August 31, 2019
Welcome to the 21st Century! For the first time in three decades, the Michigan Supreme Court has issued comprehensive revisions of the state’s discovery rules. One major component of the extensive overhaul involves proportionality. That is, Michigan trial courts can now tailor discovery to the needs and economics of each case.
In many ways, Michigan’s newly adopted proportionality rules mirror the 2015 Amendments to the Federal Rules of Civil Procedure (FRCP). The amount of electronically stored information (ESI) being created has exploded, with over 2.5 quintillion bytes of data created every single day. With this exponential growth, negotiated discovery plans become more complicated, and are often used as a tactical strategy to delay or obfuscate. Indeed, the Notes of the Advisory Committee regarding FRCP amended Rule 26 explained the intent of the amendments were to, “deal with the problem of over-discovery,” with the objective to “guard against redundant or disproportionate discovery.”
To ensure that discovery is, as Michigan trial court Judge Christopher Yates notes, “a means to an end, not an end in itself,” Michigan has now followed the lead of the FRCP amendments. The new rules place more emphasis on ediscovery procedures, the use of court-appointed experts and special masters, and proactive judicial involvement in the discovery process in order to expedite discovery and harness the principle of proportionality.
Beginning in 2020, a number of new procedures will replace dated rules regarding ediscovery.
- An ediscovery protocol must be outlined in an early scheduling conference, including initial disclosures, discovery of ESI, and preservation requirements. MCR 2.401(B)
- Soon thereafter, a discovery planning conference must be held between the parties, similar to the FRCP 26(f) meet and confer. MCR 2.401(J)(1)
- A proposed discovery plan created at the conference “must address all disclosure and discovery matters… and propose deadlines for completion of disclosure and discovery.” MCR 2.401(C)(2)
- The plan is presented to the court, which may alter it as needed.
Especially important is the fact that if any party “fails to participate in good faith,” the court now has the power to issue sanctions against the offending party. MCR 2.401(C)(4).
New to the process is a mandated ESI Conference, “where a case is reasonably likely to include the discovery of ESI.” MCR 2.401(J)(1). This conference requires the parties to:
- adopt a preservation plan;
- identify potentially relevant files and data sources and determine their accessibility;
- agree on the form of production, including metadata; and,
- decide how the expense of production is to be allocated among the parties.
This ESI discovery plan must be presented to the court within 14 days of the conference. MCR 2.401(J).
An important aspect of the new ESI discovery plan is the application of proportionality. Specifically, discovery must be “proportional to the needs of the case… including whether the burden or expense of the proposed discovery outweighs its likely benefit.” MCR 2.301(B)(1). This mandate, coupled with the dramatically accelerated timeline to disclose relevant custodians and data sources, creates a need to identify, locate, and retrieve relevant ESI quickly. It should also be noted that “a party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.” MCR 2.302(B)(6).
The rules specifically note that parties must:
- immediately disclose claims and defenses, as well as the applicable legal theory on which they are based;
- turn over a list of relevant custodians and all documentation within their control within 14 days of the answer to the complaint; and,
- respondents must turn over relevant discovery within 14 days after receiving disclosures or 28 days after answer.
Additionally, all initial disclosures must be completed even without a discovery request. MCR 2.302(A)(1). Without question, these initial disclosure requirements should dramatically expedite the discovery process, and the ability to quickly find and locate relevant custodians and data sources becomes critical.
Judicial Involvement and Expertise
The new Michigan Court Rules dramatically increase judicial involvement from the onset of a case to help design a discovery plan. It provides ultimate control over any ESI discovery plan and also the ability to grant court-appointed ESI experts, who may also serve as discovery mediators of ESI issues, similar to a special master. Since the new rules require that attorneys participating in an ESI Conference must be competent in their clients’ technological systems or bring an expert who is, involving ediscovery experts at the front end of the process can help avoid any sanctions. MCR 2.401(J)(3)
There are a number of instances where sanctions can be applied, namely:
- if a party fails to take reasonable steps to preserve ESI that should have been preserved, which results in the loss and inability to restore the data;
- if a party fails to participate in good faith in developing and submitting a proposed discovery plan; and,
- if discovery is not produced in a timely manner.
The keys to remember in the new rules: Discovery deadlines will now come faster — don’t let them sneak up on you. Proportionality is the name of the game — consider this before drafting or responding to discovery requests. Cooperation among knowledgeable experts at early meet-and-confer sessions regarding a proportional discovery plan is crucial.
With the new emphasis on proactive case management and the increased involvement by the courts in the early phases of a case, the new rules create a pivotal role for ediscovery experts to assist in fitting the discovery plan to the needs of the case. Prism Litigation Technology is here to help, with more than two decades of discovery management and proportionality workflow expertise. To learn more about how we can help you implement these new court rules, please contact us for a complimentary two-hour consultation.