Can you Compel the Testimony of an Out-of-State Witness at Trial in a Civil Case?

By: James Fraser, civil litigation attorney

The vast majority of civil lawsuits that are filed rarely make it to trial. There are a variety of mechanisms that encourage parties to settle prior to trial, such as court-ordered mediation, settlement conferences conducted by the Court, plus the hard work of the parties and their counsel to reach settlements on their own. If your case does go to trial, a necessary element of a successful outcome is effective witness testimony.  But getting those witnesses to appear and testify at trial can be a challenge. It can be especially challenging if you have witnesses who reside outside of Michigan. Unless your out-of-state witness agrees to voluntarily appear and testify, compelling their appearance at trial is not possible in a civil case.

For those involved in civil litigation in Washtenaw County, understanding these procedural limitations is crucial. Local witnesses can be compelled to appear and testify at trial upon service of a subpoena.  If a witness resides more than 100 miles from the place of trial or hearing, or is out of the United States, that witness is considered to be an “unavailable witness” under the Michigan Rules of Evidence. If a witness meets this definition, the Michigan Court Rules allows their prior deposition testimony to be produced at trial. MCR 2.308(A) provides that "[d]epositions or parts thereof shall be admissible at trial or on the hearing of a motion or in an interlocutory proceeding only as provided in the Michigan Rules of Evidence.” MRE 804(b)(2) allows for the admission of deposition testimony in certain cases in which "the declarant is unavailable as a witness." MRE 804(b)(2)(A) defines an unavailable witness as a witness who is more than 100 miles from the place of trial or hearing, or is out of the United States. As a result, if the testimony of an out-of-state witness is necessary for your case, their deposition will need to be taken prior to trial.

Luckily, in Michigan, along with and 47 other states and the District of Columbia, have adopted the Uniform Interstate Depositions and Discovery Act (UIDDA), MCL 600.2201 et seq. The UIDDA allows litigants in adopting states to compel a person in another state to attend a deposition or produce documents for discovery purposes. However, UIDDA does not cover subpoenas for testimony at trial. The Michigan Court of Appeal has recognized this limitation in People v. Jones, unpublished decision of the Court of Appeals, Docket No. 353266, Decided  November 4, 2021 (“While a subpoena under this act can require a person to attend a deposition, produce documents for inspection, or permit inspection of premises under the person's control, it does not include compelling a person's presence at trial. See MCL 600.2202(e).”). Some states have adopted language in their version of the UIDDA that incorporates trial testimony (like Pennsylvania at 42 Pa. Con. Stat. § 5333), but Michigan has not.  As a result, litigants in Michigan cannot compel out-of-state witnesses to testify at trial in a civil case.

To ensure that an out-of-state witness’ testimony can be presented at trial, the best practice would be to obtain their deposition testimony with a subpoena issued under the UIDDA while discovery is open, even if that witness has agreed to appear voluntarily at trial.  While the widespread acceptance and use of videoconferencing technology can ease the burden of an out-of-state witness to appear for a trial in Michigan, a witness’ consent to appear may be withdrawn.  If that occurs, their testimony at trial cannot be presented unless their deposition testimony had been previously obtained.

Don’t Face Civil Litigation Alone—We Can Help You

If you’re involved in civil litigation in Washtenaw County and need guidance on witness testimony, discovery procedures, or trial preparation, contact Pear Sperling Eggan & Daniels, P.C. Our experienced civil litigation attorneys can help you navigate complex procedural rules and protect your interests throughout your case. Call us today or visit our website to schedule a consultation.