Trial Lawyers Prepare for Transformative Changes in the Rules of Discovery

Scope of discovery

The scope of discovery has traditionally been generous in nature, allowing for the production of any matter, not privileged, which is relevant to the subject matter involved in the pending action. MCR 2.302(B)(1). Of course, lawyers digging for discovery gold routinely cite the last sentence of the rule, which has arguably expanded the scope of discovery well beyond relevance. It states, "it is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." However, under the new rule, the Supreme Court has shifted the focus from "reasonably calculated" to "proportional" in terms of what is discoverable. MCR 2.302 now limits the scope of discovery to "any non-privileged matter that is relevant and proportional to the needs of the case.‚" The rule will allow a court to weigh the burden and expense against the benefit of production, taking into consideration (a) the complexity of the case, (b) the importance of the issues at stake, and (c) party resources.

At first glance, this may seem like a sensible approach. However, allowing courts to evaluate the importance of a case before deciding the nature and extent to which discovery should be allowed creates a slippery slope. As litigators, we all know that each case is unique and extremely personal to the parties. Thus, permitting a court to weigh in on the necessity of discovery-based upon the perceived social or financial merits may prove to undermine the principals of the parties.

Initial (Mandatory) Disclosures‍

In addition to the implementation of the proportional approach, pre-discovery mandatory disclosures, similar to Fed. R. Civ. P. 26(a)(1)(A), are now a requirement. Under the new rules, all parties must provide critical information about the case and produce documents before being served with a discovery request. Therefore, litigants must be prepared to provide, among other things, the names and contact information for all potential witnesses, a factual basis of claims and defenses, copies of all relevant documents, damage computations, anticipated expert opinions, and insurance documentation. It will not be an excuse or defense to claim that a party is not "aware" of the required information because the new rule imparts an affirmative obligation to "fully investigate" the case even before the case has been filed in anticipation of the mandatory disclosures.

Furthermore, the newly amended rules have particularly harsh sanctions for non-compliance. For example, should a party fail to disclose a witness (including complete contact information) or document, a court may disallow the offending party from calling the witness or offering the evidence at a hearing or trial. Moreover, a court may assess attorney fees and taxable costs for the failure to disclose. Clearly, practitioners must be mindful of these obligations or face placing their case in jeopardy.

‍No-Fault Discovery Changes

‍The recently adopted discovery rules will prove particularly burdensome for the lawyer handling a case under Michigan's No-Fault Act. MCR 2.302(A)(2) now requires a plaintiff making claims for personal injury protection (PIP) benefits under to immediately disclose: (1) the identities of all physicians, medical facilities, attendant care, and household service providers; (2) copies of medical bills and expenses or the outstanding balances; (3) the name, address and telephone number of the plaintiff's employer; and (4) authorizations for each and every medical provider signed by the plaintiff. Auto insurance defense lawyers will be required to disclose a copy of the complete PIP claims file, privilege and payment logs.

‍Error on The Side of Disclosure

‍Analyzing the amendments as a whole, one may be wise to err on the side of disclosure. The Supreme Court has sent a clear message (echoing that of the federal bench) that parties shall engage in the comprehensive exchange of information in good faith. The parallel between the Michigan amendments and the federal rules is palpable: introduction of discovery plans; electronically stored information (ESI) conferences; no early discovery before initial disclosures; and limitations on depositions (no greater than 7 hours) and interrogatories (no more than 20).While the rule changes may seem "overly burdensome" (the darling objection of litigators), it favors the conscientious practitioner and serves as a conspicuous effort to eradicate gamesmanship and unfair surprise. That's an intended consequence I think we can all appreciate. Vince Colella is a Michigan personal injury lawyer and founding partner of Moss & Colella P.C., a Southfield, Michigan based law firm specializing in personal injury and civil rights. He can be reached at vcolella@mosscolella.com.