Plaintiff’s Initial Disclosures—when must they be served? This article discusses a recurring issue with respect to the plaintiff’s timing of serving initial disclosures: Must the plaintiff wait to serve initial disclosures only until after the defendant files their answer or responsive pleading, or can the plaintiff serve initial disclosures while the defendant’s pre-answer dispositive motion is pending? This is a crucial question because the answer determines when time-consuming and expensive discovery begins.¹

The authors below think that the court rules, namely, the timing provision of MCR 2.302(a)(5)(b)(i), require the initial and opposing pleadings to be served before initial disclosures are exchanged. In other words, the plaintiff cannot prematurely jump-start discovery if the defendant has not yet filed its answer or responsive pleading.

Consider the following simplified scenario: The plaintiff, “Peter,” files suit against his former business partner, “Dennis,” in 2025, and he alleges multiple breaches of contract and other businessrelated claims that occurred a decade ago in 2015. Upon being served with Peter’s complaint, Dennis files his motion for summary disposition under MCR 2.116(C)(7) based on the statute of limitations.² The trial court schedules the hearing on Dennis’ summary disposition down the road a few months out.

In the meantime, because Peter wants to keep pressure on Dennis, he serves his initial disclosures and follows them up with a set of interrogatories, requests for admissions, multiple document production requests, and his duces tecum deposition notice complete with his own deposition date. If one were to review MCR 2.301(A)(1) in a vacuum, there would be no issue. Again, the rule states that a party may engage in discovery after it serves its initial disclosures.

And one Oakland County Business Court has agreed. In Alvers v Equityexperts.org,³ the Plaintiff served its initial disclosures when Defendants had filed a pre-answer motion for summary disposition. Defendants sought to quash Plaintiff’s discovery requests and asserted that MCR 2.301(A)(1) and MCR 2.302(A)(5) precluded the serving of the initial disclosures and, thus, also precluded the initiation of discovery. But the Court disagreed. The Court observed that MCR 2.301(A)(1) provides that a party could initiate discovery following its initial disclosures. And under MCR 2.302(A)(5), the Court held that nothing in the rule stopped the plaintiff from serving its initial disclosures and proceeding with discovery.

Turning back to the Peter v Dennis case, Dennis now has to make the Sophie’s Choice decision to either participate in discovery (and issue his own set of initial disclosures) or seek a protective order under MCR 2.302(C) to stay discovery until the court rules on his pending summary disposition motion.⁴ Both options are not ideal; they both require Dennis to incur significant expenses in costs and attorney fees. Indeed, most practitioners will readily agree that discovery comprises the most expensive aspect of civil litigation. But even if Dennis pursues a protective order, it’s up to the trial court’s discretion whether to grant it.

But we think that Dennis should not have to make such a choice. And with all due respect to the Oakland Business Court, we believe that its analysis is mistaken. When the Michigan Supreme Court amended the discovery rules to provide for the issuance of initial disclosures, the rules revealed the Court’s intent that the pleadings be filed and framed before discovery proceeds.

Under MCR 2.301(A)(1), “a party may seek discovery only after the party serves its initial disclosures under MCR 2.302(A).” But under MCR 2.302(a)(5)(b)(i), “[A] party that files a complaint, counterclaim, cross-claim, or third-party complaint must serve its initial disclosures within 14 days after any opposing party files an answer to that pleading.” (Emphasis added). The authors believe, however, that the Supreme Court’s timing provision under MCR 2.302(a)(5)(b)(i) was intentional to serve as an express window of time when serving initial disclosures.

