Motion for Protective Order in Michigan

Background

“Michigan follows a policy of open and broad discovery.” (Thomas M. Cooley Law Sch. v. Doe 1 (2013) 300 Mich.App. 245, 260.) “Parties are permitted discovery regarding ‘any matter, not privileged, that is relevant to the subject matter involved in the pending case.’” (Augustine v. Allstate Ins. Co. (2011) 292 Mich.App. 408, 419.) “Despite this broad discovery policy, courts are empowered to limit excessive, abusive, or irrelevant discovery requests.” (Id.)

General Information for Complaints and Motions

“Under MCR 2.302(C), a party may move the trial court for a protective order to disallow discovery:

On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders:

(1) that the discovery not be had[.]”

(Fette v. Peters Constr. Co. (2015) 310 Mich. App. 535, 547-48.)

Standard of Review and Burdens of Proof

“A trial court's decision whether to grant a protective order limiting discovery is reviewed for an abuse of discretion.” (PT Today, Inc. v. Commissioner of the Office of Financial & Insurance Services (2006) 270 Mich. App. 110, 151 citing MCR 2.302(C)(1).) “MRE 103 aids [the] Court in evaluating whether a trial court's evidentiary rulings constitute an abuse of discretion:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

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(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

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(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.”

The Court’s Decision

“Trial courts do have the authority to limit discovery.” (Thomai v. MIBA Hydramechanica Corp. (2013) 842 N.W.2d 417, 430 citing MCR 2.302(C).) “But that discretion is not unlimited: a trial court may enter a protective order on a motion ‘and for good cause’ in order ‘to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....’” (Thomai v. MIBA Hydramechanica Corp. (2013) 842 N.W.2d 417, 430.)

“In the absence of good cause, a trial court abuses its discretion when it prevents the discovery of relevant evidence.” (Id., citing Szpak v. Inyang (2010) 290 Mich.App. 711, 715–716 [stating that generalized fears that discovery will lead to the intimidation of witnesses is insufficient to warrant a protective order limiting discovery of otherwise relevant evidence]; Harrison v. Olde Fin. Corp. (1997) 225 Mich.App. 601, at 614–616 [holding that the trial court abused its discretion when it precluded the plaintiff from discovering reports on the ground that the reports were irrelevant without first inspecting the reports in camera to determine if they were subject to discovery].)