Kilpatrick Text Messages

STATE OF MICIDGAN
IN THE THIRD CIRCUIT COURT

FOR THE COUNTY OF WAYNE
People of the State of Michigan,
Vs.
Christine Beatty
= - ~ - = ~ ~ ~ ~ ~ - - ~ I
Kym L. Worthy (P38875)
Wayne County Prosecutor
Robert A. Moran (P46346)
Athina T. Siringas (P35761)
Robert W. Spada (P46295)
Assistant Prosecuting Attorneys
Frank Murphy Hall of Justice
1441 St. Antoine
Detroit, MI 48226
313.224.5777
Hon. Timothy M. Kenny
Case No. 08-10496
James C. Thomas (P23801)
Plunkett Cooney
Attorney for Kwame Kilpartick
535 Griswold, Suite 2632
Detroit, Mi. 48226
313.963.2420
Mayer Morganroth (P 17966)
Morganroth and Morganroth
Attorney for Defendant Christine Beatty
Southfield, MI 48075
248.355.3084
REFILING OF PEOPLE'S MOTION TO AUTHENTICATE
AND ACCOMPANYING DOCUMENTS
Attached please findthefollowing-documents(redacted pursuant to Court Order): ...
1) People's Motion in Limine to Admit Evidence with supporting Brief and attached exhibits #1-4144
with the exception of Exhibit #2;
2) Dejendant Kilpatrick's Privilege Log and Request for Redaction;
3) Defendant Beatty's In Camera Memorandum and Privilege Log Regarding Certain Text
Messages Under Seal;
4) People's Answer to Dejimdant Kilpatrick's Privilege Log and Request for Redaction and
Dejimdant Beatty's Privilege Log Regarding Maintaining Certain Text Messages Under Seal and
attached exhibits #1-6.
10/23/2008
STATE OF MICHIGAN
IN THE 36 TIl DIS1RICT COURT
FOR THE CITY OF DETROIT
Vs.
Kwame Kilpatrick &
. Christine Beatty
= - ~ ~ ~ ~ ~ ~ ~ ~ I
Kym 1. Worthy (P38875)
Fiank Murphy Hall of JliStice
1441 St. Antoine
Detroit, Mi. 48226
313.224.5777
Hon. Ronald Giles
Case No. 08-58169
Plunkett Cooney
Attorney for K warne Kilpartick
Detroit, Mi. 48226
313.9632420
Mayer Morganroth (p17966)
Attorney for Defendant Beatty
3000 Town Center, Suite 1500
248.355.3084
MOTION IN LIMINE TO ADMIT EVIDENCE
NOW COMES The Wayne county Prosecutor, Kym L. Worthy, by and UlTough
her Assistant Prosecuting Attorneys, and requests tbis Honorable Court to admit into
defendants to each other and !o others. In support ofthis motion the People state as
follows:
L The Defendants were charged in a multiple count complrunt and warrant on
March 24, 2008.
2. The Defend31lts were arraigned on the warrant the following day, March 25,
2008. At the arraigrunent both Defendants were grunted a personal bond with
certain travel restrictions.
3. At the arraigrunent on the warrant, a preliminary examination date of JlUle 9,
2008 was set by the court.
4. On May 13,2008, this court entered a scheduling order that adjourned the
preliminary examination IUItil September 22, 2008. This order also
established filing deadJines for, among other things, any motions to be heard
prior to the preliminary examination. The deadJine for filing of any motions is .
July 2008.
5. On information and belief, the People believe that the Defendanta will seek to
challenge the authenticity of certain evidence that the People lawfully
obtained during the course of this investigation. Specifically, the People
believe that the Defendants will attempt to challenge the authenticity of
certain text messages that tbe Pecple obtained from Skytel .
. 6. On Thursday, June 26,2008, the People attempted to receive a stipUlation for
"theautheniiCity of the text messagesthat we'inteniltirit1troduce intoevidence-
at the preliminary examination.
7. An assent to the stipulation was not received, thereby requiring the people to
file a Motion in Li:mine for the evidence to be admitted .
.......................... ...... : .. : .... :.8:coMichiganRuleofEvidence(MCR)6:110govemsthecondlicFofpfiilimifuifY':" .
. exarnm:;,tiollS. Subsection (D) of this court rule establishes the procedure for
exclusion of evidence. This rule requires only a preliminary showing that the
evidence is admissible; it does not require separate evidentiary hearing.
9. It is the position ofthe People that, based on the Motion in Limine, there is
more than a "preliminary showing" that the evidence is admissible, and
therefore there is no need for a separate hearing.
. Dated: July 7, 2008
........ : .... '.::: ......... ::,:.: .. ..
Respectfully submitted,
KymL. Worthy
~ ~ Prosecutor
L ' \ d ~
Athina A. Siringas (P35761)
1414 St. Antoine
Detroit, Mi. 428226
313.224.5777
STATE OF MICHIGAN
IN THE 36
TH
DISTRICT COURT
FOR THE CITY OF DETROIT
Vs.
Kwame Kilpatrick &
Christine Beatty
1441 St. Antoine
Detroit, MI 48226
313.224.5777
Hon. Ronald Giles
Case No. 08-58169
Plunkett Cooney
Attorney for Kwame Kilpartick
Detroit, Mi. 48226
313.963.2420
Mayer Morganroth (PI7966)
Attorney for Defendant Christine Beatty
248.355.3084
BRIEF IN SUPPORT OF MOTION IN LIMINE TO ADMIT EVIDENCE
-Amended-
NOWdGOMES the Wayne Cormt)' l'mseclltor, KytI!L. ',Vy!thy, by and through hr .
" - " ~ - .. - - " ~ - - ' - - - , . - - ~ , . , ~ - . - - - ...
Assistant Prosecuting Attorneys, and requests this Honorable Court to admit into
evidence for the purpose of a preliminary examination text messages sent by the
defendants to each other and to others.
"It is profoundly embarrassing to have these extremely private
messages now displayed in such a public manner, "he said. "My
wife and I worked our way through these intensely personal issues
years ago. I would now ask that the public and the media respect
the privacy of my wife and children and of Christine Beatty and
her children at this deeply painful moment for our families."
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Defendant Kilpatrick as quoted by the Associated Press from his
written statement released to the media. AP, 6/24/08.
Defendant K wame Kilpatrick has made many public admissions relating to the content of
text messages that he has sent over the years. In his statements the defendant has admitted
sending and receiving text messages in the course of his employment with the City of Detroit.
These admissions at the very least authenticate the text messages which the People intend to
introduce at the preliminary examination. In addition to defendant Kilpatrick's admissions,
defendant Beatty has made public admissions that authenticate her text messages as well.
Furthermore, in addition to the admissions of the defendants, there is ample other evidence
which proves that the messages that the People intend to introduce are in fact authenticate.
I. The role of the Preliminary Examination is Limited
The right to a preliminary examination is created by statute. MCL 766.4. Its purpose is
to "weed out groundless or unsupported charges of grave offenses .... " People v Duncan, 388
Mich 489, 501 (1972). To this end, the magistrate at an examination must determine whether
there is probable cause to believe that a crime has been committed, and, if so, whether there is
probable-cause to believe "that the defendantcommittediCMCR 0:1 rO{EJ -Prdolf151e -cauS"e dbes-----
not require proof beyond a reasonable doubt. Rather, an examining magistrate is to bind a
defendant over for trial if it appears from the evidence, and all reasonable inferences drawn from
that evidence, that there is probable cause to believe a crime has been committed and there is
probable cause to believe the defendant committed it. See People v ASia, 337 Mich 590, 609
(1953); People v Goecke, 457 Mich 442, 469 (1998). It is not the function of the examining
magistrate to weigh the evidence carefully and discharge the accused when the evidence
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conflicts or raises a possible reasonable doubt as to guilt, as these questions are solely for the
trier of fact. People v Doss, 406 Mich 90, 103 (1978); Wayne County Prosecutor v Recorder's
Court Judge, 92 Mich App 119, 122-123 (1979).
