Edmund J. Sikorski, Jr. and Laura Goderis
Perhaps the most vexatious part of any litigation occurs in the process of discovery. The words ‘unduly burdensome’ are the bane of every judge’s existence. The frustrations with discovery are not a secret and are not limited to just the judge. The discovery process is continually a ‘work in progress’ as reflected in the staff comments found in subchapter MCR 2.300 of the Michigan Court Rules.
MCR 2.411(H), Mediation of Discovery Disputes, states as follows:
The parties may stipulate to or the court may order the mediation of discovery disputes (unless precluded by MCR 3.216[C][3]). The discovery mediator may by agreement of the parties be the same mediator otherwise selected under subrule (B). All other provisions of this rule shall apply to a discovery mediator except:
(1) The order under subrule (C)(1) will specify the scope of issues or motions referred to the discovery mediator, or whether the mediator is appointed on an ongoing basis.
(2) The mediation sessions will be conducted as determined by the mediator, with or without parties, in any manner deemed reasonable and consistent with these rules and any court order.
(3) The court may specify that discovery disputes must first be submitted to the mediator before being filed as a motion unless there is a need for expedited attention by the court. In such cases, the moving party shall certify in the motion that it is filed only after failure to resolve the dispute through mediation or due to a need for immediate attention by the court.
(4) In cases involving complex issues of ESI, the court may appoint an expert under MRE 706. By stipulation of the parties, the court may also designate the expert as a discovery mediator of ESI issues under this rule, in which case the parties should address in the order appointing the mediator whether the restrictions of MCR 2.411(C)(3) and 2.412(D) should be modified to expand the scope of permissible communications with the court.
In 2020, a special committee of the State Bar of Michigan submitted a proposal with changes to the Michigan Court Rules, which were ultimately approved for submission to the Court by the Bar’s Representative Assembly. The proposals take into consideration that the discovery process is getting more complicated and arduous. MCR 2.411 (Mediation) was expanded to add a subsection (H) allowing for the mediation of all discovery disputes by consent, or by Court order.
The Committee Notes following the new rule recite, in material part:
…that a small number of cases are particularly complex and generate an inordinate number of discovery disputes requiring the Court’s attention. As such, in order to best serve the parties and the interests of justice, the discovery mediation may provide enhanced case management without causing undue expense, delay, or burden and without prejudice to a party’s right to have all discovery disputes adjudicated by the Court. In no circumstance may a Court delegate its judicial authority to the discovery mediator.
However, the use of MCR 2.411 should not be limited to just those small number of ‘complex cases,’ but can be used in all cases where a party has flouted their discovery obligations, created unnecessary delay in the discovery process, failed to promptly communicate with opposing counsel and repeatedly lodged baseless boilerplate objections to discovery requests. In short, MCR 2.411(H) moves toward a more collaborative approach to resolving discovery issues. Since the adoption of MCR 2.411(H), there appears to be little, if any, articles written or guidance given addressing the practical implications of implementing the rule so this article is intended to provide that needed guidance.
By MCR 2.411 joining discovery conflicts with ADR, the parties and the Court have the ability to craft more concrete discovery orders, processes and parameters. The use of MCR 2.411(H) by the Court is usually activated when a Motion to Compel Discovery has been filed. The use of MCR 2.411(H) does not alleviate the Court from being the sole arbiter of unsettled discovery disputes, but it allows for a discussion ‘at the table’ versus an argument in the courtroom.
MCR 2.411(H)(4)* addresses cases involving complex issues of ESI (electronically stored information). With ESI issues, the court may appoint an expert under MRE 706.* That person serves in the dual role of expert and mediator. The subrule reminds the parties to consider the limitations placed on mediator by MCR 2.411(C)(3) and MCR 2.412(D) and to include any necessary modifications regarding those limitations in the Court order appointing the mediator.**
Crafting discovery mediation orders needs to take into consideration the pitfalls of leaving parties to their own devices. Tight parameters, limited choices, and equal financial responsibility are all good starts.
The following is a typical order issued in the Washtenaw County Circuit Court, by the Hon. Archie C. Brown:
1. Per MCR 2.411, the parties are ordered to mediation regarding all discovery disputes.* Any discovery related motions shall not be filed until after the parties have completed Discovery Mediation as to that particular issue.
Reasoning: The parties are now required to mediate all discovery issues prior to filing a motion. The courtroom is no longer used as a revolving door for tattling and complaining.
2. The parties shall agree, in writing, on a Discovery Mediator (DM) on or before ____(a date usually 7 days from the date of the order). If they are unable to agree on a mediator _______________shall act as the DM
Reasoning: Precludes unnecessary delay in ‘agreeing’ on the DM. If the parties cannot agree, the parties are well informed on who will be ordered to act as their DM.
