*1 TERM, 1963 JUNE CIRCUIT JUDGE. SAGINAW WILSON v. STENGER. CHAFFEE op Discovery Scope Examination. 1. — discovery is limited to for subject of an order matter The of evi- under the rules but admissible matter subject matter trials, is relevant governing which dence (Court Rule pending action involved of claim or defense amended). 35, 6[a], [1945], added and No [b] § Reports op Witnesses Obtained and 2. Same —Statements Insurers. action, pro- reports parties to of witnesses and and Statements companies properly the are the defendants’ cured since, discovery, if are called to subject an order extrajudicial prior trial, testify at the contents their possible impeach- reports for their can be used and 35, (Court 6[a], opposite party Rule No [b] ment § amended). [1945], and as added Admissibility of Evidence. 3. Same — admissibility of evidence of requirement of sought is to be discovered sought if the matter is satisfied limited to matters admis- by any party and is not admissible discovery (Court seeking Rule party in evidence sible amended). added and 35, 6[a], [1945], as No [b] § [5] [8] [1, [2, Privilege Privilege Statement Am Jur nity nity 17 Am disclosure, 17 Am 4] 7] insurer arid insured. insurer and insured. 17 Am 17 of communications or of communications Jur, Jur, Am 2d, Appeal References production, or Jur, Discovery Jur, Discоvery Discovery Discovery or witnesses and Error §§ inspection. (404) Points Inspection Inspection reports reports ALR2d 659. ALR2d Inspection Inspection 684-701. in Headnotes subject between between 73 16.§ 659. § 70 ALR2d 12. § § of 1 liability 28. liability et et pretrial or other seq. seq. nn or indem- or indem- 'Wilson Discovery- Admissibility Objective Evi- of Pretrial — 4. Same — dence. objective pretrial discovery is to make available The ultimate might parties iu of trial all facts whieh to all advance relevant *2 (Court 35, 6[a], in at trial Rule No be admitted evidence § [1945], amended). as added and [b] 5. Same —Briefs. sought relating record matter be outside the Information .to may party’s properly be in a brief not included discovered 35, 6[a], [1945], amended). (Court Rule No added and § [b] Report Attorney-Client Relation — of Loss. 6. Same — proof statement his insurer and of loss his Defendant’s carrier, by sought plaintiff in to be discovered action insurance injuries explosion in fire on received and defendant’s held, by alleged premises, not barred reason of attorney-client testimony in relation the absence of as to when made, of loss was when whom and defense counsel retained, between defendant’s counsel degree company, including his and insurance of control each other, proofs exercised over the activities of the other pertinent agency; being showing to the claimed and there no product attorney party work of an protec- for a needed (Court 35, tion 6[a], Rule [1945], No as added and § [b] amended). Reports 7. Same —Statements and of Witnesses and Parties Obtained Insurer. reports Orders of statements and of witnesses and parties procured by party’s carrier, the insured not having been shown to have been obtained at- defendant’s held, torney, entered, properly to have been where defendants good denying have failed requested to show cause for dis- covery (Court 35, as it 6[a], was their burden to do Rule No § [1945], amended). as added and [b] Carr, C.J., Dethmers, Kelly, Black, Per Kavanagii, Souris, and Smith, JJ. Attorney Privilege Discovery— 8. and Client —Professional — Admissibility in Evidence. interpretation A right liberal professional common-law privilege attorney between in and client is followed this State in that is not confined to made communications purpose obtaining for the advice but extends to communica- attorney tions any professionаl made to the the course Michigan Reports. relating subject employment, of the tlie
employment and supposed been may to have drawn out conse- and which other, relation in which the stand quence of the to each hence, not through such communications be disclosed discovery procedure privileged use would be [1945], (Court 6[a], amended). No as added Rule [b] § Discovery. Product — 9. Same —Work attorney subject of an work is not discovery procedures part preparatory is that file he has vicariously, performance personally, оbtained duty preparation personal-to-elient (Court of a case 6[a], [1945], amended). Rule No as added and [b] § C.J., Kavanagh, Carr, Black, Souris, Smith, Per JJ. against Mandamus Leo A. Wilson Hon. Fred J. Saginaw County Judge, Borchard, pel to com- him to vacate order for of statements by principals personal made jury and witnesses in 5 in- arising
cases from automobile collision and *3 damage provision instituted under the civil liquor (Docket control act. June 5, 1962. Submitted 49,559.) No. Writ denied June 6, 1963.
