A.Availability, Scope, and Time for Completion
“The court may control the scope, order, and amount of discovery, consistent with [the Michigan Court Rules].” MCR 2.301(C).
Availability. “In a case where initial disclosures are required, a party may seek discovery only after the party serves its initial disclosures under MCR 2.302(A) Otherwise, a party may seek discovery after commencement of the action when authorized by [the Michigan Court Rules], by stipulation, or by court order.” MCR 2.301(A)(1). See Section 5.2 for more information on initial disclosures. Notwithstanding, discovery is not permitted in a district court action prior to entry of a judgment1 unless the parties stipulate or the court grants leave. MCR 2.301(A)(2). “A motion for discovery may not be filed unless the discovery sought has previously been requested and refused.” Id. Discovery is not permitted in small claims or civil infraction matters. MCR 2.301(A)(3).
Scope. Michigan follows the open, broad discovery policy, permitting liberal discovery. Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616 (1998). However, “Michigan’s commitment to open and far-reaching discovery does not encompass fishing expeditions.” Augustine v Allstate Ins Co, 292 Mich App 408, 419-420 (2011) (quotation marks, alteration, and citation omitted). “MCR 2.302(B)(1) clearly obligates the trial court to balance the burden of the proposed discovery against the value of the proposed discovery.” Micheli v Mich Auto Ins Placement Facility, 340 Mich App 360, 374 (2022). “Parties may obtain discovery regarding any non-privileged[2] 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.” MCR 2.302(B)(1). The Michigan Court Rules do not impose a requirement of good cause for the discovery of relevant, nonprivileged documents or things. See Ostoin v Waterford Twp Police Dep’t, 189 Mich App 334, 340 (1991). “However, a trial court should also protect the interests of the party opposing discovery so as not to subject that party to excessive, abusive, or irrelevant discovery requests.” Cabrera v Ekema, 265 Mich App 402, 407 (2005).
Where a producing party shows that ESI is not reasonably accessible because of undue burden or cost, the party does not have to produce the information. MCR 2.302(B)(6). However, if the requesting party files a motion to compel, or the producing party files a motion for a protective order, the court may order the producing party to provide the information despite a showing of undue burden or cost “if the requesting party shows good cause, considering proportionality under [MCR 2.302(B)(1)] and the limitations of [MCR 2.302(C)].” MCR 2.302(B)(6). “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).” Id.
Completion. For actions pending before a circuit or probate court, the time to complete discovery is set by an order entered pursuant to MCR 2.401(B). MCR 2.301(B)(1). For actions where discovery is granted by leave or stipulation, the order or stipulation must set a time for completion of discovery. MCR 2.301(B)(2). “A time set by stipulation may not delay the scheduling of the action for trial.” Id.
“As may be reasonable under the circumstances, or by leave of the court, motions with regard to discovery may be brought after the date for completion of discovery.” MCR 2.301(B)(4). See Section 5.11 for information on discovery motions.
B.Constitutionality of Discovery Orders
“To the extent that a discovery order entered by a trial court in a civil lawsuit constitutes a search by a government agent within the meaning of the Fourth Amendment, the search would be reasonable if entered by a neutral judge in accord with ‘closely circumscribed’ rules that provide safeguards equivalent to probable cause.” Martin v Martin, 331 Mich App 224, 245 (2020). In Michigan, “the court rules provide adequate protections to ensure that properly made discovery orders are reasonably consistent with the Fourth Amendment” because: (1) “the discovery must be relevant to the subject matter and must not be privileged” under MCR 2.302(B)(1); (2) the party or person from whom discovery is sought may seek a protective order under MCR 2.302(C); (3) trial courts have the authority “to provide significant protections against unreasonable discovery requests” under MCR 2.302(C); (4) “improper discovery requests may be subject to sanction” under MCR 2.302(G); and (5) “a party aggrieved by a trial court’s decision to order discovery may appeal” under MCR 7.203(B)(1). Martin, 331 Mich App at 246-247 (2020) (finding that a discovery order granting the defendant’s motion to compel the plaintiff’s cell phone for a forensic review was reasonable because “[u]nder the totality of the circumstances, the protections afforded to [the plaintiff] exceeded those applicable when police officers make a warrant request,” and “the court [had] already formulated a protection plan in case any privileged communications [found] their way into the forensic report”).
