MCR 2.506 identifies the process by which a subpoena may be issued. Subpoenas may compel the attendance of certain individuals at various proceedings, require the production of evidence, or enjoin the transfer of assets pursuant to MCL 600.6119 . See MCR 2.506(A) ; MCL 600.1455(1) .
Subpoenas may be signed by an attorney of record in the action or by the clerk of the court. MCR 2.506(B)(1) . The court may enforce its subpoenas using its contempt power, see MCR 2.506(E) , and is provided other enforcement options by MCR 2.506(F) .
For information on issuing a subpoena based on a foreign subpoena, see Section 5.6 .
B. Subpoena for Party or Witness
MCL 600.1455(1) authorizes courts of record to issue subpoenas requiring the attendance of testifying witnesses in any matter “pending or triable in such courts[.]” See also MCR 2.506(A)(1) , which provides “[t]he court in which a matter is pending may by order or subpoena command a party or witness to appear for the purpose of testifying in open court on a date and time certain and from time to time and day to day thereafter until excused by the court[.]”
Whomever signs the subpoena must serve it 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.” MCR 2.506(C)(1) . Service requirements are set out in MCR 2.506(G) . The issuer of the subpoena bears additional responsibilities as set out in MCR 2.506(C)(2)-(3) .
C. Subpoena Duces Tecum (Subpoena for Production of Evidence)
A party or witness may be required to produce documents or other portable tangible things when they appear to testify. MCR 2.506(A)(1) . The request to produce these items must comply with MCR 2.302(B) and any scheduling order, and a copy of the subpoena must be provided to the opposing party or their counsel. MCR 2.506(A)(1) . Subpoenas issued pursuant to MCR 2.506(A)(1) “does not apply to discovery subpoenas ( MCR 2.305) or requests for documents to a party where discovery is available ( MCR 2.310) .” MCR 2.506(A)(1) .
“A subpoena may specify the form or forms in which ESI [(electronically stored information)] is to be produced, subject to objection.” MCR 2.506(A)(2) . If the subpoena does not specify the form or forms in which the information is to be produced, the information must be produced “in a form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable.” Id. The person producing the ESI only needs to “produce the same information in one form.” Id.
A subpoena for hospital medical records is controlled by MCR 2.506(I) .
“A person or entity subpoenaed under [ MCR 2.506 ] may file written objections to the request for documents before the designated time for appearance; such objections shall be adjudicated under [ MCR 2.506(H) ].” MCR 2.506(A)(1) . See Section 7.5(D) for information on adjudications under MCR 2.506(H) .
D. Motion to Quash Subpoena
MCR 2.506(H) provides that a person served with a subpoena under MCR 2.506 may appear and challenge the subpoena in person or in writing. The witness may be excused for good cause, with or without a hearing. MCR 2.506(H)(2)-(3) . Otherwise, the person must comply with the subpoena and appear, unless excused by the court or the party who had the subpoena issued. MCR 2.506(H)(4) . However, any obligation to produce documents is stayed pending resolution upon the filing of timely written objections. Id . Additionally, “[a]ny party may move to quash or modify a subpoena by motion under MCR 2.302(C) filed before the time specified in the subpoena, and serve same upon the nonparty, in which case the non-party’s obligation to respond is stayed until the motion is resolved.” MCR 2.506(H)(5) .