Michigan’s New Civil Discovery Rules

Episode Notes

Transcript

State Bar of Michigan: On Balance Podcast

Michigan’s New Civil Discovery Rules

09/26/2019

 

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Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

 

Take it away ladies.

 

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Tish Vincent: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I am Tish Vincent.

 

JoAnn Hathaway: And I am JoAnn Hathaway. We are very pleased to have Kathryn Hennessey, Public Policy Counsel at the State Bar of Michigan join us today as our podcast guest to talk about the New Civil Discovery Rules that will become effective January 1 of 2020.

 

So Katie, would you share some information about yourself with our listeners.

 

Katie Hennessey: Sure. Well, first of all, thank you so much for having me today. It’s a pleasure to come here to talk about the Civil Discovery Rules. I am a lawyer, a Public Policy Counsel at the State Bar of Michigan. I went to Harvard Law School and then worked in some major law firms in Chicago, DC and Baltimore, and then I moved to Michigan and I have had the pleasure to work at the State Bar of Michigan for about three years now.

 

JoAnn Hathaway: Thank you. We see that the Supreme Court recently adopted amendments to the civil discovery process in Michigan, how was the State Bar involved with those rule amendments?

 

Katie Hennessey: Well, this has been a many year process with the State Bar. First of all, as a whole, lawyers, litigants and judges were all frustrated with the civil discovery process; it was too costly, inefficient and it was really keeping people out of Michigan Courts.

 

So we had some talks with the Michigan Supreme Court about these issues and that court encouraged us to put together a work group to kind of look at the rules and really see what problems we could solve through changing the rules.

 

So then State Bar President Lori Buiteweg put together the Civil Discovery Court Rule Review Committee and that was composed of attorneys, judges, court administrators, and starting in 2016 they conducted a review of the rules and came up with amendments to try to address them with the changes.

 

But the process didn’t stop there. We then, after we had an initial draft of the rule amendments, we sought feedback from all members of the State Bar and various stakeholders, such as sections that are involved in litigation, the different trial attorney groups, the Judges Associations and we sought feedback from them and got some really helpful feedback and then revised the rules again.

 

And then we sent the rule proposal to the State Bar Representative Assembly that considered the rule proposal and they approved it with overwhelming support and then we submitted it to the Michigan Supreme Court.

 

Tish Vincent: So Katie, what are some of the big changes to the civil discovery in the rules?

 

Katie Hennessey: Well, the new rules are intended to streamline the discovery process and to make the process more cost-effective and efficient, to increase access to our courts. While the rules borrow many of the concepts that are used in the federal rules, it does not by any means adopt the federal rules as a whole. They are truly tailored to address the needs of Michigan Courts.

 

For example, in Michigan Courts there is a lot more of self-represented litigants that participate in the court system compared to the federal system. So some of the biggest changes that practitioners are going to see with the rules is the adoption of a proportionality standard in determining the scope of discovery.

 

So this means that judges can use some commonsense to kind of figure out how much discovery does this particular case need, and it’s not just based on the amount of controversy, it’s not just if you have a multimillion dollar claim, the doors of discovery open wide open, but rather they look at a number of factors, including the complexity of the issues in the case, as well as the importance of the issues at stake and the parties’ relative access to relevant information, and they use these factors to kind of tailor the scope of discovery to what’s appropriate in the case.

 

So you could have a multimillion dollar case, but a very simple legal issue in which the court may find it appropriate to have a narrow scope of discovery or you could have a civil rights case with big important issues at stake, but maybe not a lot of money, but that deserves a wide amount of discovery and a lot of discretion with discovery.

 

JoAnn Hathaway: Interesting.

 

Katie Hennessey: Then some of the other things that practitioners are going to see is that the courts have adopted an initial disclosure requirement in cases and this is meant to get some of the foundational information about the case out at the very beginning, get some discovery out. Within 14 days of the defendant answering the complaint, the plaintiff would have to disclose the initial disclosures and then 14 days after that the defendant would then have to provide the information required in the initial disclosures.

 

(00:05:12)

 

And this is just part of trying to get this information out as early as possible. This will allow parties to just be more informed as they continue through the pretrial process, including figuring out whether a case needs to settle and to better tailor some of the subsequent discovery.