The rules of evidence are ordinarily applicable to the admission of evidence at
preliminary examinations (there are certain exceptions for hearsay employed for specified
purposes, see MRE 1101(b)(8)). In addition to Rule 1101(b)(8), MRE 403 has no application at
a preliminary examination, as the rule is designed for those situations where the rule of limited
admissibility-Rule 105, providing that evidence admissible for a proper purpose but
inadmissible for another purpose is to be admitted, with an appropriate limiting instruction-is
inadequate because there is too great a danger that the jury will disregard the limiting instruction.
This circnmstance exists only where the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice. As judges are presumed to appropriately
"compartmentalize" the evidence, Rule 403 has no application unless a jury is involved. See e.g.
People v. But/er, 193 Mich.App. 63 (1992), finding that the so-called Bruton rule concerning
severance or redaction when a non-testifying codefendant's confession that incriminates the
- - ' > ' ' ' ~ ' - --, ~ - . " - _., --.- - " ~ ' ~ ~ " ' - " ~
defendant is admitted is unnecessary at a bench trial, for the reason that there -is-n:o--danger a ~ ~ -
judge will misuse the evidence. And see Schultz v. Butcher, 24 F3d 626, 632 (4th Cir.1994),
expressing the common view that Rule 403 has no role to play in a bench trial.
The procedures governing a preliminary examination are established by the Michigan
Court Rules, specifically MCR 6.110. While, with these exceptions, the rules of evidence apply
at preliminary examinations, inquiries into the acquisition of evidence are not mandatory. If on
the face of the testimony evidence is offered that must be excluded, the examining magistrate is
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to exclude it, but if the evidence is, on its face, admissible, the magistrate need not hold a
separate evidentiary hearing on the question of its admissibility. The matter is simply one of
efficiency, as, should a bind over occur, the question must be re-litigated in the circuit court .
. Additionally, Michigan courts have consistently held that preliminary examinations have a
different purpose than do suppression hearings. (see People v. Talley, 410 Mich. 378, 301
N.W.2d 809, 1981). The Talley court reasoned that hearings on motions to suppress evidence
requires a full hearing on the constitutional issues presented in the motion, while a preliminary
examination requires an examining magistrate to determine if probable cause exists. For this
reason MeR 6.11 OeD) allows an examining magistrate at a preliminary examination to conduct
the exam and admit evidence on a simple showing that the evidence on its faee is admissible, and
leaves open the right to the parties to challenge the evidence in a full suppression hearing, if a
bind-over occurs.
The evidence to be offered here is admissible under the Michigan Rules of Evidence, and
plainly shows that the charges brought are not "groundless or unsupported."
ll;AuthenticahonH
Evidence is admissible as authentic if the proponent presents evidence "sufficient to
support a finding that the matter in question is what its proponent claims." There is ample
evidence here from which a rational juror could find by a preponderance of the evidence that the
text messages were exchanged between defendants Beatty and Kilpatrick.
Authentication: The "Gatekeeper" Function of the Court
It is critical to the inquiry here to understand the nature of the task of authentication of
evidence that must be undertaken by its proponent-and concomitantly, to understand that which
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is not required of the proponent of the evidence. MRE 901 (a) provides that "the requirement of
authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support ajinding that the matter in question is what its proponent claims." What
quantum of evidence, then, is sufficient to "support a finding" that the item is what the proponent
claims, and who is that must be able to make that finding?
As both Dean Robinson and Professor Graham have pointed out, "satisfaction of the
requirement of authentication or identification is a matter to be approached in accordance with
Rule 104(b)." 4 Graham, Handbook of Federal Evidence 901 :0, p. 696; 3 Robinson,
Longhofer, and Akers, Michigan Court Rules Practice: Evidence 901.1, p. 271 "For example,
if an issue is raised as to whether a letter was actually written by a party, the issue is one of
'relevancy dependent upon a condition of fact and is governed by the procedure set forth in Rule
104(b).'" And Rule 104(b) provides, complementing Rule 901, that when "the relevancy of
evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or
subject to, the introduction of evidence sufficient to support a jinding of the fulfillment of the
." It is not required, as a condition of admissibility, that the proponent of the evidence
satisfy the presiding judge beyond a reasonable doubt that the "evidence in question is
proponent claims it is; rather, the standard is akin to the directed verdict standard, where it is not
the judge who must be convinced beyond a reasonable doubt, but must, to allow the case to go to
the jury, be satisfied that a reasonable fact finder could find guilt beyond a reasonable doubt,
regardless of the personal views of the judge. People v Hampton, 407 Mich 354 (1979). And the
judge is to make this determination viewing the evidence in the light most favorable to the
People, drawing all fair inferences in favor of guilt and accepting as credible the People's
-5-
evidence, as might the jury. See, among a host of others, People v Nowak, 462 Mich 392 (2000).
Similarly, when a party seeks to authenticate proffered evidence it is not the judge who
must be convinced that the evidence in question "is what its proponent claims." Rather, the
foundational evidence is "sufficient to support" that finding if the judge determines that a
rational jury could find the item is what its proponent claims it to be, and could so find by a
preponderance of the evidence. "In determining whether the Government has introduced
sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a
finding that the Government has proved the conditional fact by a preponderance of the evidence.
The court simply examines all the evidence in the case and decides whether the jury could
reasonably find the conditional fact ... by a preponderance of the evidence." People v.
VanderVliet, 444 Mich. 52, 68 (1993), quoting Bourjaily v United States, 483 US 171, 179-
180,107 S.Ct. 2775, 2780-81, 97 L.Ed.2d 144 (1987).
In sum, the judge is only the "gatekeeper," determining whether a rational jury could
conclude the evidence is what its proponent claims it to be, regardless of whether the judge is
'-'him or' herself so conVInced, and could-so Gone u e y_ Cs
evidence. And, as with the motion for directed verdict, the trial judge must, when making this
"gatekeeping" determination, "view all the evidence introduced as to authentication or
identification, including issues of credibility, most favorably to the proponent," for the "ultimate
decision as to whether [the evidence] is as purported is for the trier of fact;" contradictory
evidence, then, goes to weight and not admissibility. Graham, at p.697-698. See also United
States v Reilly, 33 F.3d 1396, 1409 (CA 3, 1994)(" ... eontradictory evidence goes to the weight to
be assigned by the trier of fact and not to admissibility"). This is why breaks in the chain of
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custody of evidence affect only the weight of the evidence but not its admissibility. See e.g.
People v White, 208 Mich App 126 (1994).
"Other act" evidence under Rule 404(b) provides an example. Assuming the
requirements of Rule 404(b) are met, the evidence remains conditionally relevant; that is, the
"other act" is only relevant if it was committed by the defendant. Under 1 04(b), then, the
prosecution must present evidence "sufficient to support a finding" by the jury that the defendant
committed the other act. The United States Supreme Court has held that:
In determining whether the Government has introduced sufficient
evidence to meet Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the Government has proved the
conditional fact by a preponderance of the evidence. The court
simply examines all the evidence in the case and decides whether
the jury could reasonably find the conditional fact. . . by a
preponderance of the evidence. Huddleston v. United States, 485
U.S. 681, 690, 108 S.Ct. 1496, 1501, 2d 771 (1988)(emphasis
supplied); and see also People v VanderVliet, 444 Mich 52 (1993)
to the same effect.
And in making the Rule 1 04(b) determination,
We em hasize that in assessing the sufficiency of the evidence
underRulel04(b )" t e tna ".cou , ., .
presented to the jury. "[I]ndividual pieces of evidence, insuffiCient
in themselves to prove a point, may in cumulation prove it. The
sum of an evidentiary presentation may well be greater than its
constituent parts." People v. VanderVliet, 444 Mich. 52, 68 (1993),
quoting Bourjaily v United States, 483 US 171, 179-180, 107 S.Ct.
2775,2780-81,97 L.Ed.2d 144 (1987).
These principles apply, of course, to authenticate what may be termed "electronic evidence."
