Civil Litigation Articles Civil Litigation Law in Michigan
Civil Litigation Law in Michigan

Basics of Civil Litigation:

Discovery rules are to be liberally construed to further the ends of justice. The purpose of discovery is to simplify and clarify issues. Restricting parties to formal methods of discovery does not aid in the search for truth.  In a recent Michigan Court of Appeals case the court stated, "the trial court did not abuse its discretion in allowing the defendant to conduct ex parte interviews with the plaintiff’s witness. "  The Michigan Supreme Court has concluded that allowing ex parte interviews advances the purpose of MCR 1.105, which states, “these court rules are to be construed to secure the just, speedy, and economical determination of every action. . . .”  By allowing ex parte interviews, the parties may save time and money, litigation may be simplified, and settlements are encouraged.

A party may not object to a discovery request simply because the information sought will be inadmissible at trial. MCR 2.302(B)(1). However, the information sought must be “reasonably calculated to lead to the discovery of admissible evidence.”  Discovery of financial assets in the course of a civil action may be outside the scope as allowed by MCR 2.302, if the information is irrelevant or does not appear reasonably calculated to lead to the discovery of admissible evidence. Bauroth v Hammoud, 465 Mich 375, 381 (2001). Cabrera v Ekema, 265 Mich App 402, 407 (2005). VanVorous v Burmeister, 262 Mich App 467, 477 (2004).

If a party’s mental or physical condition is in controversy, medical information regarding the condition may be discoverable as long as it is discoverable under MCR 2.302(B) (scope of discovery), and the party does not assert a valid privilege to prevent discovery of the condition. MCR 2.314(A)(1)(a)‐(b).

Discoverable medical information “includes, but is not limited to, medical records in the possession or control of a physician, hospital, or other custodian, and medical knowledge discoverable by deposition or interrogatories.” MCR 2.314(A)(2). The party is considered to be in control of his or her own medical information even if the party does not have immediate physical possession of it. MCR 2.314(A)(3). When a party is served with a request for medical information, the party must

  • make the information available,
  • assert a privilege,
  • object to the request, or
  • provide the requesting party with the location of the information and enough signed authorizations so that the requesting party can obtain the information from the individual or entity that possesses the information. MCR 2.314(C)(1)(a)‐(d).

A party with a valid privilege may assert it to prevent discovery regarding his or her mental or physical condition. MCR 2.314(B)(1).  A privilege that is not asserted in a timely manner is waived in that action only. MCR 2.314(B)(1). See also MCR 2.306(D)(4). Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition.” MCR 2.314(B)(2).5 If privileged or protected information is inadvertently produced during discovery, the party making the claim of privilege may notify any party that received the information of the claim and the basis for it.

MCR 2.302(B)(7). Once a receiving party is on notice, that party “must  promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim.” Id. If a receiving party disclosed the information before the producing party provided notice of the claim, the receiving party must take reasonable steps to retrieve the information.  The producing party must preserve the information until the claim is resolved.

Any civil action in which the relief sought is primarily money damages or division of property may be submitted to case evaluation under MCR 2.403(A)(1).  Case evaluation is mandatory for tort cases filed in circuit court after October 1, 1986.  A court may exempt claims seeking equitable relief from case evaluation for good cause shown on motion or by stipulation of the parties if the court finds that case evaluation of such claims would be inappropriate. The judge to whom an action is assigned or the chief judge may select it for case evaluation by written order after the filing of the answer:

  • on written stipulation by the parties;
  • on written motion by a party; or,
  • on the judge’s own initiative.”MCR 2.403(B)(1)(a)–(c).

To object to case evaluation, a written motion and notice of hearing must be filed and served within 14 days after notice of the order assigning the case to case evaluation. MCR 2.403(C)(1).  The motion must be set for hearing within 14 days after it is filed, unless the court orders otherwise. A timely motion must be heard before the case is submitted to case evaluation. The panel’s case evaluation must be in writing and made within 14 days after the case evaluation hearing.  Except as indicated in MCR 2.403(H)(3) (derivative claims), the panel’s case evaluation must include a separate award as to each plaintiff’s claim against each defendant and as to each cross‐claim, counterclaim, or third‐party claim that has been filed in the action under MCR 2.403(K)(2).

