With the promulgation of Michigan Supreme Court Order 2018-19, many significant and important amendments to the Michigan Court Rules will become effective January 1, 2020. In this post, we look at the rule regarding initial disclosures and how lawyers may need to consider their current litigation approaches.
In the vast majority of cases filed in the circuit courts, counsel for the plaintiff must file initial disclosures within 14 days after a response to the complaint. The defendant “must serve its initial disclosures within 14 days after the opposing party’s disclosures are due or 28 days after the party files its answer, whichever is later. According to MCR 2.301(A)(1), “In a case where initial disclosures are required, a party may seek discovery only after the party serves its initial disclosures…” The cases exempted from the initial disclosures are quite limited.
The initial disclosures required by Rule 2.302(A) are more extensive than the disclosures called for in Fed. Rule Civ. Pro. 26(a)(1)(A). In addition to witness information, document descriptions, damage calculations, and applicable insurance agreements, the disclosures in the amended Michigan Court Rules call for the factual basis of the party’s claims and defenses, documents and electronically stored information (ESI) in and not in the disclosing party’s possession, and the anticipated subject area of expert testimony. In No Fault and Personal Injury cases additional initial disclosures are required.
MCR 2.302(A)(6) identifies the parties’ initial disclosure obligations:
A party must serve initial disclosures based on the information reasonably available to the party. However, a party is not excused from making disclosure because the party has not fully investigated the case or because the party challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
The parties also have a duty to supplement their disclosures (as well as other discovery) in a timely manner.
It appears the new disclosure requirements are intended to accomplish at least two purposes: to jump start the litigation (particularly in no fault and personal injury cases) and to reduce the number of discovery disputes.
Practice Tips Regarding Initial Disclosures
Any party engaging in gamesmanship or holding back trial “surprises” risks various sanctions if a trial court determines the initial disclosure or supplemental disclosure was incomplete or not timely made. MCR 2.313(A)(5-6). When there is the need to supplement it may be prudent for the supplementing party to document the file to establish that any initial disclosure or supplementation was, in fact, timely and reasonably made. It is not difficult to predict disputes will arise as to whether an initial disclosure was reasonable or supplementation was timely made.
The practice of serving discovery with the complaint or the answer to the complaint will need to change; a party may not request discovery until its initial disclosure has been made.
The amended rules may provide greater incentives to engage in pre-complaint mediation. The degree of diligence of the initial pre-complaint investigation will dictate the scope of that party’s initial disclosure. Prior to the filing of a complaint, and after evaluating the scope of the mandatory initial disclosures required, it may be deemed preferable to consider the wisdom of a pre-complaint mediation, which will offer greater control over the timing certain information is disclosed.
When the parties voluntarily choose to pursue a pre-complaint mediation, the parties can always stipulate to make the mutual initial disclosures required by MCR 2.302 (A)(1)(a-h), or otherwise voluntarily agree to exchange other information and documents as a condition precedent for the mediation. When necessary the parties can protect any disclosed information with a protective agreement that can later become a protective order entered by the court if the mediation is unsuccessful.