5.10Privileged Materials

A.Medical Records

MCR 2.314 addresses the mechanism used for discovering medical information where the condition of a party is in controversy. Medical information of nonparties is not discoverable under MCR 2.314. MCR 2.314(E).

Custodians of medical information must comply with a proper request within 28 days after receiving the request, or if the party is hospitalized for the condition for which the request was made, within 28 days after he or she is released. MCR 2.314(D)(1). The court may alter this time limit for good cause. Id. 

To be considered compliant, the custodian must:

•make the information reasonably available, or

•deliver a properly verified original or true and exact copy of the original information to the requesting party, as provided in MCR 2.314(D)(2)(b). MCR 2.314(D)(2)(a)-(b).

If the custodian does not comply with the request, a subpoena may be issued pursuant to MCR 2.305(A). MCR 2.314(D)(6). See also MCR 2.305(A)(1).

The requesting party must pay the custodian reasonable reimbursement in advance for the expense of complying. MCR 2.314(D)(5). In determining what constitutes a reasonable expense, the Michigan Court of Appeals gave the following guidance:

“At a minimum, . . . [the custodian] should reveal how many copies are made per year in response to requests occasioned solely by paying requestors, as well as the total number of copies made per year by [the custodian] for paying, nonpaying, and any other requestors. Once these amounts are revealed, they may be compared to the total, itemized labor and machine maintenance costs incurred by [the custodian]. Those latter costs may be divided in proportion to the number of copies made for paying requestors and the number of copies made for nonpaying and other requestors. A reasonable per-page amount is then easily calculated by dividing the number of copies made for paying requestors into the pro rata amount of expenses incurred attributable to all paying requestors.” Graham v Thompson, 167 Mich App 371, 375 (1988).

B.Hospital Records

In determining whether a privilege applies to certain hospital documents, two sections of the Public Health Code may play a role. The peer review privilege statutes, MCL 333.20175(13) (applicable to health facilities, health agencies, and certain institutions of higher education) and MCL 333.21515 (applicable to hospitals and certain universities), both state essentially the same thing:

“The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in [Michigan] that has colleges of osteopathic and human medicine, are confidential, must be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.”¹ MCL 333.20175(13). See also MCL 333.21515.

“The scope of the [peer review] privilege is not without limit.” Krusac v Covenant Med Ctr, Inc, 497 Mich 251, 261 (2015). “[T]he privilege only applies to records, data, and knowledge that are collected for or by the committee under [MCL 333.20175(13) and MCL 333.21515] ‘for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.’” Krusac, 497 Mich at 261-262, quoting MCL 333.21513(d).² 

“In determining whether any of the information requested is protected by the statutory privilege, the trial court should bear in mind that mere submission of information to a peer review committee does not satisfy the collection requirement^[3] so as to bring the information within the protection of the statute. Also, in deciding whether a particular committee was assigned a review function so that information it collected is protected, the court may wish to consider the hospital’s bylaws and internal regulations, and whether the committee’s function is one of current patient care or retrospective review.” Monty v Warren Hosp Corp, 422 Mich 138, 146-147 (1985) (citations omitted). Moreover, litigants “may still obtain relevant facts through eyewitness testimony, including from the author of a privileged incident report, and from the patient’s medical record.” Krusac, 497 Mich at 262.

“Nothing in the pertinent language of [MCL 333.20175(13)] suggests that the privilege does not extend to a freestanding surgical outpatient facility exercising the same credentialing-review function under MCL 333.20813(c) that a hospital performs under MCL 333.21513(c).” Dorsey v Surgical Institute of Mich, LLC, 338 Mich App 199, 228 (2021).⁴ MCL 333.21515 references Article 17, “which governs a wide variety of health facilities or agencies, including freestanding surgical outpatient facilities. However, the specific provision is set forth in Part 215 of Article 17, which addresses matters related to the narrower category of entities that constitute hospitals.” Dorsey, 338 Mich App at 228. “[D]espite the placement of MCL 333.21515 in Part 215 alongside other provisions applicable to hospitals, the Legislature’s reference to the review functions in Article 17, as opposed to Part 215, evidences its intent to extend the statutory privilege for peer-review materials to all health facilities and agencies with review functions imposed by Article 17.” Dorsey, 338 Mich App at 229 (concluding the peer review privilege in MCL 333.21515 applied to defendant (a freestanding surgical outpatient facility), that “[t]he plain language of [MCL 333.20175(13)] limited the use of [the credentialing file] to purposes provided in Article 17,” and that “the file was not subject to discovery and should not have been admitted at trial”).

C.Personnel Records

Disclosure of personnel records is governed by the Bullard-Plawecki Employee Right to Know Act. MCL 423.501 et seq. The Act defines “personnel records” as:

“[A] record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. A personnel record shall not include:

(i) Employee references supplied to an employer if the identity of the person making the reference would be disclosed.

(ii) Materials relating to the employer’s staff planning with respect to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments.

(iii) Medical reports and records made or obtained by the employer if the records or reports are available to the employee from the doctor or medical facility involved.

(iv) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy.

(v) Information that is kept separately from other records and that relates to an investigation by the employer pursuant to [MCL 423.509].

(vi) Records limited to grievance investigations which are kept separately and are not used for the purposes provided in this subdivision.

(vii) Records maintained by an educational institution which are directly related to a student and are considered to be education records under section 513(a) of title 5 of the family educational rights and privacy act of 1974, 20 U.S.C. 1232g.

(viii) Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known.” MCL 423.501(2)(c).

