For more than 30 years in Michigan, alternative dispute resolution has played an essential role in settling cases before trial. In 2020, the Michigan Court Rules were amended to expand the scope of ADR to include resolution of discovery disputes.

MCR 2.411 (H) states in relevant part:

Mediation of Discovery Disputes. The parties may stipulate to or the court may order the mediation of discovery disputes ....

1. The order ... 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 the 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.

Although this opportunity is relatively new for state court cases, it has been around for more than 60 years in federal courts pursuant to Federal Rule of Civil Procedure (FRCP) 53. FRCP 53(a)(1)(C) states that a court may appoint a master to “address pretrial ... matters that cannot be effectively and timely addressed by an available district judge or magistrate judge.”

This article looks at how masters have been appointed in Michigan’s federal courts during the last 10 years and discusses the benefits and costs of doing so. Hopefully, this history will be valuable as attorneys and judges evaluate when and how to utilize discovery mediation under MCR 2.411(H).

MORE APPOINTMENTS RESOLVE DISPUTES IN FEDERAL COURTS

In the last 10 years, there have been more than 200 master appointments in Michigan federal courts. During that time, there has been a substantial increase in appointments where the court seeks assistance with discovery management and/or discovery dispute resolution. Several reasons are likely to explain this trend. Over the last decade, the cost and complexity of producing, collecting, and preserving electronic data has increased significantly. In fact, those greater costs and complexities prompted the addition of detailed e-discovery provisions to the FRCP in 2015 and the MCR in 2020. Add to that that court dockets are much more burdened today than 10 years ago.

As a consequence, some courts believe that attorneys who are not communicating and cooperating should spend time with a discovery master before burdening it with discovery motions. As Hon. Stephen Murphy, U.S. District Court for the Eastern District of Michigan judge, explained:

In my chambers, we rarely lose patience with discovery matters that get out of control. That is because we appoint highly qualified discovery masters early on when disputes and motions begin to recur more than in a usual case. The service to the court of those masters is indispensable, and the cost savings to parties by their appointments is demonstrable. With more experience, good practice and sound procedure, discovery master appointments will continue to allow for better processes and judicial decision making that will also ensure the appointments are beneficial to efficient and fair dispute resolution.

FOUR COMMON USES FOR A DISCOVERY MEDIATOR

Developing an adequate discovery plan

In 1993, federal courts added Rule 26(f) requiring litigants to meet in person, plan for discovery, and submit their proposal for a discovery plan. The proposed discovery plan would help courts see that the timing and scope of initial disclosures and limitations on the extent of discovery under the rules would be tailored to the circumstances of the case. Addition of discovery conference requirements was considered one of the most successful of the 1993 amendments. In 2020, Michigan added MCR 2.401(C) stating that upon court order or written request of either party, parties must confer among themselves and prepare a proposed discovery plan.

Unfortunately — and for a wide range of reasons — many attorneys fail to take this requirement seriously and submit incomplete and/or impractical discovery plans. Hon. Nora Barry Fischer and Richard N. Lettieri pointed to three reasons this occurs.

• Litigation in general and discovery disputes specifically are “too contentious for the parties to exert the minimal cooperation required to share the information necessary to reach resolution of key electronically stored information (ESI) issues.”
• Due to strategy or leverage, a party may choose not to resolve ESI issues at the meet-and-confer stage.
• Due to lack of skill or knowledge, counsel may be unable to address and resolve ESI disputes.

To the extent attorneys cannot communicate and cooperate, there is a need for ADR to facilitate what the court rules seek: “to secure the just, speedy and inexpensive determination of every action.” As part of the discovery planning process, mediators can help attorneys identify discovery needs; create boundaries for data preservation; develop narrowly focused and proportional requests; craft collection protocols including sampling and search techniques; evaluate options for leveraging technology to search, cull, and review responsive discovery; evaluate alternative strategies for protecting confidential privilege and work product; agree on a process for resolving future discovery disputes; and determine forms of production.

Judges, attorneys, and parties find this type of assistance early in a case to be quite valuable. As Hon. David McKeague, a U.S. Sixth Circuit Court of Appeals judge, explained:

With the explosion of electronically stored information, the availability of trained and experienced mediators to assist lawyers with developing a discovery plan to obtain and review this ESI at the beginning of a case and then assist the parties and the courts to resolve discovery disputes will become increasingly valuable.

Meeting and conferring prior to filing a discovery motion

A party may file a motion to compel and/or for sanctions if the opposing party fails to provide adequate answers to discovery requests. Likewise, a party can move for a protective order to protect themselves from annoyance, embarrassment, oppression, or undue burden or expense. Before doing so, however, the moving party has a duty to confer in good faith with the party failing to act in an effort to obtain an appropriate response without court intervention.

