“The common law governs a claim of privilege, unless a statute or court rule provides otherwise.” MRE 501. “Unlike other evidentiary rules that exclude evidence because it is potentially unreliable, privilege statutes shield potentially reliable evidence in an attempt to foster relationships.” People v Stanaway, 446 Mich 643, 658 (1994). “While the assurance of confidentiality may encourage relationships of trust, privileges inhibit rather than facilitate the search for truth. Privileges therefore are not easily found or endorsed by the courts. The existence and scope of a statutory privilege ultimately turns on the language and meaning of the statute itself. Even so, the goal of statutory construction is to ascertain and facilitate the intent of the Legislature.” Id. (quotation marks and citations omitted).
See the Michigan Judicial Institute’s Commonly-Recognized Privileges Table for more information on various types of privileges.
Committee Tip:
When presented with an asserted privilege, the court may consider employing the following analysis:
•What privilege is claimed?
•Was there a relationship covered by the privilege?
•Was there a communication covered by the privilege?
•Who holds the privilege?
•Has the privilege been waived (expressly, impliedly, or by statute or court rule)? See, for example, MCL 600.2157.
•May the privileged communications be disclosed? See, for example, MCL 330.1750.
Generally, criminal defendants and civil litigants lack the standing to assert a privilege on behalf of a third party. People v Wood, 447 Mich 80, 89 (1994). For example, a hospital or a physician may not invoke a patient’s physician-patient privilege on behalf of the patient where the patient has no desire to invoke the privilege. Samson v Saginaw Bldg Prof, Inc, 44 Mich App 658, 670 (1973).
Similarly, a defendant does not have standing to raise an issue on appeal regarding another witness’s testimonial privilege. People v Allen, 310 Mich App 328, 344 (2015), rev’d on other grounds 499 Mich 307 (2016).1 The Court held that the defendant lacked standing to challenge the trial court’s failure to expressly inform his testifying spouse that she could invoke her spousal privilege, but noted that “nothing should stop counsel for the defendant-spouse from raising an objection [during trial] to the witness-spouse’s testimony to ensure that she knows she cannot be required to testify against the defendant-spouse.” Id. (quotation marks and citation omitted).
2.Determining the Validity of a Claim
A trial court must follow an established procedure when it discovers that a potential witness plans to invoke a testimonial privilege. People v Paasche, 207 Mich App 698, 709 (1994). In Paasche, the Court of Appeals explained how trial courts should handle these situations:
“First, a trial court must determine whether the witness understands the privilege and must provide an adequate explanation if the witness does not. The court must then hold an evidentiary hearing outside the jury’s presence to determine the validity of the witness’ claim of privilege. If the court determines the assertion of the privilege to be valid, the inquiry ends and the witness is excused.
If the assertion of the privilege is not legitimate in the opinion of the trial judge, the court must then consider methods to induce the witness to testify, such as contempt and other proceedings. If the witness continues to assert the privilege, the court must proceed to trial without the witness, because there is no other way to prevent prejudice to the defendant.” Paasche, 207 Mich App at 709-710 (internal citations omitted).
Committee Tip:
Where there is a claim of privilege under the Fifth Amendment, some courts offer to appoint an attorney for the witness, or allow the witness to bring in his or her own attorney if time permits before making a determination on the validity of the claim. Counsel should remain until the witness is excused from testifying or completes the testimony.
“[T]he trial court complied with the applicable procedure and properly ordered that [the witness] could not be called” to testify where the prosecutor informed the trial court at a pretrial hearing that the witness might assert his privilege against self-incrimination if he testified at trial and the trial court appointed counsel for the witness and later held a hearing outside the presence of the jury to determine whether the witness intended to invoke the privilege. People v Steanhouse, 313 Mich App 1, 18 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017).2 While the trial court “did not question [the witness] or make an explicit determination on the record concerning the validity of [the witness’s] assertion of the privilege,” it “conducted an inquiry with [the witness’s] appointed counsel, who indicated that he had counseled [the witness] regarding his Fifth Amendment privilege, and that [the witness] had decided not to testify.” Id. at 18-19. The witness’s counsel explained that he advised the witness not to testify “based on the ‘potentially dangerous’ nature of [the witness’s] prospective testimony—[the witness’s] inconsistent statements to the police and possible testimony that he was present when the assault occurred.” Id. at 19 (noting that the trial court was accordingly aware of the factual basis that supported the assertion of the privilege and that any further questioning may have incriminated the witness). Moreover, the Court also found it “significant that, before trial, the trial court provided defense counsel with an opportunity to further question [the witness’s] appointed counsel regarding [the witness’s] intent to assert his Fifth Amendment right against self-incrimination, but defense counsel did not avail himself of that opportunity[.]” Id.3
a.Civil Cases
In civil cases, privileged material may not be obtained through discovery. MCR 2.302(B)(1). If a party knows before his or her deposition that he or she will assert a privilege, the party must move to prevent the taking of the deposition or be subject to costs under MCR 2.306(G). MCR 2.306(D)(4). A party must assert a privilege at his or her deposition or lose it. MCR 2.306(D)(5). If the privilege is asserted, the party may not, at trial, offer his or her testimony on the evidence objected to during the deposition. Id.
