5.3Depositions

A.Deposition of Party On Oral Examination

A party may take the oral deposition of another party.¹ MCR 2.306(A)(1). Leave of court must be obtained when the plaintiff wishes to depose the defendant before he or she has had a reasonable time to obtain an attorney, or if the deponent is one of the individuals listed in MCR 2.306(A)(2).² MCR 2.306(A)(1). “A reasonable time is deemed to have elapsed if:

(a) the defendant has filed an answer;

(b) the defendant’s attorney has filed an appearance;

(c) the defendant has served notice of the taking of a deposition or has taken other action seeking discovery;

(d) the defendant has filed a motion under MCR 2.116; or

(e) 28 days have expired after service of the summons and complaint on a defendant or after service made under MCR 2.106.” MCR 2.306(A)(1).

The party seeking to depose another party must provide reasonable written notice to every party in the action. MCR 2.306(B)(1). The notice must include the time of the deposition, location, and the name and address of each deponent.  MCR 2.306(B)(1)(a)-(b). If the name of a deponent is unknown, “a general description sufficient to identify the person or the particular class or group to which the person belongs” will be allowed. MCR 2.306(B)(1)(b). The party seeking the deposition may name certain entities as the deponent, in which case the notice must be served at least 14 days before the scheduled deposition. See MCR 2.306(B)(3).

“The deposition of each [party or] produced witness may not exceed one day of seven hours.” MCR 2.306(A)(3); MCR 2.306(B)(3).

A party may also request that the party-deponent produce documents or tangible things. MCR 2.306(B)(2). “MCR 2.310 applies to the request.” MCR 2.306(B)(2).

Where the witness to be deposed is a high-ranking government official or a corporate officer, the trial court must employ the “apex deposition rule.” Alberto v Toyota Motor Corp, 289 Mich App 328, 336 (2010). “[T]he apex deposition rule provides that before a plaintiff may take the deposition of a high-ranking or ‘apex’ governmental official or corporate officer, the plaintiff must demonstrate both that the government official or corporate officer possesses superior or unique information relevant to the issues being litigated and that the information cannot be obtained by a less intrusive method, such as by deposing lower-ranking employees.” Id. at 333. The Court emphasized that the apex rule does not shift the burden of proof to the party seeking discovery. Id. at 338. Rather, “after the party opposing the deposition demonstrates by affidavit or other testimony that the proposed deponent lacks personal knowledge or unique or superior information relevant to the claims in issue, then the party seeking the deposition of the high-ranking corporate officer or public official must demonstrate that the relevant information cannot be obtained absent the disputed deposition.” Id. at 339 (two high-ranking corporate officers were not required to attend a deposition regarding the plaintiff’s claim that a defect in a Toyota vehicle caused the accident that resulted in the death of the plaintiff’s decedent where the two corporate officers had generalized knowledge of the vehicle’s defect, yet “had no unique or superior knowledge of, or role in designing, the vehicle at issue or in implementing manufacturing or testing processes”). 

During the deposition, the court that is hearing the action, or the court in the county or district where the deposition is taking place, may terminate or limit the scope and manner of the deposition if the deponent or a party files a motion and shows “that the examination is being conducted in bad faith or in a manner unreasonably to annoy, embarrass, or oppress the deponent or party, or that the matter inquired about is privileged[.]” MCR 2.306(D)(1). If the deposition is terminated, only the court that is hearing the action may order the deposition to resume. Id.

The court must suspend the deposition upon demand by a deponent or the objecting party until that individual can file a motion requesting termination or limited questioning. MCR 2.306(D)(3).

A party will be subject to costs under MCR 2.306(G), if he or she plans to “assert that the matter to be inquired about is privileged,” but fails to do so before the deposition. MCR 2.306(D)(4).

B.Deposition On Written Questions

Similar to MCR 2.305(A) and MCR 2.306(A),³ a party may take testimony by deposition on written questions of any person, including another party.⁴ MCR 2.307(A)(1). A non-party witness may be compelled to attend if subpoenaed pursuant to MCR 2.305.⁵ MCR 2.307(A)(1). This type of deposition “may be taken of a public or private corporation or partnership or association or governmental agency in accordance with the provisions of MCR 2.305(A)(6) or MCR 2.306(B)(3).” MCR 2.307(A)(1).

A notice must accompany the written questions when being served on a party, and a subpoena must accompany written questions being served on a non-party. MCR 2.305(A)(1); MCR 2.307(A)(2). Subject to the time requirements in MCR 2.307(A)(3), a nonmoving party has the opportunity to serve cross and recross questions, and the moving party has an opportunity to serve redirect questions. MCR 2.307(A)(3). These time requirements may be altered if the parties stipulate or for cause shown. Id. 

C.Non-Party Subpoena for Deposition

The procedure for issuing a subpoena to a non-party for a deposition depends on whether the party issuing the subpoena is represented by an attorney. See MCR 2.305(A)(1).⁶ A represented party may issue the subpoena “upon court order or after all parties have had a reasonable opportunity to obtain an attorney, as determined under MCR 2.306(A).” MCR 2.305(A)(1). An unrepresented party may make a motion in court for issuance of a non-party subpoena. Id.

MCR 2.306(B)(1)-(2) and MCR 2.306(C)-(G) apply to a non-party subpoena under MCR 2.305. MCR 2.305(A)(1).

A subpoena issued to a non-party is subject to the rules in MCR 2.302(C) (regarding protective orders). MCR 2.305(A)(4). “[T]he court in which the action is pending or in which the subpoena is served, on timely motion made by a party or the subpoenaed non-party before the time specified in the subpoena for compliance, 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.” MCR 2.305(A)(4).

“The non-party’s obligation to respond to the subpoena is stayed until the motion is resolved.” MCR 2.305(A)(4).

“Except for a subpoena for delivery of copies of documents only under [MCR 2.305(A)(2)], a non-party served with a subpoena in Michigan may be required to comply with the subpoena 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.” MCR 2.305(B).

D.Payment of Deposition Expenses

The court may order a party to pay another party’s reasonable expenses associated with appearing at the deposition site, including reasonable attorney fees⁷ if the party giving the notice of the deposition (1) fails to attend the deposition, or (2) fails to subpoena a witness for the deposition, and (3) another party attends the deposition in person or by attorney in reliance on the notice. MCR 2.306(G)(1)-(2).