In Burger v. Ford Motor Co., 307312, 2014 WL 132444 (Mich. Ct. App. Jan. 14, 2014), a recent unpublished (non-binding) decision, the court exercised full discretion and reminded us of the uncertainties in trials/litigation. As a law-student, I have consistently seen my fellow classmates baffled over questionable verdicts found in our text books. Thanks to my professors, and “ground-breaking” cases from California, I came to understand the broad discretionary power our courts are allowed to exercise, hence focusing on conclusions is the last of my worries. In Burger Plaintiff faced a similar dilemma, when ordered to pay $36,391.74 in eDiscovery cost.
Plaintiff was the former CEO of Ford Component Sales(FCS) , a subsidiary of Ford Motor Co. Upon a vote by the FCS board members, and internal investigation, Plaintiff’s employment was terminated. In June 2010, Plaintiff brought actions for tortious interference and sought to hold Ford Motor vicariously liable for FCS’s actions. Plaintiff’s attorney requested Ford Motor to produce all emails for the last five years from FCS employees and board members that referenced Plaintiff (No discussion of methodology utilized by Ford to extract the data). As a direct response to Plaintiff’s “Broad” production request court ordered the plaintiff to,
…“equally split” the final cost of providing electronic information required to be produced under the court’s order of April 1, 2011, “for work performed by Ford IT and its outside vendor Xerox Litigation Services.” Plaintiff argued that the April order was too broad and that the trial court lacked the authority to impose a cost condition on the production…”
As it pertains to eDiscovery, the primary issue Court of Appeals focused on is whether Circuit Court abused its discretion by ordering the Plaintiff to reimburse Ford for the costs
RELEVAT MICHIGAN COURT RULES
Mich. Ct. R. 2.302
(6) Limitation of Discovery of Electronic Materials. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for the discovery.
–Mich. Ct. R. 2.310
(2) … If the request does not specify the form or forms in which electronically stored information is to be produced, the party responding to the request must produce the information in a form or forms in which the party ordinarily maintains it, or in a form or forms that is or are reasonably usable. A party producing electronically stored information need only produce the same information in one form…..
(6) Unless otherwise ordered by the court for good cause, the party producing items for inspection shall bear the cost of assembling them and the party requesting the items shall bear any copying costs.
I do not agree with the Court of Appeals’ suggestion that the procedures of MCR 2.302(B)(6) and 2.310 are mutually exclusive. Court declared Plaintiff’s motion as “procedurally deficient” since it relied upon MCR 2.310(C)(6) rather than MCR 2.302(B)(6) – stating that electronic information is only subject to MCR 2.302(B)(6). Now as a law-student i lack practical experience, and am in no position to criticize any Judge’s opinion. However, clearly and unambiguously stated in MCR 2.310 are the words “Electronically Stored Information” (See Supra Relevant Michigan Court Rules). The two rules will be in accordance to the national trends if used in conjunction as it pertains to ESI. It seems to be that a conclusion was predetermined and analysis was catered to reach that conclusion.
The court relied on Plaintiff’s assertion that discovery request was overly burdensome, however the opinion didn’t discuss the analysis to determine the overly burdensome request. The issue here might stem from lack of precedent found in the state courts of Michigan. If the court adopted the persuasive analysis from the Zubulake decision or the 6th Circuit in Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127 (E.D. Mich. 2009) we might have arrived at a different conclusion. It seems as if the court exercised an overly broad discretionary authority by adopting the rather ambiguous statement found at the end of MCR. 2.302(B)(6), “The court may specify conditions for the discovery.”
Plaintiff’s or requesting party in Michigan must be careful prior to putting together production requests. It seems as Michigan court rules and cases do not follow the Federal trend surrounding ESI production. This may change as Michigan litigators and courts become more sophisticated as it pertains to eDiscovery issues, but for now BEWARE! Theoretically these issues can be avoided by a detailed early discovery conference, and complying behavior of the parties involved.
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