Appeal Saginaw; (Fred J.), from Borchard J. January (Calendar 9, Submitted 19, 1963. No. 49,687.) No. Docket Decided June 6, 1963. against Stenger, Case William Chaffee William doing Garage, рer- business as Bill’s Junction for injuries explosion sonal sustained in and fire on premises. discovery defendant’s Plaintiff asked of report defendant’s of loss and of statements made by parties and witnesses. On order for such dis- covery, appeals. defendant Affirmed.
Roger Oeming, plaintiff J. Wilson. Eugene Peter F. Cicinelli and D. Mossner for de- Saginaw Judge. fendant Circuit 407 in manda- Allahen, Roland Fred Amicus Curiae: pertaining asking clarification rules action, mus to discovery. plaintiff Benschoten, for & van
van Benschoten Chaffee. Taylor, (Ralph B. & Collison McGraw
Stanton, Stenger. counsel), Taylor, defendant require our cases1 determination These J. Souris, reports of witnesses and statements whether parties party’s procured insurance an insured provi subject under carrier (a) (1945). §35, Rule No former Court of our sions Since sought January such as was 1963, subject to has in these cases been ordered specifically GrCR provisions rules, new and 310. our court 306.2, 1963, 302.2, pre- apparent quite controversies is of our arose as a result in these cases us sented to Company Yellow Cab Kalamazoo
recent decision Judge, in which 363 Mich v. Kalamazoo Circuit produce witnesses’ written statements loss xvii. — Mich cluding report involved. the carriеr. defendant a the ceedings below in several covery given 2 As Ponding pretrial Wilson v. application *4 to his arguments dispute order here added both In in a defendant order of our Chaffee Reporter. procured by plaintiff Saginaw Circuit between in order for disposition negligence 1952 and amended. challenged leave to counsel, carrier. discovery. sought Stenger, certain other witnesses defendant’s other eases defendant, of the Wilson action appeal) discloses to be vacated given As requires Judge designated in appeal against discloses that Wilson, record, insurance carrier. and the defendant’s in Wilson’s production an action in mandamus See 33d negligence which the same issues are Case, the trial prospective only the nature of the requires defendant’s we insurer record distinguished the statements and Mich of all statements have prospective action. judge witnesses, defendant (par are involved xl stayed pro- mandamus, to vacate and 352 The dis- 4[e] trial in- of Michigan Reports. report accident automobile a written beld that we company by its was sub driver given ject taxicаb to § discovery No but 35, 6, Rule under Court impeach only possible the driver at trial use (the only purpose for which a witness if called subsequently requested) unless was its Kalamazoo In the admissible. otherwise Berney to be shown 647, 649, 650, Volk, 341 Mich in Case, as clearly Sovereign we Hart, 32, 37, 363 Mich (a), subject §35, 6 to be Rule No construed Court (b).3 See, also, of section to the limitations Tomlinson v. 278, and Tomlinson, 338 Mich University Regents Michi Christie v. Board of opinion). (dissenting gan, The 364 Mich at 230 by the presented Case Kalamazoo was issue taxicab company’s and before in the trial court claim not accident this thаt its driver’s Court subject “admissible it was not because governing re trials” under rules evidence (b). quired now, us the cases In before section 6 repeated, it is also in addition the same claim is but any permit may any at time the court (a) In civil action 6. “See. compel production, examina- any of the court party order tangible things books, any documents or other inspection of tion or including party, by testimony any person, to take the and deposition interrogatories or written upon oral examination in the action or for or for use as evidence purpоse of time, scope taking shall place and of the examination purposes. The both be fixed deposition. authorizing of the in the order subpoena compelled the use of of witnesses attendance prison may deposition person be taken of a confined and the only by prescribes. on such terms as the court leave of the court “(b) pretrial depositions discovery, The order of the court for shown, good permit otherwise shall the examination unless for cause any matter, deponent regarding and admissible trials, governing rules of evidence under the is relevant action, subject pending matter involved it whether relates to examining party the claim or defense of the or to the claim or party, including existence, description, other defense na- ture, custody, any books, documents, condition and location of tangible things identity other persons and the and locations of hav- ing knowledge may require parties of ’'elevant facts. The court physician-patient claim or waive hospital-patient privilege fixing pretrial hearing scope examination and a claim of аt the testimony excludes if such offered later in the trial.” *5 'Wilson reports and statements should be claimed discovery by application at- from immune (also recognized privilege torney-client as a basis discovery by [b]) to section 6 for exclusion by by insurers for use attor- obtained information against defending neys claims and their insureds attorney’s against discovery public policy by of an product.” “work questions of
