “Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality,” which is continuously updated (most recent version March 2017): https://law.duke.edu/sites/default/files/centers/.../civil_rules_project-mar.pdf
Institute for the Advancement of the American Legal System: http://iaals.du.edu/
• Reports on various state court initiatives
• State-by-state map: http://iaals.du.edu/rule-one/projects/action-ground?project_type=state
• Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (March 11, 2009) http://iaals.du.edu/sites/default/files/documents/publications/actl-iaals_final_report_rev_8-4-10.pdf (accessed August 24, 2017)
Conference of Chief Justices:
http://iaals.du.edu/sites/default/files/documents/publications/cji-report.pdf
National Center for State Courts:
http://www.ncsc.org/Topics/Civil/Civil-Procedure/Resource-Guide.aspx
• The Landscape of Civil Litigation in State Courts
http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/civil/id/133
(includes, inter alia, 2013 comparison of state court civil litigation systems)
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