Howe v. Detroit Free Press, Inc

Frеe Press Detroit Howe v PRESS, FREE INC v DETROIT HOWE 1). (Calendar 3, 90042, Argued No. 90043. December Docket Nos. 14, 1992. July Decided Wayne brought in the Virgil an action M. Barbara K. Howe and others, alleg- Detroit Free Press and Court Circuit article, originally published ing newspaper in the San that a Press, republished Mercury in the Detroit Free and Jose News son, pitcher, major league regarding baseball their drinking problems Virgil false and Howe had asserted that Finch, J., granted court, defamatory. Tevis The Sharon pre- probation report the release of a defendants’ motion for Virgil pared Howe for a 1987 conviction in connection with ruling by bringing operating impaired, a vehicle while regarding any privilege state- waived lawsuit the had probation report, denied the defendants’ ments but report. request supporting in the referred to documentation Jr., P.J., Appeals, Holbrook, and McDonald The Court of D. E. curiam, reversed, ruling JJ., per opinion Jansen, and in an discovery report subject and was not supporting preclude release affirmed the decision 115524). (Docket The defendants documentation Nos. appeal. joined by opinion Chief Justice Griffin, Justice In an Riley, Mallett, and Cavanagh, Brickley, and Justices Supreme Court held: 28.2299, 791.229; statutory privilege MCL MSA The under concerning Virgil probation rеport precluding of a mat- prepared unrelated criminal in connection with an Howe thus, proper ter, plaintiffs; is a was waived discovery by subject the defendants. 28.2299, 791.229; provisions as a MSA read 1. The of MCL precludes whole, evidentiary privilege that disclo- an establish public, general probation reports records to the sure References 31, 49; 2d, Discovery Depositions and Slander Libel Am Jur §§ seq. 192 et §§ Slander; Discovery; Libel and to Annotations under See the Index Privileged and Confidential Matters. [July- reports may though available to certain access such even authorities, logical light designated public and are designed reports underlying purpose are of the statute. Michigan’s sentencing sentenc- indeterminate under facilitate probation adviser to ing is a nonadversarial The officer scheme. information to collect and evaluate whose function is the court subject concerning and to make of the the life and character subject Confidentiality make the to allows recommendations. potential may for reha- the that enhance sensitive disclosures recrimination, public scrutiny and or fear of bilitation without gather that from sources officer to information allows the public might could to the unavailable. Disclosure otherwise be process. in this seriously the defendants the Because undermine category persons allowed access the case do not fall within by statute, evidentiary privilege may the be asserted by an plaintiffs. implicitly by privilege may that conduct 2. A be waived privilege by the holder unfair. on the would make insistence yield statutory privilege it must where conflicts at issue The determining rights. In whether the certain constitutional with action, begin privilege a court should waived in a civil has been preserving presumption analysis in the a favor its with establishing the privilege. a waiver must rest on The burden of privilege requires party seeking discovery. that the Fairness probable and the it can shown that the claim end where be important evidence that will be to it are enmeshed defenses privilege prevails. burden on the defen- if the The unavailable privilege. proportional importance The of the is to the dant involved, balancing carefully weigh the interests should court defending importance privilege asserted the the party’s to construct the most effective need for the information allowed, narrowly to should be limited If defense. directly portions privileged that bear on material those thе issues at hand. by case, plaintiffs the are entitled to stand 3. In this while yield. privilege, privilege statutory must For the their claim of 1, 19, present right art to under Const § the defendants’ as a to truthfulness of their statements defense evidence of the defamation, meaning, must afforded have the defendants to opportunity evidence essential to discover relevant a reasonable permit plaintiffs to defense. It would be anomalous to that proving significantly lighten state- that the to their burden using as a in the article were false ments addition, preclude truth. In evidence of shield yield application little in this case would bear must because its Detroit Free Press Howe gained relationship protective purpose. The benefit no to its greater inure to the far than that which would waiver is officer-probationer relationship. probation Because the proper subject probation report privilege, is a waived discovery. proceedings. for further Reversed and remanded Boyle, concurring part dissenting part, and Justice the entire the trial court concluded stated because relevant, finding report con- is not tested, it must be released defendants. 791.229; expressly create an MCL MSA 28.2299 does not Rather, evidentiary privilеge. confer should be construed to right presentence probationer to assert that a on a a respect dis- supporting are confidential with documentation right suppress statute does create closure. privileged com- in court. is the information information Nor is such information munication under the common law. Where protective sought, remedy order MCR to seek a under camera, 2.302(C). inspect material in The court then should information, release of the material irrelevant and limit excise litigation. those connected with the Levin, writing separately, the stated that authorities Justice attempts majority on the involved shield evidence relied directly party making attempt. put the In this the issue case, put sought parties resisting discovery the the did report supporting presentence di- documentation in issue support rectly indirectly. precedents do not the thus statutory privilege. that the conclusion the waived (1990) App 492; reversed. 459 NW2d Reports — — — Libel Privi- Slander Evidence Probation leged — Information Waiver. defamation, determining whether, in a civil action for In report prepared with an unrelated connection discovery, privileged from matter is and immune criminal begin analysis presumption should its with a in favor court establishing privilege; preserving the the a waiver burden seeking requires party discovery, on the and fairness rests privilege the the end where it can be shown that claim and important probable it are enmeshed in evidence defenses to privilege prevails; if the burden on will be unavailable importance privi- proportional is of the the defendant involved, carefully weigh lege: the court should the interests defending balancing importance party’s its need for the information to construct most effective Mich Opinion op the Court defense; allowed, narrowly if should be limited to portions privileged directly those material that bear on (MCL 28.2299). 791.229; the issues at hand MSA Lopatin, Miller, Freedman, Bluestone, Erlich, Shaw) (by Rosen & E. Bartnick Richard for the plaintiffs.