Setting moment the for the aside product” policy, and consider- and “work ing documents ordered dis- the claim first in evidence in these cases were inadmissible cоvered within the meaning (b), section we see no valid prospective distinguishing witnesses’ basis reports procured by parties’ statements and companies adjudicated defendants’ insurance and the admissibility report in of the driver’s accident prospective In Kalamazoo Case. the event the wit- testify or the at trial, nesses are called to prior extrajudicial the contents of their reports possible impeach- can be used for their by opposite party consequently, they ment and, (a) are not barred from under section 6 admissibility requirement (b). of sеction 6 procured Plaintiff Chaffee’s statement defendant Stenger’s insurer not, used course, be impeachment, admissibility him for his own but the qualification (b) of section 6 is without the further express implied limitation that it must be ad- upon party seeking missible the offer of the its discovery. requirement In other words, ad- missibility sought is met if the matter to be dis- by any party. covered admissible That this con- contemplated clusion accords with the use of our discovery procedures § under Court Rule No Ilonigman’s Michigan was indicated the author of pp Court Rules 1959Pocket Annotated, Part, 77, 78: Michigan Reports. fоrmerly the “Whereas rare ex- ception, provision the new makes the rule exception. change rather than serve to remold the This basic should concept of trial work. means longer any surprises need that there no confront an *6 attorney at the time of trial. means going that each can it side have available to before practically testimony into trial be used all of the is that to opposite side. knowing “With each side what the other side will op- be able to show at the there is trial, increased portunity part a for more realistic determination on the attorneys of and their clients as to the ad- visability of settlement.” principles It is consistent also with fundamental provisions implicit statutory in all and rule Taylor discovery. (1947), In Hickman liberal (67 451), 329 L S Ct ed the United US supreme expressed objective court States served be discovery pretrial p as at follows, 507: agree, deposition-discovery of that the course, “We rules are to be a accorded broad and liberal treat- longer cry ment. No can the time-honored ‘fishing expedition’ preclude party serve opponent’s inquiring underlying into thе facts his knowledge case. Mutual of all the relevant facts gathered by proper litiga- both is essential to party may compel tion. To that end, either disgorge posses- other whatever facts he has in his deposition-discovery procedure simply sion. The stage advances the at which the can be disclosure compelled period from the time of trial preceding prise. reducing possibility it, thus of sur- discovery, procedure, But all like matters of necessary has ultimate and boundaries.” Michigan’s discovery procedure boundaries proce- are than more limited those of Federal Taylor, being dures in Hickman v. there considered admissibility requirement in the Federal rules4 no example. But ours, there is whatever such as pretrial objective of the ultimate dis differences, covery parties in to make to all is available advance might all facts which be trial relevant admitted narrowly at trial. To the ad evidence so read missibility requirement -(b) it section permit only would missible would too matters ad those party seeking evidence frequently litigant’s proper thwart a in quiry op underlying before trial of “the facts рonent’s case.” support
In further the effort to bar argued Stenger’s it documents, state- company ment and of loss to his insurance treated confidential should be communications attorney conveyed from a client to his attorney through company the insurance an inter- mediary meaning agent, privileged (within and thus *7 [b]) discovery. Upon
