D’alessandro Contracting Group, LLC v. Wright
308 Mich. App. 71
| Mich. Ct. App. | 2014Background
- In 2009, cracking pipes during Genesee County sewer project prompted investigation by HRC to identify cause (design vs installation).
- HRC issued a report in September 2009; defendants shared it with AECOM, the project’s indemnitor and potential future adversary.
- DCG and Safeco sued for breach of contract; defendants counterclaimed; joint defense with AECOM was pursued to protect confidences.
- HRC report was designated privileged; AECOM disclosure allegedly waived work-product protection; plaintiffs claimed waiver and lack of privilege.
- Circuit court held the report prepared in anticipation of litigation and that disclosure to AECOM waived privilege; remanded for waiver, scope, and in-camera review.
- On appeal, court affirms as to anticipation-of-litigation but reverses on blanket privilege and waiver rulings; remands for in-camera review and waiver determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HRC report is protected work product in its entirety | DCG argues no privilege; the report contains factual material and the record is insufficient. | Wright/Defendants contend the report was prepared in anticipation of litigation and shielded fully by work product. | Remand for in-camera review to determine scope of privilege |
| Whether the circuit court erred by not conducting in-camera review to determine non-privileged material | DCG asserts the court erred by not examining the report to carve out non-privileged material. | Wright argues the privilege applies to the whole report without need for in-camera review. | Remand for in-camera review to identify non-privileged portions |
| Whether disclosure to AECOM waived the work-product privilege under common-interest or other theories | DCG contends disclosure to AECOM could waive, since AECOM is an adversary or not bound by privilege. | Wright asserts common-interest with AECOM preserves privilege; disclosure does not destroy protection. | Common-interest may preserve privilege; remand to assess waiver due to AECOM disclosure |
| Whether disclosure to Safeco constitutes waiver of the work-product privilege | DCG contends any Safeco disclosure would waive the privilege. | Wright argues Safeco disclosure is subject to indemnitor-privilege protections and may not waive. | Remand to determine whether Safeco disclosure occurred and if it caused waiver |
Key Cases Cited
- Messenger v Ingham Co Prosecutor, 232 Mich App 633 (1998) (work-product privilege; standard of review)
- Augustine v Allstate Ins Co, 292 Mich App 408 (2011) (waiver and work-product issues; de novo review)
- Leibel v Gen Motors Corp, 250 Mich App 229 (2002) (scope of work-product; anticipation of litigation)
- Great Lakes Concrete Pole Corp v Eash, 148 Mich App 649 (1986) (work-product includes more than objective facts)
- Ostoin v Waterford Twp Police Dep’t, 189 Mich App 334 (1991) (analysis of facts vs impressions in work-product)
- Koster v June’s Trucking, Inc, 244 Mich App 162 (2000) (MCR 2.302(B)(3)(a) applicability with insurer; common defense)
- Deloitte v United States App DC, 391 F. App’x 318 (2010) (common-interest doctrine and work-product scope)
- In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379 (2nd Cir. 2003) (work-product protection with third-party disclosures)
- In re Chevron Corp, 633 F.3d 153 (3d Cir. 2011) (work-product doctrine protection and third-party disclosures)
- Lectrolarm Custom Sys, Inc v Pelco Sales, Inc, 212 F.R.D. 567 (N.D. Cal. 2002) (common defense and confidentiality in work product)