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Rule 2.401 – Pretrial Procedures; Conferences; Scheduling Orders

May 13, 2021 | Civil Procedure, Michigan

(A) Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action.
(B) Early Scheduling Conference and Order.

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. During this conference the court should consider any matters that will facilitate the fair and expeditious disposition of the action, including:

(a) whether jurisdiction and venue are proper or whether the case is frivolous;
(b) whether to refer the case to an alternative dispute resolution procedure under MCR 2.410;
(c) the complexity of a particular case and enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case, and;
(d) disclosure, discovery, preservation, and claims of privilege of ESI;
(e) the simplification of the issues;
(f) the amount of time necessary for discovery, staging of discovery, and any modification to the extent of discovery;
(g) the necessity or desirability of amendments to the pleadings;
(h) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;
(i) the form and content of the pretrial order;
(j) the timing of disclosures under MCR 2.302(A);
(k) the limitation of the number of expert witnesses, whether to have a separate discovery period for experts, whether to require preparation and disclosure of testifying expert reports, and whether to specify expert disclosure deadlines;
(l) the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;
(m) the possibility of settlement;
(n) whether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services;
(o) the identity of the witnesses to testify at trial;
(p) the estimated length of trial;
(q) whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by MCR 2.203(A); and
(r) other matters that may aid in the disposition of the action.
(2) Scheduling Order.

(a) At an early scheduling conference under subrule (B)(1), or at such other time as the court concludes that such an order would facilitate the progress of the case, the court shall establish times for events and adopt other provisions the court deems appropriate, including

(i) the initiation or completion of an ADR process,
(ii) the amendment of pleadings, adding of parties, or filing of motions,
(iii) what, if any, changes should be made in the timing, form, or requirement for disclosures under MCR 2.302(A),
(iv) what, if any, changes should be made to the limitations on discovery imposed under these rules and whether other presumptive limitations should be established,
(v) the completion of discovery,
(vi) the exchange of witness lists under subrule (H)(2)(h), and
(vii) the scheduling of a pretrial conference, a settlement conference, or trial.

More than one such order may be entered in a case.

(b) The scheduling of events under this subrule shall take into consideration the nature and complexity of the case, including the issues involved, the number and location of parties and potential witnesses, including experts, the extent of expected and necessary discovery, and the availability of reasonably certain trial dates.
(c) The scheduling order also may include provisions concerning initial disclosure, discovery of ESI electronically stored information, any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production, preserving discoverable information, and the form in which ESI shall be produced.
(d) Whenever reasonably practical, the scheduling of events under this subrule shall be made after meaningful consultation with all counsel of record.

(i) If a scheduling order is entered under this subrule in a manner that does not permit meaningful advance consultation with counsel, within 14 days after entry of the order, a party may file and serve a written request for amendment of the order detailing the reasons why the order should be amended.
(ii) Upon receiving such a written request, the court shall reconsider the order in light of the objections raised by the parties. Whether the reconsideration occurs at a conference or in some other manner, the court must either enter a new scheduling order or notify the parties in writing that the court declines to amend the order. The court must schedule a conference, enter the new order, or send the written notice, within 14 days after receiving the request.
(iii) The submission of a request pursuant to this subrule, or the failure to submit such a request, does not preclude a party from filing a motion to modify a scheduling order.
(C) Discovery Planning.

(1) Upon court order or written request by another party, the parties must confer among themselves and prepare a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared are jointly responsible for arranging the conference and for attempting in good faith to agree on a proposed discovery plan.
(2) A proposed discovery plan must address all disclosure and discovery matters, including the matters set forth in subrule (B), and propose deadlines for completion of disclosure and discovery. The parties must show good cause to request a change in deadlines set by a scheduling order.
(3) A discovery plan, noting any disagreements between the parties, may be submitted to the court as part of a stipulation or motion. The court may enter an order governing disclosure, discovery, and any other case management matter the court deems appropriate.
(4) If a party or attorney fails to participate in good faith in developing and submitting a proposed discovery plan, the court may enter an appropriate sanction, including payment of attorney fees and costs caused by the failure.
(D) Order for Trial Briefs. The court may direct the attorneys to furnish trial briefs as to any or all of the issues involved in the action.
(E) Appearance of Counsel. The attorneys attending the conference shall be thoroughly familiar with the case and have the authority necessary to fully participate in the conference. The court may direct that the attorneys who intend to try the case attend the conference.
(F) Presence of Parties at Conference. If the court anticipates meaningful discussion of settlement, the court may direct that the parties to the action, agents of parties, representatives of lienholders, or representatives of insurance carriers, or other persons:

(1) be present at the conference or be immediately available at the time of the conference; and
(2) have information and authority adequate for responsible and effective participation in the conference for all purposes, including settlement.

The court’s order may require the availability of a specified individual; provided, however, that the availability of a substitute who has the information and authority required by subrule (F)(2) shall constitute compliance with the order.

The court’s order may specify whether the availability is to be in person or by telephone.

This subrule does not apply to an early scheduling conference held pursuant to subrule (B).

(G) Failure to Attend or to Participate.

(1) Failure of a party or the party’s attorney or other representative to attend a scheduled conference or to have information and authority adequate for responsible and effective participation in the conference for all purposes, including settlement, as directed by the court, may constitute a default to which MCR 2.603 is applicable or a ground for dismissal under MCR 2.504(B).
(2) The court shall excuse a failure to attend a conference or to participate as directed by the court, and shall enter a just order other than one of default or dismissal, if the court finds that

(a) entry of an order of default or dismissal would cause manifest injustice; or
(b) the failure was not due to the culpable negligence of the party or the party’s attorney.

