As January 1, 2020, draws closer, litigators would be wise to consider how the the promulgation of Michigan Supreme Court Order 2018-19, will affect how they practice under important amendments to the Michigan Court Rules – particularly those dealing with proportionality, electronically stored information (ESI), and alternative dispute resolution (ADR).
A major change in MCR 2.302(B) explicitly provides for “proportional” discovery:
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, the amount in controversy, and the parties’ resources and access to relevant information.
The amended Court Rules make clear proportionality also applies to ESI discovery. MCR 2.302(B)(5). When faced with an objection the requested ESI will impose an undue burden or expense “the court may specify conditions for the discovery, including allocation of the expense and may limit the frequency or extent of discovery of ESI (whether or not the ESI is from a source that is reasonably accessible).” MCR 2.302.5. Because of the proliferation of ESI discovery disputes, the new Court Rules also provide for an optional initial ESI conference to address those ESI issues that will likely occur during the case and provides a mechanism for the development of a detailed written ESI plan and order. MCR 2.314(J). The parties and the courts should seriously consider convening such a conference where appropriate and the parties will be well served to agreeing to a written ESI plan prior to such a conference. A model ESI plan, utilized by the district courts of the Eastern District of Michigan, has been endorsed by the Oakland County business court for your consideration. See https://www.mied.uscourts.gov/pdffiles/ParkerEsiOrderChecklist.pdf.
MCR 2.411(H) provides for the mediation of discovery disputes and “in cases involving complex issues of ESI, the court may appoint an expert under MRE 706. By stipulation of the parties, the court may also designate the expert as a discovery mediator of ESI issues.…”
In recognition of a whole panoply of ADR processes other than just mediation and case evaluation, MCR 2.401(C)(1)(h) continues to urge the Court consider:
[W]hether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services…
In 2015, the Supreme Court Administrative Office provided a bench book to all trial courts. The Michigan Judges Guide to ADR Practice and Procedure outlined 14 different ADR processes and the indications and contraindications for the use of these processes. When exploring an appropriate ADR process with the trial court, litigators should always seriously consider which of any of these processes could be beneficially incorporated into their litigation plan.
Practice Tips Regarding Proportionality, ESI, and ADR
Federal case law dealing with “proportionality” might be utilized by the parties in the briefing of proportionality disputes. Fed. Rule of Civ. Pro 26 was amended in 2015 to include a proportionality requirement and there is a well-developed body of federal law dealing with the concept.
As the Oakland County business court’s standard case management protocol has long called for proportionality in business case discovery, the Oakland County Business Court judges have published a number of written opinions on proportionality. In the not too distant future, there will likely be a proliferation of published Michigan business court cases dealing with the topic. Under the Business Court Statute all decisions and opinions of the Michigan business courts, including discovery disputes, must be published online, which will undoubtedly provide significant guidance to other Michigan circuit courts and the parties in resolving proportionality disputes.
Parties should consider mutually agreeing on a discovery mediator at the outset of a case. Trial courts are typically loath to entertain discovery disputes and the parties may find it quicker and less expensive to agree to a mediator who can assist in the resolution of discovery disputes either in whole or significant part. Typically the briefing will be minimal and can be dealt with expeditiously during a conference call with the discovery mediator and counsel. Remember, the discovery mediator (if acting as a mediator and not an expert under MRE 706) does not order a resolution or otherwise make recommendations to the trial court. If the parties cannot mutually agree to a resolution in whole or in part during the mediation, the parties may file a Motion and proceed to Court on the unresolved issues. Under these circumstances there will be absolutely no issue on whether or not concurrence was sought. When parties attempt, but are unable to resolve discovery disputes through mediation, the imposition of sanctions will likely be minimized.
If the parties anticipate significant ESI discovery and having difficulties developing a mutually acceptable ESI plan, a mediator who is experienced with ESI issues can assist the parties in developing an ESI discovery plan for presentation to the Court. This mediator will be very familiar with the ESI discovery plan and can be called upon to mediate ESI disputes if needed.
If there is an ESI discovery dispute, and the parties decide to mediate the dispute, it is highly recommended the mediator have ESI subject matter expertise.
The discovery mediator selected by the parties may, but need not be, the same mediator who will meet with the parties to explore a global resolution of the dispute. When selecting a mediator to assist in the resolution of discovery disputes, consider whether this same mediator will be appropriate to ultimately mediate a global settlement.
When developing a dispute resolution plan, consider discussing with the agreed upon neutral the staging and timing of potentially beneficial ADR processes other than mediation or case evaluation.
Parties should seriously question the wisdom of scheduling an MCR 2.403 case evaluation prior to a mediation. Courts are increasingly receptive to allowing the parties to opt out of MCR 2.403 case evaluation, which has proven to be far less successful than mediation in the resolution of disputes and, in fact, studies show case evaluation actually increases case age and the life of the dispute.