 

Tish Vincent: Katie, can you speak a little bit more as to the format those initial disclosures might take, is it going to be a form, is it going to be something that is potentially filed with pleadings?

 

Katie Hennessey: So the rules actually go through the different information that you need to provide, and so you look at the rule and for general civil cases there is a list of different types of information that the plaintiff and defendant will need to disclose, and then there is special rules for like no-fault cases. So it will be expected that there will be an exchange of information.

 

So when the plaintiff’s deadline is due, the plaintiff will provide this information. It won’t necessarily be a form or a pleading, courts prefer to stay out of discovery as much as possible, so it will be an exchange between the parties. So the plaintiff will send it to the defendant and then when it’s the defendant’s turn, the defendant will send it to the plaintiff.

 

There is also going to be some changes to the process of — to some of the discovery rules that we are used to using. For example, there is going to be limits on interrogatories and this has been kind of a big issue with people and when we got feedback, some people were like whoa, whoa, whoa, don’t change my interrogatory limit, but we really think this is going to work out quite well.

 

So in the rules there are 20 interrogatories for general cases and 35 for domestic relations cases, and the reason that we thought that it makes sense to limit the interrogatories is that you are already getting a lot of the information up front with those initial disclosures. So then you can really use the subsequent discovery tools to pinpoint the additional information that you need.

 

And so instead of this practice where sometimes practitioners will send 200 interrogatories in every case and that they are not tailoring them at all and quite honestly, the information that you are getting in response isn’t really that helpful. The committee decided and then the court ended up adopting this limit on interrogatories to hopefully make them a little more useful and to have practitioners think about them before just printing off their 200 generic interrogatories.

 

And so one of the guiding principles of these rule amendments really was to get parties thinking about discovery early and often throughout the process and using these tools as effectively as possible so we are not wasting money responding to 200 interrogatory requests, but we are really — we have tailored discovery and you are getting helpful information to your case to move it forward or to allow parties to make more informed decisions about how they want to proceed with their cases.

 

JoAnn Hathaway: It seems like it would introduce a lot of efficiencies if it is followed the way that it is planned.

 

Katie Hennessey: We certainly hope so.

 

Tish Vincent: Can you speak to judicial discretion with regard to sanctions?

 

Katie Hennessey: Oh, sure. One of the things that our judges on the committee particularly, they were frustrated, sometimes they didn’t have discretion for the sanction to impose, like when somebody is abusing the discovery process, and maybe they were required — you get particular situations where if you are required to give a sanction and you don’t have a broad scope of choices, then they are kind of like, well, I don’t think it deserves this extreme sanction, I would rather — it would make more sense to do something else.

 

So what the rules are trying to do is to put some commonsense and some leeway in the discovery — in dealing with discovery disputes and discovery abuses so that you can get the right sanction if it’s necessary, for the right circumstance, because judges are in the best position to kind of — to make that decision, because they have been living with the case and the parties.

 

JoAnn Hathaway: Somewhat specific to what the sanctionable behavior might be?

 

Katie Hennessey: Yeah, so they can address the particular issue.

 

JoAnn Hathaway: It’s very interesting. You mentioned that the court delayed the effective date of the rules to provide practitioners time to get up to speed on the rules, on the new rules, what resources are available for members to start getting up to speed on the change?

 

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Katie Hennessey: Well, one of the things that the State Bar is really excited about is the Civil Discovery Resource Center. Now, this is a page on our website that is purely committed to civil discovery and the new rule amendments and we have events listed for various organizations that are holding events, but we also have a number of resources that we are excited to share with attorneys and anyone who is going to be engaged in the civil discovery process.

 

So on this website you are going to find — first we have — we are going to be having a series of Michigan Bar Journal articles dedicated to the Civil Discovery Rules. The first one just came out in the September issue and that’s been written by Dan Quick, who was the Chair of the Civil Discovery Committee and that’s kind of a general overview of what the rule changes are.

 

And then in next month, October’s issue, Mathew Kobliska and George Strander will also be having shorter articles dealing with the changes to domestic relations rules and the probate rules.

 

And then finally, the November issue will deal with the rules for juvenile and child abuse and neglect proceedings.

 

Tish Vincent: Are there other resources available on the Civil Discovery Resource Center to provide more detail to members?

