The Michigan motion to compel: a separate route for non-party subpoenas

Michigan splits the motion to compel into three, and the third has no real counterpart in most states: a dedicated route for a non-party who ignores a discovery subpoena, with its own filing requirements and its own service rule.

Get that one wrong and the motion fails on procedure. It must carry a copy of the subpoena and proof of service, and it must be served on the non-party as process is served — not the way an ordinary motion is served.

Three motions, not one

MCR 2.313(A)(2)(a) — to compel disclosure:

To Compel Disclosure. If a party fails to serve a disclosure required by MCR 2.302(A), another party may move to compel disclosure and for appropriate sanctions.

MCR 2.313(A)(2)(b) — to compel discovery:

To Compel Discovery. If

(i) a deponent fails to answer a question propounded or submitted under MCR 2.306 or 2.307, (ii) a corporation or other entity fails to make a designation under MCR 2.306(B)(3) or 2.307(A)(1), (iii) a party fails to answer an interrogatory submitted under MCR 2.309(A) or (B), (iv) in response to a request for inspection submitted under MCR 2.310, a person fails to respond that inspection will be permitted as requested, or (v) if a party; an officer, director, or managing agent of a party; or a person designated under MCR 2.306(B)(3) or 2.307(A)(1) to testify on behalf of a party fails to appear before the person who is to take his or her deposition, after being served with a proper notice,the party seeking discovery may move for an order compelling compliance. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

MCR 2.313(A)(2)(c) — to compel a non-party:

To Compel Compliance with a Non-Party Discovery Subpoena. If a recipient of a non-party discovery subpoena under MCR 2.305 fails to comply, the issuing party may move to compel compliance. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. The motion must include a copy of the subpoena and proof of service of the subpoena. The movant must serve the motion on the person from whom discovery is sought as provided in MCR 2.105.

MCR 2.105 governs how a summons and complaint are served. Emailing the motion to a non-party, or mailing it the way you would serve a motion on a party, does not satisfy this subrule.

Michigan's disclosure regime under MCR 2.302(A) also means (a) exists at all — a party who never served initial disclosures can be compelled without any request having gone out. See Michigan discovery deadlines.

Where to file

MCR 2.313(A)(1):

Appropriate Court. A motion for an order under this rule may be made to the court in which the action is pending, or, as to a matter relating to a deposition in, or non-party subpoena served outside of, the county where the action is pending, to a court in that county.

The alternative forum covers both a deposition taken outside the county and a non-party subpoena served outside it — a wider option than most states give.

Evasive answers, including disclosures

MCR 2.313(A)(4):

Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subrule an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

Note that Michigan extends the familiar rule to disclosures as well as answers and responses — an incomplete MCR 2.302(A) disclosure is treated as no disclosure at all.

Fees are discretionary both ways

MCR 2.313(A)(5)(a):

If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both, to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court finds that the moving party filed the motion before attempting in good faith to obtain the disclosure or discovery without court action, the opposition to the motion was substantially justified, or other circumstances make an award unjust.

MCR 2.313(A)(5)(b):

If the motion is denied, the court may, after opportunity for hearing, require the moving party or the attorney advising the motion, or both, to pay to the person who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

Two points worth taking from (a).

Producing late does not avoid the fee exposure. The provision applies equally where "the disclosure or requested discovery is provided after the motion was filed". A party that ignores discovery until a motion lands is still within it.

There is no separate certification requirement in MCR 2.313 — but the good-faith attempt still matters. It appears as the first exception: no award if "the moving party filed the motion before attempting in good faith to obtain the disclosure or discovery without court action." So conferring is not a precondition to the motion, but skipping it costs you the fees.

Michigan's language is "may" throughout, which is gentler than the mandatory awards in Ohio or Georgia and lowers the stakes on both sides.

A denied motion can produce a protective order

MCR 2.313(A)(3):

Ruling; Protective Order. If the court denies the motion in whole or in part, it may enter a protective order that it could have entered on motion made under MCR 2.302(C).

An overreaching motion can leave you worse off than before you filed.

Sanctions without waiting for an order

MCR 2.313(A)(6):

Additional Sanctions. The court in which the action is pending may order such sanctions as are just. Among others, it may take an action authorized under subrule (B)(2)(a), (b), and (c).

This is easy to miss. On the motion to compel itself, the court may already impose the substantive sanctions from (B)(2)(a), (b) and (c) — deemed-established facts, preclusion, and striking pleadings — without first entering an order and waiting for it to be disobeyed.

Michigan therefore does not require the two-step sequence that Pennsylvania does. If the conduct warrants it, ask for the sanction in the first motion.

Once an order is disobeyed

MCR 2.313(B)(2):

Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party, or a person designated under MCR 2.306(B)(5) or 2.307(A)(1) to testify on behalf of a party, fails to obey an order to provide or permit discovery, including an order entered under subrule (A) of this rule or under MCR 2.311, the court in which the action is pending may order such sanctions as are just, including, but not limited to the following:

(a) an order that the matters regarding which the order was entered or other designated facts may be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introduc

The list continues through striking pleadings, staying proceedings, dismissal, default judgment and contempt.

MCR 2.313(B)(1) covers the deposition situation: a deponent who fails to be sworn or answer after being directed to do so by a court in the county or district where the deposition is being taken "may be considered a contempt of that court."

Before you file

1. Confirm what was owed — a disclosure under MCR 2.302(A), or a response to a request. They are different motions.
2. Confer in good faith and record it. It is not a precondition, but skipping it forfeits your fees.
3. If a non-party is involved, build the motion to (A)(2)(c) — subpoena, proof of service, and service under MCR 2.105.
4. Point to (A)(4) where the response was evasive or incomplete.
5. Consider asking for (A)(6) sanctions now rather than waiting for an order to be disobeyed.

For the underlying deadlines and limits, see Michigan discovery deadlines and Michigan interrogatories.

How Michigan compares

A short checklist

1. Pick the right subrule — disclosure, discovery, or non-party subpoena.
2. For a non-party, attach the subpoena and proof of service, and serve under MCR 2.105.
3. Confer first. The first fee exception is aimed squarely at movants who did not.
4. Quote (A)(4) for evasive or incomplete responses, including disclosures.
5. Ask for (A)(6) sanctions in the same motion where the conduct justifies it.
6. Remember late production still exposes them to fees.
7. Do not overreach. A denied motion can draw a protective order against you.
8. Consider the alternative forum for an out-of-county deposition or subpoena.

Where these rules live

• MCR 2.302 — General Rules Governing Discovery
• MCR 2.305 — Subpoena to a Non-Party
• MCR 2.309 — Interrogatories to Parties
• MCR 2.310 — Requests for Production
• MCR 2.313 — Failure to Provide or Permit Discovery; Sanctions

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.