Authentication Principles Applied to Electronic Media
On what evidence, then, maya trial judge, taking the evidence in the light most favorable
to the proponent of the evidence, conclude that a rational jury could find by a preponderance of
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the victim's first name. I
Continued on page 10
I See State v. Taylor, 632 S.E.2d 218, 230 - 231 (N.C.App.,2006)(emphasis
supplied). And see United States v. Safavian, 435 F.Supp.2d 36, 40 (D.C.Cir.2006)(e-
mail messages held properly authenticated based on Rule 90 I (b)(4; Massimo v. State,
144 S. W.3d 210,216-17 (Tex.App.2004) (e-mail message held properly authenticated
where, inter alia, the e-mail was sent to the victim's e-mail address shortly after she and
defendant had a physical altercation and the e-mail referenced that altercation, and the
victim recognized defendant's e-mail account address); United States v. Siddiqui, 235
F.3d 1318, 1323 (CA 11,2000).
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Of some assistance also is Lorraine v Markel? The opinion observes that Rule 901(b)(4) is
one of the most frequently used to authenticate e-mail and other electronic records. It permits exhibits
to be authenticated or identified by "[a]ppearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances." The commentary to Rule
901(b)(4) observes "[t]he characteristics of the offered item itself, considered in the light of
circumstances, afford authentication techniques in great variety," including authenticating an exhibit
by showing that it came from a "particular person by virtue of its disclosing knowledge of facts
known peculiarly to him," or authenticating "by content and circumstances indicating it was in reply
to a duly authenticated" document. Fed.R.Evid. 901(b)(4) advisory committee's note. Use of this rule
often is characterized as authentication solely by "circumstantial evidence." Weinstein at 901.03[8].
Courts have recognized this rule as a means to authenticate ES1, including e-mail, text messages and
the content of websites.
3
A Reasonable Juror Could Find by a Preponderance ofthe Evidence that
The Messages Here Were Sent by the Defendants
Again, the matter must be approached considering "all the evidence" that will be submitted to
__ ._ ... fur, as the {roited States Supreme Court has cautioned with regard to
..
application of Rule 1 04(b ),"[i]individual pieces of evidence, insufficient in themselves to prove a
point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its
2 Lorraine v Markel, 241 FRD 534 (D. Maryland, 2007). The opinion is one of the Chief
Magistrate Judge of the federal district. Magistrate judges are not "true" judges. They are not Article
lIljudges, appointed by the president and confirmed by the senate, but appointed employees of the
federal district, assigned certain limited duties. As even an Article III federal district judge cannot
"make law," as his or her opinions are not binding even in the district, see e.g. United States v. One
TRW. Model Ml4. 7.62 Caliber Rifle, 441 F.3d 416, 423 (C.A.6, 2006); Bridgeport MUSiC, Inc. v.
Dimension Films, 410 F.3d 792,804 (C.A.6, 2005), certainly a magistrate's opinions are not
precedent. The opinion, then, is more akin to a law review article on the subject, and is helpful where
persuasive.
3 Markel, at 546.
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constituent parts." In the present case, the content of the messages, the back and forth, the distribution
of the devices employed, other messages from the same devices to other persons close to the
defendant(s), such as family, easily supply sufficient evidence from which a rational jury could
conclude by a preponderance of the evidence that the text messages were sent and received by the
defendants. The weight of the evidence is for the jury. The question before the court is whether,
based on all the circumstances, a reasonable fact-finder could find that the text messages are the
message of the defendants. When the court examines the appearance, content, internal patterns of the
text messages, as well as the other surrounding circumstances, it will be clear that the text messages
are authentic.
III. How text messages are sent and received by SkyTel
Velocita Wireless f/k/a Bell Industries, Inc. d/b/a SkyTel (herein referred to as SkyTel) is a
national wireless communications provider. A text message is a typed message sent via a wireless
pager or cellular telephone. Although commonplace in 2008, back in 2002 it was somewhat unique to
be able send and receive text messages (typed on a hand held keyboard) anywhere on a nationwide
.. maHer at hlmd--are uot.cellular-pllOnes. The manner in ",hich
the text messages are sent, received and particularly STORED on the SkyTel network is much
different than ce11 phones. These paging devices are specifically designed for sending and receiving
text messages. See an example below in the open and closed position.
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SkyTel's website describes their text messaging services as follows (emphasis added):
Products & Services
2 Way Messaging
2Way Messaging means real communication from the palm of your
hand. The perfect solution for work groups, family and friends who
want to stay in touch while controlling costs and minimizing the
time required for phone calls. Plus, with guaranteed message
delivery, you'll never worry about missing messages.
SkyTel introduced 2 Way Messaging in the U.s. and we're the #]
messaging choice of the F ortune ] 000.
SkyTel's "2Way Messaging" systems allows for the instantaneous delivery of text messages
anywhere on their network.
SkyTel's nationwide network is used by private professionals, emergency service agencies
and multiple governmental agencies including the Federal Government. SkyTel is endorsed by the
United States Homeland Security agency.
SkyTel owns a nationwide network of tower transmitters, satellites and receiver towers all
centralized around their National Operating Center (herein referred to as the NOC) located in
. JaCKson', MississijJjJCTlie process fot semling-andreceivingmessagesisverysimple: ..... _-...... _.-.....
User types message on his/her pager and presses send;
Message is sent to a local transmitter tower;
Transmitter tower sends message to the National Operations Center (NOC) III Jackson,
Mississippi;
The server at the NOC saves a copy of the message (by "PIN" number
4
);
The NOC sends the message to a satellite;
4 A PIN is a personal identification number assigned to each SkyTel pager. This is required
for the pager to be able to send and receive messages on the SkyTelnationwide network. These
numbers are unique.
12-
The satellite locates the recipient's pager by the unique "PIN" number;
The satellite sends the message to a receiver tower in a zone near the recipient;
Receiver tower sends the message to the recipient;
Recipient's pager sends a message back to the NOe to confinn message was delivered safely
SkyTel's main sever located at the NOe keeps a daily log file of messages as they enter the
NOe and leave the NOes .This log file keeps a chronological list of all the messages as enter the
Noe from all over the country. This log file is saved for purposes of system analysis by SkyTel. As
seen by the attached declaration (attached as People's Motion Exhibit 1) the log file is kept as a
regular business practice in the ordinary course of business at SkyTel.
As mentioned, this log file is kept for the purposes of system analysis by SkyTeL The
company uses the data from this log file to make crucial assessments regarding the needs of their
network and to audit the quality of their services provided. This log file and all the data contained
within is an essential and critical tool that SkTel uses to run its daily business.
SkyTei can access this log file and retrieve exact and full digital copies of the text messages.
e identified b the unique "PIN" number of the individual pager. SkyTel has a keeper of
records that specializes in the retrieval of text messages from the log file to
court orders.
Mr. Stephen Oshinsky, current keeper of the records, is a computer programmer and also the
director of SkyTel's business operations. The method of retrieving text messages from the SkyTel is
described step by step in his business record declaration (attached People's Motion Exhibit 1). It is a
very simple procedure. Mr. Oshinsky (who also happens to have designed the system architecture for
this software) accessed the log file. Mr. Oshinsky then retrieved the messages by their "PIN" number
and the date range requested. Mr. Oshinsky then made exact digital copies of those messages and sent
5 The NOC operates much like a modern digital switchboard routing all messages in and then out to their
ultimate destination. In fact, the log file shows each message twice as it "enters" the NOC and "leaves" the NOC.
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them to an Excel spreadsheet for printing and viewing. Mr. Oshinsky then personally made copies of
those Excel spreadsheets on compact discs and then labeled the compact discs with his own
handwriting. These compact discs
6
were delivered to the Wayne County Prosecutor's Office. The
compact discs provided (and marked for purposes of authentication) are exact digital copies of the
text messages found on the SkyTel's server at the NOC.
As mentioned the discs from SkyTel contain Excel spreadsheets (organized by user PIN
number). They are attached in People's Motion Exhibit #2 in their raw format and EXACTLY as
received from SkyTel. You will see screenshots of particular messages and/or messages strings
inserted into this brief. The user's names have been placed in parenthesis for the Court's benefit.
Screenshots are pictures taken with the computer and pasted into this Microsoft Word file.
The text message summaries are also individually Bates stamped AND assigned a unique
identification number for the convenience of all parties. Should the Court (or either palty for that
matter) wish to compare a screenshot to the Excel spreadsheet they need only look by PIN number,
date and time and they will see the exact message content as it appears in this brief
7
.