Honigman, (by Miller, Schwartz & Cohn Gruskin) Herschel P. Fink and Michael A. for the defendants. interlocutory appeal arising InJ. this Griffin, defamation,

out of a civil suit for we must decide probation report concerning whether a one of the plaintiffs, prepared in connection with an un- privileged absolutely matter, related Criminal 791.229; 28.2299, under MCL MSA and therefore Although discovery. pro- immune from vides a the statute privilege, that, we conclude under presented here, circumstances respect portions waived with are relevant to issues raised in the defamation suit by plaintiffs. Accordingly, filed we reverse the Appeals. decision of the Court of

I upon This defamation action is based a news- paper published originally article in the San Jose (California) .Mercury July 20, News on re- garding league major pitcher Howe, baseball Steve plaintiffs Virgil son article, and Barbara Howe. In the

reporter Mike Antonucci wrote that "Howe plaintiffs’ Howe, [Steve was] son the eldest of five family children and four sons in a that was a prisoner drinking problems.” of his father’s The quoted stating article also Steve Howe as that his powdered mother was forced to her feed children Free Press Howe v Detroit Opinion op the Court [plaintiff Virgil Howe] his father milk "because drinking up many paychecks the so was up just coming having enough family trouble was payment of a house and car $84 with a combined republished newspaper was in article month.” The the Free Press. Detroit suit, nam- commenced this defamation

Plaintiffs ing Press, Inc., the Detroit Free as defendants Knight-Ridder Newspaper Sales, Inc., the Jose San reporter Mercury News, Mike Antonucci. In and quoted lawsuit, the asserted excerpts defamatory. Defendants were false in article were answered that the statements During discovery, defendants true. the course prepared probation report1 sought release of a Virgil 1987 conviction of Howe connection with a in ing operat- Division, Court, for District 3d the 52nd (owi). 257.625(2); impaired while MCL a vehicle 9.2325(2). contended that MSA report Defendants Virgil Howe’s contains information about habits, defense that relevant to defendants’ alcohol "drinking problems.” Virgil did in fact have Howe report by attempt An was made obtain County subpoena issuing a to the chief Oakland probation However, on of counsel officer. advice to deliver the county, the officer refused Virgil by or a in the of consent Howe absence directing be released. Plaintiffs court order citing objected release, 791.229; MCL MSA part provides 28.2299, that such records which reports privileged or confidential "shall open public inspection.”2 communications not granted Thereafter, trial court a motion "probation report” prepared by to as The document referred County. employed Oakland Such document is a also referred to officer report.” background "presentence It as a includes accused, provided concerning and is assist information 771.14; sentencing. judge 28.1144. See MCL MSA pat 209. full of the statute is set forth below text Mich 203 208 Opinion op the Court ruling report, for release of the defendants bringing plaintiffs, by any privilege lawsuit, had "waived regard any to statements

with probation report supporting presentence or and plaintiffs’ defa- [were] relevant to materials mation claim camera, reviewing report in . . . After that the entire the trial court determined report should be delivered to was relevant and report however, defendants; limited At that appeal access to the was parties to the lawsuit.3 the court point, plaintiffs sought interlocutory an Appeals. the Court Meanwhile, in the trial court defendants moved supporting documentation for referred to in the defendants of certain

probation report. Specifically, sought portion proba- of the access to a Test,” tion file called "The alcadd which includes questionnaire an alcohol-use and the results of a Virgil to Howe. When this re- test administered quest court, denied the trial defendants application appeal. filed for leave to both also Court of an Appeals granted applications, consol- appeals, stayed proceedings further idated in the lower court.4 opinion per Appeals curiam,

In an Court ruling report the trial court’s that the reversed precluding discоverable, and affirmed its decision supporting release of the test documenta- alcadd (1990). App tion.5 184 Mich 459 NW2d 68 We 3 provided The trial court’s order that when and if the case were 2.403, pursuant copy proba submitted to mediation tion to or made a MCR could be shown to the mediators but could not be attached part of a mediation brief. allowing in the trial court Defendants also moved for an order depose prepared probation them to officer who report concerning Virgil argu Howe. The motion was scheduled for stay proceedings. ment but never heard because 18, 1989, April Appeals On the Court of also denied defendants’ modify stay permit request motions in the trial court Appeals. Court of unrelated to the issue before the germane That order is not appeal. to the issues raised this Free Press Detroit Howe v op the Court appeal. leave granted

then (1991).

II applica- meaning turns on appeal This 791.229; of MCL circumstances under these bility 28.2299, provides: which MSA investigations made reports of All records and officer, of case histories and all probation by a confidential privileged or shall be probationers communications public inspection. open to not shall have access probation officers Judges and proba- records, reports, and case histories. the tion the assistant or officer, probation, director the assistant permit shall representative, director’s general, and law general, the auditor attorney to the re- to have access agencies enforcement cords, The relation histories. reports, and case pro- probation officer and between confidence investigation shall under or defendant bationer remain inviolate. report probation that position

It plaintiffs’ is statute, under the privileged absolutely is initiation of their by not waived privilege hand, the other suit. On instant defamation not cre- does the statute contend defendants rather, merely privilege; evidentiary ate an disclosure upon restrictions places created, defen- If reports. records and absolutely inviolate it cannot be argue that dants allowing for in the statute language light proba- judges and only by report, access designated state officers, certain also tion but agencies.” "law enforcement as as well officials writing of one in the support find Defendants commentator: op the Court given ac- authorities can be Because the latter probation officer in by the

cess to the material official, any superior without charge of a case or a concurrence, it also requirement of defendant this as a conceptually to structure 'seems difficult of Michi- [George, Analysis A Practical privilege. Law, 15.30(J).] gan Evidence § that, if even a statu- Defendants further contend recognized, any to be such privilege were tory com- they when was waived defamation, particularly menced this lawsuit to the report of the fact that denial of access light deprive would defen- supporting and its materials essential to their de- dants of relevant evidence Defendants assert and its fense. weigh on the ulti- supporting heavily materials truthfulness falsity mate issue in this case —the concerning article newspaper of statements Virgil "drinking problems.” Howe’s

A Privileges readily have not been endorsed or courts, ex- by construed for reasons broadly on Professor McCormick his treatise plained by (3d ed), 8, 72, pp ch 170-171: Evidence § overwhelming majority The of all rules of evi- justification their ultimate some dence have as promote objectives set forward tendency to oath, presentation of the conventional witness’ truth, truth, nothing and but the "the whole prominent exclusionary truth.” Thus such the rules as rule, rule, opinion the rule exclud- hearsay crime, ing as evidence of and the bad character Evidence”) (or rule, original as their common truth, "Best have documents

purpose the elucidation of the purpose which these rules seek to effect is unreliable operating to exclude evidence which prejudice or mislead. or which is calculated to Press Howe Detroit Free v Opinion of the Court contrast, privilege . . . are not By the rules of fact-finding designed or intended to facilitate the safeguard integrity. its Their effect process or to inhibitive; rather than facilitat- clearly instead is ing light. truth, shut out the they the illumination of purpose, however: Privileges do serve a rationale. of are not without [R]ules protection is the of interests and Their warrant relationships which, wrongly, or are re- rightly importance justify garded as of sufficient social relevant availability sacrifice of of evidence some to the administration tial number justice. of ... substan- [A] operate protect communications professional the context of various made within relationships, client, e.g., attorney physician and penitent. The ration- patient, clergyman and and ale that privileges traditionally advanced for these is public requires encouragement policy which these relation- the communications without [Id., p ships cannot be effective. 171.] scope statutory The existence of a meaning language turns on the ultimately Love, People the statute itself. Cf. Cavanagh, (1986) (opinion NW2d

