Simon PLC Attorneys & Counselors – December 2019 Memorandum
Michigan Court Rules: Scope of Discovery Proportionality Considerations
Bloomfield Hills, Michigan – The state of Michigan has enacted major changes to its civil discovery rules which take effect January 1, 2020. The most significant changes include revisions to the scope of discovery. The familiar phrase “reasonably calculated to lead to the discovery of admissible evidence” is banished from the lexicon. That phrase had become shorthand to justify expansive discovery. The rules now provide that the scope of discovery includes considerations of proportionality, not just relevance.
MCR 2.302(B)(1) now provides that, “Parties may obtain discovery regarding 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.”
Beyond relevance, proportionality considerations include the burden or expense of the proposed discovery compared to 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.
While the phrase “parties’ resources and access to relevant information” may sound like a vague standard, this is a recognition that often in cases there is “information asymmetry” in which one party has more information than other parties, and the parties with less information or access to it depend on discovery to obtain relevant information. Parties who have more information are often asked to produce significantly more than they seek or are able to obtain from a party with less.
The asymmetry of the parties has been corrected with the requirement of the parties’ initial disclosures to one another. Further proportionality considerations prevent a party with significantly less information from imposing unreasonable demands on the party who has extensive information, or the converse, a party with significantly more information taking unreasonably restrictive positions in response to the other party’s requests.
While it will take some time for Michigan’s appellate courts to provide guidance on these new rules, the concept of proportionality is established in federal court rules and cases. There are a long list of opinions at the federal level that emphasize the importance of parties sharing the “how” and “why” behind their discovery objections so that parties can work together to determine a balance between the cost and benefit of the discovery requested.
In order to effectively litigate and defend claims, counsel and client must work together to maximize effective discovery that both relevant and proportional to the case. Simon PLC Attorneys & Counselors stands ready to assist our clients in navigating the new discovery court rules. Please contact us for further information, and definitely check out the guidebook published by the Michigan State Bar: https://www.michbar.org/file/generalinfo/civildiscovery/civildiscovery_guidebook.pdf
1 See for example Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *6 (D.S.D. June 3, 2016) (court determined that defendant insurance company’s greater access to proof weighed in favor of finding that plaintiff’s discovery requests were proportional); see also Labrier v. State Farm Fire & Cas. Co., 314 F.R.D. 637, 643 (W.D. Mo. May 9, 2016) (court considered defendant’s “national presence, with sophisticated access to data” in ordering that it answer plaintiff’s interrogatories); Albritton v. CVS Caremark Corp., 2016 WL 3580790, at *4 (W.D. Ky. June 28, 2016) (court held that information in the sole possession of defendant is a fact weighing in favor of proportionality; the “touchstone” of revised scope of discovery); see also Kelley v. Apria Healthcare, Inc., 2016 WL 737919, at *4 (E.D. Tenn. Feb. 2, 2016) (court considered defendant’s lack of access to confidential final settlement agreement in ordering production subject to protective order).
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