Attorneys Pay Attention: Michigan Courts Direct Parties to Address E-discovery Matters

Last year Michigan joined a number of other states that have added rules to specifically address e-discovery (Click here for a write-up and link to Michigan’s e-discovery amendments and here for a listing of states that have e-discovery rules on the books). E-discovery commonly refers to the preserving, reviewing, and producing digital information that relates to litigation. Just because these rules are on the books, however, doesn’t mean parties, attorneys, and judges are attentive  as they should be  when it comes to addressing e-discovery. For example, a prior post reported on a Michigan Court of Appeals panel affirming a dismissal of a plaintiff’s employment claim because the plaintiff failed to comply with his e-discovery obligations. Click here for that post.

Additionally, I spoke with a federal magistrate at an e-discovery seminar about what is being done in federal courts to encourage e-discovery discussions on the front end of litigation and he candidly responded, “not much.” A survey of court opinions shows that failing to discuss e-discovery at the outset of litigation often forces a party to dig out of a digital hole. See 3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006) (Court affirmed the magistrate’s recommendation for imposing sanctions against defendant  based upon defendant’s failure to carry out a  legal hold, failure to conduct a reasonable search for responsive documents, failure to comply with prior discovery order, and other discovery abuses); Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009) (Plaintiff believed that defendants had purposefully altered electronically created evidence related to surgeon’s knowledge of decedent’s medical history. Appellate Court affirmed Order allowing Plaintiff’s expert to image Defendants’ hard drives to support claims of spoliation and fraud); TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009) (Defendant was held in contempt and found to have intentionally spoliated relevant documents in violation of a court order).

But there are judges who are taking the lead and actively directing parties at the outset of litigation to address e-discovery. In this regard, the Hon. Lisa Gorcyca (Oakland County Circuit Court), has incorporated a provision addressing electronically stored information, i.e., e-discovery, in her court’s scheduling order. This provision directs the parties to discuss e-discovery issues and sets time frames for when such discussions must take place: “Any discovery issue regarding electronically stored information is governed by MCR 2.401(B)(2)(C) and must be brought to the Court’s attention no later than 90 days before the close of discovery; otherwise, those discovery issues will be deemed waived.”

Admittedly there are questions as to what makes up an issue regarding “electronically stored information” as opposed to a general discovery issue. For example, if a party fails to produce an email or information from a database, is that an e-discovery issue or a general discovery issue? Does the answer change depending upon the relief requested, e.g., if a party ask that a forensic inspection of a hard drive should be ordered to obtain that e-mail versus production of the actual e-mail. Or what if the forensic inspection reveals that the party deleted the e-mail after the preservation trigger should have been pulled and an adverse jury instruction is requested? Setting aside these issues, this Order makes clear that parties and their attorneys must be prepared to have the right answers to these questions and know what issues should be addressed. Such attention is especially important for business organizations who are already running lean now and do not have the resources to dig out of a digital hole created by improper planning, which can send litigation costs soaring. So even if Judge Gorcyca does not become an e-discovery “trendsetter” it is still in a business organization’s best interest to have their e-discovery ducks in a row.

I would be interested if you are aware of what other Michigan judges are doing with respect to e-discovery. And, as always, if  you have questions about this post or other e-discovery matters, feel free to contact me.

Any discovery issue regarding electronically stored information is governed by MCR 2.401(B)(2)(C) and must be brought to the Court’s attention no later than 90 days before the close of discovery; otherwise, those discovery issues will be deemed waived.