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Michigan’s New Discovery Rules Part 3

Required Disclosure

The changes to the scope of discovery are dramatic; but the impact of those changes pales in comparison to the new rules regarding required disclosures.

What

Under these new rules, specifically MCR 2.302(A)(1), in every civil action that is filed, the party filing the action (or a counterclaim) must also serve a “Required Initial Disclosure” which provides the opposing party with:

(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, including, if necessary for a reasonable understanding of the claim or defense, citations to relevant legal authorities;

(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—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(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, unless the use would be solely for impeachment;

(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, unless the use would be solely for impeachment. The description must include the name and, if known, the address and telephone number of the person who has possession, custody, or control of the material;

(f)  a computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying as under MCR 2.310 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;

(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, including self-insured retention and limitations on coverage, indemnity, or reimbursement for amounts available to satisfy a judgment; and

(h)  the anticipated subject areas of expert testimony.

The new MCR 2.302(A)(2) and (3), place additional requirements on attorneys initiating No-Fault and Personal Injury actions.

When

In a civil action, pursuant to the new MCR 2.302(A)(5), this disclosure must be filed within 14 days from the date that the opposing party answers or 14 days after they appear, if a party files an appearance after an initial answer is filed.

Who

In a civil action, pursuant to the new MCR 2.302(A)(5), this disclosure must be served on all parties who appear.

Required Disclosures in Probate Proceedings

In probate proceedings, the initial required disclosure is not mandatory. Rather, it becomes mandatory if one of two things occur:  (1) an interested person files and serves a demand for it, or (2) a court orders it after someone objects or contests the petition that has been filed.  MCR 5.131(2).  In other words, it is not always required, but it is readily available and will presumably be called for in most contested probate proceedings.

In terms of “who,” pursuant to the new MCR 5.131(B)(1), all interested persons are considered parties to a probate proceeding. And then, pursuant to our new MCR 5.131(B)(2)(a)(ii), when required, the disclosure must be served on all interested persons who object or contest the petition.  When the initial disclosure is a product of a Court order, as opposed to a party demand, the Court itself may define the parties entitled to receive them.

Timing for initial disclosures in probate proceedings are defined in the new MCR 5.131(B)(2)(c). Essentially the disclosure must be served within 14 days after the first hearing, or 21 days after the Court orders them in those cases where the disclosure is a product of a Court order.  In addition, in probate proceedings, an objecting party and respondent must serve disclosures within 14 days after the petitioner’s disclosures are due, or 28 days after a demand or objection is filed.