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My Take On How The New Michigan eDiscovery Rules Will Affect Michigan Litigators

Published on January 23, 2020

Zef Deda

Zef Deda is a Business Development Manager at Acorn Legal Solutions. Being an eDiscovery thought leader and working with Am Law 100 firms, Zef leverages his knowledge of advanced technology and phased project plans to provide a superior experience for his clients.

I’m hearing a lot of questions being asked about the new Michigan eDiscovery Rules that have just went into effect as of Jan 1, 2020. There are a lot of resources to educate the market on these new rules, including Judge Fresard’s recent Bench and Bar luncheon that addressed these changes and how they are going to impact the legal community. My own company, Acorn, has published a brief primer on the changes. I’m not a lawyer, but here is how I think about what is going on with these new changes.

Although there will be a transition period, in the long run, the changes are going to make eDiscovery and litigation more manageable for Michigan attorneys.

There are a lot of eDiscovery experts out there to help Michigan attorneys deal with the new discovery rules. You don’t need to be an expert in eDiscovery, you just need to know an expert and know what questions to ask. A lot of attorneys feel like they need to be the expert themselves, but the truth is that staying on top of eDiscovery is a full-time job. It would be impossible for someone to be both an expert in litigation and in eDiscovery. I’ve been preaching this to client’s and prospective clients for years now.

The Duty of Technological Competence is something that I believe will help all attorneys not only fulfill their obligation, but more importantly help their overall case strategy. Coming up with a case strategy for discovery early on and assessing what potential ESI is out there, will then allow you to develop ESI protocols, help identify custodians and give you a better understanding of costs as well.

Custodial interviews are the simplest of ways to get the “lay of the land” within your client’s organization. Take the interviews and add them with the understanding of ESI and your interviews will become more powerful. Understanding how technology is being used daily within an organization and how that will affect ESI will allow you to identify sources, location of sources, potential key communicators, and perhaps additional custodians.

In the short term, thought leaders in the local Michigan legal community are being very supportive to help litigators across the state develop best practices around the new rules.

I cannot express this enough. The local support and legal community in Michigan is very strong. There are advocates for education and thought leadership that can be great assets. The Bench and Bar event was one recent event that helped educate on how to be prepared for the new rules that have taken place. Judge Fresard did a great job coming to ACEDS Detroit and really connecting with local Vendors to make sure we understood the importance of supporting the bench and bar event and these new changes. There are many local vendors that have a strong understanding of the technical aspect and legal implications to time and budget, which can provide great value to legal teams.

If you’re a lawyer, I’ve firsthand seen the passion and push for more education on these changes from attorneys like Scott Petz (Dickinson Wright), Megan McKnight (Tealstone Law) and Jay Yelton (Warner Norcross) just to list a few. All of them can be great external resources and have years of experience dealing with ESI. They are heavily involved in ACEDS Detroit and do a great job introducing new ideas for ESI training & consulting.

Other states have dealt with similar rule changes – so there is some precedent for how Michigan will likely handle the changes.

A lot of states are dealing with rule changes around duty of technology competency and with eDiscovery. California was early in pushing these changes in 2015. Although, interestingly enough, they pushed the changes through an ethics opinion rather than a formal rule change. 38 states have adopted duty of technology competency requirements, going as far back as 2013. So, although I’m not a lawyer, I imagine there have to be some examples there for Michigan attorneys.

Concluding Thoughts.

Attorneys that have embraced technology and looked at these challenges as opportunities, have had great success. Client expectations for cost effective methods to case strategy and the use of technology continue to rise. If you’re an attorney that decides to look at these new changes and takes the time to understand how it can be utilized as weapon instead of it being looked at as a hurdle, you’ll see even greater success with your clients.

This is extremely exciting for me personally, because I spend a lot of time trying to advise my clients on the most efficient and cost-effective ways to handle eDiscovery. Remember, the role of your eDiscovery provider is to make this easy and understandable and not super technical and burdensome. Change is never easy, but you’re not in this alone. Do not hesitate to reach out to any of the people I mentioned, or feel free to contact me directly.

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About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.