A palty can also look up messages by the Bates stamp number and/or the unique identification
number. They are multiple ways to find any message.
Also, messages between .two SkyTel customers are contained in both their records. For
example, any messages sent between defendant Kilpatrick and defendant Beatty can be found by
looking in defendant Kilpatrick's PIN number Excel spreadsheet AND/OR by looking in defendant
Beatty's PIN number spreadsheet (this is cross-authentication). In some instances (where you see one
defendant sending a text message to multiple persons) you can cross-authenticate the text in three,
four, or five separate sets of records.
To remain consistent with the ruling of the Third Circuit
Court, People's Motion Exhibit #2 remains under seal.
People's Motion Exhibit #2 was provided to attorneys for both
defendants in July of2008. (This note typed 10/23108).
6 Attached is People's Motion Exhibit 2, a DVD containing digital copies of all seven compact discs that have
sent to the WCPO from SkyTel (a copy has also been provided to defense counsel for both defendants.
7 The PIN number spreadsheets are identified by individual PIN numbers. One can look in the senders or
recipients spreadsheet for a message.
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None of the messages have been altered. Besides being highly unethical and unprofessional
this would also be extremely foolhardy, simple to catch and defy logic. Mr. Oshinsky will testify that
the Excel spreadsheets are exact duplicates of what appears in the log file at SkyTel and what he
provided to the People. While under Oath, he can compare and double-check any message upon
request from the Court or either party. Is the defense suggesting that Mr. Oshinsky will perj ure
himself in front of the nation during defendant Kilpatrick's and defendant's Beatty's probable cause
hearing on perjury charges?
Attached to this motion are exact digital copies of the exact records that Mr. Oshinsky
provided to the People (People's Motion Exhibit #2). Also, as the court is well aware there has been
previous litigation involving defendant Kilpatrick, defendant Beatty, the City of Detroit, various
media outlets and SkyTeJ. There is a pending civil matter in Federal Court as well. SkyTel has
provided copies of the text messages to the U.S. District Court. Defendant Kilpatrick and defendant
Beatty have filed motions to intervene in the some of those cases. These other Courts have copies of
these text messages and/or orders to preserve them. This was in advance to any criminal prosecution.
The undignified manner in which it is suggested that any piece of evidence has been altered is
i ~ s ~ - i t i n g to say'the'least itiidhardly worthy of any response:-Hov,Ta15ouf a very simple rhetorical
question; is the defense suggesting that the People would alter these messages knowing_ full well that
other cOUlis of justice ALREADY possessed copies of them and had them BEFORE the People did?
From 2002 to 2006 the City of Detroit Executive Staff of defendant Kilpatrick leased several
"2Way paging" devices and the "PIN" numbers necessary to send and receive text messages
nationwide.
As mentioned, each pager leased to the City of Detroit is issued a personal identification
number (PIN). This is the "phone number" of the pager. There are not duplicates. Each pager has its
own unique "PIN" number which identifies the device on the SkyTel network so the pager can send
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and receive messages.
When a person first receives his or her pager from SkyTel one sets it up similar to a cell
phone. For example, the user adds an address book of co-workers' "PIN" numbers and personalizes
their pager by entering their name on the pager so that digital signature will be automatically sent
with any message sent from the pager. SkyTel describes this signature as follows:
By entering your name into the Signature option of the device, your
name will automatically be appended to each message. You won't have
to sign your name to each message, and the reCipient will always know
who sent the message.
This allows a pager user to recognize who a message is coming from. In the example on the
next page will see a series of a text messages between defendants Kilpatrick and Beatty on May 6
th
,
2003. The message string starts with a text by defendant Beatty and the text reflects her digital
signature. Defendant Kilpatrick replies (see bolded portion). Defendant Kilpatrick's reply is digitally
signed "THE MAYOR." As you can see the reply also contains portion of the original message. The
easiest way to follow the "flow" of these messages is to remember a couple basic facts about how
they appear.
The first words that appear are the message; followed by a digital signature.
b. If you are viewing a reply messages:
A reply starts with the digital signature of the person replying. On 5/6/03 at 20:44:49
you will see a reply. It starts out "Reply from THE MAYOR", then you will see the
message sent, then you will see the time stamp of the reply and then finally a portion
of the original message.
8 Most messages in the record are a series of reply strings similar to how the average person
uses e-mail on a daily basis.
-16-
IV. Business Records Exception
MRE 902 allows for the self-authentication of many types of items. MRE 902 (11) allows for
the original or duplicate of a record, whether domestic or foreign, of regularly conducted business
_.actmty.lhat wouJdbc ,ulder MRE 803 (6) if accompanied by a written declaration under
oath by its custodian or other qualified person certifying that:
A) The record was made at or near the time of the occunence of the matters set forth by, or
from the information transmitted by a person with knowledge of those matters;
B) The record was kept in the course regularly conducted business activity, and
C) It was a regular practice of the business activity to make the record.
After a review of Mr. Stephen Oshinsky's declaration from SkyTel (People's Motion Exhibit
1) it is clear that all the text messages meet the requirements laid out and are self-authenticating as a
"business record."
This motion to admit with brief in support serves as additional written notice that the People
-17-
intend to offer the text messages at the Preliminary Examination under this rule (as well as several
others area of law already discussed). The declaration of Mr. Oshinsky is attached and has been
provided to the adverse parties for their inspection.
As previously mentioned, all seven compact discs with the data in its original fonnat have
been provided to the parties with this motion (see People's Motion Exhibit 2).
It is of note that in this unique circumstance the "keeper of records" also happens to be a
computer programmer that is aware of and designed several aspects of the SkyTel system and
software. Mr. Oshinsky is certainly more qualified as a "records keeper" than the case law requires.
The Court in United States vs. Kassimu, 188 Fed.Appx. 264, (C.A.5 (La.) held:
A business record can be authenticated by testimony of either the
"custodian" of the record or an"other qualified witness."
FED.R.EVlD. 803(6). An"other qualified witness" is defined as
"one whocan explain the record keeping system of the
organizationand vouch that the requirements of Rule 03(6) are
met." United States v. !redia, 866 F.2d1J4, 120 (5th Cir.1989).
There is no requirement,as Kassimu contends, that the witness
laying the foundation for the admissibility of computer records"be
the one who entered the data into the computer or be able to attest
personally to its accuracy."United States v. Hutson, 821 F.2d
1015, 1019-20 (5th Cir.1987). Postal Inspector Brandon Tullier's
'. testimony sausfIed .. JIg authentication ICquifCffie!lt b@caus he
explained his familiarity with the procedure by whlchihe records'
were generatedand established the requirements of FED.R.EVlD.
803(6). Thus, Kassimu has failed to show that the district court
abused its discretion in admitting the postal records. See United
States v. Wells, 262 F.3d 455, 459 (5th Cir.2001).
The Comt in Kassimu clearly lays out a lower standard that we see in the matter at hand. Mr.
Oshinsky is able to and will testify to the record keeping process used by SkyTel AND he will be able
to personally attest to the accuracy of the records since he personally retrieved them.
V. Personal Identification Numbers (PIN Numbers) Authenticate the Messages
As outlined above, each SkyTel pager is assigned a unique Personal Identification Number
(PIN). The PIN number is similar to a phone number assigned to a telephone and reflects the usage
-18-
of that particular device. The City of Detroit, during the time period in which they contracted with
SkyTel for the paging services, maintained a list of the PIN numbers and to whom they were
assigned, and this list was also sent to SkyTel. After the contract with SkyTel was terminated, the list
was "purged" from City records. Patricia Peoples worked for the City of Detroit in the Mayor's
Office during the time period in which the city contracted with SkyTel. Part of her duties and
responsibilities in the Mayor's Office was to coordinate details of the SkyTel account. She
maintained the city roster of PIN numbers and had communication with SkyTel representatives about
necessary changes to the account. See an example of a communication between Ms. Peoples and
defendant Beatty regarding replacing equipment. People's Motion Exhibit #3.