C.Supplementing Disclosures and Responses
“A party that has made a disclosure under MCR 2.302(A)–or that has responded to an interrogatory, request for production, or request for admission–must supplement or correct its disclosure or response:
(i) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing or
(ii) as ordered by the court.” MCR 2.302(E)(1)(a).
“A duty to supplement disclosures or responses may be imposed by order of the court, agreement of the parties, or at any time before trial through requests for supplementation.” MCR 2.302(E)(1)(b). Failure to provide properly supplemented disclosures or responses, even without an order compelling discovery, may result in imposition of the sanctions stated in MCR 2.313(B), and in particular, MCR 2.313(B)(2)(b) (authorizing the court to refuse to allow the insubordinate party to support or oppose designated claims or defenses, or to prohibit that party from introducing specific matters into evidence). MCR 2.302(E)(2). “[D]eposition testimony is not subject to the duty to supplement discovery responses under MCR 2.302(E)” because “a deposition is not a response to a request for discovery.” Swain v Morse, 332 Mich App 510, 520 (2020). See Section 5.2(D) for information on failure to provide disclosures.
D.Alternative Forms of Discovery
The court has discretion to order discovery by methods other than those specifically mentioned in the court rules, subject to the scope restrictions in MCR 2.302(B). MCR 2.302(B)(4)(a)(iii). See also Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616-618 (1998) (upholding a trial court’s decision to allow the plaintiff to submit interrogatories to nonparty expert witnesses in lieu of expending time and money traveling across the country questioning each witness individually).
The purpose of discovery is to simplify and clarify issues. Domako v Rowe, 438 Mich 347, 360 (1991). “Restricting parties to formal methods of discovery [does] not aid in the search for truth[.]” Id. In Domako, the trial court did not abuse its discretion in allowing the defendant to conduct ex parte interviews with the plaintiff’s witness. Id. at 357-361. The Michigan Supreme Court concluded that allowing ex parte interviews advances the purpose of MCR 1.105, which states, “[t]hese [court] 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[.]” Domako, 438 Mich at 360-361. By allowing ex parte interviews, the parties may save time and money, litigation may be simplified, and settlements are encouraged. Id. at 361.
E.Discovery Planning Conference
“Upon court order or written request by another party, the parties must confer among themselves and prepare a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared are jointly responsible for arranging the conference and for attempting in good faith to agree on a proposed discovery plan.” MCR 2.401(C)(1). The proposed discovery plan must address all disclosure and discovery matters, including those set forth in MCR 2.401(B), and identify proposed deadlines for the completion of disclosures and discovery. MCR 2.401(C)(2).3 The plan is submitted to the court by stipulation or motion and should note any disagreements between the parties. MCR 2.401(C)(3). The court reviews the plan and enters a scheduling order. See MCR 2.401(B)(2); MCR 2.401(C)(2). Once the court has entered a scheduling order, a party seeking to change a deadline must show good cause. MCR 2.401(C)(2).
“The court may enter an order governing disclosure, discovery, and any other case management matter the court deems appropriate.” MCR 2.401(C)(3). The court may also enter an appropriate sanction, including payment of attorney fees and costs, if a party or their attorney fails to make a good faith effort to participate in developing and submitting a proposed discovery plan. MCR 2.401(C)(4).
F.ESI Conference, Plan, and Order4
Conference.5 “Where a case is reasonably likely to include the discovery of ESI, parties may agree to an ESI Conference, the judge may order the parties to hold an ESI Conference, or a party may file a motion requesting an ESI Conference. At the ESI Conference, the parties must consider the matters set forth in MCR 2.401(J)(1).
“Attorneys who participate in an ESI Conference or who appear at a conference addressing ESI issues must be sufficiently versed in matters relating to their clients’ technological systems to competently address ESI issues; counsel may bring a client representative or outside expert to assist in such discussions.” MCR 2.401(J)(3).
