Michigan Motion to Compel

Introduction

Key Things to Know

1. 1

   Start with the vehicle, because Michigan writes four of them. A motion under MCR 2.313(A) asks the court for an order compelling disclosure or discovery when the other side ignored, answered evasively or objected to what you served, and MCR 2.313(A)(4) provides that an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. Subparagraph (a) compels an initial disclosure, (b) compels a discovery response, and (c) compels a non-party who ignored a discovery subpoena. Requests for admission go to MCR 2.312(C) instead.

2. 2

   The expense award is discretionary both ways, which is the fact most likely to surprise you. MCR 2.313(A)(5)(a) provides that on a granted motion, or where the discovery is provided after the motion was filed, the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in making the motion, including attorney fees. Three things defeat it: that you filed before attempting in good faith to obtain the discovery without court action, that the opposition was substantially justified, or that other circumstances make an award unjust. Under (5)(b) a denied motion exposes you and your attorney to the same permissive award.

3. 3

   A losing motion can cost you more than money here. MCR 2.313(A)(3) provides that if the court denies the motion in whole or in part, it may enter a protective order that it could have entered on a motion made under MCR 2.302(C). Running the other way, MCR 2.313(A)(6) lets the court on a granted motion order such sanctions as are just and take an action authorized under subrule (B)(2)(a), (b) and (c), which are the orders establishing matters, barring claims or defenses, and striking pleadings or entering a default. Both provisions use may.

4. 4

   Michigan is one of the states where a party can be compelled although nobody served any discovery. MCR 2.302(A)(1) requires each party, without awaiting a discovery request, to provide the factual basis of its claims and defenses, the legal theories they rest on with citations to relevant legal authorities where that is necessary for a reasonable understanding, witnesses and the subjects of their information, documents and ESI it may use, descriptions and custodians of material it may use but does not hold, and a computation of each category of damages with the supporting material made available. MCR 2.313(A)(2)(a) makes a failure to serve any of that compellable. MCR 2.302(A)(4) exempts several case classes, including district-court actions and domestic-relations actions.

5. 5

   The motion's required contents are in the device rules, not in Rule 2.313, which is where a drafter working from the compel rule alone goes wrong. MCR 2.309(C) for interrogatories and MCR 2.310(C)(3) for production each require the motion to state that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action, and each adds that where the motion rests on a failure to serve answers or to respond, proof of service of the interrogatories or of the request must be filed with the motion. MCR 2.312(C) carries the same statement requirement for the sufficiency motion.

6. 6

   Count in 28s and 42s, not 30s and 45s. MCR 2.309(B)(4) gives the responding party 28 days after the interrogatories are served, except that a defendant may serve answers within 42 days after being served with the summons and complaint. MCR 2.310(C)(2) sets the same 28 and 42 for a request for production, and MCR 2.312(B)(1) sets the same for a request for admission, where the matter is deemed admitted if nothing is served in time. The court may allow a longer or shorter time. There is also a cap on your own side: MCR 2.309(A)(2) allows each separately represented party no more than twenty interrogatories upon each party, and a discrete subpart counts as a separate interrogatory, so co-parties sharing one firm share one allowance.

7. 7

   Which court you are in decides whether there is anything to compel at all. MCR 2.001 makes Chapter 2 applicable in all Michigan courts, but MCR 2.301(A)(2) provides that in actions in the district court no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties, and that a motion for discovery may not be filed unless the discovery sought has previously been requested and refused. MCR 2.301(A)(3) permits no discovery at all in the small claims division of the district court or in civil infraction actions. In the circuit court, MCR 2.301(B)(1) sets the discovery period by an order entered under MCR 2.401(B), and MCR 2.301(B)(4) provides that as may be reasonable under the circumstances, or by leave of court, motions with regard to discovery may be brought after the date for completion of discovery.

