Don't Bet the Business

Sweeping changes to the Michigan Court Rules (Rules)took effect Jan. 1. These changes will alter procedure in all Circuit Court cases, modify the scope of civil discovery, and likely drive-up the cost of litigation. 

On the whole, the Rules have not been significantly revised in 35 years. The changes bring Michigan procedure closer in-line with federal practice standards and those of Michigan’s sister states. Through these revisions, emphasis will be placed on the more efficient management of cases and especially discovery – including proportionality. It is expected that judges will be more actively involved in the management of cases and that practitioners, and the parties, will have to put in more work on the front end of their cases.

While the full scope of the changes to the Rules is much broader than outlined herein, the key differences have been summarized below:

Case Management Conferences

A Case Management Conference or initial case conference will be held by the court in all cases, which will involve all counsel (and parties, if unrepresented) conferring with the judge to discuss case management, scheduling deadlines, discovery, alternative dispute resolution, and other issues expected to impact the case.

This will be similar to those in federal court or the Michigan Business Courts. Judges are expected to take a more active role earlier in the case, beginning with these conferences. The benefit of these conferences will be largely driven by the level of involvement of the particular judge and whether she/he uses this opportunity to address early disputes and guide the case toward resolution. 

It is also expected that the use of these conferences, across all cases, will impact court scheduling and docket congestion given the time needed for an effective conference and the total volume of cases before the circuit courts. 

Initial Disclosures

Initial Disclosures will be required in all cases shortly after responsive pleadings are filed – similar to those in Michigan Business Courts and federal court. The new Rules permit the parties to stipulate to skip the Initial Disclosures, but early feedback indicates that judges will be reluctant to permit this.  Some particular cases (i.e. no-fault and tort cases) will have additional required disclosures.               

Discovery

Perhaps the biggest change is that proportionality in discovery is now expressly included in the scope of discovery (similar to the application of proportionality in federal discovery). This is not just a monetary consideration such that high-dollar cases will automatically warrant extensive discovery.

For  example, an important constitutional issue may warrant considerable discovery. Alternatively, a high-dollar case with narrow or simple issues may only be permitted minimal discovery. In the short term, Michigan courts are expected to reference federal court rulings on proportionality until case law is established.  

In addition, specific limits/requirements have been placed on certain forms of discovery, such as i) depositions will be limited to one day/seven hours per deponent; and ii) interrogatories will be limited to 20 (including discrete subparts) for all parties under common representation. 

The timing of discovery has also been revised to delay discovery until after the Initial Disclosures are submitted. The new Rules have also been clarified to require that discovery must be “complete” by the discovery cut-off (i.e. you cannot serve written discovery less than 28 days before discovery cutoff or you cannot serve a deposition notice on the last day of discovery which schedules the deposition after discovery cutoff).

Discovery planning conferences, including the role of Electronically Stored Information (ESI), are also required to be held by counsel and formal conferences (for both discovery, generally, and ESI) may also be scheduled by the court.  The new Rules also explicitly allow the courts to use discovery mediators (either by their own mandate or by stipulation of the parties) – a practice that has been informally used by the courts for some time now.    

Overall Impact

The drafters of the revisions to the Rules hoped to make them current, to reduce what was perceived as excessive and (sometimes) abusive discovery, to help streamline litigation, and, ideally, bring cases to a swifter conclusion – through settlement or otherwise. 

Whether those goals will be accomplished is yet to be seen. But to be sure, the cost of litigation will increase with additional court hearings, additional formality, and additional required filings – especially earlier in the case. 

Paramount is having experienced and effective counsel to navigate this new legal landscape in Michigan. Certainly, the experienced litigation attorneys at Plunkett Cooney can help navigate these uncharted waters.