September 22, 1998



97-19



Amendment of Rules 2.305,
2.310, and 2.506 of the
Michigan Court Rules
_____________________________


          On order of the Court, notice of the proposed changes
and an opportunity for comment at a public hearing having been
provided, and consideration having been given to the comments
received, the following amendment of Rules 2.305, 2.310 and 2.506
of the Michigan Court Rules are adopted, to be effective December
1, 1998.


[The present language is amended as indicated below.]

ICLE Editor's Note:

Rule 2.305     Subpoena for Taking 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 designated [books, 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.

    ([3]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 must 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 must be served at least 14 days
     before the time for production.  The subpoenaed
     person may, [within 7 days after 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 taking 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).

([A]B)     Scope.

(1)     A party may serve on another [person]
     party a request

([1]a)     to produce and permit the
     requesting party [making the
     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 or a 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 into reasonably 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 must 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 copy of the motion in the
     manner] as provided in MCR 2.105.

(5)  [Unchanged.]

[(6)   A person who produces documents for inspection
     shall produce them as they are 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) - (F) [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 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.

(2) - (3) [Unchanged.]

(H) - (I) [Unchanged.]


          Staff Comment:  The December 1, 1998 amendments
of Rules 2.305, 2.310, and 2.506 were suggested by the
Representative Assembly of the State Bar of Michigan.  The
changes made clear that nonparty records-only discovery subpoenas
are authorized.  The normal procedure for noticing a deposition
applies to records-only subpoenas, and the procedure in MCR 2.310
still pertains 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 was
changed from seven to fourteen days.  The amendments also made
nonsubstantive changes to clarify 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.