ESI discovery plan. Within 14 days of an ESI Conference, the parties must file an ESI discovery plan and statement concerning the issues upon which the parties cannot agree. MCR 2.401(J)(2). The plaintiff’s attorney must submit the ESI discovery plan to the court unless the parties agree otherwise. Id. “The ESI discovery plan may include:
(a) a statement of the issues in the case and a brief factual outline;
(b) a schedule of discovery including discovery of ESI;
(c) a defined scope of preservation of information and appropriate conditions for terminating the duty to preserve prior to the final resolution of the case;
(d) the forms in which ESI will be produced; and
(e) the sources of any ESI that are not reasonably accessible because of undue burden or cost.” MCR 2.401(J)(2).
ESI order. “The court may enter an order governing the discovery of ESI pursuant to the parties’ ESI discovery plan, upon motion of a party, by stipulation of the parties, or on its own.” MCR 2.401(J)(4).
G.Final Pretrial Conference and Order
“The court may hold a final pretrial conference to facilitate preparation of the action for trial and to formulate a trial plan.” MCR 2.401(H)(2).6 A final pretrial conference can be combined with a settlement conference. Id. Each unrepresented party and the lead attorney who will conduct trial on behalf of a represented party must attend the conference. Id. At the conference, the parties may discuss the following items, which may be memorialized in a joint final pretrial order either before or after the conference, as ordered by the court:
“(a) scheduling motions in limine;
(b) a concise statement of plaintiff’s claims, including legal theories;
(c) a concise statement of defendant’s defenses and claims, including crossclaims and claims of third-party plaintiffs, and defenses of cross defendants or third-party defendants, including legal theories;
(d) a statement of any stipulated facts or other matters;
(e) issues of fact to be litigated;
(f) issues of law to be litigated;
(g) evidence problems likely to arise at trial;
(h) a list of witnesses to be called unless reasonable notice is given that they will not be called, and a list of witnesses that may be called, listed by category as follows:
(i) live lay witnesses;
(ii) lay deposition transcripts or videos including resolving objections and identifying portions to be read or played;
(iii) live expert witnesses; and
(iv) expert deposition transcripts or videos including resolving objections and identifying portions to be read or played.
(i) a list of exhibits with stipulations or objections to admissibility;
(j) an itemized statement of damages and stipulations to those items not in dispute;
(k) estimated length of trial;
(i) time for plaintiff’s proofs;
(ii) time for defendant’s proofs; and
(iii) whether it is a jury or nonjury trial.
(l) trial date and schedule;
(m) whether the parties will agree to arbitration;
(n) a statement that counsel have met, conferred and considered the possibility of settlement and alternative dispute resolution, giving place, time and date and the current status of these negotiations as well as plans for further negotiations;
(o) rules governing conduct of trial;
(p) jury instructions;
(q) trial briefs;
(r) voir dire; and
(s) any other appropriate matter.” MCR 2.401(H)(2).
“If the court finds at a final pretrial conference that due to a lack of reasonable diligence by a party the action is not ready for trial, the court may enter an appropriate order to facilitate preparation of the action for trial and may require the offending party to pay the reasonable expenses, including attorney fees, caused by the lack of diligence.” MCR 2.401(H)(1).
Committee Tip:
•Final pretrial conferences should be set 3-4 weeks before trial and should last approximately 15 minutes to one hour, depending on the case.
H.Mediation of Discovery Disputes
If a discovery dispute arises and unless precluded by MCR 3.216(C)(3), the dispute may be mediated upon stipulation of the parties or order of the court. MCR 2.411(H). If the parties agree, the discovery mediator may be the same mediator as otherwise selected under MCR 2.411(B). MCR 2.411(H). All provisions of MCR 2.411 apply to a discovery mediator, except:
“(1) The order under [MCR 2.411(C)(1)] will specify the scope of issues or motions referred to the discovery mediator, or whether the mediator is appointed on an ongoing basis.
(2) The mediation sessions will be conducted as determined by the mediator, with or without parties, in any manner deemed reasonable and consistent with these rules and any court order.
