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Michigan’s New Discovery Rules Part 5

Conclusions and Impressions

1.  Upping Your Game

The impact of these new rules can hardly be overstated. Those who dabble in litigation will need to think seriously about whether they want to put in the effort to stay in the game.  Relying on your paralegal to catch all this?  Good luck.

2.  Types of probate cases that will be impacted

Some types of probate proceedings will be unaffected by these changes. These would presumably include things like:

  • Uncontested petitions to formally open or close a decedent’s estate.
  • Uncontested petitions to allow an accounting.
  • Uncontested petitions to appoint a guardian or conservator.
  • Uncontested petitions for protective orders, including protective orders related to Medicaid planning. (It will be interesting to see if the attorney general’s office demands initial disclosures, and what local courts make of those if they are demanded.)

On the other hand, we can anticipate that these new rules will routinely impact the following types of probate proceedings:

  • Contested petitions to appoint or modify a guardianship or conservatorship.
  • Fiduciary litigation, including petitions to remove and/or surcharge a Trustee or Personal Representative.
  • Contests regarding the validity of a Will or Trust (codicil or amendment).
  • Petitions to recover assets (in which context we will have to remind ourselves that if we include a count of conversion or other traditional circuit court action, doing so will trigger the required initial disclosure).

3.  Multiple Parties

Unlike traditional civil litigation, probate cases often involve many parties, each with their own counsel. Some of the discovery rule limits previously discussed will play out differently in these cases. For instance, a seven hour deposition cap may be problematic where four lawyers are asking questions for four different parties.  I suspect in those cases, the courts will either routinely grant extensions or the multiple litigants will schedule multiple depositions of the same deponent.

4.  The Court Reporter Employment Act of 2020

The obvious solution to the limits on interrogatories is to take more depositions.  I’m ok with that.  I’ve always believed that allowing people to think about their response and have their attorney assist them in framing the response is much less useful than putting the question to them, and probing their response with follow up questions.  But depositions are more expensive.

5.  Cost and Prejudice

These new rules will require more cost to get a case started, particularly the preparation of the required initial disclosure. Our firm, for instance, which has historically attempted to handle both high end will and trust contests along with cases involving the protection of vulnerable adults, will find it harder to take on the low-recovery exploitation cases.  In low dollar exploitation cases, we might anticipate being challenged by motions seeking to contain our discovery efforts based on the limited amount of assets at issue. In other words, I see these rules as harmful to the types of people we often represent, particularly cases involving the exploitation of vulnerable adults of modest means.

6.  Fishing Expeditions

What is and isn’t a “fishing expedition” is often subjective. We initiate litigation at times in which the primary basis for the action is the (what we think is reasonable) belief of our client that there was no way this older person would have done what they are claimed to have done but for the overreaching of a close friend or family member, often combined with that person’s declining capacity.  These are often difficult case to litigate, and the evidence that ultimately carries the day, or at least gets us through summary disposition and to a settlement, is only available after extensive discovery is completed.  Under this new regime, I worry that we will we be unable to put provide sufficient detail in an initial disclosure to survive that long.

7.  Getting Homered

These changes give the trial courts greater power to conclude that discovery requests are unjustified, too expensive, or intrusive. Call me cynical, but that kind of discretion can be used to favor certain firms and lawyers over others.

8.  More Harm than Good

While I am glad to have new tools to beat back the civil litigators who play in probate court with their abusive discovery techniques, in the end, for reasons stated above, I fear these changes will ultimately do more harm than good to the clients we commonly represent.

Michigan’s New Discovery Rules Part 4

In addition to the limitations imposed by the definition of the scope of discovery, the new rules specifically limit certain discovery tools, and more thoroughly address the discoverability of electronically stored information (“ESI”).

Specific Limitations

The new MCR 2.306(A)(3) and 2.306(3) place a seven hour limit on the deposition of a party.

The new MCR 2.309(A)(2) limits the number of interrogatories allowed (without court order) to 20. Each substantive subpart of an interrogatory will be counted separately.

Electronically Stored Information

The term “ESI” is defined at the new MCR 2.310(A)(2) as “electronically stored information, regardless of format, system, or properties. The new MCR 2.310(A)(1) includes ESI in the definition of “documents.”