J.). this Court has said: As constitu- primary and fundamental rule of the Court’s statutory

tional or construction is purpose and intent as duty is to ascertain legislative provi- expressed in-the constitutional or Also, in- question. intent must be sion in ferred from the while used, language not the mean- ing particular only words the abstract grammatical construction alone that strictly their subject governs. applied are to be to the The words scope provision, general matter and light they are to be considered and sought accomplished general purpose to be or 203 Mich 212 Opinion of the Court or sought by the constitution evil statute. 281 NW2d to be remedied 554, Arbor, 562; Ann Mich v [White (1979). Smith, People v See also (1985) (opinion of Mich Williams, C.J.).] 378 NW2d 791.229; MSA 28.2299 of MCL The first sentence reports probation records "shall be states that open privileged communications or conñdential added.) inspection” (Emphasis public The next reports probation to the two sentences allow access designated personnel and law and records court authorities. The final sentence enforcement provides "[t]he that relation of confidence statute probationer officer between investigation shall remain invio- defendant under late.” disagree with defendants’ contention

We permits portion access of the statute personnel somehow court and law enforcement plaintiffs’ claim of vis-á-vis undermines ‍‌‌​‌‌​​​​‌​​​​​‌​‌​‌​‌​‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‍present conclude that the stat- defendants. We provisions, whole, do estab- when read as a ute’s lish an precludes

evidentiary privilege that disclo- though general public, access to to the even sure designated report may available to certain public The first sentence of the statute authorities. probation reports expressly and records to elevates "privileged communica- the level of tions.” The second and or confidential

third sentences carve out specific exceptions sentence, to this rule. The final requiring of confidence between the relation probationer probation officer and shall remain conjunction "inviolate,” with the when read provisions, preceding clear that this man- makes public, applies court but not to certain date Peoplе personnel. Smith, Cf. v or law enforcement J.); People (opinion supra at 463-464 Boyle, 213 Howe Detroit Free Press Opinion of the Court Hooper, App 669, 674; 403 NW2d 605 (1987). pub

That the statute discriminates between the logical lic and court officials is light when considered in underlying purpose of the of the statute. The report, gathered which includes information as the investigation, designed result of an is to facilitate sentencing process pursuant Michigan’s sentencing by individualizing indeterminate laws 771.14; each case. See MCL MSA 28.1144. The probation officer is a nonadversarial adviser to the court whose function it is to collect and evaluate concerning information the life and character of subject and to make recommendations. Wil York, liams v 250; 1079; New 337 US 69 S Ct (1949); 771.14(2); L93 Ed 1337 MCL MSA 28.1144(2). perspective subject, From the of the confidentiality person allows that to make sensi may potential tive disclosures that enhance the for public scrutiny rehabilitation without fear of recrimination. From the standpoint proba of the privacy gather officer, tion allows the officer to might information from sources that not otherwise gathered be available. Since the information is for purpose assisting determining the the reports the court in imposed, course,

sentence to be access to the necessity. and records court officials is a public seriously However, disclosure to the could process. present undermine the Since the defen category persons dants do not fall within the allowed access statute, we conclude that an evidentiary may pres be asserted in the ent case.

B argument turnWe now to consider the that plaintiffs privilege provided by have waived the 203 Mich Court absolute, is that Contending statute. no contains the statute emphasize for waiver. express provision or other "good cause” 600.2157; (physician- 27A.2157 MSA MCL Compare X, App Mich Baby In re privilege); patient (1980). point out Plaintiffs NW2d allows expressly provision no statute contains to a violation to consent subject mandate. confidentiality the proposi- Nevertheless, authority there con- through can be waived a privilege tion that holder to for the make it unfair that would duct Wigmore’s Dean thereafter.6 on the insist privi- physician-patient of the of waiver discussion is instructive: lege when the predicated not is to be only A waiver the intention to abandon plain conduct indicates (though not the conduct also when privilege, but intention) in places the claimant evincing that evidence, thе to position, with reference such a permit inconsistent to unfair and

that would be case, of purposes that the holder this we conclude At of least noted, already the the subject report. As the statute, subject is the encourage designed public policy, grounded in any probation fully officer and show lay the facts before the turn, probation sentencing. In the circumstances mitigating circumstances before only effectively of all the if he is advised can act officer only process if there making succeeds The a recommendation. before subject if the confidentiality and would fail guarantee is a probation require- arbitrarily unilaterally waive the officer could party Consequently, the communi- either while of confidence. ment cation subject subject. power with the the privilege, to waive it lies may raise the acting alone, the consent of officer with or the regard to the extent means in this Our conclusion may made statements plaintiff have in the instant case wife privileged presentence report, to refuse she is not with connection subject report. she is not the disclose them since that facet of the the intended to address this case is not The decision in relationship may between a confidential which establish statute probation 6.425; 771.14(3); See, e.g., MCL MCR and informants. officer protection 28.1144(3). not involve instant case does MSA third-party confidential sources. Detroit Free Howe v Press Opinion op the Court privilege. It retention is not to be both a (in phrase sword and a shield Lord Mansfield’s concerning exemption an liability). infant’s from [8 rev), 2388(3), Wigmore, (McNaughton p Evidence § 855.] Appeals cases,

In several our Court has ruled statutory privilege at here issue must yield where it conflicts with certain constitutional rights. example, People Rohn, As an (1980), App 593; 296 NW2d 315 the defendant was aiding abetting convicted of of in the commission first-degree conspiring murder and to commit first-degree impeachment purposes, murder. For requested, denied, the defendant had but was ac- presentence reports prosecution cess to of three accomplices witnesses who were to the murder. Appeals The Court of reversed and held that reports relying available, should have been made Alaska, 308; on Davis v US S Ct 39 L (1974). Davis, Ed 2d 347 In the United States Supreme Court held that the Sixth Amendment right of confrontation entitled a defendant to cer- impeachment tain confidential purposes, information for though even such use conflictеd with preserving Alaska’s asserted interest the confi- dentiality juvenile delinquency adjudications. of The Rohn Court stated: Although differ, the defendants’ interests

