Michigan subpoenas: a self-represented party has to ask the court first

In most states any party can issue a discovery subpoena. Michigan draws a line between represented and unrepresented parties in the first sentence of the rule, and it changes what a self-represented litigant has to do before a non-party hears from them at all.

Who may issue one

MCR 2.305(A)(1):

A represented party may issue a subpoena to a non-party for a deposition, production or inspection of documents, inspection of tangible things, or entry to land upon court order or after all parties have had a reasonable opportunity to obtain an attorney, as determined under MCR 2.306(A). An unrepresented party may move the court for issuance of non-party discovery subpoenas.

Two different routes.

A represented party issues the subpoena — but not immediately. Either a court order, or the point at which all parties have had a reasonable opportunity to obtain an attorney.

An unrepresented party moves the court. There is no self-issuing route at all for non-party discovery subpoenas.

That is worth planning around at the start of a case. A self-represented litigant who needs records from a bank, an employer or a hospital has an extra step and an extra timetable, and the motion should go in well before the discovery cutoff.

The trial subpoena is different. Under MCR 2.506(B)(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" — so an unrepresented party obtains a trial subpoena from the clerk.

Fourteen days, and the objection stays the obligation

MCR 2.305(A)(3) sets the floor:

A subpoena shall provide a minimum of 14 days after service of the subpoena (or a shorter time if the court directs) for the requested act.

Then MCR 2.305(A)(4) gives the non-party a route out, and attaches a consequence most states leave unstated. On a timely motion by a party or the subpoenaed non-party, made before the compliance date, the court may:

(a) quash or modify the subpoena if it is unreasonable or oppressive; (b) enter an order permitted by MCR 2.302(C); or (c) conditionally deny the motion on prepayment by the party on whose behalf the subpoena is issued of the reasonable cost of producing documents or other tangible things. The non-party's obligation to respond to the subpoena is stayed until the motion is resolved.

Three things to take from that.

The standard is "unreasonable or oppressive" — disjunctive, so either will do.

Option (c) is a middle course: the subpoena stands, but the issuing party pays the cost of compliance up front. A non-party facing an expensive production should ask for that rather than only for quashing.

And the obligation is stayed. Filing the motion suspends the duty to respond without any separate stay order. The same principle appears at MCR 2.506(H)(4) for trial subpoenas, where "any obligation to produce documents, if timely written objections are served, is stayed pending resolution."

Records-only subpoenas have to say so, and promise the copying costs

MCR 2.305(A)(2):

A subpoena may provide that it is solely for producing documents or other tangible things for inspection and copying, and that the party does not intend to examine the deponent. The subpoena shall specify whether an inspection is requested or whether the subpoena may be satisfied by delivering a copy of the requested documents. Any request for documents shall indicate that the subpoenaing party will pay reasonable copying costs.

Three drafting requirements. Say it is records-only; say whether inspection is wanted or copies will do; and state that you will pay reasonable copying costs. The last is a required recital, not a courtesy.

What you get, others can ask for. MCR 2.305(A)(7): "Upon written request from another party and payment of reasonable copying costs, the subpoenaing party shall provide copies of documents received pursuant to a subpoena."

Service of the subpoena on other parties is immediate: "A copy of the subpoena must be served on all other parties on the date of issuance."

Deposing an organization that is not a party

MCR 2.305(A)(6) builds an organizational deposition into the subpoena rule itself, with its own timetable:

The subpoena shall be served at least 14 days prior to the scheduled deposition. No later than 10 days after being served with the subpoena, the subpoenaed entity may serve objections, or file a motion for protective order, upon which the party seeking discovery may either proceed on topics as to which there was no objection or move to enforce the subpoena.

Fourteen days out, ten days to object — and note what happens next. The requesting party may proceed on the unobjected topics without waiting. An objection to some topics does not stop the deposition.

The organization "must designate one or more officers, directors, managing agents, or other persons, who consent to testify on its behalf," those designated "shall testify to matters known or reasonably available to the organization," and there is a cap: "The deposition of each produced witness may not exceed one day of seven hours."

The fee has to be tendered at service, and in a specific form

MCR 2.506(G)(1) is stricter about the money than most rules:

A subpoena may be served anywhere in Michigan in the manner provided by MCR 2.105. The fee for 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.

Four permitted forms, and a personal check from the client is not among them.

There is a mail alternative under MCR 2.506(G)(2): a copy of the subpoena plus "a postage-paid card acknowledging service and addressed to the party requesting service," with the fees given to the witness after appearance. But it only works if the card comes back — "If the card is not returned, the subpoena must be served in the manner provided in subrule (G)(1)."

Parties are exempt from the money altogether. Under MCR 2.506(G)(4) a subpoena directed to a party, or to an officer, director or managing agent of one, may be served under MCR 2.107 "and fees and mileage need not be paid."