But see MCL 330.1750(2) (psychiatrist/psychologist-patient privilege) and MCL 600.2157 (physician-patient privilege), which require disclosure of, or indicate the waiver of, certain privileged communications in specific circumstances. However, “[i]nformation regarding nonparty patients sought in the discovery process falls within the scope of the physician-patient privilege.” Meier v Awaad, 299 Mich App 655, 678 (2013) (trial court erred (1) in ordering enforcement of a subpoena requesting the names and addresses of all Medicaid beneficiaries who were treated for a specific disease by defendant doctor and coded as having been diagnosed with a specific disease, and (2) in entering a protective order setting out the permissible uses of the patient information and authorizing plaintiffs’ counsel to contact individual patients identified in materials submitted in response to the subpoena).
b.Criminal Cases
In criminal cases, privileged information is generally not discoverable. MCR 6.201(C)(1).4 However, if the “defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.” MCR 6.201(C)(2). MCR 6.201(C)(2)(a)-(e) explain how the court should proceed once an in camera inspection has been conducted.
A defendant’s motion for discovery of a complainant’s privileged medical, psychological, and school records is properly denied by a trial court where the records reviewed in camera do not contain material necessary to the defense. People v Masi, 346 Mich App 1, 26, 27 (2023). An in camera review should not be conducted when “the party seeking disclosure is on a fishing expedition to see what may turn up.” People v Davis-Christian, 316 Mich App 204, 208 (2016) (quotation marks and citations omitted). “A defendant ‘is fishing’ for information when he or she relies on generalized assertions and fails to state any ‘specific articulable fact’ that indicates the privileged records are needed to prepare a defense.” Id. at 208, quoting People v Stanaway, 446 Mich 643, 681 (1994).
In Davis-Christian, the trial court abused its discretion in granting the defendant’s motion for an in camera review of the complainant’s counseling records where the defendant did not demonstrate that the records “would be ‘necessary to the defense’” as required by MCR 6.201(C)(2). Davis-Christian, 316 Mich App at 209, 212. The trial court “explicitly disregarded Stanaway and articulated its own standard” which would impermissibly “allow an in camera review of most–if not all–of the counseling records of alleged sexual assault victims.”5 Id. at 209, 213 (the Court noted that the defendant had “access to the police report and forensic interview” of the victim, which gave him “the information necessary to properly prepare a defense,” and that his “assertion of need merely voice[d] a hope of corroborating evidence, untethered to any articulable facts”).
Similarly, in Stanaway, the Court rejected defendant’s assertion that review of confidential records was “necessary to his attempt to unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence,” finding that defendant: was “fishing”; had failed to state “any specific articulable fact that would indicate that the requested confidential communications were necessary to a preparation of his defense”; and failed to state “a good-faith basis for believing that such statements were ever made or what the content might be and how it would favorably affect his case.” Stanaway, 446 Mich at 681.
c.Inadvertent Disclosure
Privileged information that is inadvertently disclosed and thereafter used by the parties may become discoverable despite the fact that it would not generally be discoverable. Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 536 (2014). The trial court did not abuse its discretion when it denied the defendant’s motion to compel return of confidential non-party medical records when the defendant was aware of the disclosure of the records “for well over a year before contending that they were protected by privilege and seeking their return.” Id. at 536-537. In declining the defendant’s request for relief, the Court of Appeals further noted that inspection of the medical records was necessary to the resolution of the parties’ dispute. Id.
Generally, the right to waive a privilege belongs to the individual making the communication. For example, only the patient may waive the physician-patient privilege. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 34 (1999). Similarly, only the client may waive the attorney-client privilege. Leibel v Gen Motors Corp, 250 Mich App 229, 240 (2002). But see MCL 600.2162(5)-(7), which provides that the decision whether to waive the spousal communication privilege in certain types of cases rests with the spouse whose testimony is sought, not necessarily the spouse who made the communication.
Voluntary disclosure of privileged materials to a third party generally results in waiver of the privilege because “such action necessarily runs the risk the third party may reveal it, either inadvertently or under examination by an adverse party[.]” D’Alessandro Contracting Group, LLC v Wright, 308 Mich App 71, 81 (2014) (quotation marks and citation omitted). However, this “principle is not ironclad[.]” Id. “[W]here work product is prepared for certain third parties, the qualified privilege may be retained.” Id.; MCR 2.302(B)(3)(a) (work product prepared by or for another party or another party’s representative is privileged material). Further, even when material is not prepared by or for a specific party, disclosure to a third party will not result in waiver when the “common-interest doctrine” applies. D’Alessandro Contracting Group, LLC, 308 Mich App at 82, 84 (finding that even though “courts in this state have not expressly addressed the so-called common-interest doctrine,” federal “application of the common-interest doctrine [was] instructive . . . because both the state and federal rules recognizing the work-product doctrine are ‘virtually identical’”). Thus, “the disclosure of work product to a third party does not result in a waiver if there is a reasonable expectation of confidentiality between the transferor . . . and the recipient . . . .” Id. at 82, 84-88 (holding that the common-interest doctrine applied and the work product privilege was not waived because the defendants had a reasonable expectation of confidentiality in sharing the report with the third party where the defendants and the third party had an indemnification agreement).
The federal common-interest doctrine similarly applies to Michigan’s attorney-client privilege in limited circumstances. Nash Estate v Grand Haven, 321 Mich App 587, 598 (2017). It applies only “where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.” Id. at 596 (quotation marks and citation omitted; applying the common-interest doctrine to exempt from disclosure under FOIA certain communications between the defendant-city’s attorney and other “attorneys representing common legal interests made in connection with facilitating professional legal services related to” property involved in underlying tort litigation, even though the city was not a party to the underlying tort litigation).