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Rule 2.306 – Depositions on Oral Examination of a Party

May 13, 2021 | Civil Procedure, Michigan

(A) When Depositions May Be Taken; Limits.

(1) Subject to MCR 2.301(A) and these rules, after commencement of the action, a party may take the testimony of a party by deposition on oral examination. Leave of court, granted with or without notice, must be obtained if the plaintiff seeks to take a deposition before the defendant has had a reasonable time to obtain an attorney. 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.
(2) The deposition of a person confined in prison or of a patient in a state home, institution, or hospital for the mentally ill or mentally handicapped, or any other state hospital, home, or institution, may be taken only by leave of court on terms as the court provides.
(3) A deposition may not exceed one day of seven hours.
(B) Notice of Examination; Production of Documents and Things.

(1) A party desiring to take the deposition of a party on oral examination must give reasonable notice in writing to every other party to the action. The notice must state

(a) the time and place for taking the deposition, and
(b) the name and address of each person to be examined, if known, or, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs.
(2) The notice may be accompanied by a request for the production of documents and tangible things at the taking of the deposition. MCR 2.310 applies to the request.
(3) In a notice, a party may name as the deponent a public or private corporation, partnership, association, or governmental agency and describe with reasonable particularity the matters on which examination is requested. The notice shall be served at least 14 days prior to the scheduled deposition. No later than 10 days after being served with the notice, the noticed entity may serve objections or file a motion for protective order, upon which the party seeking discovery may either proceed on topics as to which there was no objection or motion, or move to enforce the notice. The organization named must designate one or more officers, directors, or managing agents, or other persons, who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The deposition of each produced witness may not exceed one day of seven hours. The persons designated shall testify to matters known or reasonably available to the organization. This subrule does not preclude taking a deposition by another procedure authorized in these rules.
(C) Conduct of Deposition; Examination and Cross-Examination; Manner of Recording; Objections; Communicating with Deponent.

(1) Examination of Deponent

(a) The person before whom the deposition is to be taken must put the witness on oath.
(b) Examination and cross-examination of the witness shall proceed as permitted at a trial under the Michigan Rules of Evidence.
(c) In lieu of participating in the oral examination, a party may send written questions to the person conducting the examination, who shall propound them to the witness and record the witness’s answers.
(2) Recording of Deposition. The person before whom the deposition is taken shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness.

(a) The testimony must be taken stenographically or recorded by other means in accordance with this subrule. The testimony need not be transcribed unless requested by one of the parties.
(b) While the testimony is being taken, a party, as a matter of right, may also make a record of it by nonsecret mechanical or electronic means, except that video recording is governed by MCR 2.315. Any use of the recording in court is within the discretion of the court. A person making such a record must furnish a duplicate of the record to another party at the request and expensed of the other party.
(3) Recording by Nonstenographic Means. The court may order, or the parties may stipulate, that the testimony at a deposition be recorded by other than stenographic means.

(a) The order or stipulation must designate the manner of recording and preserving the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A deposition in the form of a recording may be filed with the court as are other depositions.
(b) If a deposition is taken by other than stenographic means on order of the court, a party may nevertheless arrange to have a stenographic transcription made at that party’s own expense.
(c) Before a deposition taken by other than stenographic means may be used in court it must be transcribed unless the court enters an order waiving transcription. The costs of transcription are borne by the parties as determined by the court.
(d) Subrule (C)(3) does not apply to video depositions, which are governed by MCR 2.315.
(4) Objections During Deposition.

(a) All objections made at the deposition, including objections to

(i) the qualifications of the person taking the deposition,
(ii) the manner of taking it,
(iii) the evidence presented, or
(iv) the conduct of a party, must be noted on the record by the person before whom the deposition is taken.

Subject to limitation imposed by an order under MCR 2.302(C) or subrule (D) of this rule, evidence objected to on grounds other than privilege shall be taken subject to the objections.

