By: Matt Jane
Effective January 1, 2020, litigation in Michigan’s state courts underwent extensive changes because of revisions to Michigan Court Rules pertaining to civil discovery. These changes overhauled the discovery process in Michigan, making it similar to the procedures in federal court. Some of these changes affect probate litigation and should be considered as part of the overall strategy before filing a petition in probate court to initiate a probate proceeding.
The hallmark of the new rules is the implementation of “initial disclosures” shortly after the commencement of a case. Parties in a civil case must disclose the factual basis of their claim of defense, the legal theories on which they rely for their case, possible witnesses or the identity of people with discoverable information, their computation of damages, and the location or types of documents in their possession that are relevant to the case. All of the above-information must be produced by a party early in a civil lawsuit even without being asked.
In a probate proceeding, the above-mentioned initial disclosures aren’t mandatory, but become required in either of the following situations: (1) an interested person files and serves a demand for initial disclosures: or (2) a court orders the disclosures after someone objects or contests the petition that has been filed. Although the initial disclosures aren’t always required in probate court, they’re available and will apply in many contested probate proceedings, such as petitions to remove or modify a guardianship or conservatorship, fiduciary litigation, petitions to recover assets, and contests regarding the validity of a will or trust.
If the initial disclosures are required in a probate proceeding, then the requirement applies to all parties and interested persons, and the initial disclosures must be served on all parties and interested persons. The petitioner’s disclosures must be served within 14 days after the first hearing or 21 days after the court orders them. The respondent and any objecting party must serve their disclosures within 14 days after petitioner’s disclosures are due, or 28 days after a demand or objection is filed.
Another major rule change is the imposition of a “proportionality rule” on discovery. All discovery now must be proportional to the case. This change prevents one side from trying to use discovery to bury an opponent with significantly fewer resources in an attempt to force them to settle cheap. In a probate proceeding, the scope of discovery remains “limited to matters raised in any petitions or objections pending before the court.” See MCR 5.131(B)(3).
Overall, the new revisions require parties to be more prepared before they file suit and more prepared to defend their position from the outset. Although some types of probate proceedings will be unaffected by these changes, as a practical matter, the new discovery rules likely will apply to all contested probate cases. The changes may be a shock initially, but they should ultimately prove beneficial to all parties in the legal system.
If you’re interested in learning more about how the new revisions affect your case, please contact a probate lawyer in Ann Arbor at 734-665-4441.
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