Rule 3.607.Proceedings to Restore Lost Records or Documents in Courts of Record

MCR 3.607 answers a narrow but recurring problem: a record or paper in a Michigan court of record has gone missing, and someone needs it. The rule creates a proceeding to build a substitute and give that substitute legal force.

Who may apply, and where

Subrule (A) opens the door to a person having an interest in the recovery of a record or paper that relates to an action or proceeding pending or determined in a Michigan court of record. That person applies to the court having jurisdiction of the action or of the record, asking for an order that a duplicate of the lost item be prepared and filed in the court. The rule reaches both live cases and closed ones, since it covers proceedings pending or determined.

What the applicant must show

Subrule (B) sets two elements, and the applicant must establish both to the court's satisfaction: that the record or paper once existed, and that it has been lost without the fault or connivance, directly or indirectly, of the applicant. The phrasing is deliberate. It is not enough that the applicant did not personally misplace the item; the applicant must be clear of indirect involvement as well.

Once that showing is made, the court takes control of the process. It directs the manner of proceeding to replace the lost item and the notice to be given to parties interested in the application. The rule does not prescribe a single method, which leaves the court free to fit the procedure to what was lost.

Building the record

Subrule (C) supplies the evidentiary tools. The court before which the application is pending may issue subpoenas for and compel the attendance of witnesses, or may compel witnesses to submit to examination on interrogatories, in order to establish facts relevant to the proceeding. Reconstruction of a lost paper often depends on the memory and files of the people who handled it, and this subrule allows the court to reach them.

The order and its effect

Subrule (D) closes the loop. If the court is satisfied that the record or paper proposed as a substitute exhibits all the material facts of the original, it enters an order providing that the substitute be filed or recorded with the officer who had custody of the original. The standard is exhibiting all the material facts, not exact reproduction.

The consequence is stated in broad terms: during the continuance of the loss, the substituted record or paper has the same effect in all respects and in all places as the original. That language carries the substitute beyond the court that approved it. It also has a built-in limit, since the substitute holds that status while the loss continues.