(3) The court may specify that discovery disputes must first be submitted to the mediator before being filed as a motion unless there is a need for expedited attention by the court. In such cases, the moving party shall certify in the motion that it is filed only after failure to resolve the dispute through mediation or due to a need for immediate attention by the court.
(4) In cases involving complex issues of ESI [(electronically stored information)], 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 under this rule, in which case the parties should address in the order appointing the mediator whether the restrictions of MCR 2.411(C)(3) and [MCR] 2.412(D) should be modified to expand the scope of permissible communications with the court.” MCR 2.411(H).
See Section 6.6 for general information on mediation.
Unless it would be manifestly unjust:
•the court must order the party seeking discovery to pay the expert’s reasonable fee for time spent in a deposition if the party is seeking to depose, or discover through alternative means, an expert hired by the opposing party. This fee cannot include preparation time. MCR 2.302(B)(4)(c)(i).
•the court may also require “the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert” if the expert is expected to be called as a witness. If the expert is not expected to be called to testify, the court must order the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred in obtaining the information. MCR 2.302(B)(4)(c)(ii).
“MCR 2.302(B)(4) applies to experts who are third parties to the litigation; such experts examine the facts from a distance, offer opinions, and have no financial stake in the outcome other than receiving a court-approved witness fee.” Spine Specialists of Mich, PC v State Farm Mut Auto Ins Co, 317 Mich App 497, 503 (2016). Accordingly, “[a]s the sole owner of [the plaintiff medical facility] and the physician who treated [a patient] on [plaintiff’s] behalf, [the owner-physician] was obligated to provide deposition testimony” in the plaintiff’s action to recover payment for services rendered to the patient following a motor vehicle accident, and was therefore “ineligible [under MCR 2.302(B)(4)(c)(i)] to charge a fee for his deposition”; “[w]hile a party (or an employee of a party, as here) with specialized knowledge may offer an expert opinion within his or her field, the court rules do not contemplate payment to a party offering an opinion on its own behalf.” Spine Specialists, 317 Mich App at 502, 503, 504 (noting that the owner-physician would “serve as [the plaintiff’s] spokesperson at trial, and [had] a vested interest in the outcome of [the] case”).
J.Determining an Appropriate Discovery Violation Sanction
The court must choose a sanction that is “proportionate and just[.]” Kalamazoo Oil Co v Boerman, 242 Mich App 75, 87 (2000). The severe sanction of a default judgment may be imposed only when a party has flagrantly and wantonly refused to provide or permit discovery. Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 661 (2011). In Hedrick, the trial court found that although the plaintiff had been severely prejudiced by the defendant’s late and incomplete discovery responses, entry of a default judgment was not warranted because the defendant did not “impair discovery in a malicious sense.” Id. at 659. Thus, the trial court imposed what it considered to be “an appropriate lesser sanction”: precluding the defendant from presenting any witnesses or evidence, and limiting the defendant to challenging the plaintiff’s expert witness through cross-examination. Id. at 657, 659. The Court of Appeals concluded that “[e]ven though the [trial] court labeled its order as ‘a lesser sanction,’ [it] actually imposed a sanction more severe and limiting than a default judgment would have been. Had the court granted [the plaintiff’s] request for a default judgment, [defendant] would have been permitted to present evidence to prove the extent of [plaintiff’s] damages.” Id. at 661. “Because the sanction was disproportionate and affected the entirety of the trial,” the Court of Appeals found the sanction inappropriate. Id. at 664.
In Dean v Tucker, 182 Mich App 27, 32-33 (1990), the Court referred to a nonexhaustive list of factors to consider when determining an appropriate sanction for a discovery violation:
“(1) whether the violation was wilful or accidental;
(2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses);
(3) the prejudice to the [other party];
(4) actual notice to the [other party] of the witness and the length of time prior to trial that the [other party] received such actual notice;
(5) whether there exists a history of [the party] engaging in deliberate delay;
(6) the degree of compliance by the [party] with other provisions of the court’s order;
(7) an attempt by the [party] to timely cure the defect[;] and
(8) whether a lesser sanction would better serve the interests of justice.”