Davis defendant sought impeach to show a impeach witness’s bias while Rohn wants to credibility incriminating information, attack the of agree impeachment we that the latter equally is as necessary as It critically important the former. is finding that any guilt predi- of or any sentence be People v Mal- cated on accurate information. See kowski, (1971). 244, 249; 385 Mich 188 559 NW2d Thus, we must conclude that the need for im- peachment outweighs of any criminal accusations Mich 203 216 op the Court reports. confidentiality presentence need for of that should receive This does not mean defendants of to the confidential records wholesale access others. inconsistent statements for effective made inspection court to limit disclosure to those prior records of only We hold when necessary are of witnesses cross-examination, they should inAn camera to the defendant. available utilized procedure should be statements ma- testimony. terially with the witness’s inconsistent [Rohn, supra, p 600.][7] implied Rohn, In contrast waiver found Appeals, cases, our of in two other Court supra, in the 791.229; MSA 28.2299 has examined MCL proceedings has found absolute context statutory privilege civil issue to be

at here unyielding. App 64, 68; 360 In Havens 139 Mich Roberts, v (1984), sought company 183 an insurance

NW2d disclosure plice’s probation report of information contained an accom- liability to avoid order had committed a for the actions of its insured who crime. Appeals proba- held Court tion officer’s files were discoverable: appeal continues to We note that on Nationwide given argue review opportunity it should be probation files. This officer’s a absolutely privileged subject and cannot be statute, discovery. in the this confidence 791.229; As stated "shall inviolate.” MCL MSA remain 28.2299. 7 669; People Hooper, App See also v 157 Mich 403 N-W2d Johnson, (1987); People App 314 NW2d cf. v Lawrence Mich (1981) (the statutory physician-patient yielded in a Davis, prescription); People prosecution altering for cf. (1979) (in 434, 442; App charging trial criminal 283 NW2d conduct, complainant’s discovery of the the court disallowed sexual medical ing alcoholism, regarding purportedly bear records treatment for consent, generalized ground claim on the that a on defense of " specific only give way must to a need 'demonstrated ” trial). pending in a criminаl evidence’ Howe v Detroit Free Press Opinion of the Court Bay App Start,

In Inc, Peters v Fresh 161 Mich 411 NW2d two felons left a half- (1987), way burglarized house and the residence of a Dr. seriously injuring Jones, him. In a civil suit for negligence brought against halfway house and probation plaintiff, officer, conservator of the sought discovery Jones, of Dr. estate of the felons’ presentence reports prove probation prior history officer knew of the felons’ of violent behavior. The trial court entered an order allow- ing discovery portions reports. However, Appeals the Court of reversed and ruled that reports absolutely privileged: were language [T]he of the statute is absolute. We agree supra, Rohn, with that there are some con- rights may supersede privi- stitutional lege, hardly compare which plaintiff but the interests asserted here right with the to confrontation in possible is, course, criminal cases. It that the Legislature protect only probationers intended informants, and apply so that the would not probationer when neither a nor an infor- only probation requested mant, officer, but non- language disclosure. The of the statute itself con- proviso,

tains no such however. We reverse the any trial court . . . insofar as it held that reports officer’s records or discover- were supra, pp [Peters, able. 497-498.] Appeals In case, the instant the Court of ex- pressly Peters, followed the decisions in and Ha- ruling vens, "that is absolute and allowing that the trial court discover the erred defendants to probation reports.” App Mich 495. note, however, We that Havens and Peters are not factually analogous party asserting plaintiffs present Here, case. statutory privilege is one of the By commencing

in this civil suit. this Virgil put action, defamation Howe has the con- Mich Opinion of the Court report issue. Defendants tents of the at in the maintain information contained only relevant, their not but essential to defense. is Hence, Peters, decide

unlike Havens and we must privilege statutory case this can be in this used metaphorical whether by plaintiff the a in a civil suit as both and Under these cir-

sword shield. court cumstances, look to a number of federal we are more instructive. decisions that

III ap- utilized The federal courts have three ruling evidentiary proaches on testimonial plaintiffs litigation. privileges by in civil asserted requires plain- that a The "automatic waiver” rule privilege seeking he tiff relief waive whatever possesses. theory рrivilege that a A second finds (1) if will waived assertion filing suit, act, as a result some affirmative such (2) asserting through party; the this affirmative ‍‌‌​‌‌​​​​‌​​​​​‌​‌​‌​‌​‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‍asserting party put protected act, the the informa- making case; at and tion issue relevant (3) application would have denied opposing party the access to information vital to theory the for his defense. The third balances need discovery against protecting secrecy. need for espoused first waiver rule was "automatic” Independent Corp Loew’s, Inc, in FRD 266 movie Productions 1958). (SD plaintiffs, NY, Loew’s, In

producers private distributors, filed alleging defendants, con- antitrust suit spiracy of a to restrain distribution certain deposed president film. The defendants plaintiffs, inquiring of one of the sole stockholder organi- alleged into his association with subversive congres- testify zations and his refusal before During deposition, in- committee. he sional Howe v Detroit Free Press Court Fifth privileges voked the First and Amendment in refusing questions to answer concerning these matters. The court found the questions to be rele- vant purposes pretrial and ruled the stockholder had waived his constitutional privileges by having his commence the company civil explained: suit. The court

Plaintiffs in this eivil action have initiated the action tiffs had have been called on to need not plain- and forced defendants into court. If action, brought they not would now, testify. Even testify they if discontinue the action. They have freedom and reasonable choice of ac- They tion. privilege cannot use this asserted as ought both a sword and a shield. Defendants possible be denied a defense because seek privilege. [Id., p 277.][8] alleged to invoke an A Hearn v approach second was in utilized (ED Wash, 1975), Rhay, 68 FRD 574 where the court rejected the "automatic waiver” rule and applied instead a three-part test to determine whether privilege a had been In impliedly waived. Hearn, an inmate in a state insti- penitentiary tuted a civil rights action prison officials after he was confined in a mental health unit of prison the hearing without a or other review. The prison officials raised the affirmative defense of qualified immunity faith, on the good basis of quoted approval following passage The Loew’s court with the from Moore, (1956): Forms, Federal Rules & Official plaintiff alleged sues on the "[A]ssume slanderous state- Communist;

ment that defendant had called him a the defen- pleads defense; taking dant of truth as an affirmative and on the plaintiff’s deposition plаintiff pleads privilege against his properly question incrimination to a framed and relevant as to plaintiff being a Communist. Does not fairness demand that purpose defendant’s defense be taken as true for the affirmative [Loew’s, supra, p of the action?” 276.] 440 Mich 203 op the Court legal claiming they received acted on advice general. attorney the in confidence from However, state’s sought plaintiff discover the when defense, the to that affirmative information related privilege. attorney-client the defendants asserted exist, a that where three conditions The court held privi- party asserting a should find that court lege through impliedly his own has waived affirmative conduct: (1) a result [Assertion act, suit, filing such as

some affirmative asserting party;

