Electronic Discovery

Court rules affected - 2.302, 2.310, 2.313, 2.401, 2.506
Adm. no. - 2007-24
Issued - 12-16-08
Effective - 1-1-09

The previously proposed amendments were adopted.

1. New subsections (5) to (7) have been added to MCR 2.302, governing the Scope of Discovery:

(5) Electronically Stored Information. A party has the same obligation to preserve electronically stored information as it does for all other types of information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(6) Limitation of Discovery of Electronic Materials. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for the discovery.

(7) Information Inadvertently Produced. If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

2. Rule 2.310(C), governing Requests for Production of Documents
A second clause was added to the language of subsection (1):

The request must specify a reasonable time, place, and manner of making the inspection and performing the related acts, as well as the form or forms in which electronically stored information is to be produced, subject to objection.

A sentence was added to subsection (2):

If the request does not specify the form or forms in which electronically stored information is to be produced, the party responding to the request must produce the information in a form or forms in which the party ordinarily maintains it, or in a form or forms that is or are reasonably usable. A party producing electronically stored information need only produce the same information in one form.

3. A new subsection (E) was added to Rule 2.313, governing Failure to Provide or to Permit Discovery; Sanctions:

(E) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

4. Rule 2.401(B)(1), governing early scheduling conferences, now has a new subsection (d):

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. In addition to those considerations enumerated in subrule (C)(1), during this conference the court should consider. . .
(d) discovery, preservation, and claims of privilege of electronically stored information.

And (B)(2), governing Scheduling Orders, now has a newly inserted subsection (c):

(c) The scheduling order also may include provisions concerning discovery of electronically stored information, any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production, preserving discoverable information, and the form in which electronically stored information shall be produced.

5. Rule 2.506(A), governing subpoenas, has new subsections (2) and (3):

(2) A subpoena may specify the form or forms in which electronically stored information is to be produced, subject to objection. If the subpoena does not so specify, the person responding to the subpoena must produce the information in a form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable. A person producing electronically stored information need only produce the same information in one form.
(3) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. In a hearing or submission under subrule (H), the person responding to the subpoena must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for such discovery.

The Staff Comment includes the following:

The provisions of the proposal at MCR 2.302(B)(6) and MCR 2.506(A)(3) allow the court to shift the cost of discovery to the requesting party if discovery is requested from sources that are not reasonably accessible, and prohibit sanctions if information is lost or destroyed as a result of a good-faith, routine record destruction policy or “litigation hold” procedures. The “safe harbor” provision provided in MCR 2.302(B)(5) and in MCR 2.313 applies when information is lost or destroyed under a routine electronic information system, if the operation of the system was performed in good faith. Good faith may be shown by a party’s actions to attempt to preserve information as part of a “litigation hold” that would otherwise have been lost or destroyed under an electronic information system.

These amendments track many of the provisions added in December 2006 to the Federal Rules of Civil Procedure.

Link

Temporarily-admitted lawyers

Admin No. - 2004-08
Rules - 8.126, 9.108, State Bar Rule 15
Effective - September 1, 2008

Added and amended provisions for temporary admission of attorneys admitted elsewhere (pro hac vice), payment of bar dues and fees, and disciplinary action.

A new Rule 8.126 was added:

Rule 8.126 Temporary Admission to the Bar

(A) Temporary Admission. Any person who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in any foreign country, and who is not disbarred or suspended in any jurisdiction, and who is eligible to practice in at least one jurisdiction, may be permitted to appear and practice in a specific case in a court or before an administrative tribunal or agency in this state when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case. An out-of-state attorney may appear and practice under this rule in no more than five cases in a 365-day period. Permission to appear and practice is within the discretion of the court or administrative tribunal or agency, and may be revoked at any time for misconduct. For purposes of this rule, an out-of-state attorney is one who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in a foreign country.

(1) Procedure.