Michigan Requirements for Motion to Compel

• Which of the Four Vehicles You Are Filing Under

  Decide this before drafting. MCR 2.313(A)(2)(a) compels an initial disclosure required by MCR 2.302(A). MCR 2.313(A)(2)(b) compels an answer, a designation, an inspection or an appearance. MCR 2.313(A)(2)(c) compels a non-party who did not comply with a discovery subpoena under MCR 2.305. Requests for admission are not in that list at all, and MCR 2.312(C) supplies a motion to determine the sufficiency of the answer or objection, where the court may order the matter admitted or an amended answer served. Each has different contents, and the fourth asks for different relief.

• The Court You Are In, and Whether Discovery Was Permitted There

  MCR 2.001 makes Chapter 2 govern procedure in all civil proceedings in all Michigan courts, so Rule 2.313 is not circuit-only. But MCR 2.301(A)(2) permits no district-court discovery before entry of judgment except by leave of the court or on the stipulation of all parties, and bars a motion for discovery unless the discovery sought has previously been requested and refused. MCR 2.301(A)(3) permits no discovery at all in the small claims division of the district court or in civil infraction actions. In circuit court the discovery period comes from the order entered under MCR 2.401(B).

• Proof the Twenty Eight or Forty Two Day Response Period Had Run

  State the computation. MCR 2.309(B)(4) gives 28 days after service of the interrogatories, except 42 days for a defendant counting from service of the summons and complaint. MCR 2.310(C)(2) sets the same pair for a request for production and MCR 2.312(B)(1) for a request for admission, where the matter is deemed admitted if nothing is served in time. The court may allow a longer or shorter time, and under MCR 2.309(B)(4) may for good cause excuse service on parties other than the party who served the interrogatories. A motion filed before the period has run is premature.

• Your Own Interrogatory Count, With Discrete Subparts Counted

  MCR 2.309(A)(2) allows each separately represented party no more than twenty interrogatories upon each party, and a discrete subpart of an interrogatory counts as a separate interrogatory. Count before you move, because a cap objection is about your service rather than about the subject matter and no order will cure it. Co-parties represented by one firm share one allowance. Michigan sets no numerical cap on requests for production or requests for admission.

• The Good Faith Statement the Device Rule Requires in the Motion

  Rule 2.313 prescribes no contents for the (a) and (b) motions, so look to the device rule instead. MCR 2.309(C), MCR 2.310(C)(3) and MCR 2.312(C) each require the motion to state that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action. Keep the correspondence, because the same record answers the first of the three defences in MCR 2.313(A)(5)(a), which withholds the expense award from a movant who filed before attempting in good faith to obtain the discovery without court action.

• Proof of Service, Filed With a Motion Based on Silence

  MCR 2.309(C) provides that if the motion is based on the failure to serve answers, proof of service of the interrogatories must be filed with the motion, and MCR 2.310(C)(3) provides the same for a request for production. For a non-party subpoena motion, MCR 2.313(A)(2)(c) requires the motion to include a copy of the subpoena and proof of service of the subpoena, and requires the movant to serve the motion on the person from whom discovery is sought as provided in MCR 2.105.

• The Expense Request, and the Three Defences to It

  MCR 2.313(A)(5)(a) provides that on a granted motion, or where the disclosure or requested discovery is provided after the motion was filed, the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in making the motion, including attorney fees. The verb is may, not shall. It is withheld if the court finds the moving party filed before attempting in good faith to obtain the discovery without court action, that the opposition was substantially justified, or that other circumstances make an award unjust. Under (A)(5)(b) a denied motion exposes the moving party or the attorney advising the motion to the same permissive award.

• The Compliance Date You Are Asking For, and the Risk of Losing

  Ask for a specific date rather than prompt compliance, because the order is what you would later enforce. MCR 2.313(A)(6) lets the court on a granted motion order such sanctions as are just and take an action authorized under subrule (B)(2)(a), (b) and (c), so ask only for what the record supports. Weigh the downside before filing: MCR 2.313(A)(3) provides that if the court denies the motion in whole or in part it may enter a protective order that it could have entered on a motion made under MCR 2.302(C), so a thin motion can leave you with an order restricting the discovery you were trying to enforce.