 

Katie Hennessey: Sure. We have been fortunate enough to partner with a number of different organizations to provide resources to attorneys and other litigants. First of all, just yesterday I was at ICLE Studios in Ann Arbor to watch Judge Christopher Yates and Dan Quick film a webinar that ICLE and SBM have partnered together to provide to our members for free.

 

It will take a few weeks to get that webinar available, but having sat through that webinar, I would say it would be very beneficial for everyone to watch and I felt like I learned things that I didn’t know, even though I have been living with this project for over three years at this point.

 

In addition, we have partnered with attorneys at Dickinson Wright and Warner Norcross & Judd as well as the Association of Certified E-Discovery Specialists to provide a guidebook on the Civil Discovery Rules; that will also be available for free for all of our members. And this guidebook, it’s hot off the presses, it was just printed two days ago. It goes through each rule, discusses the rule, where the rule is borrowing from federal discovery rules, it has explanations and case law included as well as practice tips.

 

We will be unveiling the guidebook on September 27 at the Association of Certified E-Discovery Specialists Detroit Chapter Symposium in Detroit, and then we are going to have a PDF of that available on the Civil Discovery Resource Center that will be free to all members, and then if people want paper copies, we haven’t quite got the details figured out with that, but we are hoping to provide it just at the cost that it takes for printing and mailing.

 

JoAnn Hathaway: And what else can practitioners do to prepare Katie?

 

Katie Hennessey: Well, I am happy to report that there is a lot going on with civil discovery right now. A lot of bar associations, local bars and specialty practice bars have started having programs dedicated to these new rules.

 

For example, the Oakland County Bar and the Grand Rapids Bar have already held events, but I know a number of other bars are planning on holding events, they may not have all the details in place yet, but I have been told that the Kent County, Ottawa County and Wayne County Bar Associations will be holding events as well as the Michigan Defense Trial Counsel and the Michigan Association for Justice as well as an event in October from the litigation section.

 

Our Resource Center is updated as we learn about events and we try to provide links to kind of get the word out on the different opportunities that are available. I know that even though the Oakland County Bar Association event has passed, they do have — you can watch it via webinar for a fee on their website. So some of these — so don’t despair if you have missed your local bar association event, sometimes there is other opportunities to watch it on video or other things.

 

And I should also say on our website right now we have been fortunate enough that the Michigan Judicial Institute has also allowed us to link their video. They provided an event. Now, it’s more tailored for judges specifically, but they had an event, probably at the end of August and I know Judge Jim Alexander, Judge Chris Yates and Dan Quick were all involved with that event as well. And so you can just go to www.michbar.org/civildiscovery and you can get a link there too, and we are just adding resources as we get those available.

 

JoAnn Hathaway: Excellent. It sounds like a wealth of resources that attorneys can access and learn about it. I was just wondering how the judges are receiving it. Are they excited about the changes, do you know?

 

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Katie Hennessey: I think so. Actually I was — I just saw the feedback from the Michigan Judicial Institute webinar and people were very positive about the change and then just joked that they would just contact Judge Yates when they had questions about it. So it’s a change. Change is hard for everyone and I am sure that there are going to be some bumps in the road, but we are hoping that this really does improve the discovery process in Michigan.

 

And one thing that we are actually going to check to see if we are improving it, because we are working with the State Court Administrative Office to follow data on the cases; we haven’t quite gotten the details of that figured out yet, but the State Bar will be tracking data and so we are really going to be testing to make sure okay, we thought these changes were going to bring these efficiencies. We thought we were going to make our courts more accessible, now how have we done? And then to the extent that changes need to be made, these rules are never set in stone and there can always be tweaks.

 

JoAnn Hathaway: Excellent. That’s really wise I think to get that feedback to see if it’s — how it’s going.

 

Tish Vincent: Well, it looks like we have come to the end of our show. We would like to thank our guest today, Kathryn Hennessey for a wonderful program.

 

JoAnn Hathaway: Katie, if our guests would like to follow up with you, how can they reach you?

 

Katie Hennessey: They can email me at [email protected].

 

Tish Vincent: Thank you Katie.

 

Katie Hennessey: Thank you.

 

Tish Vincent: This has been another edition of the State Bar of Michigan On Balance Podcast.

 

JoAnn Hathaway: I am JoAnn Hathaway.

 

Tish Vincent: And I am Tish Vincent. Until next time, thank you for listening.

 

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