(a) Motion. An attorney seeking temporary admission must be associated with a Michigan attorney. The Michigan attorney with whom the out-of-state attorney is associated shall file with the court or administrative tribunal or agency an appearance and a motion that seeks permission for the temporary admission of the out-of-state attorney. The motion shall be supported by an affidavit of the out-of-state attorney seeking temporary admission, which affidavit shall verify

(i) the jurisdictions in which the attorney is or has been licensed or has sought licensure;

(ii) that the attorney is not disbarred, or suspended in any jurisdiction, and is not the subject of any pending disciplinary action, and that the attorney is licensed and is in good standing in all jurisdictions where licensed; and

(iii) that he or she is familiar with the Michigan Rules of Professional Conduct, Michigan Court Rules, and the Michigan Rules of Evidence.

The out-of-state attorney must attach to the affidavit copies of any disciplinary dispositions. The motion shall include an attestation of the Michigan attorney that the attorney has read the out-of-state attorney’s affidavit, has made a reasonable inquiry concerning the averments made therein, believes the out-of-state attorney’s representations are true, and agrees to ensure that the procedures of this rule are followed. The motion shall also include the addresses of both attorneys.

(b) The Michigan attorney shall send a copy of the motion and supporting affidavit to the Attorney Grievance Commission. Within seven days after receipt of the copy of the motion, the Attorney Grievance Commission must notify the court or administrative tribunal or agency and both attorneys whether the out-of-state attorney has been granted permission to appear temporarily in Michigan within the past 365 days, and, if so, the number of such appearances. The notification shall also indicate whether a fee is due if the court or administrative tribunal or agency grants permission to appear. The court or administrative tribunal or agency shall not enter an order granting permission to appear in a case until the notification is received from the Attorney Grievance Commission.

(c) Order. Following notification by the Attorney Grievance Commission, if the out-of-state attorney has been granted permission to appear temporarily in fewer than 5 cases within the past 365 days, the court or administrative tribunal or agency may enter an order granting permission to the out-of-state attorney to appear temporarily in a case. If an order granting permission is entered, the court shall send a copy of the order to the Michigan attorney and the out-of-state attorney. The Michigan attorney in turn shall send a copy of the order to the Attorney Grievance Commission.

(d) Fee. If a fee is due, the order shall state that the appearance by the out-of-state attorney is effective on the date the attorney pays a fee equal to the discipline and client-protection portions of a bar member’s annual dues. If a fee is not due, the order shall indicate the effective date of the appearance. The attorney is required to pay the fee only once in any period between October 1 and September 30. The discipline portion of the fee shall be paid to the State Bar of Michigan for allocation to the attorney discipline system, and the client-protection portion shall be paid to the State Bar of Michigan for allocation to the Client Protection Fund.

(e) By seeking permission to appear under this rule, an out-of-state attorney consents to the jurisdiction of Michigan’s attorney disciplinary system.

The highlights of this new rule:

• A lawyer may be admitted under this rule in no more than five cases in any 365-day period
  
• The sponsoring lawyer and the lawyer to be admitted must make a showing of specified facts by affidavit, including a statement that the lawyer to be admitted is familiar with the court rules, evidence rules, and professional responsibility rules in Michigan
  
• The Attorney Grievance Commission must review and approve any admission before the trial court may enter an order granting temporary admission
  
• Bar fees as specified must be paid, but only once per year
• Admission under this rule includes consent to the jurisdiction of Michigan's attorney disciplinary system.
  

Rule 9.108 was amended to accommodate this change, and to require the Attorney Grievance Commission to keep a list of attorneys temporarily admitted.

Rule 15 of the Rules Concerning the State Bar of Michigan, entitled "Admission to the Bar", was amended to add a requirement that the State Bar notify the Attorney Grievance Commission when the required fees have been paid.

The Staff Comment states:

The Court plans to review these rules again within two years of their effective dates in light of the information gathered by the Attorney Grievance Commission.

