Opinion
December 7, 1999.
Order Entered December 7, 1999:
On order of the Court, this is to advise that the Court is considering an amendment of Rule 2.310 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below.]
RULE 2.310. REQUEST'S FOR PRODUCTION OF DOCUMENTS AND OTHER THINGS; ENTRY ON LAND FOR INSPECTION AND OTHER PURPOSES.
(A)-(B) [Unchanged.]
(C) Request to Party.
(1) [Unchanged.]
(2) The party on whom the request is served must serve a written response within 14 28 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.]
(D) [Unchanged.]
Staff Comment: The change from 14 to 28 days in MCR 2.310 (C)(2) has been recommended by the Representative Assembly of the State Bar of Michigan, with the following explanation from the Civil Procedure Committee:
The Supreme Court amended MCR 2.310 (C)(2) on December 1, 1998 to change the time for parties to respond to document requests from 28 to 14 days. The amendment was part of a set of amendments, approved by the Representative Assembly, to clarify that the rules authorize record-only subpoenas to nonparties. Those amendments included a requirement that a record subpoena to a nonparty be served at least 14 days before the time for production. MCR 2.305 (B)(1). The response time under MCR 2.310 (C)(2) was changed to 14 days to make the time for parties to respond to document requests the same as the time for nonparties to respond to record subpoenas.
The committee has reconsidered this change in MCR 2.310 (C)(2) in light of comments from practitioners and concluded that it was. not well advised. With the change, there are now different time periods for responses to different types of discovery requests. A party must respond to interrogatories and requests for admission in 28 days (MCR 2.309[B][4], 2.312[B][1], but has half that time to respond to document requests. This lack of uniformity can complicate discovery practice, particularly when document requests are combined with other discovery requests, as is frequently done. It can result in multiple discovery responses served at different times and potentially increase motion practice.
The committee concluded that uniformity in the time for parties to respond to discovery requests is desirable and that 28 days is a reasonable time for all such responses. This will eliminate multiple responses to mixed requests and possible increased motion practice. The committee believes the benefits of this proposed change outweigh any argument that parties and nonparties should have the same 14-day time period to respond to document requests and subpoenas.
The committee considered, but rejected, the argument that if the rule is changed to allow parties 28 days to respond to document requests, then MCR 2.305 (B)(1) should also be amended to provide nonparties 28 days to respond to a document subpoena. The committee concluded that the 14-day period is more appropriate for nonparties. Record production by nonparties does not involve the same case implications as production by parties. The December 1, 1998 amendment providing for a 14-day response period for record subpoenas increased the time for nonparties to respond under the rule before amendment. A 28-day response time for nonparties would unduly slow the progress of discovery. (If a 14-day response time imposes an undue burden, the subpoenaed person can object on that ground and is relieved from compliance until the party issuing the subpoena obtains an order requiring production or there is an agreement on the time for production. MCR 2.305[B][1]-[2].) [Emphasis added.]
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 99-27.