Unfortunately, some attorneys attempt to comply with this duty by sending an email or leaving a voice mail message for opposing counsel. Hon. Iain Johnston, federal judge in the Northern District of Illinois, recently explained:

Most discovery conferences are drive-bys and the requirement to meet and confer is honored in the breach. I think a discovery mediator or master can be helpful, particularly if that person has some authority. By providing the necessary legal, technical, and facilitation skills needed to identify issues, offer an assessment of each, suggest options, and generally facilitate agreement, the court’s expectation is that discovery mediators and masters will help resolve ESI issues in a timely fashion and at a significant reduction in costs, because early resolution of these issues will help avoid a later and more costly war of e-discovery motions.

Assist with privilege, work product, and/or confidentiality determinations

All state and federal court rules allow parties to withhold otherwise discoverable information on the basis that it is privileged or subject to protection as trial preparation material. Although procedural details can vary based on jurisdiction, most courts require the party making that claim to describe the nature of the information in a manner that enables other parties to assess it without revealing it.

Because it is a common area of controversy between parties, this process often results in courts being asked to evaluate thousands of documents to determine which are entitled protection in whole or in part. In these situations, many courts have recognized that a master experienced in attorney-client privilege and work product protection is ideally suited to quickly conduct a sampling-type review, make some preliminary rulings by category, and move parties toward resolving the remaining claims of privilege or protection.

Assist with discovery motions

Discovery in civil litigation is intended to be a collaborative, self-executing process but in some cases, parties and/or their attorneys do not communicate or cooperate sufficiently and most, if not every, dispute results in motions practice. There is little deterrence to such a strategy, especially if delaying discovery or the trial as long as possible is seen as an advantage. A discovery mediator can readily work through such disputes. Hon. Elizabeth Stafford, magistrate for U.S. District Court for the Eastern District of Michigan, said:

Discovery mediation is a great way for parties to find solutions that satisfy their competing interests rather than engaging in costly, protracted, and unnecessary motion practice. I regard the appointment of a discovery mediator or special master with electronic discovery expertise as being a better option than having a judge micromanage the discovery process.

Other courts have also appointed masters to assist with discovery motions and/or management.

BENEFITS OF USING A MEDIATOR FOR DISCOVERY DISPUTES

Quicker resolution

The primary benefit is that it often takes less time to present discovery disputes to a mediator than to a court. In many situations, discovery disputes can be presented with minimal or no legal briefs (e.g. orally or through letters.) In Michigan federal court cases during the last few years where masters were appointed, the master typically met with the parties within one week and resolved half of the disputes within four weeks. It can take weeks — if not months — to have a discovery motion resolved by courts due to crowded dockets.

Value of self-determination

There is a common misperception that a master appointed to resolve a discovery dispute will issue a recommendation and ruling (R&R) for the court’s review and approval. As reflected below, in cases in which masters were appointed in Michigan during the last few years, 65% of the disputes were resolved via negotiation (often reflected in a stipulation and order.)

Parties have substantial control over resolving discovery disputes when working with a master or mediator. It also appears that masters typically issue reasonable and well-founded R&Rs. On the other hand, presenting discovery disputes to a court risks the potential cost of an adverse ruling. As noted by InsideCounsel magazine:

[t]he risk that a misguided ruling on a discovery motion may impose undue burden, expense and business disruption on your company is an ever-present concern for most general counsel, and yet too many litigants make the ‘penny-wise, pound foolish’ decision to forego the relatively modest investment in a special master.¹

Confidentiality

It is important to note that parties can request that some or all of their communication during negotiations with the mediator be confidential. Confidential communications often result in a better under standing of discovery burdens and concerns, which empowers the mediator to explore creative solutions.

Ability to select the appropriate mediator

While e-discovery was once associated only with complex civil cases, the current reality is that ESI has implications in nearly every single case in every court.² Some judges are experienced in handling e-discovery issues; however, some judges have not developed that capability. Unfortunately, if your case is assigned to a judge lacking that experience, you can’t choose a different judge. It is much easier to select a mediator with the relevant experience to quickly and effectively resolve your dispute.

Costs of mediating discovery disputes

Historically, there has been a belief that appointing a master adds an additional step and significant costs to an already long and expensive litigation process. However, there have been massive changes within the last decade (such as videoconferencing tools) that reduce those concerns. It is important to remember that in most situations, the master or mediator fees are split between parties.

CONCLUSION

Most cases still do not require a discovery mediator’s assistance. However, the American Bar Association encourages courts and attorneys to be aware of this alternative means for quickly and effectively resolving disputes whether they arise while developing a joint discovery plan or when discovery is ongoing.³ For more information, including recommended forms and bios of experienced discovery masters and mediators, check the Electronic Discovery Reference Model bench book titled “Using Special Masters and Discovery Mediators to Avoid and Resolve Discovery Disputes.”⁴