The court may condition the order on the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2).

(H) Final Pretrial Conference and Order.

(1) If the court finds at a final pretrial conference held after the completion of discovery that due to a lack of reasonable diligence by a party the action is not ready for trial, the court may enter an appropriate order to facilitate preparation of the action for trial and may require the offending party to pay the reasonable expenses, including attorney fees, caused by the lack of diligence.
(2) The court may hold a final pretrial conference to facilitate preparation of the action for trial and to formulate a trial plan. The conference may be combined with a settlement conference. At least one lead attorney who will conduct the trial for each party and any unrepresented party shall attend the conference. At the conference the parties may discuss the following, and the court may order the parties to prepare, either before or after the conference, a joint final pretrial order that may provide for:

(a) scheduling motions in limine;
(b) a concise statement of plaintiff’s claims, including legal theories;
(c) a concise statement of defendant’s defenses and claims, including crossclaims and claims of third-party plaintiffs, and defenses of cross defendants or third-party defendants, including legal theories;
(d) a statement of any stipulated facts or other matters;
(e) issues of fact to be litigated;
(f) issues of law to be litigated;
(g) evidence problems likely to arise at trial;
(h) a list of witnesses to be called unless reasonable notice is given that they will not be called, and a list of witnesses that may be called, listed by category as follows:

(i) live lay witnesses;
(ii) lay deposition transcripts or videos including resolving objections and identifying portions to be read or played;
(iii) live expert witnesses; and
(iv) expert deposition transcripts or videos including resolving objections and identifying portions to be read or played.
(i) a list of exhibits with stipulations or objections to admissibility;
(j) an itemized statement of damages and stipulations to those items not in dispute;
(k) estimated length of trial:

(i) time for plaintiff’s proofs;
(ii) time for defendant’s proofs; and
(iii) whether it is a jury or nonjury trial.
(l) trial date and schedule;
(m) whether the parties will agree to arbitration;
(n) a statement that counsel have met, conferred and considered the possibility of settlement and alternative dispute resolution, giving place, time and date and the current status of these negotiations as well as plans for further negotiations;
(o) rules governing conduct of trial;
(p) jury instructions;
(q) trial briefs;
(r) voir dire; and
(s) any other appropriate matter.
(I) Witness Lists.

(1) No later than the time directed by the court under subrule (B)(2)(a), the parties shall file and serve witness lists. The witness list must include:

(a) the name of each witness, and the witness’ address, if known; however, records custodians whose testimony would be limited to providing the foundation for the admission of records may be identified generally;
(b) whether the witness is an expert, and the field of expertise.
(2) The court may order that any witness not listed in accordance with this rule will be prohibited from testifying at trial except upon good cause shown.
(3) This subrule does not prevent a party from obtaining an earlier disclosure of witness information by other discovery means as provided in these rules.
(J) ESI Conference, Plan and Order.

(1) ESI Conference. Where a case is reasonably likely to include the discovery of ESI, parties may agree to an ESI Conference, the judge may order the parties to hold an ESI Conference, or a party may file a motion requesting an ESI Conference. At the ESI Conference, the parties shall consider:

(a) any issues relating to preservation of discoverable information, including adoption of a preservation plan for potentially relevant ESI;
(b) identification of potentially relevant types, categories, and time frames of ESI;
(c) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible;
(d) disclosure of the manner in which ESI is maintained;
(e) implementation of a preservation plan for potentially relevant ESI;
(f) the form in which each type of ESI will be produced;
(g) what metadata, if any, will be produced;
(h) the time to produce ESI;
(i) the method for asserting or preserving claims of privilege or protection of trial preparation materials, including whether such claims may be asserted after production;
(j) privilege log format and related issues;
(k) the method for asserting or preserving confidential and proprietary status of information either of a party or a person not a party to the proceeding;
(l) whether allocation among the parties of the expense of production is appropriate; and
(m) any other issue related to the discovery of ESI.
(2) ESI Discovery Plan. Within 14 days after an ESI Conference, the parties shall file with the court an ESI discovery plan and a statement concerning any issues upon which the parties cannot agree. Unless the parties agree otherwise, the attorney for the plaintiff shall be responsible for submitting the ESI discovery plan to the court. The ESI discovery plan may include:

(a) a statement of the issues in the case and a brief factual outline;
(b) a schedule of discovery including discovery of ESI;
(c) a defined scope of preservation of information and appropriate conditions for terminating the duty to preserve prior to the final resolution of the case;
(d) the forms in which ESI will be produced; and
(e) the sources of any ESI that are not reasonably accessible because of undue burden or cost.
(3) ESI Competence. Attorneys who participate in an ESI Conference or who appear at a conference addressing ESI issues must be sufficiently versed in matters relating to their clients’ technological systems to competently address ESI issues; counsel may bring a client representative or outside expert to assist in such discussions.
(4) ESI Order. The court may enter an order governing the discovery of ESI pursuant to the parties’ ESI discovery plan, upon motion of a party, by stipulation of the parties, or on its own.

Mich. R. Civil. Proc. 2.401

Amended June 19, 2019, effective January 1, 2020.