The new MCR 2.302(B)(6) provides rules regarding the right to demand electronically stored information, rules that again balance the cost and accessibility of such records against their potential value and the reasonableness with which they can be recovered. In the new rule MCR 2.313(D), penalties can arise for the failure of a party or their counsel to take reasonable steps to preserve ESI that might be relevant to a case, which penalties can include jury instructions which direct that the jury presume the missing information was unfavorable to the offending party.

In addition, in cases involving significant ESI discovery issues, a court can require (or party can request) and ESI status conference and discovery plan. MCR 2.401(J).  Pursuant to the new MCR 2.401(J)(3), the attorney who attends this conference must be “sufficiently versed in matters relating to their clients’ technological systems” or have an outside expert present as well.

Tighter Reins

In addition to discovery changes discussed above, additional rule changes are designed to impose tighter controls on litigation and to provide courts with greater oversight. The new tools include more detailed scheduling conference and pretrial conference orders, as well as a rule requiring parties to work together on discovery plans.

A revised MCR 2.401(B) provides trial courts with an extensive 18 point checklist of issues to be addressed at the initial scheduling conference. A similarly detailed checklist is provided for courts’ to use when conducting the final pretrial conference.

In addition, a court can order, or a party can request, that the parties work together and stipulate to a discovery plan. MCR 2.401(C).  Such a plan must address “all disclosure and discovery matters.”

Other Notable Changes

The new MCR 2.301(B) clarifies that discovery requests must be issued so that the responding party has the time allowed for a response to pass before the close of discovery. That means, it isn’t good enough to issue a discovery request before the close of discovery.  This issue comes up often.

Obligations to supplement discovery, including the initial required disclosure are detailed in the new MCR 2.302(E)(1)(a), and penalties for failing to supplement are addressed in a new MCR 2.313(C).

New rules have been inserted that provide a process to non-parties who receive subpoenas to challenge the reasonableness of those requests. MCR 2.305

A new rule MCR 2.411 provides a process for mediation of discovery disputes.

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.

Michigan’s New Discovery Rules Part 2

Proceeding or Civil Action

The distinction between a “probate proceeding” versus a “civil action” which happens to be initiated in a probate court, remains unaltered. MCR 5.101.

For the uninitiated, a probate proceeding is initiated by filing a petition. A civil action is initiated by filing a complaint.  Whether and when it is proper to file a civil action in probate court depends on a variety of factors, a discussion of which is outside the scope of this article.  Suffice to say, such instances occur regularly, and experienced probate litigators often file both types of actions in the same matter.  While probate litigators have always needed to be mindful of where they stand in terms of a proceeding or civil action, these rules make that distinction even more critical in the context of conducting discovery.

Proportional Discovery

Technically, there continues to be a difference between the “scope of discovery” available in a probate proceeding vis a vis a civil action. I say “technically” because in practice the distinction is rarely given any significance.

In a probate proceeding, the scope of discovery remains: “limited to matters raised in any petition or objections pending before the court.” Currently found at MCR 5.131(B). As of 1/1/20, to be found at MCR 5.131(B)(3).

The real change comes from the rewrite of MCR 2.302(B)(1) which defines the scope of discovery in civil actions. The shorthand version of that rule has long been: anything not privileged that is “reasonably calculated to lead to the discovery of admissible evidence.”  It now says:

… any non-privileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its  likely benefit,  the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties’ resources and access to relevant information.   Information within the scope of discovery  need not  be admissible in evidence to be discoverable.

The new rules also provide a process for parties to have a court address whether particular discovery requests are, or are not, justified by the factors laid out above.

This change essentially shifts the burden of proving the necessity or appropriateness of a discovery request from the party (or non-party) receiving it, onto the party issuing it. The practice for many litigators now is to flood the opposing party with extensive requests and let them file a motion for protective order, from which platform they can argue that the requests are overly broad or unduly burdensome.