The evaluation must indicate if it is not a unanimous award.  Costs shall not be awarded if the case evaluation aware was not unanimous. If case evaluation results in a nonunanimous award, a case may be ordered to a subsequent case evaluation hearing conducted without reference to the prior case evaluation award, or other alternative dispute resolution process, at the expense of the parties, pursuant to MCR 2.410(C)(1).  In certain tort cases, if the panel unanimously finds that a party’s action or defense as to any other party is frivolous  the panel shall so indicate on the evaluation.  An experienced attorney can help you to navigate civil litigation and tort laws in Michigan.

A party may be found in default for either failing to plead or answer, or for improper conduct (in which case, default is used as a sanction).   In a recent civil case the court stated, "These two circumstances under which a default may be entered are fundamentally different. Failing to plead or answer bespeaks an implied concession that the party is liable, or perhaps an indifference to the outcome of the litigation. In contrast, a default entered as a sanction is a means to penalize a party for failure to comply with the trial court’s directives and . . . should be entered only in the most egregious circumstances.”

The purpose of the default procedure is to keep the docketscurrent, to expedite the disposal of causes so as to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his [or her] claim. MCR 2.603(A)(1) governs entry of default: If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party. MCR 2.603(A)(1) has been interpreted to mean that “a party must not be defaulted if the party pleads or, as an alternative to filing a responsive pleading, otherwise defends the action. Kalamazoo Oil Co v Boerman, 242 Mich App 75, 87, (2000).

Under MichiganCourt Rule 2.603(D) Except when grounded on lack of jurisdiction, a default or default judgment may be set aside only when two conditions are fulfilled: (1) Good cause for failure to make a timely response has been shown. (2) An affidavit of facts showing a meritorious defense is filed. The “good cause” and “meritorious defense” elements of a motion to set aside a default must be considered separately.

Good Cause

Good cause sufficient to set aside a default means: (1) a substantial irregularity or defect in the proceeding upon which the default is based, [or] (2) a reasonable excuse for failure to comply with the requirements that created the default. The trial court should consider the following factors in making this determination:

  • Whether the party completely failed to respond or simply missed the deadline to file;
  • If the party simply missed the deadline to file, how long after the deadline the filing occurred;
  • The duration between entry of the default judgment and the filing of the motion to set aside;
  • Whether there was defective process or notice;
  • The circumstances behind the failure to file or file timely;
  • Whether the failure was knowing or intentional;
  • The size of the judgment and the amount of costs due under MCR 2.603(D)(4);
  • Whether the default judgment results in an ongoing liability (as with paternity or child support); and
  • If an insurer is involved, whether internal policies of the company were followed.

Affidavit of Meritorious Defense

The defaulted party must file an affidavit of facts showing a meritorious defense before a default may be set aside, even if good cause exists. If an affidavit is filed in support of or in opposition to a motion, it must:

  • be made on personal knowledge;
  • state with particularity facts admissible as evidence establishing or denying the
  • grounds stated in the motion; and
  • show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.

The Michigan Court of Appeals created a totality of the circumstances test for determining whether a party has presented a meritorious defense for purposes of MCR 2.603(D). When determining whether a party has established a meritorious defense in support of its motion to set aside a default or default judgment, the trial court should consider whether the party’s affidavit contains evidence that:

  • The plaintiff cannot prove or defendant can disprove an element of the claim or a statutory requirement;
  • A ground for summary disposition exists under MCR 2.116(C)(2), (3), (5), (6), (7), or (8); or
  • The plaintiff’s claim rests on evidence that is inadmissible. AMCO Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich 90, 95 (2003). Huntington Nat’l Bank v Ristich, 292 Mich App 376, 392 (2011).

Michigan follows the open, broad discovery policy, permitting liberal discovery of any unprivileged matter that is relevant to the subject matter in the pending case.  However, a trial court should also protect the interests of the party opposing discovery so as not to subject that party to excessive, abusive, or irrelevant discovery requests. However, discovery should “not encompass fishing expeditions.

Liberal discovery includes discovery of electronically stored information. MCR 2.302(B)(1). Where a producing party shows that the electronically stored information is not reasonably accessible because of undue burden or cost, the party does not have to produce the information.  However, if the requesting party files a motion to compel or for a protective order, the court may order the other party to produce the information despite a showing of undue burden or cost if the requesting party shows good cause, considering the limitations of MCR 2.302(C).MCR 2.302(B)(1), (6).