5.11 Disclosure and Discovery Motions 1
Committee Tips:
• Determine whether motion is routine or complex. Does motion address failure to disclose, failure to respond, or the response? If the motion addresses failure to disclose or respond, set deadline and possible consequences.
• If hearing is on objections to interrogatories, or allegations of evasive or incomplete answers, require submission of both interrogatories and answers in advance, and require specificity in motion.
• Consider in camera review.
• Consider alternative discovery methods beyond those specified in the Michigan Court Rules. See Reed Dairy Farm v Consumers Power Co , 227 Mich App 614, 618 (1998), which upheld a trial court’s decision to allow the plaintiff to submit interrogatories to nonparty expert witnesses in lieu of expending time and money traveling across the country questioning each witness individually.
• Consider whether to extend discovery.
A. Motion to Compel
Disclosure. The party seeking disclosure may file a motion to compel if a party fails to serve a disclosure as required by MCR 2.302(A) . MCR 2.313(A)(2)(a) .
Discovery. The party seeking discovery may file a motion to compel discovery if:
“( i ) a deponent fails to answer a question propounded or submitted under MCR 2.306 or [ MCR] 2.307 ,
( ii ) a corporation or other entity fails to make a designation under MCR 2.306(B)(3) or [ MCR] 2.307(A)(1) ,
( iii ) a party fails to answer an interrogatory submitted under MCR 2.309(A) and [MCR 2.309](B) ,
( iv ) in response to a request for inspection submitted under MCR 2.310 , a person fails to respond that inspection will be permitted as requested, or
( v ) If a party; an officer, director, or managing agent of a party; or a person designated under MCR 2.306(B)(3) or [ MCR] 2.307(A)(1) to testify on behalf of a party fails to appear before the person who is to take his or her deposition, after being served with a proper notice, the party seeking discovery may move for an order compelling compliance. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.” MCR 2.313(A)(2)(b) .
Non-party discovery subpoena. “If a recipient of a non-party discovery subpoena under MCR 2.305 [ 2 ] fails to comply, the issuing party may move to compel compliance. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. The motion must include a copy of the subpoena and proof of service of the subpoena. The movant must serve the motion on the person from whom discovery is sought as provided in MCR 2.105 .” MCR 2.313(A)(2)(c) .
1. Failure to Obey Order Compelling Discovery
“If a deponent fails to be sworn or answer a question” after being ordered to do so by a court in the county or district where the deposition is taking place, he or she may be found in contempt of court. MCR 2.313(B)(1) .
If a party or other person listed in MCR 2.313(B)(2) fails to obey an order compelling discovery, the court where the action is pending may order any of the following sanctions, as are just 3 :
• Establish that certain matters and designated facts stated in the moving party’s claim are true.
• Refuse to allow disobedient party to support or oppose designated claims or defenses, or introduce designated matters into evidence.
• Strike pleadings or parts of pleadings, stay further proceedings until the order is obeyed, dismiss the action or parts of it, or enter a judgment by default.
• Find the nonmoving party in contempt of court (either in addition to or in lieu of any other sanctions). This sanction is not applicable to orders requiring a physical or mental examination. MCR 2.313(B)(2)(a)-(d) .
Sanctions listed under MCR 2.313(B)(2)(a)-(c) may be applied to a person who has been ordered to and fails to produce another person for examination pursuant to MCR 2.311(A) , unless the disobedient person can show that he or she is unable to produce the person for examination. MCR 2.313(B)(2)(e) .
“[R]easonable expenses, including attorney fees, caused by the failure” may also be added to or substituted for any of the sanctions listed in MCR 2.313(B)(2) , “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” 4 MCR 2.313(B)(2) . Expenses may be apportioned if the motion to compel is granted in part and denied in part. MCR 2.313(A)(5)(c) . Both the party and the attorney may be sanctioned. MCR 2.313(A)(5) ; MCR 2.313(B)(2) . See also Jackson Co Hog Producers v Consumers Power Co , 234 Mich App 72, 89 (1999).
If the court orders the sanction of dismissal under MCR 2.313(B)(2)(c) for failure to provide or permit discovery, the dismissal serves as an adjudication on the merits pursuant to MCR 2.504(B)(3) , unless the court specifies otherwise. Dawoud v State Farm Mut Auto Ins Co , 317 Mich App 517, 523-524 (2016).
2. Failure to Preserve
“If ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may order appropriate remedies, including:
(a) a presumption that the lost information was unfavorable to the party;
(b) a jury instruction directing that the jury may or must presume the information was unfavorable to the party; or
(c) dismissal of the action or entry of a default judgment.” MCR 2.313(D) . 5
3. Evidentiary Hearing
While a party may be sanctioned for failing to permit discovery, the party is entitled to an evidentiary hearing so that both parties may introduce evidence alleging and rebutting the disobedient party’s willfulness and to what extent the other party has been prejudiced by the failure. See Traxler v Ford Motor Co , 227 Mich App 276, 288 (1998).
4. Award of Expenses
Expenses awarded for filing the motion to compel. The court may award reasonable expenses incurred as a result of the conduct and in making the motion, including attorney fees, to the moving party if the motion is granted, or the disclosure or requested discovery is provided after the motion was filed, unless the moving party filed the motion before attempting in good faith to obtain the disclosure or discovery without court action. MCR 2.313(A)(5)(a) . If the motion is denied, the court may award reasonable expenses, including attorney fees, to the nonmoving party, unless filing the motion or opposing the motion was substantially justified or other circumstances make an award of expenses unjust. MCR 2.313(A)(5)(b) . 6 “If the motion is granted in part and denied in part, the court may, after opportunity for hearing, apportion the reasonable expenses incurred in relation to the motion among the parties and other persons in a just manner.” MCR 2.313(A)(5)(c) . The court may also order such sanctions it deems just, including those authorized under MCR 2.313(B)(2)(a)-(c) . MCR 2.313(A)(6) .