(b) An objection during a deposition must be stated concisely in a civil and nonsuggestive manner.
(c) Objections are limited to

(i) objections that would be waived under MCR 2.308(C)(2) or (3), and
(ii) those necessary to preserve a privilege or other legal protection or to enforce a limitation ordered by the court.
(5) Communicating with Deponent.

(a) A person may instruct a deponent not to answer only when necessary to preserve a privilege or other legal protection, to enforce a limitation ordered by the court, or to present a motion under MCR 2.306(D)(1).
(b) A deponent may not communicate with another person while a question is pending, except to decide whether to assert a privilege or other legal protection.
(c) For purposes of this rule, “communicate” includes electronic communication conducted by text message, email or other transmission using an electronic device.
(D) Motion to Terminate or Limit Examination; Sanctions; Asserting Privilege.

(1) Motion. At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing 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, a court in which the action is pending or the court in the county or district where the deposition is being taken may order the person conducting the examination to cease taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in MCR 2.302(C). If the order entered terminates the examination, it may resume only on order of the court in which the action is pending.
(2) Sanctions. On motion, the court may impose an appropriate sanction- including the reasonable expenses and attorney fees incurred by any party- on a person who impedes, delays, or frustrates the fair examination of the deponent or otherwise violates this rule.
(3) Suspending Deposition. On demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to move for an order. MCR 2.313(A)(5) applies to the award of expenses incurred in relation to the motion.
(4) Raising Privilege before Deposition. If a party knows before the time scheduled for the taking of a deposition that he or she will assert that the matter to be inquired about is privileged, the party must move to prevent the taking of the deposition before its occurrence or be subject to costs under subrule (G).
(5) Failure to Assert Privilege. A party who has a privilege regarding part or all of the testimony of a deponent must either assert the privilege at the deposition or lose the privilege as to that testimony for purposes of the action. A party who claims a privilege at a deposition may not at the trial offer the testimony of the deponent pertaining to the evidence objected to at the deposition. A party who asserts a privilege regarding medical information is subject to the provisions of MCR 2.314(B).
(E) Exhibits. Documents and things produced for inspection during the examination of the witness must, on the request of a party, be marked for identification and annexed to the deposition, if practicable, and may be inspected and copied by a party, except as follows:

(1) The person producing the materials may substitute copies to be marked for identification, if he or she affords to all parties fair opportunity to verify the copies by comparison with the originals.
(2) If the person producing the materials requests their return, the person conducting the examination or the stenographer must mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to the deposition. A party may move for an order that the original be annexed to and filed with the deposition, pending final disposition of the action.
(F) Certification and Transcription; Filing; Copies.

(1) If transcription is requested by a party, the person conducting the examination or the stenographer must certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness. A deposition transcribed and certified in accordance with subrule (F) need not be submitted to the witness for examination and signature.
(2) On payment of reasonable charges, the person conducting the examination shall furnish a copy of the deposition to a party or to the deponent. Where transcription is requested by a party other than the party requesting the deposition, the court may order, or the parties may stipulate, that the expense of transcription or a portion of it be paid by the party making the request.
(3) Except as provided in subrule (C)(3) or in MCR 2.315(E), a deposition may not be filed with the court unless it has first been transcribed. If a party requests that the transcript be filed, the person conducting the examination or the stenographer shall promptly file the certified transcript with the court in which the action is pending via the statewide electronic-filing system, by delivering it personally to the court, or by registered or certified mail to the clerk of the court and shall give prompt notice of its filing to all other parties, unless the parties agree otherwise by stipulation in writing or on the record.

If the transcript is personally delivered to the court, it must be securely sealed in an envelope endorsed with the title and file number of the action and marked “Deposition of [name of witness].”

(G) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred in attending, including reasonable attorney fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena on the witness, and the witness because of the failure does not attend, and if another party attends in person or by attorney because he or she expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred in attending, including reasonable attorney fees.

Mich. R. Civil. Proc. 2.306

Last amended effective September 1, 2016; amended June 19, 2019, effective January 1, 2020; amended October 28, 2020, effective January 1, 2021.