3. The Discovery Mediation shall occur on or before _____________ (usually 3-4 weeks form the date of the order)
Reasoning: Precludes unnecessary delay in scheduling. Limits the parties to a specified period of time to complete mediation.
4. The parties shall share equally the cost of the DM.
Reasoning: Both parties become financially responsible for the decisions made in their cases. However, this does not preclude the mediator from recommending, or the Court ordering, at the conclusion of DM that one party should be responsible for a higher percentage of the cost, or the cost in its entirety.
5. The current Scheduling Order shall remain in full force and effect.
Reasoning: DM is not an excuse for adjourning substantive dates. Issues with discovery need to be articulated sooner, rather than later.
6. The parties may stipulate to broaden the powers of the DM to include all aspects of ADR.**
Reasoning: The DM should not be limited to mediating ‘just discovery issues.’ Discovery Mediation often gives momentum to the parties resolving the entire case.
7. The parties are put on notice, that if it is determined that any party has failed to produce discovery, the Court shall impose appropriate sanctions, including, but not limited to, barring the offending party from using any such evidence or any evidence that may have flowed therefrom, dismissal, or default.
Reasoning: There is no misunderstanding that failure to cooperate with discovery has dire consequences.
Each discovery mediation order that follows should be individualized to the at-issue case. However, it is imperative that the parties understand the ramifications of their decisions regarding discovery and that discovery mediation is not used as a delay tactic.
The DM may also have additional requirements/parameters. In cases where this co-author (Edmund Sikorski) has been appointed the DM, the parties execute a mediation agreement that specifies the DM procedure, protocol, fee arrangements AND the following stipulation:
“The parties stipulate that the mediator is authorized to communicate to the Court matters provided for in MCR 2.411(H)”
The DM may then conduct pre-mediation telephone conferences with the parties, request pleadings, documents, and correspondence regarding the issues, set a time, date, and place for a formal mediation session. The parties (and mediator) need to understand that Discovery Mediation is not where compromise and “split the baby” approaches are utilized. Instead, the DM is determining the discoverability of types of information, per the Michigan Rules of Evidence, Michigan Court Rules, statutory authority and case law. Just because something is discoverable does not automatically make it admissible.
The next goal of the process is to further identify and clarify the disputed issues, facilitate the discovery process and exchange of appropriate materials, documents, and other sources of discoverable material, agree on the method and format of production, and set a time for compliance. Discovery Mediation is a structured process.
After the conclusion of formal discovery mediation session(s), the DM files a Mediation Status Report (SCAO form MC 280) identifying the outcome of the case. If the settlement is as to discovery issues only, the title of MC 280 should be modified to indicate that it is a Discovery Mediation Status report. If the parties have stipulated to broaden the powers of the DM to include all aspects of ADR and the entire case settles, the title of MC 280 does not need to be modified.
If the discovery mediation is unsuccessful, regardless of whether ADR powers have been broadened, the DM files MC 280 checking Box 3b. In addition, the DM submits a confidential report to the Court regarding the discovery issues only. The report will add significant cost to the process.
The report should include, but is not limited to, identifying the unresolved discovery issue, identifying the claims of the parties regarding the issues in relation to the criteria required by MCR 2.302(B) and the DM’s written recommendations to the Court. The DM provides the written recommendations to the Court only. The report is NOT shared with the parties as it only contains recommendations.
The Court then issues its Order regarding the discovery dispute.
If the Court orders substantial discovery sanctions, such as shifting the entire cost of the mediation fee charged by the mediator, it is absolutely astounding to see how quickly the cases seem to settle in their entirety!
Currently, many of the limitations to using Discovery Mediation revolve around the limited number of mediators willing to participate as a DM. In Discovery Mediation, the DM is required to review volumes of documents. A task that many are not willing to volunteer for. In addition to the usual mediation requirements, it is also recommended that the DM have additional discovery training and certification, especially when discovery demands call for production of documents and other ESI data, such as emails. Such training and certifications are available through The Association of Certified e-Discovery Specialists (ACEDS).
The use of MCR 2.411(H) is a positive opportunity to remove the negative connotations of the words ‘unduly burdensome’ from the legal vernacular. MCR 2.411(H) starts the mediation process early in the case and allows mediation to become an integral part of the entire case; unlike waiting until the day of the final settlement conference to ask for a trial adjournment so the case can ‘mediate.’
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Edmund J. Sikorski Jr. is an attorney and civil mediator in Ann Arbor.
Laura K. Goderis has served as the chairperson of the Alternative Dispute Resolution Committee of the Family Division of the Washtenaw County Trial Court, and has completed training in divorce mediation and domestic violence screening.