“[T]he trial court did not abuse its discretion by denying the [plaintiff’s] motion for fees and costs related to defendants’ motion to compel discovery” where it found that the motion was not “inappropriate” rather than expressly finding that the motion was “substantially justified” or that an award of expenses would be “unjust” under the circumstances. Cove Creek Condo Ass’n v Vistal Land & Home Dev, LLC , 330 Mich App 679, 719 (2019).
Expenses awarded for failing to comply with order compelling discovery. The court must order the disobedient party to pay the other party’s “reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” MCR 2.313(B)(2) .
B. Motions for Protective Orders
“Despite Michigan’s broad discovery policy, a trial court should protect parties from excessive, abusive, or irrelevant discovery requests.” Thomas M Cooley Law School v John Doe 1 , 300 Mich App 245, 260-261 (2013). “To that end, [ MCR 2.302(C) ] allow[s] a party or a person from whom discovery is sought to move for a protective order.” Arabo v Mich Gaming Control Bd , 310 Mich App 370, 398 (2015). “The movant must demonstrate good cause for the issuance of a protective order.” Id .
When a moving party has given reasonable notice and shown good cause, the court “may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” MCR 2.302(C) .
2. Types of Protective Orders
When issuing a protective order, the court may order one or more of the following:
• Discovery on specified terms and conditions.
• Another method of discovery.
• Limit scope of discovery, including prohibiting discovery of certain matters altogether.
• Limit people present at discovery.
• Require court order to open sealed depositions.
• Deposition for discovery and impeachment purposes only.
• Nondisclosure or limited disclosure of trade secrets, confidential research, development, or commercial information.
• Simultaneous filing of specified documents in sealed envelopes, to be opened as directed by the court. MCR 2.302(C)(1)-(9) .
“A protective order issued under MCR 2.302(C) may authorize parties to file materials under seal in accordance with the provisions of the protective order without the necessity of filing a motion to seal under [ MCR 8.119 ].” MCR 8.119(I)(8) . “Any person may file a motion . . . to unseal a document filed under seal pursuant to MCR 2.302(C) [.]” MCR 8.119(I)(9) . A motion to unseal is governed by MCR 2.119 . MCR 8.119(I)(9) .
3. Denial of Motion for Protective Order
“If the motion for a protective order is denied in whole or in part, the court may, on terms and conditions as are just, order that a party or person provide or permit discovery.” MCR 2.302(C) .
4. Award of Expenses
MCR 2.313(A)(5) governs the award of expenses for protective order motions. See MCR 2.302(C) . The court may award reasonable expenses incurred as a result of the conduct and in making the motion, including attorney fees, to the moving party if the motion is granted, or the disclosure or requested discovery is provided after the motion was filed, unless the moving party filed the motion before attempting in good faith to obtain the disclosure or discovery without court action. MCR 2.313(A)(5)(a) . If the motion is denied, the court may award reasonable expenses, including attorney fees, to the nonmoving party, unless filing the motion or opposing the motion was substantially justified or other circumstances make an award of expenses unjust. MCR 2.313(A)(5)(b) . 7 “If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and other persons in a just manner.” MCR 2.313(A)(5)(c) .
C. Standard of Review
A court’s decision regarding the imposition of discovery sanctions and the amount of attorney fees awarded is reviewed for an abuse of discretion. McDonald v Grand Traverse Co Election Comm , 255 Mich App 674, 697 (2003). However, a court’s decision whether to award attorney fees is reviewed for clear error. Id .
A court’s decision to grant or deny a protective order limiting discovery is reviewed for an abuse of discretion. P T Today, Inc v Comm’r of Office of Fin & Ins Svcs , 270 Mich App 110, 151 (2006). Whether a trial court “applied the correct legal standards in determining whether to issue a protective order in the first place” is reviewed de novo. Dep’t of Health and Human Servs v Genesee Circuit Judge , 318 Mich App 395, 407 (2016).
1 The use of videoconferencing technology is presumed through the application of MCR 2.408(B)(3) and MCR 2.408(C)(3) to motions filed pursuant to MCR 2.119 regarding discovery. See Section 1.15 for more information on videoconferencing.
2 “Notwithstanding any other provision of [ MCR 2.305 ], a subpoena issued under [ MCR 2.305 ] may require a party or witness to appear by telephone or by videoconferencing technology. Telephonic proceedings are subject to the provisions of MCR 2.402 , and videoconference proceedings are subject to the provisions of MCR 2.407 .” MCR 2.305(F) .
3 See Section 5.1() on determining an appropriate sanction.
4 See Section 5.12(A)(3) regarding an award of expenses.
5 See the Michigan Judicial Institute’s Evidence Benchbook , Chapter 1, for information regarding presumptions.
6 MCR 2.313(A)(5) also applies to motions for protective orders. MCR 2.302(C) . See Section 5.11(B) for more information on protective orders.
7 MCR 2.313(A)(5) also applies to motions for protective orders. MCR 2.302(C) . See Section 5.11(B) for more information on protective orders.
