Although not specifically addressed in the amended Michigan Court Rules, a party and the court should always consider the benefits of “staging” discovery in the development of a litigation plan. Proportional and staged discovery are two independent concepts. Proportional discovery has been discussed as a reasoned methodology for limiting certain burdensome or certain wasteful discovery. Staged discovery merely involves delaying more costly and burdensome discovery until after the initially staged discovery focuses on, for example, the issue of liability or other threshold legal and factual issues.
Greater use of staged litigation— for example, litigating and resolving some potentially case-dispositive issues before discovery on other more discovery-intensive issues—is a potent and effective practice for the trial courts and counsel to consider and recommended as a best practice by the Supreme Court Administrative Office.
The Caseflow Management Guide identifies another beneficial context for the use of staged discovery:
The court should limit the nature and scope of discovery according to the management needs of the case. Each of the following approaches is aimed at minimizing the time and expense devoted to discovery while promoting non-trial dispositions at the earliest point in the process…. Developing a process where initial discovery focuses on the information needed for settlement with discovery for trial provided only in cases that are likely to be tried.
In light of the amendment to MCR 1.105, the Michigan Trial Courts will continue to be receptive to appropriate discovery staging practices:
These rules are to be construed, administered, and employed by the parties and the court to secure the just, speedy, and economical determination of every action….
Practice Tips Regarding Staging Discovery
Staging discovery in appropriate cases is a tool for counsel in reducing a client’s case costs.
If unresolved or disputed legal or factual issues will pose a significant impediment to a successful mediation, consider the use of staged discovery to address those issues before engaging in the mediation. If the mediation is unsuccessful, the parties can always pursue the additional discovery necessary to prepare for a trial. A premature mediation will all too often be a fruitless exercise and a waste of your client’s time and money.
If you believe you have been ordered to mediation prematurely, this should be raised with the mediator before scheduling the mediation. The mediator can effectively work with the parties and the court to ensure the parties are adequately prepared to engage in a meaningful mediation.
Always discuss with the your mutually selected neutral the design of any mediation process and whether other ADR techniques might be beneficially staged, modified or incorporated into the mediation process.