Litigation Defenders

Litigation discovery in Michigan just got interesting!

In June, the Michigan Supreme Court issued a 45-page new administrative rule dictating that starting in January 2020 the scope of litigation discovery will change from “reasonably calculated to lead to admissible evidence” to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”

In short, the rule has been reformatted to value “proportionality” over “relevance.” 

So, how do we accomplish proportionality? This concept is not new to those in federal practice, as this language was put into effect in 2016 in federal courts. Both the Michigan and Federal Rules of Civil Procedure include six factors to evaluate what is proportional for each suit: 

1. The importance of the issues at stake in the action,
2. The amount in controversy,
3. The parties' relative access to relevant information,
4. The parties' resources,
5. The importance of the discovery in resolving the issues, and
6. The balance of the burden ... and benefit.”

Of the six factors, it appears that for the Sixth Circuit  Court of Appeals, which the Michigan Courts are expected to follow, no one factor has emerged as dispositive. If anything, it appears that the revamped “proportionality” definition has been more of a prompt to judges than attorneys. As stated by District Court Judge James L. Graham, of the Southern District of Ohio in Waters v. Drake, 222 F. Supp. 3d 582, 606 (S.D. Ohio 2016):

The court believes that implementation of the new discovery rules will require improved case management by district judges, a culture of cooperation among lawyers, and active and early involvement by judges to fashion discovery that is proportional to the needs of the case. The adoption of certain protocols or measures will advance this effort and may include: case management conferences early in the litigation; requiring parties to submit joint discovery plans; the judge being available to timely resolve disputes; regular discovery conferences or hearings; stays of discovery to resolve pure legal issues; the use of affidavits to determine whether more costly avenues of discovery, such as depositions, would be justified; and the rolling submission of information produced during discovery to the court so that it can better evaluate the need for additional discovery in light of the discovered facts.

In sum, the new rule requires judges to engage in a form of participant observation, a technique used across the social sciences, advertisement, public policy, and nonprofit research. In those disciplines, participant observation requires researchers to immerse themselves in a society and participate in its customs and social structure so as to understand the meaning of behavior.

As applied in the judicial context, the changes to the scope of discovery presume that a judge cannot understand what is proportional in a case without understanding both the social stakes and economics of the suit. Prior to this new rule, the scope of discovery was abundantly broad—anything that could reasonably lead to admissible evidence was discoverable.  

Now, of the six factors, only two require the court to examine legal relevance: (1) the importance of the issues at stake in the action and (2) the importance of the discovery in resolving the issues—the remainder of the factors assess the practical ability to complete discovery or a cost benefit analysis on completing the discovery. In turn, the proportionality concept encourages judges to curb abusive discovery practices and absenteeism during the discovery process.  

Proportionality aims to streamline the discovery process by way of court ordered collaboration, requiring parties to actively consider their opponents’ social and economic stakes alongside  their legal positions. We will see over time whether this new rule accomplishes its goal.