Opinion
No. ADM File No. 2007-24.
April 29, 2008.
Orders Entered April 29, 2008.
On order of the Court, this is to advise that the Court is considering amendment of Rules 2.301, 2.302, 2.401, and 2.506 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
[The present language would be amended as indicated below:]
RULE 2.301 COMPLETION OF DISCOVERY
(A) In circuit and probate court, the time for completion of discovery shall be set by an order entered under MCR 2.401(B)(2)(a) . and issues relating to the discovery. preservation, and claims of privilege with respect to electronically stored information shall be dealt with by an order entered under 2.401(B)(2)(c).
(B)-(C) [unchanged.]
RULE 2.302 GENERAL RULES GOVERNING DISCOVERY.
(A) [Unchanged.]
(B) Scope of Discovery.
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party, including the existence, description, nature, custody, condition, and location of books, documents,or other tangible things, or electronically stored information and the identity and location of persons having knowledge of a discoverable matter. 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.
(2)-(4) [Unchanged.]
(5) Electronically Stored Information. A party must preserve information, including electronically stored information, that the party knows, or reasonably should know, may lead to the discovery of admissible evidence. A party who wishes to destroy such information may apply to the court for leave to do so upon good cause shown. (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.
(C)-(H) [Unchanged.]
RULE 2.401 PRETRIAL PROCEDURES; CONFERENCES; SCHEDULING ORDERS.
(A) [Unchanged.]
(B) Early Scheduling Conference and Order.
(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:
(a) whether jurisdiction and venue are proper or whether the case is frivolous,
(b) whether to refer the case to an alternative dispute resolution procedure under MCR 2.410, and
(c) the complexity of a particular case and enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case. and. (d) discovery, preservation, and claims of privilege of electronically stored information.
(2) Scheduling Order.
(a) At an early scheduling conference under subrule (B)(1), a pretrial conference under subrule (C), or at such other time as the court concludes that such an order would facilitate the progress of the case, the court shall establish times for events the court deems appropriate, including
(i) the initiation or completion of an ADR process,
(ii) the amendment of pleadings, adding of parties, or filing of motions,
(iii) the completion of discovery,
(iv) the exchange of witness lists under subrule (I), and
(v) the scheduling of a pretrial conference, a settlement conference, or trial.
More than one such order may be entered in a case.
(b) The scheduling of events under this subrule shall take into consideration the nature and complexity of the case, including the issues involved, the number and location of parties and potential witnesses, including experts, the extent of expected and necessary discovery, and the availability of reasonably certain trial dates.
(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. (c) (d) Whenever reasonably practical, the scheduling of events under this subrule shall be made after meaningful consultation with all counsel of record.
(i) If a scheduling order is entered under this subrule in a manner that does not permit meaningful advance consultation with counsel, within 14 days after entry of the order, a party may file and serve a written request for amendment of the order detailing the reasons why the order should be amended.
(ii) Upon receiving such a written request, the court shall reconsider the order in light of the objections raised by the parties. Whether the reconsideration occurs at a conference or in some other manner, the court must either enter a new scheduling order or notify the parties in writing that the court declines to amend the order. The court must schedule a conference, enter the new order, or send the written notice, within 14 days after receiving the request.
(iii) The submission of a request pursuant to this subrule, or the failure to submit such a request, does not preclude a party from filing a motion to modify a scheduling order.
(C)-(I) [Unchanged.]
RULE 2.506 SUBPOENA; ORDER TO ATTEND.
(A) Attendance of Party or Witness.
(1) The court in which a matter is pending may by order or subpoena command a party or witness to appear for the purpose of testifying in open court on a date and time certain and from time to time and day to day thereafter until excused by the court, and to produce notes, records, documents, photographs, or other portable tangible things as specified.
(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 hurden or cost. In a hearing or submission under subrule (H)r 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. (2) (4) The court may require a party and a representative of an insurance carrier for a party with information and authority adequate for responsible and effective participation in settlement discussions to be present or immediately available at trial.
(3) (5) subpoena may be issued only in accordance with this rule or MCR 2.305, 2.621(C), 9.112(D), 9.115(I)(1), or 9.212.
(B)-(I) [Unchanged.]
I concur in publishing for comment proposed amendments to MCR 2.301,2.302,2.401, and 2.506. These amendments, submitted by the State Bar of Michigan, would update the civil discovery rules to account for the exchange of electronically stored information. I write separately because I am concerned about certain aspects of MCR 2.401(B)(1) and (2)(c). I believe that we should ultimately strive to eliminate the court from routine participation in cases involving electronic discovery. I recognize that we are living in times of transition. Nevertheless, such discovery of electronically stored information should eventually occur without the need for court involvement. I thus invite the bench and bar to submit any proposals suggesting alternative language that would assist us to routinize the production of electronically stored information upon receipt of a discovery request without the necessity of court involvement.
Staff comment: This proposal, submitted by the State Bar of Michigan, would amend Michigan's discovery rules concerning electronically stored information, and would make the rules consistent with the federal rules.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by August 1, 2008, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2007-24. Your comments and the comments of others will be posted at: www.courts.mi. gov/supremecourt/resources/administrative/index.htm.