In 2020, Michigan Is Changing the Scope of Discovery Rule to Stress that Requests Are Supposed to Be Proportional

On January 1, 2020, many significant changes to Michigan's court rules will take effect. One important change is a rewrite of the "scope of discovery" rule at MCR 2.302(B)(1). The amendment allows parties to object that discovery requests are out of proportion to the needs of a case. It also deletes language that used to be the basis of many motions to compel discovery.

The Old Language: "Any Matter . . . Which is Relevant" and "Reasonably Calculated"

If you've ever moved to compel discovery over another party's objections, you've probably cited MCR 2.302(B)(1) and its sweeping, generous statement that parties may obtain discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action." And you've probably doubled down with the last sentence in the rule, which states that "it is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

The New Scope of Discovery Language: "Relevant" and "Proportional"

The Amendment deletes both of those phrases from the Michigan Court Rules. The rewritten MCR 2.302(B)(1) qualifies its statements to emphasize that discovery should be proportional to the needs of the case:

"(1) In General. Parties may obtain discovery regarding any non-privileged 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."

This new rule borrows from Rule 26(b)(1) of the Federal Rules of Civil Procedure, though it is not identical. While the federal rule enumerates the factors to be considered (importance of issues at stake, amount in controversy, parties' relative access, and so on), the Michigan Rule actually allows the court to "[take] into account all pertinent factors", including but not limited to the factors listed in the rule. Technically, this means that Michigan will permit a wider range of considerations about what items are discoverable. In practice, it's actually hard to think of arguments that aren't already covered by the federal rule's list of concerns.

Will this rule change simply be stylistic? Not entirely. For one thing, when the federal courts deleted the "reasonably calculated" standard in 2015, proponents argued that the standard was actually contrary to the law (or would be, if it wasn't a court rule).

Furthermore, as pointed out by the State Bar of Michigan's Representative Assembly, this change will make proportionality a key consideration throughout the discovery process, and not just a defensive concept. While courts have always actually considered whether discovery was necessary, actual Rule-Based arguments against discovery were not as direct. Practitioners argue whether the discovery was relevant, and whether objections such as undue burden or harassment in MCR 2.302(C) (the protective order procedures) are available.

In any event, practitioners should be prepared. The "reasonably calculated" statements in motions to compel should be deleted, and lawyers should be prepared to argue whether or not the underlying case merits the discovery.

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