When construing the Michigan Court Rules, the Court relies on the same principles that guide statutory construction.⁵ As such, the Court will look to the meaning and intent of a court rule derived directly from its plain language and relationship within the Michigan Court Rules collectively.⁶ While looking at the plain language of a court rule, the Court must strive to “give effect to every word, phrase and clause and avoid an interpretation that would render any part surplusage or nugatory.”⁷

Applying the foregoing to MCR 2.302(A)(5)(b)(i), it is crucial for the Court to review every word and apply meaning to each one. The rule expressly states that “[a] party that files a complaint, counterclaim, cross-claim, or third-party complaint must serve its initial disclosures within 14 days after any opposing party files an answer to that pleading.”⁸ Under this language, the operative time period to serve initial disclosures consists only of the 14-day window of time following the filing of an answer to the pleading. Cambridge’s Advanced Learner’s Dictionary & Thesaurus defines “within” as “inside or not beyond (a particular area, limit or period of time).”⁹ Further, Oxford’s Learner’s Dictionary defines “after” (used as a preposition) as “later than something; following something in time.”¹⁰ Also crucial to understanding the plain meaning of the rule is understanding the definition of “answer” as defined by Black’s Law Dictionary: “[a] defendant’s first pleading that addresses the merits of the case, usu. by denying the plaintiff’s allegations” and “[a]n answer usu. sets forth the defendant’s defenses and counterclaims.”¹¹

So while MCR 2.301(A)(1) provides that a party may seek discovery only after the party serves its initial disclosures, the rule must be read in conjunction with MCR 2.302(A)(5), which specifies precisely when those disclosures may be served. The words “within 14 days after any opposing party files an answer…”¹² can be construed only as a limitation of time as to when initial disclosures could be served. If the drafters intended the rule to allow for initial disclosures to be issued before the defendant filed an answer, they could have said so. Their inclusion of the modifier “within” demonstrates that the Supreme Court intentionally outlined and limited the time period to which initial disclosures are to be served. As such, if a defendant files a pre-answer summary disposition motion, the plaintiff cannot jump-start discovery by simply serving initial disclosures.

Indeed, the definition of “answer” further supports the authors’ interpretation of the rule, as pre-answer dispositive motions do not qualify as an answer and, therefore, do not trigger the 14-day window to serve initial disclosures. Pre-answer dispositive motions such as a motion to dismiss are not “answers” to a complaint.¹³ They do not provide any defenses or counterclaims in response to the plaintiff’s complaint but rather may argue that the complaint is not legally sufficient.

The intended purpose of the discovery process is to uncover facts that are relevant to the case in preparation for trial. What would be the necessity of uncovering facts if the case is dead in the water to start? Even if a case were subject to arbitration, why would a Court allow discovery to proceed if a pre-answer motion to dismiss under MCR 2.116(C)(7) based on an agreement to arbitrate is pending? Generally, courts have held that discovery is unwarranted when a dispositive motion to dismiss is pending.¹⁴ Functionally and practically, MCR 2.302(A)(5)(b)(i) may eliminate the need for a protective order in some cases because discovery on a plaintiff’s complaint should not proceed if a defendant’s motion to dismiss is pending and ultimately granted.¹⁵ The correct interpretation of the rule allows it to function effectively as an automatic stay of discovery until the defendant files an answer.¹⁶

MCR 2.302(A)(5)(b)(i) also serves the purpose of MCR 1.105, which requires the rules to be “construed, administered, and employed by the parties and the court to secure the just, speedy, and economical determination of every action and to avoid the consequence of error that does not affect the substantial rights of the parties.” There is no need to waste time and money with discovery and the attendant discovery disputes if a dispositive motion is going to resolve the case.

The Court rules are not designed for gamesmanship, nor are they meant to pressure a party or otherwise provide a mechanism for annoyance and oppression.¹⁷

While a plaintiff may surely be aggrieved, such is not a basis for initiating discovery as a pressure tactic when a dispositive motion is pending. Until the Supreme Court says otherwise, a party may not simply rely on MCR 2.301(A) to serve initial disclosures and initiate discovery despite receiving a motion to dismiss in lieu of an answer. MCR 2.302(A)(5)(b)(i) prescribes when initial disclosures are to be served – and they are to be served only “within” the 14-day window following the filing of the answer.

As noted, the authors assert that the court rules require the filing of a responsive pleading before initial disclosures and discovery commences.