A.Required Initial Disclosures
“Except as exempted by [the Michigan Court Rules], stipulation, or court order, a party must, without awaiting a discovery request, provide to the other parties:
(a) the factual basis of the party’s claims and defenses;
(b) the legal theories on which the party’s claims and defenses are based, including, if necessary for a reasonable understanding of the claim or defense, citations to relevant legal authorities;
(c) the name and, if known, the address and telephone number of each individual likely to have discoverable information–along with the subjects of that information–that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(d) a copy–or a description by category and location–of all documents, ESI, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(e) a description by category and location of all documents, ESI, and tangible things that are not in the disclosing party’s possession, custody, or control that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. The description must include the name and, if known, the address and telephone number of the person who has possession, custody, or control of the material;
(f) a computation of each category of damages claimed by the disclosing party. who must also make available for inspection and copying as under MCR 2.310 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;
(g) a copy (or an opportunity to inspect a copy) of pertinent portions of any insurance, indemnity, security equivalent, or suretyship agreement under which another person may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment, including self-insured retention and limitations on coverage, indemnity, or reimbursement for amounts available to satisfy a judgment; and
(h) the anticipated subject areas of expert testimony.” MCR 2.302(A)(1).
Additional disclosures are required for no-fault cases, MCR 2.302(A)(2), and claims for personal injury damages, MCR 2.302(A)(3).
“A party must serve initial disclosures based on the information then reasonably available to the party. However, a party is not excused from making disclosures 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.” MCR 2.302(A)(6). “Disclosures under [MCR 2.302(A)] are subject to MCR 2.302(G), must be in writing, signed, and served, and a proof of service must be promptly filed.” MCR 2.302(A)(7).
B.Cases Exempt from Disclosure
“Unless otherwise stipulated or ordered, the following are exempt from initial disclosure under [MCR 2.302](A)(1)-(3):
(a) an appeal to the circuit court under subchapter 7.100;
(b) an action in district court (see MCR 2.301[A][2]);
(c) an action under subchapter 3.200 [(domestic relations)];
(d) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
(e) an action to enforce or quash an administrative summons or a subpoena;
(f) a proceeding ancillary to a proceedings in another court, including an action for a subpoena under MCR 2.305(E) or [MCR 2.305](F);
(g) an action to compel or stay arbitration or to confirm, vacate, enforce, modify, or correct an arbitration award;
(h) an action for collection of penalties, fines, forfeitures, or forfeited recognizances under MCR 3.605;
(i) personal protection proceedings under subchapter 3.700; and
(j) an action for habeas corpus under MCR 3.303 and [MCR] 3.304.” MCR 2.302(A)(4).
C.Time for Initial Disclosures
The time for filing initial disclosures may be modified by stipulation or order. See MCR 2.302(A)(5)(a).
A party filing a complaint, counterclaim, cross-claim, or third-party complaint must serve its initial disclosures within 14 days after any opposing party files an answer to the pleading. MCR 2.302(A)(5)(b)(i). The answering party must serve its initial disclosures within 14 days after the filing party’s disclosures are due or 28 days after the answering party files its answer, whichever is later. MCR 2.302(A)(5)(b)(ii). Service of disclosures is only required on parties that have appeared; however, later-appearing parties must be served disclosures within 14 days of their appearance. MCR 2.302(A)(5)(b)(iii).
“A party first served or otherwise joined after the time for initial disclosures under [MCR 2.302(A)(5)(a)-(b)] must serve its initial disclosures within 14 days after filing the party’s first pleading, unless a stipulation or order sets a different time.” MCR 2.302(A)(5)(c).
A party seeking disclosure may file a motion to compel if a party fails to serve a disclosure as required by MCR 2.302(A). MCR 2.313(A)(2)(a). See Section 5.11 for information on motions to compel. “If a party fails to provide information or identify a witness as required by MCR 2.302(A) or [MCR 2.302](E), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” MCR 2.313(C)(1). See Section 5.12 for additional information about disclosure of witnesses.
E.Removal of Disclosure Materials from File
1.Removal by Stipulation
“If the parties stipulate to the removal of disclosure . . . 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 disclosure . . . 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 disclosure . . . materials removed at any other time on a finding that the materials are no longer necessary. However, no disclosure or 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).