As practitioners are now aware, effective January 1, 2020, the Michigan Court Rules regarding discovery have been amended, changing them significantly. One of the key changes has been to the “scope” of discovery. Previously, the Michigan Court Rules provided that the scope of discovery had two limits placed on it: (1) the discovery had to be “relevant to the subject matter involved in the pending action” and it had to “appear[ ] to be reasonably calculated to the discovery of admissible evidence.” Those two limits on the scope of discovery have been replaced with these two new limits: (1) the discovery must be “relevant to any party’s claim or defenses”; and it must be “proportional to the needs of the case.” The shift in the scope of discovery serves to rein in the former rules and make discovery “narrower” according to the State Bar of Michigan Civil Discovery Court Rule Review Committee.
The change in the first limit – moving from “relevant to the subject matter” to “relevant to any party’s claims and defenses” – is a substantive change. The purpose of the change is to narrow the focus on what a relevant request is and to base it on “the claims and defenses in the pleadings” as opposed to a more amorphous reference to “the subject matter”. Practically, this means that there must a connection between any requested discovery and the claims and defenses as they appear in the pleadings. It is no longer sufficient to state that the request is relevant to the “subject matter” of the lawsuit.
The change to the second limit is even more substantial. Borrowing from the 2015 amendments to the Federal Rules of Civil Procedure, the Michigan Court Rules now require discovery to be “proportional to the needs of the case.” The rules specify that in making this proportionality analysis, the parties and the court should consider the following factors:
- 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.
The change in the second limit – moving from “reasonably calculated to lead to the discovery of admissible evidence” to “proportional to the needs of the case” was likewise intended to narrow the scope of available discovery. Specifically, both federal and state courts had recognized that requests for discovery that was relevant, but inadmissible (provided that it might “lead to the discovery of admissible evidence”) created an exception that was swallowing up the rule that all discovery requests should be relevant. Thus, the deletion of that text has been construed as a limitation on the availability of discovery. The addition of text requiring discovery requests to be proportional to the needs of the case is another limiting device on the scope of discovery. This limit is designed to make discovery relatable to the size, scope, and importance of the case. The rule is written so that the discovery available in a $30,000 collection action is substantially more limited than discovery available in a $30-million anti-trust action. The new rules are designed not only to make discovery less expensive and intrusive, but also to prevent larger parties with more resources from using discovery to disadvantage smaller or individual parties with fewer resources.
Authored by: Jennifer M. Grieco