MCR 2.411(H): An Opportunity to Reduce Your Clients' Litigation Costs and Expenses
Effective January 1, 2020, who and how litigants resolve discovery issues under the court rules is changing in Michigan. With the addition of a new provision – MCR 2.411(H) – the Michigan Supreme Court ordered: “The parties may stipulate to or the court may order the mediation of discovery disputes….”
Taking a Cue from the Oakland County Business Court
For the past several years, Oakland County Business Court Judges James M. Alexander, Wendy L. Potts, and her successor, Judge Martha D. Anderson, have required the mediation of discovery disputes on the day of the scheduled hearing on a motion to compel. The process has involved the use of experienced volunteer mediators who receive and review all motions to compel and responses before the hearing date.
On the date of the scheduled hearing, the mediator meets with counsel (the parties do not participate) in a designated conference room at the court to determine if the motion can be resolved in whole or in part. If it is resolved, counsel immediately submits a stipulated order to the court. If it cannot be resolved in whole, counsel will submit a stipulated order on the issues that have been resolved, and the judge will hear and decide the remaining issues.
On average, the mediator spends 25 minutes with the parties to explore a resolution of the discovery motion. The mediator has absolutely no authority to mandate a particular resolution or to force counsel to reach any compromise – the mediation is purely facilitative; it only assists the parties to determine if a resolution of the motion can be achieved.
It has been ADRoit’s experience (confirmed by Judge Alexander) that this facilitation process successfully resolves the discovery dispute approximately 75% of the time.
Michigan Supreme Court Adoption
Borrowing the “best practice” established by the Oakland County Business Court, the Michigan Supreme Court adopted a recommendation of the State Bar Committee on the Discovery Court Rules to amend MCR 2.411. Effective January 1, 2020, the circuit courts will be empowered to order the mediation of all discovery disputes.
The average discovery motion practice (excluding ESI discovery disputes) involves at least these activities and estimated time frames:
Drafting the Motion to Compel – 5.0 to 10 hours
Seeking meaningful concurrence on the Motion to Compel – 0.5 hours
Filing and Serving the Motion to Compel – 0.5 hours
Review of the Response to the Motion to Compel – 2.0 to 4.0 hours
Drafting a Reply to the Response – 2.0 to 4.0 hours
Preparation for oral argument on the Motion to Compel – 1.5 to 3.0 hours
Attendance at the Motion to Compel (including travel to the court, waiting for the Motion to be called, oral argument, and drafting the Order reflecting the court’s ruling) – 5.0 hours
Total time of the moving party – 16.5 hours to 27.0 hours
Total time of the responding party – 16.5 hours to 27.0 hours
Total time spent by all counsel (assuming one plaintiff and one defendant) – 33.0 hours to 54.0 hours
Total litigant cost assuming an average billing rate of $300.00 per hour – $9,900.00 to $16,200.00
Based upon ADRoit’s experience as volunteer discovery mediators in the Oakland County Business Court, if a discovery mediator is used under MCR 2.411 (H), there would ordinarily be no need to prepare a formal motion to compel or a written response. (If interrogatory responses or responses to a request for production are at issue, previously prepared pleadings can be provided to the discovery mediator).
Instead of a personal meeting with counsel, most issues can be thoroughly discussed and vetted during a videoconference or telephone conversation with counsel (again, there is typically no need for the parties to participate) of no more than one hour. As the parties outline their respective positions during the conference call, the experienced mediator – a current or former litigator – can assist them in formulating a resolution of all or the vast majority of the disputed discovery issues.
Such a scenario would typically result in the following time and projected expense:
Scheduling a conference call with the discovery mediator – 0.5 hours
Providing the mediator with any needed background materials – 0.5 hours
Conference call with the discovery mediator – 1.0 hours
Drafting an order reflecting the agreement of counsel – 0.5 hours
Total time of moving party – 2.5 hours
Total time of responding party – 2.5 hours
Total time of all counsel (assuming one plaintiff and one defendant) – 5.0 hours
Total estimated time of the compensated discovery mediator – 2.5 hours
Total litigant cost assuming an average billing rate of $300.00 per hour by counsel and the mediator – $2,250.00
The experienced mediator can certainly assist counsel in dealing with principles of “proportionaility” and other new requirements in Michigan’s amended court rules. More complicated discovery disputes, such as ESI issues, may well take longer and require the assistance of a mediator specifically knowledgeable of ESI matters.
Discovery and discovery disputes are two of the most significant drivers in the cost of litigation. To the extent these expenses can be curtailed with the judicious use of a discovery mediator, counsel is well advised to consider this option.