On January 1, 2020, sweeping changes to the discovery provisions of the Michigan Court Rules went into effect. The changes more closely align the Court Rules with the Federal Rules of Civil Procedure. While some new requirements will be familiar to companies who have been before the Macomb and Oakland County business courts, the changes will be new to many state court litigants.
Among the most significant, and the one warranting particular attention here, is the requirement to make “initial disclosures” without being served with a formal discovery request. Within 14 days of the filing of the defendant’s answer, the plaintiff is now required to provide the following information:
(a) the factual basis of the party’s claims and defenses;
(b) the legal theories on which the party’s claims and defenses are based[;]
(c) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information[;]
(d) a copy—or a description by category and location—of all documents, ESI, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses[;]
(e) a description by category and location of all documents, ESI, and tangible things that are not in the disclosing party’s possession, custody, or control that the disclosing party may use to support its claims or defenses[;]
(f) a computation of each category of damages claimed by the disclosing party[;]
(g) a copy (or an opportunity to inspect a copy) of pertinent portions of any insurance, indemnity, security equivalent, or suretyship agreement under which another person may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment[;] and
(h) the anticipated subject areas of expert testimony.
MCR 2.302(A). Given the scope of required disclosures, companies should have a firm grasp on the information (and sources of information) forming the basis for their complaint well in advance of filing.
Other key changes include adoption of the Federal Rules’ “proportional” discovery standard and a limitation on the number of certain types of discovery requests that can be served. These changes are also likely to alter the strategic decision-making of companies litigating in Michigan Courts. Please stay tuned for additional analysis, along with tips and pointers, as these rules continue to be implemented. The Demorest Law Firm, PLLC offers a wide range of business litigation services. Please contact our office to see how the attorneys at our firm can help.