(2) act, asserting [T]hrough this affirmative party put protected information at issue case; making it relevant (3) [Application the privilege would have opposing party to information denied access [Id., p to his vital defense. 581.] Applying facts, the Hearn these elements to court stated: assert aid [D]efendants protected they are from affirmative defense Therefore,

liability by qualified immunity. all finding common to of waiver are the elements present privi- invoked this case: defendants they of an lege furtherаnce affirmative defense benefit; through affir- asserted for their own this placed protected act information they mative at the issue, legal they is for the advice received germane raised; qualified immunity they to defense the asserting privilege the and one result plaintiff neces- deprive has been of information affirmative sary "defend” defendants’ defense, protected ger- for information also plaintiff’s proving burden of malice or mane disregard clearly unreasonable his established rights. an Since all the elements of constitutional implied exist, must be found to waiver defendants Howe Detroit v Free Press Opinion op the Court right attorney- have waived their assert privilege having client affirmative defense of virtue of raised the immunity. See also Afro- [Id. (CA Lecon, States, Fed, Inc v United 820 F2d 1198 1987); 1577 States, Corp Zenith Radio United F2d (CA Fed, 1985).] approach The third used to determine whether a plaintiff privilege civil has waived a is enunciated Newburyport in Greater Clamshell Alliance v Pub- (CA Hampshire, lic Service Co of New F2d applied There, the court 1988). a variation balancing supra, Hearn, test utilized in to decide plaintiffs, by instituting rights whether the a civil attorney-client privilege action, had waived their regard with to relevant confidential information. plaintiffs’ alleged lawsuit violation of their right Sixth Amendment to counsel when the de- public utility fendant used undercover informants attorney-client meetings. to infiltrate After the subpoenaed meetings, defendant records of the plaintiffs quash subpoena moved to on the ground attorney-client privilege. The trial court plaintiffs privilege held that the had waived the filing contempt suit and held the producing plaintiffs appealed the notes. The contempt Finding citation. the situation to be (the "quasi-constitutional” conversations occurred attorney preparing when the a defense to a case), Appeals criminal for the First Circuit ests of the the United States Court of

weighed competing inter- parties: rule, automatic waiver may what [T]he situation, "quasi-constitutional”

termed a is too any harsh. Without interests even consideration of the relative involved, simply destroys if would not shield evidence of Instead, any significance to the defense. a court Mich Opinion of the Court begin presumption analysis its with should privilege. In a dam- preserving the civil favor of however, requires the the action, ages fairness privilege the to surrender holder weaken, meaningful way, in a extent will is, the ability defend. That the defendant’s privilege can рrobable to point the defendant at the where ends claim, the plaintiff’s civil and show that the thereto, impor- enmeshed in are defenses to defen- will be unavailable the tant evidence that the prevails. the The burden on dant if defendant is importance of the proportional develop parameters the privilege. The court should weighing the by carefully discovery of its order involved, importance balancing interests the defending party’s privilege asserted to construct its most need for the information [Id., p effective defense. 20.] to First the district court Circuit directed contempt charges further allow dismiss discovery. the district court In order assist requests privi- regarding for future leged matter, offered the follow- the First Circuit ing guidelines: First, should demonstrate that defendants to their case. material discovered is relevant be showing an articulation of the

This should include preparation of could how their defense in a material assist showing meaningful way. A presented regarding con- comparable to that privy to which would tents discussion Nims Secondly, defendants should demon- be sufficient. why unreasonably strate them to obtain the information elsewhere redundant evidence it would be difficult

or that helpful will to their case. be provе absolutely it is do They not have course, from other Of unavailable more the sources. into requested discovery would intrude showing privilege, greater the need should alternative sources. lack reasonable [Id., p 22.] Howe v Detroit Free Press Opinion op the Court employed courts have likewise Other federal balancing analysis to determine whether a civil plaintiff may invoke either constitutional or non- scope privileges to limit the of dis constitutional covery. e.g., Cory, See, Int’l, Sedco SA v 683 F2d (CA 1982) privilege), (attorney-client 8, 1201 Black Party App Smith, 67; opinion 213 US DC 661 Panther (1981), judgment 1243 F2d vacated without Party, 458 sub nom Moore v Black Panther US (1982) (First privi Fifth Amendment leges), Wehling Broadcasting Sys v Columbia (CA 1979) (Fifth tem, 5, 608 F2d 1084 Amendment self-incrimination).

IV suggesting every privi- Without waiver lege manner, claim should be treated the same particular we conclude that under these circum- provides stances, the Clamshell decision the most appropriate resolving basis for the claim now be- analysis fore us. We select the Clamshell mode of rigidity because it avoids the of the automatic provides flexibility waiver rule and enhanced be- yond the three factors to be considered under supra. Hearn, balancing applying test,

In we counsel that a begin presump analysis court "should its with a preserving privilege.” tion in favor Clam supra, p Accordingly, shell, 20. the burden of establishing balancing ap a waiver under proach seeking discovery. p party Id., rests on the p emphasize supra, Zenith, Further, 19; 1580. we narrowly discovery, allowed, if should be portions privileged limited to those material directly at hand. As the the that bear on the issues supra, p aptly cautioned, Rohn, Court in pierce confidentiality "does not need to the veil of Mich Opinion of the Court wholesale should receive mean that defendants records of others.” access to the confidential par- balancing competing interests of In begin noting case, ties in this Michigan we provide for broad Court Rules 2.302(B)(1). Domako v MCR See also in civil cases. (1991). Indeed, Rowe, 475 NW2d argued of sanctions that the invocation it has been appropriate here, if resist dis- would be 2.313(B)(2)(a).9 argu- covery. A similar See MCR apparently court, influenced the Loew’s ment applied rule and the "automatic waiver” which excerpt approval Fed- an from Moore’s cited with eral Practice that mirrors

