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WAYNE STATE UNIVERSITY JOURNAL OF BUSINESS LAW [Vol. 3:1 2020]
Discovery in the Information Age: Michigan's New ESI Rules
Devin Sullivan, Esq.
Over the last few decades, advancing technology has revolutionized the business world. The
internet opened up previously unavailable markets. Automated computer programs drastically
reduced the cost of various operations. And email and smart phones have made contact possible
at any time of day (or night).
One unfortunate side effect of the digital age, however, is the increased litigation costs resulting
from the proliferation of electronically stored information (ESI) retained by companies. A
simple discovery request for all records related to a particular contract might have once
required no more than consulting a single filing cabinet. But in the modem world, most of us
send dozens, if not hundreds, of emails every day. Even a small business may continually
generate thousands of documents per day, all of which could potentially be discoverable. Thus,
when a party requests all records related to a particular contract, the scope of potentially
responsive documents is massively expanded when ESI is taken into account. Even a relatively
specific request may result in thousands of hits on an email search, the vast majority of which
will likely be non-responsive. Working with eDiscovery vendors and outside review companies
is thus a normal part of modern litigation, as companies seek to minimize ESI review,
production, and cost to the extent possible. Still, the cost of doing so can be immense,
significantly increasing the burden of litigation.
The law has lagged behind advancing technology, as is often the case, which only exacerbates
the problem. For years, the Michigan Court Rules barely acknowledged the existence of ESI,
making many of their provisions ill-suited to the modem world. On June 19, 2019, however, the
Michigan Supreme Court approved a wide-ranging set of amendments to the Michigan Court
Rules, many of which are aimed at modernizing the rules to address persistent ESI-related
discovery issues. The revised rules (Amended Court Rules) went into effect on January 1,
2020.
This article will address three particular impacts of the Amended Court Rules on ESI-related
discovery. First, the Amended Court Rules address the extensive cost of ESI-related discovery
by requiring trial courts to consider, both, whether the discovery should be had at all, based on
whether it is proportional to the matter at hand, and whether the costs of such discovery should
be shared by the parties. Second, the Amended Court Rules limit the sanctions available where
ESI is not preserved, although the extent of that limitation is not yet clear. Finally, the Amended
Court Rules require the parties to engage in a conference to address ESI-related issues (ESI
Conference) and develop a discovery plan for the litigation.
I. Courts must now explicitly consider proportionality and potential cost-sharing in
determining whether to permit discovery of ESI.
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