Michigan Courts To Limit Interrogatories and Require Initial Disclosures, Starting in 2020
Lawyers, take note: On June 19, 2019, the Michigan Supreme Court amended the court rules covering discovery in civil cases. The new rules take effect on January 1st, 2020. These rules are sweeping, and they create new deadlines and obligations.
This article discusses two major changes adopted by the Court. Specifically, the Amendment will limit the number of interrogatories, and require litigants to furnish automatic disclosures. The automatic disclosures are similar in principle to the required disclosures under Rule 26. They differ, however, in scope and timing.
Interrogatories Will Be Limited
Michigan currently has no specific limit on the number of interrogatories, and parties have often launched dozens or even hundreds of contention interrogatories at one another. That will change on January 1, 2020.
Revised section 2.309(A)(2) will require that each separately represented party may only serve 20 interrogatories on another party. The amended rule is similar to Fed. R. Civ. Proc. 33 in its treatment of interrogatories with subparts - a "discrete subpart" of an interrogatory counts as a separate interrogatory.
Initial Disclosures Will Be Required
The amended rules will require initial disclosures, which will be similar to those required in federal court. However, Michigan's disclosures differ as to timing and content.
For instance, as to timing, Michigan's disclosures are automatically required unless a court order says otherwise. While federal rules do not require disclosures until after a Rule 26(f) conference, Michigan will require a plaintiff to serve them 14 days after the answer is filed. The Defendant then has 14 days from the date it receives the plaintiff's disclosures. If the Plaintiff fails to serve, the Defendant must still serve within 28 days from filing the answer.
The initial disclosures also include more information than the federal rule. Michigan will require the following items:
- The factual basis for the party's claims and defenses
- Legal theories, including citations to authority
- Names and contact information of individuals with discoverable information
- A copy of all documents (including electronic documents) and tangible things that may support claims and defenses
- A list of documents (including electronic documents) and tangible things that aren't in the party's possession
- A computation of each category of damages
- Insurance information, including coverage and policy limits
- Anticipated subjects (but not names) for expert testimony; and
- Executed medical record authorizations if the plaintiff seeks personal injury damages.
Also, in no-fault auto cases, the plaintiff must disclose the names of the plaintiffs employers, attendant care persons, and provide a copy of all provider bills that need to be reimbursed.
Most Cases Will Require Disclosures
The disclosure requirement applies to most circuit court cases. In probate court, disclosures will not be automatically required, but they can either be ordered by the court in a will contest, or they can be required if an interested person, other than the petitioner, files a demand for disclosures before the first hearing on the petition.
Other cases which are exempt from initial disclosures include appeals to the circuit court, district court actions, domestic relations cases, pro per prisoner actions, certain ancillary proceedings, PPO matters, and habeas petitions.
Disclosures Can Be Compelled
If a party does not make the disclosures, then under amended MCR 2.301(A)(1), that party is barred from seeking discovery. Meanwhile, another party can move to compel disclosure and other sanctions under revised MCR 2.313(A)(2)(a). The new rules permit sanctions even if a plaintiff serves the disclosure after a motion is filed.
The amended rule explicitly states that a party is not excused from making a disclosure "because the party has not fully investigated the case", nor can a non-disclosing party cite the other party's failure to provide adequate disclosures as a reason not to serve its own disclosures.
A copy of the Order adopting the amendment can be found at the website for the Michigan Supreme Court.