According to Patricia Peoples there are no records of the SkyTel PIN numbers in the Mayor's
office in the City of Detroit (people's Motion Exhibit 4).
Fortunately, SkyTel maintained a roster of the PIN's for the City of Detroit account (people's
Motion Exhibit 5.) This roster at the very least identifies the name of the office in the city to which
the pager is assigned. In the vast majority of the pagers from SkyTel, the SkyTel roster identifies the
holder or user of the device. This is true for defendant Beatty. All of the PIN numbers assigned to
her from the SkyTel account are listed in the roster by her name. Every text message sent or received
by defendant Beatty can be traced by her PIN number listed in the SkyTel roster.
-19-
The SkyTel roster authenticates every message defendant Beatty ever sent or received from
her SkyTel pager. Clearly the fact that Beatty's PIN numbers are registered in this roster means that a
fact-finder could reasonably conclude that the evidence is what the People claim it to be, namely that
they are Christine Beatty's text messages.
Defendant Kilpatrick's two PIN numbers are not specifically listed as assigned to an
individual. In fact, of the two PIN numbers that Kilpatrick used during the duration of the SkyTel
contract with the City of Detroit, neither one is listed to be assigned. They are identified as registered
with the City of Detroit Mayor's Office, but not to a particular person.
Defendant Kilpatrick's PIN number changed on July 21, 2003 from "8884677164" to
"8774813934". An examination of his text messages from that day clearly show that he is concerned
about keeping his contact information with his new number, and making certain that his frequent
contacts have his new PIN so that he can be contacted (People's Motion Exhibit 6):
Date Time Sender ANI/IP Reel lent Messa e 10
Reply from THE MAYOR Is NEED TO KEEP
MY CONTACTS, (07/21 02:13PM EOT) to I'm
7/2112003 13:13:59 8774813934 (Kwame KHpatrick) 4789145 (Usa Stokes) on hold with customer svc. Be over in a minute 558229
FWd from Lisa Stokes you will keep your
contacts ... lt,s been changed. your new
number is 8 u now have to
....
.,"-,
..-
-".-""-.... --',
,rlt h t
.
.
"--'-
7/21/2003 13:54:25 4789145 (Usa Stokes) 8774813934 (Kwame Kilpatrick) come over. (07/21 02:54PM EDT) 558230
In this exchange Kilpatrick is texting an employee of his office, Lisa Stokes, about his new PIN
number and expressing his desire to keep his contact information. Stokes texts his new PIN number
in her reply and instructs him how to maintain his contact information. She also offers to come to his
office to assist him.(Lisa Stokes is also assigned a City of Detroit SkyTe1 pager, in fact, her PIN
number is listed as registered to her on the SkyTel roster (thus proving cross authentication that she is
texting the defendant).
Next Defendant Kilpatrick sends out the same text message to eight people indicating that he
has a new PIN number (see next two pages People's Motion Exhibit 7):
-20-
- --- .. "
'--'--'
I(Red"cte,d) Cheeks
-21-
VERSIDN:2.1
VERSION:2.1
FN:Kilpatrick Kwarne
Office TITLE:Mayor
2
I' I.
VERSION:2.1
FN:Kilpatrick Kwarne
TITLE:Mayor
BEGIN:VCARD VERSION:2.1
N:Kilpatrick;Kwame FN:Kilpatrick Kwame
Office TITLE:Mayor
I BE,GIN:V'CAHD VERSION:2.1
IN:Killoatri<:k:IKwalT,e FN:Kilpatrick Kwame
1..,'0<0.".",-.,< tlff! ... o TITI
N:Kilpatrick;Kwame FN:Kilpatrick Kwame
Office TITLE:Mayor
VERSION:2.1
Kwame FN:Kilpatrick Kwame
Office TITLE:Mayor
VERSION:2.1
IN:Killpatl'ick;Kv,arrle FN:Kilpatrick Kwame
Office TITLE:Mayor
N:Kilpatrlck;Kwame FN:Kilpatrick Kwame
Office TITLE:Mayor
2
This text message includes not only the defendant's new pager PIN, but it includes the name
of the user, the defendant, his title, his work address including his suite number, and his business fax
and telephone numbers. Why would someone other than the Mayor send out a mass text message
-22-
with detailed lt1formaticiri on how to contact him if the infonnation was not accurate? This message
on its face authenticates defendant Kilpatrick's PIN number. From this message alone, a reasonable
fact-finder could conclude that this particular PIN belongs to defendant Kilpatrick, therefore
establishing that it is what the People claim it is, namely the defendant's text message.
The defendant's authentication of his PIN number does not stop with this message. Not seven
minutes after defendant Kilpatrick sent out the notification of his new PIN to those eight people, his
wife
9
, Carlita Kilpatrick, sends him a text fi'om her own SkyTel pager (Carlita Kilpatrick has her own
City financed SkyTel pager). Her PIN is also registered to her and listed on the SkyTel roster as
"FIRST LADY" (Texts below are People's Motion Exhibit 8):

9 For several reasons there is no spousal privilege here. The most obvious being the City of
Detroit's "Directive for the Use of the City'S Electronic Communications System" dated June 26
th
,
2000 and signed by defendant Kilpatrick. The Directive states (emphasis added):
Since electronic communications are often deemed under the law the be public records, all
authorized users are put on notice the law provides that, in certain instances, electronic
communications transmitted, or stored, via any electronic system are subject to disclosure
and litigation. Therefore, authorized users of the City's electronic communications system
must bear in mind, that whenever creating and sending an electronic communication, they are
almost always creating a public record which is subject to disclosure whether the
communication is routine or intended to be confidential.
-23-
In this text message exchange from defendant Kilpatrick and his wife not only does he tell
Carlita Kilpatrick what his new PIN is, but he also identifies his old PIN when he tells her which PIN
to delete from her SkyTel pager. This one admission from the defendant establishes both PIN's
assigned to defendant Kilpatrick. Could a fact-finder reasonable conclude that a husband would
correctly identify to his wife the numbers at which he could be reached? The simple answer is yes.
VI. Defendants' admissions authenticate the text messages
On October \9, 2007, the Detroit Free Press (DFP) filed a Freedom of Information Act
(FOIA) request with the City of Detroit. In its request, the DFP asked the City to produce the entire
settlement agreement of the Brown and Nelthorpe vs Kilpatrick and City of Detroit and the Harris
vs. Kilpatrick and the City of Detroit lawsuits (People's Motion Exhibit 9). The City initially denied
the request, and then granted, in part, a second FOIA request from the newspaper. As a result of the
City'S failure to completely comply with the requested FOIA material, DFP filed a lawsuit in Wayne
County Circuit Court against the City of Detroit seeking the information that the City had failed or
refused to disclose. In addition to the settlement documents, the DFP is seeking the disclosure of
SkyleLtexLmessages th.1it "Yt;!e Stefunj jn his MQ1iQn for additional
attorney fees.
The text messages cited in the Stefani motion not only establish a romantic and sexual
relationship between Kilpatrick and Beatty, but they also depict how both defendants perjured
themselves in their trial testimony about the circumstances surrounding the firing of Gary Brown. It
was the revelation that Stefani had acquired the defendants' text messages which was the catalyst that
drove the City'S effort to settle the lawsuits. The entire settlement process was orchestrated to protect
the interests of the Mayor and Christine Beatty. For those reasons the text messages have been at the
forefront of the issues before the court in the FOIA case. The case is assigned to Hon. Robert
-24-
Columbo, Jr. In fact, one of the first actions the court took was to enter an injunction requiring
SkyTel to preserve the text messages.
Once they became aware that the text messages were the core of the FOIA lawsuit, Christine
Beatty and K warne Kilpatrick sought to intervene in that case (even though neither defendant was
involved in the case, both voluntarily filed motions to intervene). It was once again an attempt to
prevent the text messages from becoming public. The court granted their request, and allowed both
defendants to intervene, thus making both defendants parties to that action.