Serving a government agency electronically takes an agreement first

MCR 2.506(G)(3) allows email or fax service on the Department of Corrections, the Department of Health and Human Services, the State Police Forensic Laboratory, another accredited forensic laboratory, law enforcement or another governmental agency —

provided there is a memorandum of understanding between the parties indicating the contact person, the method of transmission, and the e-mail or facsimile number where the subpoena or order to attend should be sent. A confirmation correspondence must be received from the recipient within 2 business days after email or facsimile service is complete, and the confirmation correspondence shall be filed with the court. If no confirmation correspondence is provided within 2 business days after email or facsimile transmission, the subpoena must be served in the manner provided in subrule (G)(1).

So this is not an ad hoc convenience. It requires a standing memorandum of understanding, a confirmation inside two business days, and the confirmation goes on the court file. Without the confirmation, you are back to personal service.

Trial subpoenas: two days, or fourteen with documents

MCR 2.506(C)(1):

The signer of a subpoena must issue it for service on the witness sufficiently in advance of the trial or hearing to give the witness reasonable notice of the date and time the witness is to appear. Unless the court orders otherwise, the subpoena must be served at least 2 days before the appearance or 14 days before the appearance when documents are requested.

Two figures, and the second is the one to diary. Adding a document request to a trial subpoena moves the service deadline from two days out to a fortnight.

Two continuing duties follow. The party must "take reasonable steps to keep the witness informed of adjournments of the scheduled trial or hearing." And if the witness says attendance is impossible:

the party must either excuse the witness from attendance at that time or notify the witness that a special hearing may be held to adjudicate the issue.

The form of the subpoena is prescribed by MCR 2.506(D): entitled in the name of the People of the State of Michigan, imprinted with the seal of the Supreme Court, and stating "that failure to obey the commands of the subpoena or reasonable directions of the signer as to time and place to appear may subject the person to whom it is directed to penalties for contempt of court."

Hospital records go to the clerk

MCR 2.506(I) gives hospitals a compliance route that bypasses the parties entirely. The hospital may:

deliver or mail to the clerk of the court in which the action is pending, without cost to the parties, a complete and accurate copy of the original record.

The copy travels with "a sworn certificate, in the form approved by the state court administrator, signed by the medical record librarian or another authorized official of the hospital, verifying that it is a complete and accurate reproduction of the original record," in a clearly marked container, and the hospital "shall promptly notify the attorney for the party who caused the subpoena to be issued" that it has done so.

The clerk keeps the copies sealed in the hospital's container. The subrule does not reach x-ray films "or to other portions of a medical record that are not susceptible to photostatic reproduction," which still have to be dealt with directly.

Where compliance can be required, and what happens if a party ignores it

MCR 2.506(B) limits the place: except for a delivery-of-copies subpoena, a non-party may be required to comply "only in the county where the deponent resides, is employed, has its principal place of business or transacts relevant business; or at the location of the things to be inspected or land to be entered; or at another convenient place specified by order of the court."

For a party, the consequences of ignoring a subpoena are graduated and severe. Under MCR 2.506(F), where a party or its officer, director or managing agent fails to attend or produce "without having served written objections," the court may stay proceedings, tax costs, "strike all or a part of the pleadings of that party," refuse to allow it to support or oppose designated claims and defenses, dismiss the action or any part of it, or "enter judgment by default against that party."

Note the qualifier: without having served written objections. Objecting in writing is what keeps a party out of that list.

A short checklist

If you are issuing one:

1. If you are unrepresented, move the court. You cannot issue a non-party discovery subpoena yourself.
2. Allow 14 days for the requested act, and serve all other parties on the date of issuance.
3. On a records-only subpoena, say so, say whether copies suffice, and state that you will pay copying costs.
4. Tender the fee at service, in cash, money order, cashier's check or an attorney's own check.
5. For a trial subpoena with documents, serve 14 days out, not two.
6. Check for a memorandum of understanding before serving an agency by email or fax.

If you have been served:

1. Move before the compliance date. Your obligation is stayed until the motion is resolved.
2. Ask for prepayment of production costs as an alternative to quashing.
3. Object in writing — for a party, that is what keeps the MCR 2.506(F) sanctions off the table.
4. Check where you can be made to comply; a non-party's county is the default.

Where these rules live

• MCR 2.305 — Discovery subpoena to a non-party
• MCR 2.506 — Subpoena; order to attend
• MCR 2.302 — General rules governing discovery
• MCR 2.313 — Failure to provide or permit discovery; sanctions
• Michigan motion to compel discovery
• Michigan discovery deadlines
• Michigan requests for admission
• Responding to a Michigan complaint

This page explains what the rules say. It isn't legal advice, and the Uniform Interstate Depositions and Discovery Act referred to in MCR 2.305(E) is not carried on this site.