Link

MCJI: Damages in third-party auto cases

Updated MCJI 67.17 to add provisions distinguishing uninsured from insured defendants. Effective September 2008.

Link

MCJI: Public Accommodations and Services

Added a new chapter containing a series of instructions governing claims under Michigan's Elliott-Larsen Civil Rights Act - MCJI 108.01 to 108.13. Adopted December 2008.

Link

MCJI: Comparative Negligence in Product Liability Cases

The Committee on Model Civil Jury Instructions, which has been delegated the responsibility to suggest and adopt amendments to the instructions, proposes to delete MCJI 25.41, governing the negligence of the plaintiff in product liability cases, and amend MCJI 25.45, governing the fault of non-parties, to add those provisions to that instruction.

The amendment, which is ostensibly to combine the instructions regarding allocation of fault, would also

• Add language to the non-party instruction that informs the jury that its allocation of fault to a non-party will reduce the verdict against the defendant, and
• remove all reference to breach of warranty claims.

The removal of breach of warranty references may do more harm than good. It may open the door to an argument, in the "fog of trial", that it should apply only in product liability cases predicated on negligence. The current explicit reference to breach of warranty claims would obviate that concern.

Link

About this site

This weblog has been created to provide information on proposed and adopted amendments to the Michigan Court Rules of 1985, the Michigan Rules of Evidence, and other court-enacted rules. But we do not try to cover all updates. The entries here are limited to those items that would be of interest to civil trial lawyers.

This page is where the Michigan Supreme Court posts these items.

For the last several years, we have been keeping track of these developments, and the updates have been published in the Michigan Defense Quarterly, a publication of the Michigan Defense Trial Counsel. We have now set up this site to provide this information more promptly than print publication would allow, and to provide some added flexibility to the process.

One improvement: We are adding occasional items on new updates to the Model Civil Jury Instructions.

M. Sean Fosmire
Garan Lucow Miller, P.C.
Marquette, Michigan

Affidavits of merit - medical malpractice cases

Court rule affected - MCR 2.112(l)
Admin no. - 2006-43, 2007-07
Issued - December 9, 2008
Comments open to - April 1, 2009

Would add a subsection (1) under subsection (l) that reads:

Sufficiency of Affidavit. An affidavit of merit filed under MCL 600.2912d is presumed to be valid and tolls the period of limitations. However, if the court determines upon a party’s challenge to the sufficiency of the affidavit that the affidavit is deficient, the court shall dismiss the action without prejudice. Following dismissal, the plaintiff may file a complaint accompanied by a conforming affidavit of merit within the time that remains in the period of limitations.

Note: This would reconcile the series of sometimes conflicting decisions on this issue in favor of an automatic tolling rule, conforming to the decision in Kirkaldy v Rim, 478 Mich 581 (2007). This would overturn the decisions in cases such as Roberts v. Mecosta County Memorial Hospital, 470 Mich 679 (2004), which have held that a nonconforming affidavit does not toll the statute of limitations.

Note that this proposal was made in December 2008, before Justice Taylor was replaced by Justice Hathaway.

Link

Update: A comment by a Vice-President of ProAssurance, an active professional liability carrier in Michigan, makes the point that the proposal is not limited to procedural matters and that it impermissibly attempts to change substantive law.

Update: As of April 2010, this item is no longer on the Supreme Court's web site, indicating that it has been rejected.

Case Evaluation and Mediation

Court rules affected - MCR 2.403, 2.404, 2.410, 2.411 and 3.216
Admin no. - 2005-05, 2006-20
Proposed - November 25, 2008
Adopted - 4-5-11
Effective - 9-1-11

Note: This item to be updated in the near future

This proposed amendment affects the rules governing the case evaluation and the mediation process. A significant number of amendments are proposed. These proposals are wide-ranging; a few of them are significant and should be carefully examined by any Michigan trial lawyer. See, in particular, the items marked 5, 7, 8, and 10 below.

