Beginning January 1, 2020, litigants and their counsel will be significantly impacted by new obligations to provide discovery in Michigan State courts. Ostensibly modeled after the Federal discovery rules, Michigan’s new rules go well beyond the Federal rules, in requiring early and continuing voluntary disclosure by all litigants of information that may be relevant to the litigation.

Very early in the case, all parties will be required to prepare and serve “Initial Disclosures” that provide information and documents that the party may rely upon at trial. The plaintiff’s disclosure is due 14 days after any answer is filed, and a defendant’s disclosure is due between 14 and 28 days after answering, regardless of whether or when the plaintiff’s disclosure is filed.

The disclosures must inform the other parties regarding the identity and location of witnesses, claims or defenses, the subjects of expert testimony, and documents that the litigant may use to support a claim or defense. Additional information is mandated for disclosures in first party no fault cases.

In addition, a party must produce pertinent portions of any agreement “under which another person may be liable to satisfy all or party of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment, including self-insured retention and limitation on coverage, indemnity or reimbursement for amounts available to satisfy a judgment.” This is far more expansive than the existing obligation to disclose, upon request, an “insurance agreement under which a person carrying on an insurance business” may be liable.

There is a new continuing obligation to update disclosures and all discovery responses, with the recommended sanction for the failure to do so being the exclusion of evidence not supplied, unless the failure was substantially justified or is harmless.

There are limits on some discovery methods—parties may serve no more than 20 interrogatories, and depositions of parties and corporate representatives may not exceed one day of 7 hours (a limitation that does not apply to non-party individuals).

There are also new provisions regarding discovery of electronically stored information (“ESI”), mandatory mediation of discovery disputes on court order, and court control of the discovery process.

The obligations under the amended rules may be modified by trial court judges on a case-by-case basis, thus creating uncertainty; it remains to be seen how active a role each judge will take in overseeing discovery and imposing sanctions.

This is but a broad overview of some of most significant changes to the discovery rules since 1985. Clients and counsel will have to move quickly very early in a case to obtain and voluntarily disclose the information required by the Initial Disclosures. Counsel and client will have to remain vigilant in timely updating disclosures and discovery responses, with any new information obtained by or from the client, or in litigation.

The Kitch Firm is ready to assist in responding to these sweeping new changes. If you have questions about the new discovery rules, please contact your Kitch attorney, or Christina Ginter or Beth Wittmann in the Kitch Appellate Department.

Upcoming Changes To Michigan Discovery Rules Create Significant New Responsibilities For Both Clients And Counsel

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