the sanctions authorized 2.313(B)(2)(a). p ante, 219, n 8. See MCR reject rule However, the "automatic waiver” we urged upon it is inflexi- us defendants because plaintiff’s appears minimize the inter- ble 2.302(B)(1) "any mat- limits est. MCR added.) privileged.” (Emphasis in- ter, In the case, to stand their are entitled stant statutory their inter- and have claim of weighed against carefully the defen- those of ests dants without or of automatic waiver

the threat sanctions. damages from defen-

Plaintiffs seek to collect published of their statement dants because problem Virgil alcohol. The trial Howe had a with inspection judge in camera conducted an 2.313(B)(2)(a)provides: MCR permit party obey provide . If a . . fails to an order to pending may discovery . . . the court in which the action is just, including, limited to sanctions as are but not order such the following: (a) regarding the order was an order that the matters which designated may estab- or other facts be taken to be entered lished for the claim of the purposes action in accordance with the party obtaining the order .... Howe v Detroit Free Press Opinion of the Court Virgil from Howe’s 1987 im- records driving paired conviction to determine the rele- vancy report. in the She of the materials contained ultimately concluded that the whole agree plaintiff’s claim, relevant. We that "the civil probable thereto, are enmeshed defenses important evidence that will be unavailable to privilege prevails.” Clamshеll, if the defendant p driving supra, Certainly 20. for conviction surrounding it, while intoxicated and the events as capsulized probation report, significant in the are points directly of evidence which on the bear defense of truth. special standing truth in a as a defense In

defamation action must be underscored. regard, Appeals we note that the Court of erred present "[t]he when stated that case does not rights supersede may involve constitutional which privilege.” App 495. A constitutional right implicated 1, § Art 19 of Michi- here. gan provides: Constitution prosecutions may In all truth libels the and,

given in jury; appears evidence to the if it charged jury the matter as libelous is true published good and was with motives and for ends, justifiable acquitted. the accused ‍‌‌​‌‌​​​​‌​​​​​‌​‌​‌​‌​‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‍shall be right meaning, If this constitutional is to have surely necessary it is to afford libel defendants opportunity reasonable dence that to discover relevant evi- to their of truth. In

is essential defense case, the context of the instant such considerations especially important light are of the fact that a private-figure plaintiff required prove is not malice in a defendant. libel suit media challenged enough Instead, it is show statement false and that the media defendant was Mich 203 226 op the Court Enquirer rеporting negligent & it. Rouch v was 157, 206; 398 Creek, Mich 427 of Battle News (1986). circumstances, it would In 245 these NW2d signifi- plaintiff indeed, anomalous, if could proving falsity by cantly lighten using the burden pre- statutory privilege as a shield truth. clude evidence of

Although 1987 conviction of of Howe’s the fact justi- standing driving, impaired alone, some offers news- for the statements set forth fication paper have article, in this lawsuit the defendants guarantee suit. in the defamation no of success Virgil proving ability by to defend Their "drinking problems” seriously under- is Howe had mined privilege. plaintiffs’ by assertion yield privilege should conclusion that Our by that assertion the further belief bolstered relationship privilege little or no in this case bears p purpose. protective ante, noted, As earlier to its exceptional subject privileges to nar 210, are United States v Nixon, 683, 418 US row definition. 710; (1974);People v 3090; 41 L Ed 2d 1039 94 S Ct People supra Dixon, 161 Love, 700-701, 712; at (1987); Wigmore, App 388; 411 Mich NW2d (a "ought p privilege supra, to be § 2291, possible strictly within the narrowest confined logic principle”). with the of its limits consistent At common the establishment law, one of the essential conditions "[t]he

of a injury the relation that would inure to greater communications must be disclosure of the gained thereby for the correct than the benefit (emphasis litigatiоn.” p disposal Id., § deleted). 791.229; MSA MCL established designed encourage unfettered com-

28.2299 is officer and between the munication phase presentencing a criminal in the accused Free Press Howe v Detroit by Opinion Boyle, J. that case. There is no rational reason to believe the Legislature intended that the statute be used in present weapon manner —as an offensive block access to information relevant and vital determination of issues in an unrelated just gained waiving civil case. The by privi- benefit lege greater is far than the that will inure injury to the probation officer-probationer relationship.

V We therefore conclude have the statutory waived accorded MCL 791.229; 28.2299, MSA probation and that report proper is a subject discovery by defen- dants. Accordingly, decision of the Court of Appeals is reversed.

In keeping with our al- holding lowed under these circumstances should nar- confined, rowly we remand to the trial and court direct probation report be reexamined portions camera and that if report, any, hand, which do not bear on the issues at directly be excised. regard

With to that part probation file test, referred to as the alcadd an alcohol use questionnaire, wе do not possess adequate informa- tion to allow for a concerning relevancy. review its on Consequently, remand the trial court is di- rected to examine and determine the discoverabil- ity the alcadd test in accordance with the principles opinion. set forth in this and

Reversed remanded. C.J., Cavanagh, Brickley, Riley, and JJ., J. Mallett, Griffin, concurred with (concurring part dissenting J. Boyle, 440 Mich 203 Boyle, J. the entire the trial court concluded part). Because not con- finding and that report was relevant here, I hold that tested would 791.229; the defendants. MCL must be released to 28.2299, privi- evidentiary does not create an MSA but, rather, right a lege, probationer confers on a presentence support- to assert that ing are confidential as dis- documentation the statute cre- Assuming arguendo closure. agree privi- I evidentiary "privilege,” ates an lege was waived.

I fact-finding pro- concern for the judiciary’s recogniz- approach cess dictates a conservative ing finding required by obstacles to truth unless Thus, where great significance.1 concerns of policy disclosures, certain purport statutes to make secret the cloak of secrecy courts construe traditionally obliga- with the possible as as consistеnt narrowly legislative purpose, guard- while uphold tion to evidence. Where ing against the loss relevant acted to create an Legislature clearly has bar, construed to the statute should be evidentiary records, rather than confidentiality create 1 Nixon, 683, 710; 3090; 94 S Ct 41 L Ed 2d United States v 418 US (1974) exceptions every ("[T]hese to the demand for man’s construed, they lightly expansively for evidence are not are in created nor truth”). derogation of the search for testimony key of witnesses in the Because of the role

judicial process, historically courts have been cautious about placed upon oper- privileges. properly . . . are "Limitations general principle only very limited extent ation of this testify excluding permitting a refusal relevant evi- transcending normally predomi- public good dence has a nant truth.” 206, ascertaining principle utilizing all rational means States, 18, quoting 364 US at n Elkins v United [Id. (1960) J., (Frankfurter, 1437; 4 L Ed 80 S Ct 2d dissenting).] Howe v Detroit Free Press Boyle, J. privilege. an absolute testimonial Where a statute provides person confidential, that the records are a seeking prevent protec- may their release seek a 2.302(C).2 tive order under MCR