Defendant Kilpatrick, in the FOIA lawsuit, has filed a number of pleadings through his
attorneys. (In fact, Kilpatrick's attorneys in the FOIA lawsuit are the same attorneys that represent
him in the criminal case.) In several of Kilpatrick's pleadings, he admits to possessing and using a
SkyTel pager. More importantly, he confesses to sending the text messages that were used in the
Sefani motion which was the reason for the City to settle the Brown case. In his Combined Objection
and Memorandum of Law Regarding Detroit Free Press, INC and Detroit News, INC's Motion For
Disclosure of SkyTel Records, Stefani Attorney Fee Motion, and Stefani Emails Kilpatrick admits
that "There is no dispute that Mayor Kilpatrick was a user of the Bell two-way pager service
that was used to transmit the communications at issue (People's Motion Exhibit #10). Here
defendant having and-using a but also sending tne texC-
messages -Wfilcn are at !fie heart oCffie orIlleErown
messages at issue in the case at bar. Thus, defendant Kilpatrick has already admitted that he sent the
text message which the People intend to introduce at the preliminary exam.
His admissions do not stop there. In his Brief in Support of Motion for Protective Order and
Stay of Proceedings by Kwame Kilpatrick, Kilpatrick once again admits that he used his SkyTel
pager to send the messages at issue in the FOIA lawsuit. Brief, p3. People's Motion Exhibit #11.
Furthermore, he goes on to admit to using the SkyTel pager to communicate with his staff on a
-25-
regular basis: "Kilpatrick and his staff, with whom he regularly communicated via text messages
were and are engaged in the business of running the City of Detroit.". Brief, p 6 People's Motion
Exhibit #11. He even attempts to claim that there was an expectation of privacy in the text messages
that he sent and received: "It is perfectly reasonable for Defendant Kilpatrick and those with
whom he communicated via text message to expect that their messages would remain private.
These communications are undoubtedly protected by the Fourth Amendment, and hence
cannot be obtained absent a search warrant based on probable cause." Brief, p.6 People's
Motion Exhibit #11. Clearly, defenqant Kilpatrick cannot now disavow ownership of the text
messages at issue in this case, since he has already admitted to sending them and further asserting that
they are protected by the Fourth Amendment.
Similarly, defendant Beatty has also made a number of admissions in her FOIA pleadings. In
Christine Beatty's Brief in Support of Application to Intervene, through her attorney, Mayer
Morganroth, the same attorney that represents her in the case at bar, she admits to regularly using a
SkyTel pager to communicate with defendant Kilpatrick and others in the adrninistration. In the first
page of the Brief, People's Motion Exhibit #12 (in fact the first paragraph), she admits to having and
using a pager. On page four of the Brief, People's Motion Exlzibit #12 Beatty states "Christine
Beatty was Mayer(sic)Kilpatrick's Chief of Staff, a n i ~ h e communicated regularly with the
Mayor and the rest of the administration via text messages in furtherance of the
administmtion's charge to run the City of Detroit. The requested communications will
undoubtedly include communications that include suggestions, advice, recommendations, and
opinions between the Mayor and his staff." It could not be more clear frorn this statement that
defendant Beatty has admitted to sending and receiving text messages to and from defendant
Kilpatrick on a regular basis. This admission alone satisfies any authentication requirements for the
preliminary examination.
-26-
In addition to her admissions, Beatty also claims that her text messages are protected
communications. " ... Ms. Beatty had an expectation that her text messages would be kept
private." Brief, p3, People's Motion Exhibit #12. Once again this is an admission that she used the
SkyTel pager to communicate and expected that her messages would be private, even though she
used a city-paid pager to send them. In language similar to defendant Kilpatrick, Beatty claims that
"It is perfectly reasonable for Christine Beatty to expect that her messages would remain
private. These communications are undoubtedly protected by the Fourth Amendment, and
hence cannot be obtained absent a search warrant based on probable cause." Brief, p. 4,
People's Motion Exhibit #12. Both defendants are acknowledging in their pleading that they did in
fact use the SkyTel pagers to communicate with each other to send the very messages at issue in the
present case. However, their assertions in the FOIA lawsuit that the text messages are not admissible
absent a search warrant are "too clever by half". Based on their own admissions, if the messages
were obtained by search warrant, then they would be admissible against them. In the present case,
one of the methods used by the People to obtain the text messages was a valid search warrant issued
by a Wayne County Circuit Judge. Therefore, by their own admissions the text messages are
authentic and admissible.
In general, pleadings filed on a in advi! case-are ad-rillSsiTeagairist tlle'cliem:--
in his criminal trial, pursuant to MRE 801(d)(2)(D). MRE 801 provides the definition of hearsay, and
subsection (d)(2)(D) excludes from that definition statements offered against a party that were made
by the party's agent concerning a matter within the scope of the agency, made during the existence of
the relationship. The pleadings filed by an attorney on behalf of a client fit this definition, and
therefore cannot be excluded on the basis of hearsay. On this point, commentators are unanimous,
"pleadings shown to have been prepared or filed by counsel employed by the party are prima facie
regarded as authorized by the client and are entitled to be received as admissions" see McCormick on
-27-
Evidence, 257 (5
th
Ed. 1999).
Williams v. Union Carbide, 790 F.2d 552 (CA6, 1986) is closely on point. There, the
plaintiff had filed two lawsuits seeking compensation for injuries incurred while working in Union
Carbide facilities. In the first, he claimed he had been injured in an acetylene explosion. Jd at 554.
In the second, he maintained that those same injuries had been caused by exposure to toxic
chemicals. Jd at 553-54. Union Carbide sought to use the plaintiffs pleadings in the first case to
counter his allegations in the second. Although the trial court denied this request because the
"admissions" had been made by the attorney and not the plaintiff, the Sixth Circuit reversed and
remanded for a new trial, holding that the earlier pleading was a party admission because it was made
by the plaintiffs agent concerning a matter within his employment. Jd. at 555. As such, it was
admissible not only as impeachment, but also as substantive evidence under Federal Rules of
Evidence 80 I (d)(2)(D), because "statements made by an attorney concerning a matter within his
employment may be admissible against the party retaining the attorney." Jd. at 555-56. This includes
pleadings in an earlier case. Jd
Similarly, in Us. v. Amato, 356 F.3d 216 (CA2, 2004), statements made by defense counsel
in a letter to the court were admissible substantively, under 801(d)(2)(D), at the defendant's criminal
at 220:- The defendant --who was pendfng-othercfiarges--liaduse-d-intermeiliafiesnr
"deliver a message" to one of the witnesses in that case, and the g.overrunent then charged him with
witness tampering and moved to revoke his bail in the underlying case. ld at 218. The defense
attorney submitted a letter to the court, claiming that the defendant had used the intermediaries only
to ascertain the witness's address so that the defense investigator could interview him before trial. ld
But at trial, defense counsel asserted in cross-examining one of the intermediaries that the defendant
had not sought the witness's address. The trial court then allowed the letter to be introduced as a
party admission, and the Second Circuit affirmed, finding it "abundantly clear" that the letter was
-28-
admissible under FRE 80 1 (d)(2)(D) even though authored by the attomey. Id at 220.
Several Michigan cases support this precedent. In People v. McCray, 245 Mich. App. 631
(2001), for instance, the defendant had filed an alibi notice, butthen testified at trial that while he had
been present at the shooting, he was not involved in it. Id. at 636. The Court of Appeals upheld the
introduction of the alibi notice as a party admission. Id at 636-37. People v. Von Everett, 156 Mich.
App. 615 (1986), and People v. Malone, 180 Mich. App. 347 (1989), hold the same. In addition, our
Supreme Court indicated as early as 1944 that pleadings in an earlier case are properly admissible in
subsequent cases. See Himelson v. Galusz, 309 Mich. 512, 520 (1944) (civil defendant's answer in
divorce proceeding admissible in later breach-of-contract case).
Clearly the admissions by the defendants are admissible against them at the preliminary
examination. Moreover, these admissions actually authenticate the text messages. Both defendants
have admitted that they regularly used the SkyTel pagers to communicate with each other and with
others. These admissions prove the content of the text messages. MRE 1007 states in part: "Contents
of writings, recordings, or photographs may be proved by the testimony or deposition of the pmiy
against whom offered or by that parties written admissions," (emphasis added). MRE 1007
establishes the rule that the contents of a document can be proven by the admissions of a party
opponent. This clearly means that the text"niessagesTn l:liis case are autll.enricate-d by the admissions
of the defendants. Simply put, what better way for a fact-finder to determine that the evidence is
what the People claim it to be, then to have the defendants themselves tell us.
