Electronic-Discovery

In December 2015, new amendments to the Federal Rules of Civil Procedure (FRCP) went into effect aimed at making the discovery process more, as Rule 1 says, "just, speedy and inexpensive." But for many attorneys around the U.S., the crucial aspect of the FRCP is that first word: federal, meaning a large number of cases in state and local courts would not receive similar, updated discovery rules.

But since late 2015, a number of states have moved to close that gap, updating their own rules for a 21st-century discovery process. The latest of those is the state of Michigan, which recently made the largest change to its civil discovery rules in 35 years in a bid to increase "everyone's access to our courts to resolve their civil legal dispute in a cost-effective manner," the state bar said. The new rules go into effect Jan. 1.

Scott Petz, a member at Dickinson Wright, told Legaltech News, "These rules do more than just address ESI. They also address the growing need for parties and the court to be involved in the discovery process, whether it be e-discovery or not, and the need relatedly for cooperation."

That means not only a major change for the courts and judges themselves, but all attorneys practicing in state court. B. Jay Yelton III, a partner at Warner Norcross + Judd, said that while the changes may not be extreme for those used to practicing in federal court, "a lot of lawyers in our state are not familiar with those concepts, and it's going to be a huge change for them. They're not going to have to become e-discovery experts, but they're going to have to become aware of the e-discovery rules and the issues."

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What's New

Within the new rules, there is an increased importance on planning. Previously, Yelton noted, many parties wanted to put off discovery as long as possible, in hopes of settling or winning on procedural grounds. "This is completely different than that. We have to talk about discovery early in the case, and that's going to be a real change."

For example, judges will be placing a greater emphasis on discovery earlier in the case with required initial disclosures within Rule 2.302(A)(1). This may sound like it's ported from FRCP Rule 26, and to some extent it is—but it also borrows from the recently amended Rule 26.1(a) of the Arizona Rules of Civil Procedure.

This is purposeful, Petz said. "The committee that was involved in amending the Michigan court rules did not just copy and paste the Federal Rules," he explained. "In fact, there are areas where it knowingly chose not to follow the federal example."

The Michigan committee even included a proportionality factor that appeared in the Federal Rules before the 2015 amendments, Petz said. Developing the updated rules was a years-long process, and each part of civil discovery was examined on a case-by-case basis.

"We've been fortunate that there have been multiple other states that have modified their rules over the past five, six years," Yelton added. "So the committee looked at state rules, looked at federal rules, and went from there."

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The Process of Education

With so many changes, one of the biggest issues then for the Michigan bar is also a simple one: How do you get people to actually not only hear about, but understand the changes?

At michbar.org/civildiscovery, the Michigan bar has set up a website going through the changes, as well as a calendar of events to help explain the changes throughout the state. This website also includes a link to a guidebook—Petz and Yelton are two of the six authors—that runs through not only the changes, but also the relevant laws federally and in other jurisdictions that they are drawn from.

The goal of the guidebook, Petz noted, is to provide context around all of the changes and a launching pad for attorneys to learn more as needed. "We've entered a world where justice is a truth-seeking mission operating in a data universe. As Jay indicated, we need to make sure the individuals who are practicing are technologically versed themselves and know how to bring in other resources to help them make sure they deal with discovery issues, including technical discovery issues, properly."

The events range from state bar gatherings (State Bar of Michigan Business Law Section) to local bar association speakers (Kalamazoo County Bar Association Speaker Series) to practice area-specific guidance (Michigan Defense Trial Council Winter Meeting). The Association of Certified E-Discovery Specialists (ACEDS) Michigan chapter also focused on the changes in its fourth annual symposium, featuring a panel session with three Michigan judges discussing e-discovery in the new rules.

Indeed, Michigan's judiciary will take a central role in this education; it's instructive that the guidebook begins with a forward from Chief Justice Bridget M. McCormack. Yelton explained that judges were supportive of the committee and its changes for a rather simple reason: They want trials.

"People aren't filing lawsuits because they can't afford this system, and I think it strikes all of us that that's a shame, that the system's not working as well as it should," he explained. "People are avoiding the system because of the use of outdated discovery rules that end up burdening the whole process to the point that you never get to a trial, you never resolve the issues."

It was this sort of buy-in that made the rules process not only successful, but easier to understand, Yelton added. The committee brought in lawyers, judges and other stakeholders in early in the process, and the result was a rules package that elicited very few comments against and very few objections at live hearing.

"I would have thought this was much more controversial," he explained, "but because they embraced everybody as part of this process, it went incredibly smoothly, which really stunned me."