FOOTNOTE: While one could suggest that these new proportional balance rules are not applicable to discovery in probate proceedings, I believe, as a practical matter, this is not the case. Although the above-cited language comes from the definition of the “scope of discovery” in civil actions, and, as indicated above, the scope of discovery for probate proceedings is separately defined by its own rule, the new probate rules also state that all the discovery rules for civil actions apply to probate proceedings except for the rules regarding required disclosures. MCR 5.131(B)(1). Accordingly, it seems unlikely that a trial judge would entertain the argument that discovery requests in a probate proceedings can continue to operate outside the bounds of proportionate justification that the Supreme Court has seen fit to place on all other forms of discovery.

Michigan’s New Discovery Rules Part 1

Litigation of all types will soon be more complicated and more expensive, probate litigation included. This development comes about because of the extensive revisions to the Michigan Court Rules relating to civil discovery which take effect January 1, 2020.  For those who litigate primarily, these changes will require you to up your game.  For those who litigate less frequently, these changes will invite you to consider whether to stay in the game at all.

It would not be wrong to say that, as a practical matter, the new “required initial disclosure” rules will convert Michigan from a notice pleading state to a something arguably more onerous than code pleading state. At the same time, the availability of discovery tools are being reined in, both by specific limitations on their use, and by a new concepts of proportionality.

I have a lot to say about this topic. I’ve divided my thoughts into five parts (this being the first) and will post these parts over the course of this week. In those five parts I will attempt to provide a broad overview of these new rules, with a focus on the manner in which these rules apply to actions arising in probate courts.

To read the new rules, click here.

If you are especially interested in this topic, I will be leading a discussion on it as part of my annual “Litigation Update” at the ELDRS conference in Crystal Mountain, which takes place October 2-4. Click here for information on the conference, and to register.

Litigation Strategies Part VI: When in Doubt Depose

Most people can’t just look at other people’s emails, tax returns or bank accounts. They can’t ask them questions about their intentions, their prior statements or their relationships with other people, and require them to answer truthfully and completely.  But lawyer’s can – if there is a case pending, and if it is “relevant” to that case.

Among laypeople, discovery is one of the least understood and most frightening aspects of being involved in litigation – and rightfully so. The scope of relevance in a case is anything that is reasonably calculated to lead to admissible evidence. That means, the things the lawyer wants to ask or look at don’t need to be directly admissible in a case – only that by looking at these things, or getting these answers, the response might lead them to something that might be admissible.  That’s pretty broad.

Tools of discovery include: subpoenas, interrogatories, requests for production, requests for admissions, and the granddaddy of them all, depositions.

When I started practicing law I was in awe of, and fell in love with, the deposition. I’m still in love, and if anything, my love has only deepened with time.

As I tell young lawyers coming into the litigation arena, depositions are when you learn your case. Until you sit across the table from someone (a court reporter having already “sworn them in”) and hear them tell their side of the story; watch them fidget as they try to avoid explaining the uncomfortable aspects of their position; see them try to stick to the answers they’ve rehearsed, and dodge the probing follow up questions you present; you really only have a superficial understanding of the strengths and weaknesses of your case.

Laypeople are completely ill-prepared for the process. They want to tell their story, but they fear being tricked by wily lawyers – as they should be, and they are often coached beforehand about how to respond to critical inquiries.  As a result, the process is often unpredictable.  Truths may come spilling out of nowhere. Veils might come tumbling off.  Witnesses often break free of their boundaries and take off on tangents that illuminate the core dynamics behind the case.  Conducting a deposition can be exhausting, but at the same time exhilarating.  Maintaining composure and staying focused are key.  Preparation is critical, but remaining in the moment and ready to follow tracks you didn’t see coming is equally important.

For young lawyers, being responsible for depositions can be intimidating. The other attorney may be more seasoned and know more tricks of the trade – tossing out objections, asking leading questions of a non-adverse witness, attempting to badger your client into statements they didn’t intend to make.  Depositions can become heated between lawyers as each tries to control the atmosphere.

There is an art to deposing a witness, and skills necessary to preparing your client for their own deposition. Some of that can be taught, but a lot of it can only be learned by doing.  From my way of thinking, if you’re going to litigate, you have to get comfortable with – no – learn to love –  this key element of the discovery process – the deposition.