Information that is not included in the personnel file, but should have been included, cannot be used by an employer in a judicial or quasi-judicial proceeding unless the employee requests it or unless the exclusion was inadvertent and the employee agrees to its use or has been given a reasonable amount of time to review the information. MCL 423.502. Employees may review their record after submitting a written request. MCL 423.503. Generally, an employee is limited to viewing his or her personnel file “not more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement[.]” Id. Employers may charge the employee a fee, limited to the actual incremental cost, for providing a copy of the personnel file. MCL 423.504.

An employer or former employer may not disclose an employee’s disciplinary reports or reprimands to (1) third parties, (2) anyone who is not part of the employer’s organization, or (3) anyone who is not part of the labor organization representing the employee, without providing proper written notice to the employee. MCL 423.506. An employer must review a personnel file and “delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old” before releasing information to a third party, unless the release is ordered pursuant to a legal action or arbitration which involves the third party. MCL 423.507.

D.Trade Secrets

Discovery of trade secrets is generally addressed under MCR 2.302(C)(8), which states:

“(C) Protective Orders. On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders:

* * *

(8) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[.]”⁵

E.Work Product and Attorney-Client Privilege

“Subject to the provisions of [MCR 2.302(B)(4)⁶], a party may obtain discovery of documents and tangible things otherwise discoverable under [MCR 2.302(B)(1)] and prepared in anticipation of litigation or for trial by or for another party or another party’s representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only on a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” MCR 2.302(B)(3)(a) (emphasis added).

Regardless of the form of recorded drafts or communications, MCR 2.302(B)(3)(a) “protects drafts of any interrogatory answer required under [MCR 2.302(B)(4)(a)(i)]” and “communications between the party’s attorney and any expert witness under [MCR 2.302(B)(4)], . . . except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.” MCR 2.302(B)(4)(e)-(f).

The Michigan Court of Appeals has recognized the importance of protecting an attorney’s work product:

“[T]he balancing of the policy favoring complete discovery and that favoring preserving attorney-client confidences weigh[s] in favor of allowing a party seeking discovery of attorney work product to proceed only upon a showing of substantial need for the materials sought plus inability to obtain the information without undue hardship.” Messenger v Ingham Co Prosecutor, 232 Mich App 633, 638 (1998).

“The work product doctrine seeks to protect an attorney’s freedom to generate documents and records in order to facilitate full preparation of his case.” Great Lakes Concrete Pole Corp v Eash, 148 Mich App 649, 656 (1986).

“‘[I]f a party demonstrates the substantial need and undue hardship necessary to discover work product, that party may discover only factual, not deliberative, work product.’” Augustine v Allstate Ins Co, 292 Mich App 408, 421 (2011), quoting Leibel v Gen Motors Corp, 250 Mich App 229, 247 (2002).

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. (citation omitted). “[W]here work product is prepared for certain third parties, the qualified privilege may be retained.” Id.; MCR 2.302(B)(3)(a). 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. 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. (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).

“[W]hether a party may assert the work-product privilege and whether a party has waived that privilege are questions of law that [are] review[ed] de novo.” D’Alessandro Contracting Group, LLC, 308 Mich App at 76. “A court’s factual findings underlying its determination of the existence and waiver of the work-product privilege are reviewed for clear error.” Id. Once the reviewing court has determined whether the privilege applies, it then reviews the trial court’s order for an abuse of discretion. Id.

 “Generally, a party in a civil lawsuit is not entitled to discovery of documents that are protected by the attorney-client privilege.” Citizens Ins Co of America v Livingston Co Road Comm, ___ Mich App ___, ___ (2022). “The attorney-client privilege is personal to the client, and only the client can waive it.” Id. at ___ (quotation marks and citation omitted). “When analyzing whether a privilege has been waived, a court should begin its analysis with a presumption in favor of preserving the privilege.” Id. at ___ (quotation marks and citation omitted). To show waiver, “the party seeking waiver must demonstrate that the material to be discovered is relevant and that the party’s assertion of the privilege seriously undermined the other party’s position.” Id. at ___. “[A] privilege can be waived through conduct that would make it unfair for the holder to insist on the privilege thereafter.” Id. at ___ (quotation marks and citation omitted). “Thus, a waiver may be found when the privilege holder’s conduct places the claimant in such a position, with reference to the evidence that it would be unfair and inconsistent to permit the retention of the privilege.” Id. at ___ (quotation marks and citation omitted). “[I]f the court permits discovery of the privileged material, it should be narrowly limited to those portions of the privileged material that bear directly on the issues at hand.” Id. at ___ (quotation marks and citation omitted).

In Citizens, “defendant raised attorney-client privilege in furtherance of its affirmative defenses,” asserting that “no binding settlement agreement existed because its former lawyer lacked the authority to settle the case on [defendant’s] behalf.” Citizens, ___ Mich App at ___. “In doing so, [defendant] placed its lawyer’s settlement authority at issue.” Id. at ___. “In response, however, plaintiffs offered evidence that the [defendant’s] former lawyer represented in two e-mails that the [defendant] had approved the settlement agreement.” Id. at ___. “In light of the fact that the communications between the [defendant] and its former lawyer [were] relevant to the issue of whether he had authority to settle based on [defendant’s] prior approval of the settlement agreement, and given that there, in the absence of those communications, plaintiffs’ ability to dispute that affirmative defense would be severely undermined,” the Court of Appeals concluded “that the trial court did not abuse its discretion by finding that the attorney-client privilege was waived.” Id. at ___ (remanding for in camera review because “discovery allowed under these circumstances should be narrowly confined”).