1. Exception of cases - For cases in which case evaluation is ordinarily required, the amendment removes the language regarding the power of the court to exempt a case from the case evaluation process from the primary subsection, and moves it to a new subsection (2). The current version allows the trial court to exempt a case from case evaluation "on motion for good cause shown". The proposed amendment would allow (but not require) the court to exempt "all or part" of a case

• on motion for good cause shown
  
• on stipulation of the parties for good cause shown
  
• by the court with the consent of the parties
  

The third of these seems to anticipate a sua sponte suggestion by the court to exempt "all or part" of a case, but this would require the consent of all parties.

The provisions of subsection (M), governing the effect of acceptance or rejection, are to be amended to accommodate these changes.

Note: The suggestion that part of a case could be exempted and part submitted to case evaluation is new.

2. The 91-day time period is removed. Currently, the trial court (or the chief judge) may designate a case as one for which case evaluation is proper after 91 days have elapsed. The proposal would remove that time limit.

Note: This modification will have little practical effect on most cases.

3. Fees for members of the panel are increased to $50 (except for judges) and the automatic 14-day time for submission of fees would be removed and replaced by a provision that would authorize the trial court to determine when payment should be made. Fees may be paid as the court directs.

Notes: Any increase in case evaluation fees is welcome. It would be helpful for trial courts to include a provision that the fees are to be paid a month before the case evaluation date.

4. The section permitting the plaintiff to elect to treat injuries to multiple members of a single family as one claim, with one fee paid, is to be removed.

Note: This would require multiple fees and multiple evaluations for all cases involving such claims.

5. Subsection 5, to be renumbered as subsection 4, governs the refunding of case evaluation fees. The rule would be tightened to provide that

• If the hearing is adjourned with a new date, the order for the adjournment may provide that the fees already paid will apply to the new hearing
  
• If the motion is made and granted within 14 days of the date set, the fees should not be refunded, unless the court otherwise orders "for good cause".
  

6. Subsection (I)(1), regarding filing of summaries, would be amended.

Note: This is a simple revision of rule language, with little to no substantive change to be affected.

7. Subsection (I)(2) would be amended to provide for the $150 penalty for the filing of each supplement to the original filing. The current rule provides for such a penalty only for failure to file any summary.

Note: This could be an onerous imposition in many factual situations. When a supplemental filing is necessary due to the late receipt of discovery, including deposition transcripts, a party who wishes to supplement his summary should not be penalized.

8. Summaries would be limited to 20 pages (excluding exhibits), and typeface requirement similar to those governing appellate briefs would be imposed.

Note: Unlike court filings, it is hard to see why a page limit should be imposed on case evaluation filings.

9. The provisions of subsection (M) would be modified to ensure that an acceptance in a first-party no-fault case would not affect any benefits accruing after the date of the case evaluation hearing. There are two alternative proposals in this area. One would cover all cases, while the other would be limited to claims for first-party PIP benefits.

10. The trial court may order a second case evaluation, or other ADR procedure, if the first results in a non-unanimous evaluation.

Note: The proposal is silent as to how this would affect interim offers of judgment.

11. Rule 2.411 would be amended to prohibit the trial court from recommending or influencing a party's selection of a mediator, unless stipulated by all parties on the record.

12. The Rule would also be amended to remove the reference to an hourly rate.

Note: This will not affect very many facilitated mediations. It will open the door to allow some mediators to charge a flat fee.

13. The Rule would be amended to allow a Community Dispute Resolution program to appear on a roster of mediators, if certain requirements are met.

14. The application provisions would permit an applicant to attach a resume or biographical information.

There are also proposed changes to Rule 3.216, involving mediation of domestic relations cases, that will be of interest to those who practice in that area.

Notes:
The staff comment says that these proposals are based on changes recommended by the Dispute Resolution Rules Committee convened by the State Court Administrative Office. The committee’s report can be found at http://courts.michigan.gov/scao/resources/publications/reports/DRRCReport2008.pdf.

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