Opinion
Orders Entered January 27, 1998.
On order of the Court, this is to advise that the Court is considering amendments of Rules 2.305, 2.310, and 2.506 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 2.305. SUBPOENA FOR TARING 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 designatedbooks, 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.
(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 shall 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 shall be served at least 14 days before the time for production. The subpoenaed person may, within 7 days 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 touting 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). (B) Scope.
(1) A party may serve on another person party a request
(1 a) to produce and permit the requesting party making 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 the person 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, 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 reasonable 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 mast 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 espy of the motion in the manner as provided in MCR 2.105.
(5) [Unchanged.]
(6) A person who produces documents shall produce them as they m-e 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) Authorized Signatures.
(1) A subpoena signed by an attorney of record in the action or by the clerk of the court in which the matter is pending has the force and effect of an order signed by the judge of that court.An attorney may authorize an agent to sign the attorney's name to a subpoena
(2) [Unchanged.]
(C)-W) [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 mast 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 proposed amendments of Rules 2.305, 2.310, and 2.506 have been suggested by the Representative Assembly of the State Bar of Michigan. The bar explains that the intent of the changes is to make clear that nonparty records-only discovery subpoenas are authorized. Such subpoenas are the most frequently used means of obtaining documents from nonparties whose testimony is not desired at the time of production. The little-used procedure authorized by MCR 2.310(C) is more time consuming and often ineffective because nonparties frequently insist upon a subpoena, instead. The normal procedure for noticing a deposition applies to records-only subpoenas, and the procedure in MCR 2.310 still would pertain 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 is changed from seven to fourteen days. The amendments also make nonsubstantive changes to clarity 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.
|-------------------------------------------------------| | 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 number 97-19.