Indeed, “trial courts are provided with broad authority to fashion remedies for discovery violations and those provisions included the power to stay a case pending compliance with the discovery order.” Tolas Oil & Gas Exploration Co v Bach Servs & Mfg LLC, ___ Mich App ___, ___ (2023) (holding the “trial court had the authority to sanction plaintiffs’ discovery violations by fashioning an appropriate remedy, which could include an order to compensate [defendants] for their costs and reasonable attorney fees caused by the misconduct involving the dispute over plaintiffs’ expert witnesses”). Thus, “the trial court could rely on its inherent authority to order a stay pending payment of the award, if the decision to stay the proceedings was consistent with fairness and justice under the totality of the circumstances.” Id. at ___ (observing that the “relevant question is whether the trial court abused its discretion”).
In Tolas, “plaintiffs did not make a good-faith effort to comply with discovery requests involving the experts and compounded that failure by giving inadequate and misleading responses after the trial court granted [defendant’s] motion to compel. Plaintiffs continued to engage in dilatory tactics during the months that it took to resolve the dispute over a lesser sanction for the discovery violation.” Id. at ___ (noting “the trial court had to hold three separate hearings to resolve the matter”). Accordingly, “it was appropriate for the trial court to fashion a remedy that mitigated the harm caused by plaintiffs’ initial failure to disclose and their subsequent violation of the order compelling disclosure” and “reasonable for the trial court to punish the misconduct and deter future misconduct by ordering plaintiffs to reimburse [defendants] for all the costs and reasonable attorney fees that they incurred in the dispute[.]” Id. at ___. The Tolas Court held that “[u]nder the totality of the circumstances, the decision to award those fees that could be directly attributed to plaintiffs’ repeated failure to make adequate disclosures in discovery, and to comply with the court’s order to compel, fell within the range of reasonable outcomes.” Id. at ___. The Court further held that, “[u]nder the totality of these circumstances, it was entirely reasonable for the trial court to limit plaintiffs’ ability to further engage in such tactics by staying the proceedings until plaintiffs demonstrated their commitment to moving the case forward by paying the sanction.” Id. at ___. Therefore, “the trial court did not abuse its discretion when it ordered plaintiffs to pay the reasonable attorney fees and costs . . . as an alternate sanction to striking the experts” and “did not abuse its discretion when it stayed the proceedings pending payment of the sanction.” Id. at ___.
K.Removal of Discovery Materials from File
1.Removal by Stipulation
“If the parties stipulate to the removal of . . . discovery materials from the file, the clerk may remove the materials and dispose of them in the manner provided in the stipulation.” MCR 2.316(B)(1).
2.Removal by the Clerk
“The clerk may initiate removal of . . . discovery materials from the file in the following circumstances.
(i) If an appeal has not been taken, 18 months after entry of judgment on the merits or dismissal of the action.
(ii) If an appeal has been taken, 91 days after the appellate proceedings are concluded, unless the action is remanded for further proceedings in the trial court.” MCR 2.316(B)(2)(a).
When possible, the clerk must notify the parties and counsel of record that materials will be removed from the file and destroyed on a specified date at least 28 days after the notice is served, unless the party who filed the materials retrieves them from the clerk’s office or a party files a written objection to the removal. MCR 2.316(B)(2)(b)(i)-(ii).
If an objection is filed, the clerk must schedule a hearing and provide notice to the parties. MCR 2.316(B)(2). MCR 2.119 applies to the hearing. See MCR 2.316(B)(2). The materials may only be removed upon court order following notice and the opportunity of the opposing party to be heard. Id.
3.Removal by Order
“On motion of a party, or on its own initiative after notice and hearing, the court may order . . . discovery materials removed at any other time on a finding that the materials are no longer necessary. However, no . . . discovery materials may be destroyed by court personnel or the clerk until the periods set froth in [MCR 2.316(B)(2)(a)(i)] or [MCR 2.316(B)(2)(a)(ii)] have passed.” MCR 2.316(B)(3).
A trial court’s decision to grant or deny discovery is reviewed for an abuse of discretion. Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616 (1998).