VII. Messages Authenticated by Other Events/Evidence
The text messages in question are also corroborated by outside events. External sources,
public events that have occurred, other witnesses, other evidence are all examples of ways that the
authenticity of a text message can be corroborated.
In the examples seen below there a multiple messages strings that are corroborated by
-29-
external, undeniable eVerttsandlor evidence ..
To begin, defendant Kilpatrick and defendant Beatty discuss events occurring in Washington,
D.C. at a restaurant called Ben's Chili Bowl that culminate into a romantic liaison. See the message
string on the next page (People's Motion Exhibit #13):
"',.
lime !)enOertAf'4I/1YJ t<eClplem Message IU
Reply from Christine Beatty is WE ARE AT BEN'S
CHILI BOWl. HIT ME WHEll YOU GUYS ARE
911512002 1 21.19 4679147 (Chnshne Beatty) 4677164 iKwame Kilpatrick) LEAVltlG (09115 02.21AM EDT) to 30-45MINS 52178.
Reply from THE MAYOR is HAVE YOU ORDEREO
YET? (09115 0222AM EoTI to WE ARE AT BEIIS
911512002 12241 4677164 (Kwame Kilpatrick) 4679147 (Christine Beatty) CHILI BOWl HIT ME WHEN YOU GUYS A 52178,
Reply from Christine Beatty is ORDERING NOW.
91'15/2002 1.2'.00 4679147 (Christine 8eaUyt 4677164 (Kwame K,lootrkkJ 09'15 02.24AM EDT) to HAVE YOU ORDERED YET? 52178!
Reply from THE MAYOR is GO AHEAD. (09/15
911512002 125.24 4677164 fKwame Kilpatrick) 4679147 (Christine Beattv) 0225AM EDT) to ORDERING NOW. 52179(
Reply from Christine Bealty is Are you all still oul?
9115.12002 2.29.17 4679147 (Christine Beatty) 4677,164 (Kwame KilE!trick} 0911503 2SAM EDT) to GO AHEAD 52179:
.I
Reply from THE MAYOR is YES. WILL BE BACK m
9{15!2002 23052 4677164 IKwame Kilpatrick) 4679147 (Christine ScaHill 35MItlS. lO9/1S 03 30AM EDT) 10 __ aU stH! out? 52179:
Reply from Christine Beany is I'U see you tomorroYJ.
(09115 03"32AM EDT) to YES. Will BE BACK IN
9/15/2002 2.3202 4679147 (Christine Beally) 4677164 IKwame Kilpatrick) 35MINS. 52'179!
Reply from THE tMYOR is tm, WHY? (09/15-
9/15/2002 2.33.57 4677164 IKwame Kilpatrick) 4679147 {Christine Bealtvl 03:33AM EOTlto!'l1 see you tOmOIlOW, 52179.
Reply from Christine Bealty IS I'm on my way to your
room now, but by tho time you get there I'll be
sleep and it will be Sam! {09/15 03:38AM EDT) to
, 9!15)2002 . 238.51 4679147 fChristUle Beall ... 1 4677164 {Kwame NO, WHY? 521791
Repty from THE MAYOR is I GOT SOMETHING FOR
;
4677164 (Kwame Kilpatrick)
YOU, (09.'15 03:42.A11i1 EDT) to I'm on my way to your
9f15i2002 24238 4679147 (Chostlne Beatty) room now. hut by the time yo
Reply from Christine Beatty is lOt. Is Ihlll 50? I'm in
.I
your room. Don't let Mike check it. Are you in
roule or 5till hanging? What do have for me?
(09f1S 03 46AM EDT) to I GOT SOMETHING FOR
9.115!200Z 24649 4679147 fChrislino Beatty) 4677164 fKwame Kilpatrick
1
YOU 52180-
-

--
g'ood head-this-moroing'and I"
" .. ,,,"-.
didn't know how to ask you to let me me do 11. I
!
have wanted to since Friday night when you
,
,
,
asked me at the club. 109115 09.'2AM EDT) to
i
911512002 84200 4679147 (Chrislirre Beatty) 4677164 Kilpatrick} 10mins. 51479.
I.
!
Reply from THE tAA YOR is Oemn. I just got out the
i
!
shower and looked at my 2way. NEXT TIME.
I
.I
JUST TELL ME TO SIT DOWN, SHUT UP. and 00
I
YOUR THING! I'm fucj(od up now! 109115 0949AM !
4677164JKwame Kilpatrick}
.
4679147 (Christine Beauv)
EDT) 10 1 feany wanted to gio-te you some good head
I
L"
9!15/2002 84928 tllis me 51479;
,
,
,
f
,
_W?! f_R '(" S.?" -, !I<'l_' -s" >!w_ .1:>:1 lI"r ',0., is;:: ." . L., I; .1 #Hr. Wi'J);m;>i'
Ben's Chili Bowl is a Washington, D.C. area landmark. As one can see on the next page, it is
quite a unique place.
-30-
In addition defendant Kilpatrick's calendar reflects that he was in Washington, D.C. that
week. There was also an expense report filed by defendant Kilpatrick for the time period that he was
in Washington, D.C. People's Motion Exhibit 14. This message is authenticated and corroborated by
events, places and undisputable facts occurring at the time the text message is sent.
In the next message string (People's Motion Exhibit 15 on the next page); defendant
Kilpatrick and defendant Beatty congratulate a staffer (Jamaine Dickens
1o
) on the birth of his child.
This message string clearly is corroborated by an outside circumstance, the birth of a child. In
addition, defendant Beatty and Mr. Dickens discuss a newspaper article regarding nepotism in the
Mayor's office. You will see how Mr. Dickens lists several family members and friends when talking
to defendant Kilpatrick and in response to the article. This clearly corroborates the authenticity of the
text-messages;--but for the that defendant Heatty .. tstalkmg to_ someone_ . .ahQJjLhis clPltML ..
family and friends. The message itself shows both persons have personal knowledge of defendant
Kilpatrick's inner circle. Of course there is also the obvious connection that the events being discussed
III these text messages are simultaneously playing out III the daily newspapers.
10 Mr. lamaine's Dickens pager (and several other people's) address is redacted for this motion. All
non-SkyTel e-mail addresses, pager numbers are redacted as the possibility remains that those users still use
those accounts. As indicated in the motion, SkyTel no longer contracts pagers to the City of Detroit
-31-
I
I
1
1:
i
I
!
I
I

,Date
12
1227
9 18 (Janane Dickens)
920
Ja'Tlane Dickens)
I 928
I,
r 1401 (Janane Di<k1lS)
'7:\:-,-,,-, .. ,.7--:-- .. -..,.
In this example, defendant Kilpatrick offers congratulations to another staffer (Derrick Miller)
on his wedding anniversary. People's Motion Exhibit 16.
184
1102 167 IDerek Miller) 164 IKwame Kiloalrkkl
In the next example, defendant Kilpatrick sent a text message to Derrick Miller about a
shooting incident outside of the Detroit Auto Show at Cobo Hall (see People's Motion Exhibit 17 on
next page),
-32-
1110.120041 21 50: 3934 fKwame Kfloalrickl
In another incident, Derrick Miller texts defendant Kilpatrick, defendant Beatty and several
others as he learns that "The Monument to Joe Louis" (a famous statue in tribute to boxing legend Joe
Louis) was defaced with white paint on February 23
rd
, 2004. People's Motion Exhibit 18.
Again, Derrick Miller will authenticate this message by his testimony, but one can also look to
media coverage of the incident to corroborate the date and time further authenticating the message.
The monument was defaced in the early morning hours of February 23
rd
, 2003 (see attached news
article from USA Today, People's Motion Exhibit 19).
The Court can look to a message between Ruth Carter, Detroit Corporation Counsel, and
-33-
defendant Kilpatrick for more examples of messages corroborated by outside sources.