of section 6 from careful examination the record the Chaffee proofs we find that case, no were in offered the trial by court, affidavit or to show de- de- otherwise, when report (although fendant’s of loss was made improperly fendant’s counsel included in his brief appeal on relating information outside record the matter); by to this when and whom defense counsel relationship retained; the between defendant’s company, counsel and his including insurance degree of control each exercised over the activities proofs pertinent any of the other; other agency. proofs, claimed such Absent we find, cannot Stenger’s on record, this that defendant statement company of loss to his insurance particularly Rule 33 and Rule 34.— See USCA, Rule 26(b) Federal Rules of Ci-sdl Reporter. (d), Rule 30(b) Proсedure, (d), Rules Rule 31(d), 26-37, Michigan Beports. discovery privileged communications from
barred or otherwise. prospec- that the statements of is not claimed parties procured than other witnesses tive insurance scope companies of the in- are within with their at- communications sureds’ torneys, it Instead, claim made. nor could such against their the bar that is claimed attorneys’ represent “work raised because agents, product” procured by insurance their companies. that the if we were assume Even attorney’s product policy from an work which bars inquiry litigant’s opposing to data extends as- attorney by agents, appel- these for the sembled urge this claim these entitled lants are not already in the noted, the record As we have cases. permit Stenger our determination case not even does nature of the between defendant’s company. The record counsel and his insurance employment of defense discloses counsel defendant; that statements were insurer, employment agents even before taken company counsel; that the insurance deter- disclose to its trial coun- mined Nothing to withhold even from him. sel and which Stenger’s permits more than in record, engaged finding of in- our counsel services agents for him his “work to assemble surance protects product.” torney’s judicial policy which an at- work his ad- Taylor, versary, length considered at in Hickman v. supra, not be invoked circumstances of justify exclusion from these cases *8 per- obtained, witnesses’ statements counsel sonally request at his and under his direct even agents supervision, of .but rather acting independently that the carrier so of counsel' 1963]' Wilson 413 subsequent withheld from insurer even counsel no- tice such statements had been taken. attorney-client We conclude that neither public policy underlying nor the exclusion attorney’s product applicable anof work to bar disclosure before trial these cases the wit- Stenger’s nesses’ statements, or his statement, re- port having of loss. Defendants below failed to good denying requested show discovery, cause otherwise for
itas their burden to do in accordance (b), with section 6 we hold that the orders dis- covery properly entered and that defendants below are not entitled tо their vacation order of Accordingly, this Court. the order to show cause in the Wilson case is dismissed order from appeal was taken in the Chaffee case is af- prevailing parties may firmed. The tax their costs. J., C. Carr, and Dethmers, Kelly, Black, Kav- JJ., concurred with J. anagh, and Smith, Souris, (concurring). thoroughly Black, J. bandied Taylor, (67 Hickman v. 495 decision of US S Ct 451), spawned L decided has ed judicial congeries Discovery curious confusion.1 today’s text issue has become an uncertain provincial differing according variable of discretion, judges among to views of the Federal circuits and differing undeniably Federal districts, respective of our The reason, circuits State. as I authority it, is that no court of ultimate see has as yet precision product with defined “work lawyer,” declared the extent to has then which— privacy if at all—the traditional of that may proceedings.2 be invaded disclosure of the (April 1963), 2 Consider, See Buell as a 18, 23, Doelle, “Weapons identity related 24. aside, witnesses Topsy-grown practice Discovery”, 42 lawyer and his client MSBJ No hy whieh