A legal evidentiary Neither literature nor codes provide comprehensive рrivilege. a definition of Wright Graham, See & Federal Practice & p Wright Procedure, § 5422, However, 667. following privi- "[A Graham offer the definition: lege gives person right is] a rule that to refuse to disclose information to a tribunal that would otherwise be entitled to demand and make use of performing assigned information its func- tion.” Id. concerning

Questions the extent of the cloak of secrecy created statute involve what uses of may suppressed what information at whose Privilege request. [of is "concerned with disclosure p Id., 5437, information] § 892, in court.” n 15. Confidentiality "extrajudicial is concerned with always disclosures.” Id. "Courts are not careful to (the distinguish right between to refuse response judicial to disclose information in in- (the quiry) confidentiality right prevent disclosures).” making extrajudicial Id., others from p citing § 5423, Part, 206, 11, 1992 Pocket n Nixon App Freeman, 188, 216 US DC 346 F2d (1982). Plaintiff that the contends statute creates a 2.302(C)provides part: MCR relevant party by person Protective Orders. motion a On or sought, from whom for is the court in which the action is and on reasonable notice and shown, good pending cause justice may person any requires protect'a party issue order that or embarrassment, annoyance, oppression, from or undue expense or .... burden Mich Boyle, J. of information the disclоsure suppress right evidentiary privilege. i.e., it an court, creates disagree. I as characterizing a statute of consequence

The rather than privilege, evidentiary creating an one loss of potential is the confidentiality, creating one as is characterized If the statute relevant evidence. disclo- compel cannot a "court creating privilege, the statute when falling within matters sure of of fact.” questions preliminary adjudicating Moreover, 891. Graham, p supra, Wright & § stage adjudication of every at applies discovered, protects it cannot information —the Id. at compel its disclosure. grand jury nor can 891-892. 791.229; provides: MSA 28.2299

MCL investigations made reports of All records and officer, and all case histories by a privileged or conñdential shall be probationers communications public inspection. open to access to probation officers shall have Judges and records, proba- reports, and case histories. the tion the assistant the officer,' probation, or the assistant director permit representative, shall director’s general, and law attorney general, the auditor re- agencies access ‍‌‌​‌‌​​​​‌​​​​​‌​‌​‌​‌​‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‍to the to have .enforcement cords, confidеnce between histories. The relation reports, and case pro- probation officer and investigation shall under bationer or defendant remain [Emphasis inviolate. added.] to records as the statute refers In one sentence added), (emphasis confidential” "privileged to the "relation in the last sentence refers while More- remain inviolate.” confidence” that "shall re- over, states these expressly the statute public inspec- . to open . . not cords "shall [be] enforcement tion,” it for access law yet provides does not other officials. The statute agencies and 231 Free Press Howe v Detroit Boyle, J. compelled litiga- address disclosure in collateral unambiguously tion, and thus does not create an privilege. subject evidentiary it Because to more construction, than one the statute should be con- confidentiality.3 strued to create a rule of

B purpose privileges Analysis evidentiary of law, At the rules leads to the same result. common privilege developed protection as a of were power compel testimony. to the court’s For more than three centuries has now been recognized as a fundamental maxim public right every . . . evidence. has a mаn’s When we come to examine the various claims exemption, assumption primary we start with the general give duty that mony there is a what testi- exemp- capable giving any one is and that exceptional, may distinctly tions which exist are being many derogations positive general from a so Wigmore, (McNaughton rule .... Evidence [8 rev), 2192, p § 70.] Supreme generally The United States Court is recognize privilege. reluctant do not create and unless it to new rules of "We

apply evidentiary privilege an 'promotes sufficiently important interests outweigh probative the need for evidence Pennsylvania EEOC, ....’” Univ of 493 US (1990), 182, 189; 577; 107 L S Ct Ed 2d quoting States, 40, 51; Trammel v 445 US United (1980). Moreover, 63 L 2d 186 S Ct Ed application a rule because " principle 'contravene[s] the fundamental public right every "the . . . has a man’s ’ any evidence,” . . . such must be privilege. government has not asserted by Boyle, J. ” Trammel, Id., US quoting construed.’ 'strictly 323, 339 US 50, Bryan, States v United quoting (1950). 724; 94 L Ed 884 331; 70 S Ct necessary criteria sets forth four Wigmore incorpo- communication privileged a establish to disclose informa- that a refusal concept rate the uphold the need must justified tion be Graham, supra, Wright & good. social competing 5422, privileged: to be p 671. For communications § (1) originate in a con- communications must The they disclosed.

fidenсe that will (2) confidentiality must be es- This element of satisfactory maintenance of the full and sential to parties. relation between the (3) opin- which in the The relation must be one ought sedulously fos- community to be ion of the tered.

(4) inure to the relation injury The that would of the communications must be by the disclosure gained for the greater thereby the benefit than Wigmore, litigation. Evidence disposal correct (McNaughton original.] [8 rev), p Emphasis 527. § under MCL reports privileged claimed as 791.229; 28.2299 none of these cri- satisfy MSA not created confidence They teria. were fact, quite In would not be disclosed. they presentence At the opposite is true. time investigation the defendant under generated, is prosecutor it will be forwarded to knows the court. and

