By Gregory Nicholson
On June 19, 2019, the Michigan Supreme Court approved sweeping changes to their Civil Discovery Rules that will take effect starting January 1, 2020. The substantial change to Michigan’s discovery rules comes just a few years after new amendments to the Federal Rules of Civil Procedure went into effect, which aimed at making the discovery process “just, speedy and inexpensive.” As it relates to Michigan, the main goal the Michigan State Bar seeks to accomplish is making discovery more efficient and less burdensome, while also increasing everyone’s access to the courts. The Michigan State Bar is hopeful that these changes will make it easier for citizens to resolve their legal disputes in a cost-effective manner. Moreover, these new rules will emphasize e-discovery which addresses the need for parties to litigation to become more involved and cooperative in the discovery process.
What is e-discovery? E-discovery refers to the electronic aspect of “identifying, collecting and producing electronically stored information (ESI) in response to a request for production in a lawsuit or investigation.” E-discovery includes the production of emails, documents, presentations, databases, voicemail, audio and video files, social media, web sites, and many other forms of electronic information. The significance of obtaining electronic information is, unlike hardcopy evidence, these documents contain a plethora of information including time-date stamps, the drafter and recipient info, time and date of generation, and many other file properties.
While Michigan believes that the changes to these rules will have positive impacts throughout legal disputes, there is still a concern of how courts, judges, and attorneys practicing in Michigan state courts will adjust to these rules. Moreover, the court and parties to these lawsuits will have to educate themselves about these new e-discovery rules and any issues or penalties accompanying them.
One of the largest changes that implicate e-discovery is the change to rule Michigan Court Rule 1.105. This rule requires all parties, counsel and the court to “secure the just, speedy and economical determination of every action.” Furthermore, the change also includes a clear standard of imposing sanctions for the loss of electronically stored information (ESI) while also encouraging early and regular case management through the use of discovery planning conferences, discovery mediation and appointment of a discovery/ESI specialist.
While these changes will not take place until January 1, 2020, the Michigan bar has already made efforts to educate the legal community. First, the Michigan bar has set up a website that helps explain the changes in the Michigan rules of discovery. The website includes a calendar of events to help explain the changes and also a guidebook that breaks down all of the changes. While the guidebook provides practicing attorneys with the resources to become technically competent with the discovery rules, the Michigan state bar’s events will ultimately play a central role in the “re-training” of attorneys. To name just a few organization that the state of Michigan anticipates assisting in the “re-training” of attorneys, judges and other court personnel are the State Bar of Michigan Business Law, the Kalamazoo County Bar Association, the Michigan Defense Trial Counsel Winter Meeting, and the Association of Certified E-Discovery Specialists.
Although the anticipated efforts by Michigan are valiant, the Michigan judiciary can only hope that their central role in this education brings about positive change. According to B. Jay Yelton II, a partner at Warner Norcross + Judd, “[p]eople aren’t filing lawsuits because they can’t afford this system, and I think it strikes all of us that that’s a shame, that the system’s not working as well as it should.” He further states “[p]eople are avoiding the system because of the outdated discovery rules that end up burdening the whole process to the point that you never get to a trial, you never resolve the issues.”
While we have to wait until 2020 to see if the discovery rules bring about the changes that Michigan hopes for, no matter what these efforts are important for the state of Michigan. As mentioned previously by Yelton, the price of proceeding with a legal dispute involves high costs that discourage litigation and prevent the resolution of legitimate issues between parties. However, a legitimate concern does exist in regards to the “re-training” and how some court personal may not adapt to the changes as well as other individuals While this concern is significant, it is important to remember the speed, cost-effectiveness, and justness of the new discovery rule outweighs any disadvantage that may result.
Student Bio: Gregory Nicholson is a third-year student at Suffolk University Law School and a Blog Editor of the Journal of High Technology Law. He graduated from the University of Connecticut in 2017 with a Bachelor of Arts in Political Science and Economics.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