414 370 Michigan Reports. authority course, of control the not, does Hickman apply the сommon law of Court to declare and this provide discovery procedures Michigan or to of by way Michigan record. of does, of courts of up point conclusion, controversial the Court’s nature has come us from the issue which provides Saginaw conclusion our over- That circuit. (Hickman 514): at 513, ture controversy widespread fully appreciate the “We profession legal among of over the the members problem problem It is a raised this case. hazy on has been one of most frontiers rests what of the and * * * 3 discovery process. When Rule disсovery adopted, the other rules were this cer general court and the members tainly the bar contemplate did or that all believe thereby processes lawyers and mental files opened scrutiny free their adversaries. interpret we And refuse to at this time so the rules reach so harsh a result.” and unwarranted Company Cab Kalamazoo Yellow Hickman and Judge, 363 Mich are cited Kalamazoo present upon Neither fits all counsel. relied specific directly has stated issue Justice Souris opinion. In Hickman the in the first sentence of expose for claimant- supreme was court asked (of witnesses) petitioner written certain agent attorney Fortenbaugh, for counsel “as railroad), (tug had obtained owners defendants” litigation.” possible preparation “in the course dealt ex Case this Court In the Kalamazoo Cab clusively pretrial acci a written with employer by its made dent defendant employee. charged-with-negligence An order judges penalty-compelled some to the stand not call is— — attorney’s resisted, indeed, prys into the unless pretrial. at strategy This “legal theories.” as his “mental wеll iiroressions” Reporter. Procedure, TTSCA, Rule 26.— Federal of Civil Rules Cibcuit given opinion, upon in our reasons thereof, plaintiff’s upheld. with a claimed Here deal we right statements and re- written legal ports, by parties, which stran- witnesses and *10 pending gers to the have obtained. Such suit respective., strangers liability the are the insurers of '* defendants. party obtaining In the Kalamazoo Cab Case the possessing plaintiff that which the discovered the In the sued defendant.4 Hickman Case the party possessed who obtained and had what the up professional present claimant did not discover made the part privileged relationship. of the In the attorney-client nothing cases tion is problem by an rela- sought, by discovery. clear, Once that is no judge, impeded
remains. The circuit
privilege,
the rule of
was clothed with discretion
produce
to order that counsel for the insurers should
reports
the statements and
insurers
such
had ob-
prior
engagement
tained
or involvement of
prior
such
appearance
counsel and
to their
for the
sued defendants.
By People
(67
Pratt,
v.
923),
followed
367 Mich
5, this
Court is
interpre
committed to “a somewhat libеral
right
professional
tation” of the common-law
privilege
necessary when the
exists.
said,We
in the Pratt Case at 129:
“The
is not confined to communications
purpose
made
obtaining
for the
advice.
It ex-
attorney
tends
course of
‘communications
made
any professional
employment, relating subject
employment,
of the
and which
supposed
the
consequence
to have been drawn out in
parties
relation in which the
to each
stand
”
other.’
4 That, too, was the situation in La Croix v. Grand Trunk W. R.
Co.,
Prаtt’s only lawyer’s product.” There remains “work product; of definition such task of. any of the inter- or all not of course include does subject
pretive triable, discoverable, or and hence questioned litigation; deed such as matter allegedly mislabeled documents, or contractual pin king phar- pills allegedly defective or the or has manufac- maceutical automotive defendant constituting tangible like marketed, or tured subject part matter thereof. such or essential intending or to relate case its thrust Without it us, to the to I deem well interest beforе repeat juncture at at the said of the what was Hightower torney-client relationship Detroit (86 509): 262 Mich ALR Co., 1, 9, Edison arising out of relation- rights and duties “The attorney ship client are not measured yardstick trade transactions. *11 of commercial lawyer purely personal. his The owes to is relation client undivided place allegiance. in There no is relationship a middle- for its establishment the man having or of the in res control interest procedure. makes the man as ments under which act. it is so initiated fact established or The attorney agent far the of the middle- so knоwledge arrange- charge all him with the middleman assumes * * * attorney long owes, as or he owes, “As deems any duty plain- with the to the middleman connected cannot extend alle- case so he undivided tiff’s agent giance-to the he of the client, remains middle- appellant, If fide, man. tona had established with relationship attorney client, Mrs. Powell the and wholly from Donohue, divorced the case would be different. But did he not. He considered Donohue plaintiff as well his client the case.” Judge, attorney true and client now the relation- Consider throughout ship has been known dеvelopment law, common and assume for newly that the client is sued defendant. illustration He and to undertake the defense methods picks lawyer engages represent his him, and