Furthermore, is desirable confidentiality while report, of the an disclosure extrajudicial vis-á-vis contemplated is neither evidentiary full nor essential to the the words of the statute the defendant satisfactory relation between probation officer. investigation under Press Howe v Detroit Free Opinion by Boyle, J. Again, opposite defendant under is true. The present investigation every himself reason to has possible light so in the best officer to that a favorable impression transmitted is para- court. To and to other officers court phrase lege, privi- marital McCormick’s criticism proof danger suppression of relevant probable the rule benefits of and certain. The clear of (in relationship) encouraging is at marginal. best doubtful proba- relationship, the Moreover, between the is not one officer and defendant tion community community interest in has an as a artificially fostering. relationship is an created purposes. court’s one, the court for the ordered denigrate impor- not This tance of the it from other does observation distinguishes relationship, but, rather, repre- relationships as those such privileges, which are sented in the common-law broadly protect relationships more assumed reflective of society’s interests.4 gained Finally, dis- for the correct the benefits of, finding, litigation, posal i.e., fact are reliable probation greater certainly any than harm relationship as a result of disclo- officer/defendant otherwise, because of the information. Stated sure investigation already a has the defendant under present favorably to a motive to officer, himself suppression information, in collateral contemplated litigation time of the at consequence jus- investigation, a is too remote judicial proceedings. tify suppression

c statutory privilege claimed, Where 4 (1986) Love, 691; Compare People 738 425 Mich 391 NW2d v 557; McFarlin, People (spousal privilege) 208 NW2d with v record). (1973) (restriction juvenile on use Mich Boyle, J. language analysis on the focuses court’s statute, purpose obtained, and the effect People truth-finding process. Hamacher, v on the 432 Mich (1989). Where 438 NW2d testimony Legislature about intends to exclude expressly frequently in- topic, For states. so 14.15(18237), a 333.18237; MSA stance, psychologist MCL under compelled to disclose "shall not be psychia- . . .” can a . Nor information confidential privileged compelled communi- to disclose trist be "Privileged shall not be communications cations. legislative, criminal, or adminis- civil, disclosed proceedings proceedings, or trative cases preliminary proceedings, unless cases or to such except privilege, patient in the the circumstances has waived MCL in this section.” set forth 14.800(750)(2). 330.1750(2); 330.2028(3); Likewise, MCL MSA 14.800(1028)(3) that an states MSA "may concerning competency opinion stand trial purpose any in the as evidence for not be admitted pending proceedings,” and husbands criminal for or each not be examined” wives "shall the other. MCL the consent of other without People Love, 425 Mich 27A.2162; 600.2162; MSA (1986). 691; 738 391 NW2d Legislature However, decreed: where the banking department, The commissioner employ in his deputy deputies, every clerk his ment, by oath to examiner shall be bound and in information obtained keep secret all facts and examination, except in as far as of such the course the requires him to public duty of such officer action, regarding the report upon or take official such bank CL affairs of [1929 11940],[5] 5 version, 23.710(29), 487.329; incor- current MSA the statute’s MCL Estate, 68; holding porated in In re Culhaiie this Court’s (1934). currently provides all facts and informa- It 256 NW 807 proceedings secret, may "testify any employee in are but an tion any regarding the affairs of institution.” 235 Press Detroit Free Howe v Levin, J. Separate Legislature not intend did held that

this Court testimony by preclude "in the examiners bank to upon due oath under of the State courts process.” 68, 80; Estate, Mich 269 In re Culhane (1934). 256 NW expressly Legislature a create did not

Since 721.229; MCL it enacted when rule of to do so. 28.2299, decline we should MSA II Legislature may purpose be served The confidentiality construing in to create the statute probation Thus, does not a defendant records. right prevent unqualified disclosure an have in records or of the his communiсations proba- requires subsequent The statute actions. keep department confiden- this information tion general keep from the information tial, public. party here, seeks event, that a In as litiga- subsequent of the information protective remedy tion, is to seek the defendant’s inspect the material The court should then order. information, and or- camera, excise irrelevant parties the information not to release der the litigation.6 connected to the others not rejects opinion). majority (separate J. Levin, opts for a "varia- rule1 and the "automatic” waiver 989; Ritchie, 94 L Ed 2d 40 Pennsylvania 480 US 107 S Ct v In contemplated (1987), Legislature the fact that the Court relied on concluding judicial proceedings records in use of confidential some that pretrial discovery require although process did not due upon record, record require to review the the trial court did favora showing material and plausible it contained matter both to the defense. ble (SD Loew’s, Inc, Corp Independent 22 FRD Productions See 1958). NY, Mich by Separate Opinion Levin, J. balancing utilized in”2 Hearn the test tion of 1975). (ED Rhay, Wash, variation 68 FRD Newburyport Clamshell enunciated Greater "is Hampshire, of New Service Co Alliance v Public 1988).” (CA 1, 838 F2d 13 resisting party Clamshell, In Hearn and the sought discovery put directly in issue the evidence privilege. by In the the asserted to be shielded parties resisting Howes, dis- case, instant covery, put directly indirectly or issue did not supporting presentence documenta- tion. penitentiary Hearn,

In an inmate a state rights against prison a civil action commenced qualified prison immu- raised officials. The nity officials claiming they defense, as an affirmative legal advice received from the state’s had acted on attorney general. sought the inmate to dis-

When relating to the affirmative de- cover information attorney- prison fense, the officials asserted the privilege. client by invoked

To have allowed the prison per- officials would have been akin mitting case, a defendant in a criminal who claims by appeal ineffectively to have been assisted on counsel at the privilege ing attorney-client trial, to assert prevent attorney testify- from his trial hearing alleged posttrial at a held to assess the ineffectiveness of counsel. It is well established that a defendant in a criminal case who asserts doing of counsel waives so assistance ineffective attorney-client privilege. readily Courts reach invoking the doctrinеs that conclusion without majority. adverted Clamshell, a civil In commenced public rights claiming the defendant action 2Ante, p 221. Detroit Free Press Howe v Levin, J. Separate Opinion

utility employed to infil- informants undercover public meetings. attorney-client When the trate meetings, sought subpoena utility records privilege. attorney-client plaintiffs Al- the asserted though Sixth their claimed the right the intru- been violated Amendment had sought meetings, attorney-client they on sion occurred of what from a record shield assertedly right Amendment their Sixth when violated. a news article con-

The Detroit Free Press ran cerning Virgil awareness the M. Howe without report, presentence reliance on and thus without relationship Any presentence report. between the report presentence and the contents of the defamatory ‍‌‌​‌‌​​​​‌​​​​​‌​‌​‌​‌​‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‍alleged adventitious, while material meetings attorney-client at occurred what general attorney advice Clamshell claim in Clamshell in Hearn was focus and the defense Hearn. precedents majority by the do not

The relied on support that the Howes waived the conclusion statutory privilege. on information

The Detroit Free Press relied running presentence other than reliability information news article. nonprivileged provide a de- and other evidence legal develop no here to a new fense. There is need press analysis protect or to the freedom the support defend the First Amendment.

Case Details

Case Name: Howe v. Detroit Free Press, Inc

Court Name: Michigan Supreme Court

Date Published: Jul 14, 1992

Citation: 487 N.W.2d 374

Docket Number: Docket Nos. 90042, 90043, (Calendar No. 1)

Court Abbreviation: Mich.