Estate of Chance Aaron Nash v. City of Grand Haven
321 Mich. App. 587
| Mich. Ct. App. | 2017Background
- Diane Nash, personal representative of Chance Nash’s estate, requested city records under Michigan FOIA related to a fatal sledding accident at Duncan Park and ensuing litigation.
- The City of Grand Haven withheld certain records, claiming attorney-client privilege (MCL 15.243(1)(g)) and saying some employment records (re: groundskeeper DeHare) were not held by the city.
- The trial court conducted an in camera review and a bench trial over 12 documents, ordered some produced (or redacted as to billing amounts) and upheld privilege for others.
- Key factual context: dispute over Duncan Park ownership, city involvement via license agreement and insurance coverage, insurer-hired counsel defending park-related defendants, and the Attorney General’s role in trust reformation proceedings.
- The court considered whether the common-interest doctrine preserved privilege despite disclosure to multiple parties and whether Nash, who prevailed only partially, was entitled to attorney fees under MCL 15.240(6).
Issues
| Issue | Nash’s Argument | Grand Haven’s Argument | Held |
|---|---|---|---|
| Whether Michigan recognizes the common-interest doctrine to preserve attorney-client privilege when communications are shared among parties with aligned legal interests | Common-interest doctrine should not apply absent explicit Michigan precedent | Federal common-interest doctrine applies and preserves privilege here | Court adopted and applied the common-interest doctrine to attorney-client privilege in Michigan; privilege upheld for many documents |
| Whether specific documents were protected by attorney-client privilege after disclosure to insurers, co-defendants, or the Attorney General | Disclosures waived privilege; documents should be produced | Disclosures were within a joint effort/common legal interest so no waiver | Court found multiple documents (including communications with insurer counsel and AG counsel re: trust reformation) privileged under the common-interest doctrine |
| Whether communications with the Michigan Attorney General lost privilege because AG is a separate party | Nash argued AG involvement defeats confidentiality and privilege | City argued AG’s role in trust supervision aligned public legal interests and communications were confidential and privileged | Court held communications with AG’s office (reforming the charitable trust) were within a shared legal interest and privileged |
| Whether Nash, as a partially prevailing FOIA requester, was entitled to attorney fees under MCL 15.240(6) | Nash argued she is entitled to an appropriate portion of fees because she prevailed in part | City argued the victory was minor and fee award is discretionary for partial victories | Court affirmed denial of attorney fees; trial court did not abuse its discretion given the limited nature of Nash’s success |
Key Cases Cited
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir.) (describing scope and limits of the common-interest doctrine)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege principles and privilege scope)
- D’Alessandro Contracting Group, LLC v. Wright, 308 Mich. App. 71 (Mich. Ct. App.) (applying federal common-interest analysis to work-product privilege)
- Local Area Watch v. Grand Rapids, 262 Mich. App. 136 (Mich. Ct. App.) (discretionary denial of fees to partially prevailing FOIA requester)
- Krug v. Ingham Co. Sheriff’s Office, 264 Mich. App. 475 (Mich. Ct. App.) (privilege attaches to authorized organizational representatives)
- Herald Co., Inc. v. Ann Arbor Pub. Schs., 224 Mich. App. 266 (Mich. Ct. App.) (definition and limits of attorney-client privilege)