according to due practice attorney preparation. The duly diligent assumes such work. In the course thereof, he interviews and obtains written state- persons may ments of who be callable as upon investigation, may who, witnesses some negatively not. The statements of latter, at- testing that or hear, did otherwise see, ac- quire knowledge, admissible are taken the at- torney guard аgainst possible lapses the client changes memory by statement-givers. or attorney carefully preserves obtains for admis- sibility copies photographs, of documents, and, probably, documentary physical bits or items of proof which, if aided testified identification and presented relation admissible to or issues, issue become
support the defense or overcome the plaintiff’s thrust. He briefs and records the sub- procedural legal aspects stantive and of the case, engages expert interviews and the aid of witnesses, prepares ready chronology own ause memoranda of discovered facts and their in- dicatively employment admissible and timable prepares court. In short, he his client’s case ac- cording developing needs thereof, and main- preparatory very tains tools file he has made the personal-to-client duty per- which his formed. That file is the “work *12 lawyer.” product” the It is not the “work of a vicariously liable insurer whose relation to its sued insured is professionally contractual than rather personal. Reports. Michigan product foregoing’ with se- I define would guard protect
verity, privacy historic to the better exemplifies. it The at- of the right torney to the exclusive client have bring stage forth if at all are to what decide at portions during trial; product thereof such supposedly is known to the as was and trial it the common triable to (in properly a case trial that is law; the preserved right jury) a Con- as Kimball, in J., Swart stitution. See Mich Cooley, King, quoted in 368 Mich Romero 448; right jury trial holding is the maintained 45, 50, right right trial before; to a it existed “the previous by jury had become known to as it jurisprudence That there of the State.” exception this is be somе extreme circumstances presently prob- exception will since the immaterial, exceptions being ably prove one of the out always known. law has common concededly of the valuable is clear that some Michigan-acceptable, and in Hickman is dicta written Pointed 1963, 306.2. is not. See GCR some supreme of the court indeed is observation product 511) (Hickman the work of the if that, at “open opposing lawyer counsel made should be put much what is now down on mere demand, writing Trial counsel of would remain unwritten.” probably experiencе rather memorize and would destroy personally each fresh sheet then with each order Jackson did Stonewall —as carry having opponent risk of from Lee—than through, judicial pry their order, extent prohibition diligently prepared laws, files. Like parts personally produce assembled such orders product of en if difficult bound are, issued, forcement. profession foregoing submitted judicial dis-
effort line to draw that solid where *13 provided to an comes 1963, 306.2 GCR cretion begins. privilege no other There is end and absolute protect professional way the in the turbulent ultimate dissolution and dilution judicial surе, To A caveat: discretion. sea attorney who- the effect, now the new rules with party or wit- statement from some a written takes ness, a statement-giver to deliver and fails then copy probably himself and his waives for thereof, enjoyed. That, how- otherwise client apparent rules is the extent to which new ever, modify professional privilege. attempt to Such quite enough.5 extent is far agree foregoing I with convictions recorded, disposition of Justice Souris’ both cases and with reports holding that the the re- statements spective discretionarily are insurеrs have obtained plea professional against their discoverable privilege. reports those Since statements and discovery- not obtained counsel, are not ground professional privilege. immune on And hardly necessary possibly it is to add that a related situation is not before us. I refer to the one where engaged liability the counsel in- defend— sought-to-be-dis- surer-—has himself obtained reports. covered Carr, C. J., Smith, JJ., Kavanagh, Souris, J. with concurred Black,
O’Hara, J., part took no decision this ease. by the statement-giver, amended to disclose it. GCR provide 306.2 probably, or of fortuity one of these refusal loss of days, statement-giver will have to be delivered copy