State Rules: Michigan

EDRM work product is not legal advice and does not reflect the opinions or positions of the Advisory Council, Project Trustees or Individual Contributors.

Contributor:
Jay Yelton, Of Counsel, Warner Norcross + Judd LLP

After 30+ years as a litigator and manager of eDiscovery teams, Jay now serves as a discovery master and mediator where he helps clients solve disputes quickly, cost-effectively and confidentially. In addition, he assists parties to design and implement proportional discovery plans and assists parties and courts to resolve discovery disputes and settle litigation claims. Jay is recognized by Best Lawyers in America for both eDiscovery and Litigation, and he serves as Chairman of the Board for the Detroit Chapter of BARBRI’s eDiscovery Association (Association of Certified eDiscovery Specialists), as a member and project leader for the Global Advisory Council for E.D.R.M. and as a member and project leader for The Sedona Conference.

Michigan Rules

Michigan Rules of Civil Procedure – https://www.courts.michigan.gov/rules-administrative-orders-and-jury-instructions/current-rules-and-jury-instructions/michigan-court-rules/

Specific Rules with ESI Content:

MCR 2.302(A)(1)(D) Required Initial Disclosures
MCR 2.302(B)(5) Duty to Preserve ESI
MCR 2.302(B)(6) Limitation of Discovery of ESI
MCR 2.305 Discovery Subpoena to a Non-Party
MCR 2.310(A)(2) Requests for Production of Documents (Definition of ESI)
MCR 2.313(D) Failure to Preserve ESI
MCR 2.401(B)(d) Early Scheduling Conference and Order
MCR 2.401(B)(2)(b) Scheduling Order
MCR 2.401(J) ESI Conference, Plan & Order
MCR 2.411(H) Mediation of Discovery Disputes
MCR 2.506 Subpoena, Order to Attend

Local rules in Michigan District Courts

Eastern District

Western District

https://www.miwd.uscourts.gov/local-rules-practice-and-procedure
Standing Order Regarding Discovery in Criminal Cases: https://www.miwd.uscourts.gov/sites/miwd/files/Admin%20Order%2020-RL-066.pdf

Michigan eDiscovery Resources

Michigan Bar Civil Discovery Guidebook – https://www.michbar.org/file/generalinfo/civildiscovery/civildiscovery_guidebook.pdf

ICLE Online Book: Michigan Civil Procedure*
Chapter 10 – Discovery of Electronic Evidence
https://www.icle.org/modules/books/chapter.aspx?Chapter=10&book=2012555670&lib=litigation

ICLE Online Book: Michigan Basic Practice Handbook*
Chapter 13 – Pretrial Discovery
https://www.icle.org/modules/books/chapter.aspx?lib=general&book=2007553820&chapter=13&q=discovery

*ICLE requires paid membership to access the content.

Practice Pointers

Effective January 1, 2020, Michigan amended twenty-three court rules governing discovery in general civil matters, domestic relations, juvenile, and probate matters. These amendments are a comprehensive change intended to streamline the discovery process to make it less expensive and more efficient. New disclosure requirements and early ongoing judicial case management will allow parties to get information and make some informed decisions about how to proceed with their case sooner. These amendments include:

Mandating that the rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and economical determination of every action” under MCR 1.105;

Adopting a proportionality standard in MCR 2.302(B) to determine the appropriate scope of discovery, and giving courts express authority to make discovery of all electronically stored information (“ESI”) subject to cost-shifting under MCR 2.302(b)(6);

Adopting initial disclosure requirements under MCR 2.302(A) (unless exempt under MCR 2.301(A)(4)), and additional disclosures for no-fault and personal injury cases;

Adopting a presumptive limit of twenty interrogatories in general civil cases under MCR 2.3009(A)(2), and a limit of thirty-five interrogatories for domestic relations actions under MCR 3.201(C);

Codifying sanctions available for failure to preserve and produce ESI under MCR 2.313(D);

Facilitating early and active judicial case management through, inter alia, early scheduling conferences and final pre-trial practice, discovery planning and ESI conferences under MCR 2.401(B), (C), (H), and (J); and

Under MCR 2.411, the parties may stipulate to, or the court may order, the mediation of discovery disputes. In cases involving complex issues of ESI, the court may also appoint an expert.