Instructions for Filing a Subpoena in Michigan

Every trial court in the U.S. issues subpoenas, a type of written court order requiring a person to appear to give testimony or to produce documents required in a court case. Generally subpoenas in Michigan can only be issued by a court clerk, an attorney in the case or a government agency.

Subpoenas are orders from a court requiring that evidence relevant to a court action be produced. In Michigan, like in other states, there are two primary types of subpoenas:

• Subpoena ad testificandum: requires someone to appear and testify.
  
• Subpoena duces tecum: requires the production of certain documents.
  

Each of these types of subpoenas are intended to solicit information that is relevant to a court case or proceeding. The attorney for the person or business that is served with a subpoena can challenge it with a motion to quash if the information sought or the person subpoenaed is not reasonably related to the matters at issue in a court case.

The Michigan Rules of Court, Rule 2.506(I), states:

"The 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, and to produce notes, records, documents, photographs or other portable tangible things as specified."

Subpoenas to appear and testify in Michigan can require a person to either appear at trial as a witness or appear and answer questions at a deposition.

A trial subpoena in Michigan essentially summons an individual to court. They are told to come in on a particular day at a particular time. When they arrive, they are administered the court oath to tell the truth, the whole truth, and nothing but the truth. Then they take the witness stand and are questioned by the attorneys in the proceeding.

A deposition subpoena is part of the discovery process that happens before a case goes to trial. The discovery process allows the parties to learn what the evidence will show so that they can prepare their case. Discovery can take the form of written questions, written statements that the other person has to admit or deny, document production or depositions.

After a legal case begins, any party can take depositions. These are out-of-court sessions in which one party asks questions of any other party or can call in persons who are not part of the lawsuit to ask them questions under oath. The questions and answers are recorded by a court reporter. After the deposition, the entire question/answer session can be transcribed.

Deposition testimony allows a party to a case to understand what witnesses will say at trial. This avoids a surprise at court, as well as prevents the waste of court time.

For example, if Person A is expected to give an alibi for Person B, the attorneys learn in a deposition whether this will, in fact, happen. And if Person A tells a different story at trial than in their sworn deposition, the attorneys can introduce the deposition testimony at trial so that the trier of fact will see that their story has changed.

The other type of trial subpoena does not require that a person appear. It requires that the person produce documents or other tangible things, such as clothing, books, checking account records, medical records, even a vehicle that may be relevant to the case at hand.

The subpoena can specify that the party wishes to inspect the actual, original thing, such as a vehicle involved in an accident. Alternatively, it can state that copies are sufficient, like bank records.

A party who serves a discovery subpoena seeking copies of written materials must pay for the reproduction costs. The party's willingness to pay for reasonable copying costs must be noted in the subpoena to produce documents in Michigan. Any request for documents shall indicate that the party asking for the documents will pay reasonable copying costs, according to MCR 2.305(A)(2) (amended effective 7/26/21).

When a party or their attorney wants to use a subpoena, the correct form is Michigan Court Form MC-11. This serves for both criminal and civil cases, but the person filling out the subpoena must indicate the type of case by checking one of the two boxes on the form.

The person filling out the subpoena must insert the name of the person being subpoenaed and where and when they must appear or, alternatively, what documents or other things they must produce. In Michigan, an attorney of record for one of the parties can sign the subpoena or the clerk of court sets their stamp on the subpoena.

A subpoena either asks an individual to appear and testify or to produce documents or tangible things. The individual needs notice for either of these things. They need to know in advance if they have to go to court since they might have to arrange work or child care, for example. And gathering documents requires an investment of time, too.

For those reasons, the Michigan court requires that the person served with a subpoena be given advance notice of the date they are asked to testify or produce documents. Court rules require that a subpoena to give testimony at trial or at a deposition must be served by the requesting party "enough in advance to give the witness reasonable notice."

Unless the court states otherwise, the person must have two days' notice to appear and testify and 14 days' notice when documents are requested.

If the subpoena asks for an appearance on a certain date, and the individual states that they cannot appear on that date, the date or time must be changed or the witness be excused. If that is not possible, the attorney can ask for a special hearing where the court can question the witness about their claims that they cannot appear as requested.