Opinion
September 22, 1998.
NOTICE:
Correction made on April 20, 1999, to Staff Comment for Rule 2.305(B)(1) and Rule 2.310(C)(2).
On order of the Court, notice of the proposed changes and an opportunity for comment at a public hearing having been provided, and consideration having been given to the comments received, the following amendment of Rules 2.305, 2.310 and 2.506 of the Michigan Court Rules are adopted, to be effective December 1, 1998.
[The present language is amended as indicated below.]
Rule 2.305 Subpoena for Taking Deposition
(A) General Provisions.
(1) [Unchanged.]
(2) The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or other tangible things relevant to the subject matter of the pending action and within the scope of discovery under MCR 2.302(B). As to a party deponent, the The procedures in MCR 2.310 apply to a party deponent.
(3) A deposition notice and a subpoena under this rule may provide that the deposition is solely for producing documents or other tangible things for inspection and copying, and that the party does not intend to examine the deponent.
(3 4) A subpoena issued under this rule is subject to the provisions of MCR 2.302(C), and the court in which the action is pending, on timely motion made before the time specified in the subpoena for compliance, may:
(a) — (c) [Unchanged.]
(4 5) Service of a subpoena on the deponent must be made as provided in MCR 2.506. A copy of the subpoena must be served on all other parties in the same manner as the deposition notice. (B) Inspection and Copying of Documents. A subpoena issued under subrule (A) may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, production of documents, or other tangible things which constitute or contain matters within the scope of discovery under MCR 2.302(B) , but the following rules apply:
(1) The subpoena must be served at least 14 days before the time for production. The subpoenaed person may, within 7 days after service of the subpoena, but not later than the time specified in the subpoena for compliance, serve on the party designated in serving the subpoena written objection to inspection or copying of some or all of the designated materials.
(2) [Unchanged.]
(3) Before or during the taking of the deposition, the The party serving the subpoena may, with notice to the deponent, move for an order compelling the deponent to produce the documents production of the designated materials. MCR 2.313(A)(5) applies to motions brought under this subrule.
(C) — (E) [Unchanged.]
Rule 2.310 Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other Purposes ( A ) Definitions . For the purpose of this rule,
(1) "Documents" includes writings, drawings, graphs, charts, photographs, phono records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. (2) "Entry on land" means entry upon designated land or other property in the possession or control of the person on whom the request is served for the purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property or a designated object or operation on the property, within the scope of MCR 2.302(B). ( A B ) Scope.
(1) A party may serve on another person party a request
(1 a) to produce and permit the requesting party making the request, or someone acting on for that party's behalf party,
(a i) to inspect and copy designated documents or
(b ii) to inspect and copy, test, or sample other tangible things
which that constitute or contain matters within the scope of MCR 2.302(B) and which that are in the possession, custody, or control of theperson party on whom the request is served; or
(2 b) to permit entry on land upon designated land or other property in the possession or control of the person on whom the request is served for the purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property or a designated object or operation thereon, within the scope of MCR 2.302(B) .
For the purpose of this rule, "documents" includes writings, drawings, graphs, charts, photographs, phono records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. (2) A party may serve on a nonparty a request (a) to produce and permit the requesting party or someone acting for that party to inspect and test or sample tangible things that constitute or contain matters within the scope of MCR 2.302(B) and that are in the possession, custody, or control of the person on whom the request is served; or (b) to permit entry on land. ( B C ) Request to Party.
(1) [Unchanged.]
(2) The party on whom the request is served must serve a written response within 28 14 days after service of the request, except that a defendant may serve a response within 42 days after being served with the summons and complaint. The court may allow a longer or shorter time. With respect to each item or category, the response must state that inspection and related activities will be permitted as requested or that the request is objected to, in which event the reasons for objection must be stated. If objection is made to part of an item or category, the part must be specified.
(3) — (5) [Unchanged.]
( C D ) Request to Nonparty.
(1) — (2) [Unchanged.]
(3) The request must
(a) list the items to be inspected and tested or sampled, either by individual item or by category, and describe each item and category with reasonable particularity,
(b) — (c) [Unchanged.]
(4) If the person to whom the request is directed does not permit the inspection or entry within 28 14 days after service of the request (or a shorter time if the court directs), the party seeking the inspection or entry may file a motion to compel the inspection or entry under MCR 2.313(A). The motion must be accompanied by include a copy of the request and proof that it was served as provided in this rule of service of the request. The movant must serve the motion on the The person from whom discovery is sought must be served with a copy of the motion in the manner as provided in MCR 2.105.
(5) [Unchanged.]
(6) A person who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
(7 6) This rule does not preclude an independent action against a nonparty for production of documents and other things and permission to enter on land or a subpoena to a nonparty under MCR 2.305.
Rule 2.506 Subpoena; Order to Attend
(A) Attendance of Party or Witness.
(1) — (2) [Unchanged.]
(3) A subpoena may be issued only in accordance with this rule or MCR 2.305, 2.621(C), 9.112(D), 9.115(I)(1), or 9.212. (B) — (F) [Unchanged.]
(G) Service of Subpoena and Order to Attend; Fees.
(1) A subpoena may be served anywhere in Michigan in the manner provided by MCR 2.105. The fee for 1 day's attendance and mileage provided by law must be tendered to the person on whom the subpoena is served at the time of service. Tender must be made in cash, by money order, by cashier's check, or by a check drawn on the account of an attorney of record in the action or the attorney's authorized agent.
(2) — (3) [Unchanged.]
(H) — (I) [Unchanged.]
Staff Comment: The December 1, 1998, amendments of Rules 2.305, 2.310, and 2.506 were suggested by the Representative Assembly of the State Bar of Michigan. The changes made clear that nonparty records-only discovery subpoenas are authorized. The normal procedure for noticing a deposition applies to records-only subpoenas, and the procedure in MCR 2.310 still pertains to requests to a nonparty for entry on land or production of items for testing or sampling. The time for responding to a document subpoena or a document request under Rule 2.305(B)(1) was changed from seven to fourteen days.
The time for responding under Rule 2.310(C)(2) was changed from twenty-eight to fourteen days. The amendments also made nonsubstantive changes to clarify and simplify language.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.