In this message Ms. Carter (now Judge Carter) text messages defendant Kilpatrick to inform
him that the Wayne County Prosecutor's Office has decided to deny a criminal warrant request
against a City of Detroit trolley driver that struck and killed a pedestrian while operating a city
trolley. People's Motion Exhibit 20.
See the attached memorandum from the Wayne County Prosecutor's Office corroborating this
message. People's Motion Exhibit 21.The memo was released on May 15
th
, 2003 by the Wayne
County Prosecutor's Office; that same day, Judge Carter is texting defendant Kilpatrick the news.
On December 9
th
, 2003 Defendant Beatty gave a deposition (attached People's Motion
Exhibit 22) in the Brown vs. City of Detroit lawsuit, No. 03-317557. Defendant Beatty notified (via
text) defendant Kilpatrick and several others that she would be "unavailable for about four hours."
People's Motion Exhibit 23.
Note that defendant Beatty sends this message at 2:28 p.m. The exhibit reflects her
transcribed testimony ended at 7:49 p.m. Later, defendant Kilpatrick instructs her to "leave" after she
had previously told him that she is still in the deposition. Also part of People's Motion Exhibit 23.
-34-
The Court can look to defendant Kilpatrick's own personal calendar I I for additional
corroboration of text messages. For example, on July 1
st
, 2003 defendant Kilpatrick was text
messaging with Jamaine Dickens about a "skit" and a "video" filming for an event with the musician,
Eminem. People's Motion Exhibit 24.
Date Time SenderjANIIIP) Recipient Message Bates Nu
REDACTED Paul Rosenberg said you
agreed to do some sort of skit for the
concert. Are you familiar? Jamaine
711/2003 18:49:15 (Jamaine Dickens) 4677164JKwame KilpalrtclQ Dickens (07/01 07:49PM EDT) T467109
Reply from THE MAYOR is Yes. A video
before Em comes on about him doing a
show in Detroit. 10 REDACTED Paul
711/2003 18:51:17 4677164 (Kwame Kilpalrick) (Jamaine Dickens) Rosenberg said y T467111
Defendant Kilpatrick's own personal calendar reflects the following entry about Eminem for
later that week (People's Motion Exhibit 25):
So If ,. 1'\' t r $
I l- ,
, , @n u

Ea"Y
6:00 AM
7,00 AM
':'.l.,. i
Thursday, July 10 2003

9:00 AM
10:00 AM
(10:00 AM -11:00 AM) Eminen'llntroducllon Taping (Mayor's Conference Room) Con1act: Jamaine
Dc, .. __ .... _ .. _____ . __________ --------" ----------- -----.- --- ---. --.. -..
In another example from defendant Kilpatrick's personal calendar, defendant Kilpatrick is text
messaging with Ms efendant Kilpatrick expresses a strong desire to have a romantic
liaison with her at Ford Field stating in reply to a text message from . See (People's
Motion Exhibit 26):
Oate Time Sender(ANIIIP) Recipient MessaQe Bates Nu
Reply from THE MAYOR Is You too! I was
about to jump your bones in Ford Field!
---
: ".; ,ftl ,J
lOl to REDACTED RE: Just have 2 say-
2/4/2003 12:42:08 4677164 (Kwame once gain, T145959
11 Defendant Kilpatrick's calendar was provided to the Wayne County Prosecutor's Office by the
City of Detroit.
-35-
10
653133
653135
ID
195745
As you can see, defendant Kilpatrick's personal calendar (see next page People's Motion
Exhibit 27) shows hewas at Ford Field that day at II a.m.
i:,,,"nu"':1 I"
"
..
"
'"
"
:1 16 11 20 )1 21
"
,.
" "
.,
"
1'32'U2Sl1Z$ Tuesdav, February04
2003
Early
6:00AM
7:00 AM

. . ......... : .....................
8:00AM
f1I../t1 tK-(I.. '.f
nf/t"lhl(, I c.&u..- t/l).fJl6-rrt-
9:00 AM
(10:00 AM .10:30 AM) Hiram Jackson & Derrick Miller (Mayor"s OffLce)Contac\: Hiram Jackson, (
10:00 AM
.... -- -- ................. --' ........ --........ . ..... --.-.
11:00AM
(11:00 AM 12:00 PM) Detroit Football Classic Press Conf. (Ford G, meet on the Adams
St. Concourse outside the Paradise Dell by 10:30am)
Dana ................................ 'C . ' .......................
............ fltt tim t
J
t:,11, .

Here defendant Kilpatrick is text messaging Ms .. '
__ 'w' and Ms. the
defendant mentions that he is "On a plane from Houston." His personal calendar reflects
24'h, 2003 he was in Houston, TX for the National Conference of Black Mayors (see attached
People's Motion Exhibit 28). Also see a receipt from Joan Anderson Travel SerVice, Inc. for
The text message below confirms this as well. See People's.Motion Exhibit 30 on next page.
I Date Time Sender(ANI/IP) Recipient Message Bates Nu ID
I Reply from THE MAYOR is I am on a plane from
I
----]
Houston. I'll try this evening. 10
!
4677164 (Kwame Kilpatrick) 412512003 15:25:00
__ _
REDACTED.Re: -html--div style='b T156176 205961
'; ...., .." ,;e','
Reply from THE MAYOR is On a plane leaving
. .I
Houston. How are u? to REDACTED Hey You
412512003 15:26:07 4677164 (Kwame Kilpatrick) it's been a while, jus T156176 205961
12 This receipt was provided by the City of Detroit to the Wayne County Prosecutor's Office.
36
VIII. The Text Messages are Self Authenticating by Distinctive Characteristics,
Internal Patterns, Content, etc.
All of the text messages sought to be admitted are corroborated by many di fferent approaches.
Whether it is as a business record, self-authenticating, authenticating by outside sources or
authenticating by appearance, message content or distinctive characteristics they have strong evidence
of corroboration no matter how one examines them. See MRE 901(b)(4) and as argued in Section II
Authentication). In addition, the messages are assigned unique PIN numbers and are digitally signed
by the sender, but there is more. Focusing on just the messages alone show examples of how the
message are self-authenticating. In addition, the content of said messages contain such distinct
characteristics, patterns and are so unique that, by content alone, they are self-authenticating. Had
anyone received any of these messages by mistake there certainly would have been repercussions if
not a simple phone call to the customer service department at SkyTel.
Here defendant Kilpatrick receives two messages very close to one another with notes from
two women, defendant Beatty and Motion Exhibit 31.
i i
Person #3
I
YOU SEE HOW I WAS FEELING I IT
HORRIBLEI THAT FIRST MEAL
RIGHT! (07/0911:13PM EDT) to
My stomach is torn up! MA'fOR ...
REDACTED I just drove by I just drove by
k seasons and got goose bumps! I can
Defendant Kilpatrick also receives more messages from a woman, this time from
(see People's Motion Exhibit 32 on next page).
-37-
IR<',,",rTC'" We can-it'll be a little messy.
How can Defendant Kilpatrick claim he received any message by error, but replies and
discusses "rescheduling" a romantic liaison? Simply put, he cannot.
Wouldn't the mayor of a major American city complain to someone if he was receiving these
types of messages by accident? These messages are celtainly self-authenticating by content and add
reliability to any other messages with defendant Kilpatrick's PIN number.
The firing of Gary Brown was the incident that started the civil lawsuit between Mr. Brown
and the City of Detroit. Text messages between defendant Beatty and defendant Kilpatrick show the
discussions regarding Mr. Brown's firing. These messages are so unique it is implausible to suggest
that they were sent by anybody but defendant Beatty and defendant Kilpatrick. The following
message string reflects this "insider's knowledge" of Mr. Brown's firing. People's Motion Exhibit
33,
Here is yet another example of the defendants talking about matters that contain "distinctive
-38-
characteristics" and "internal patterns" that make them easily self-authenticated. The coy way in which the
defendants talk about their romance and trips (especially when taken in context with other messages of the
sort) creates a pattern of distinctive qualities found in their messages. People's Motion Exhibit 34.
i i
Looking at another text message conversation between defendant Kilpatrick, Judge Ruth
Carter and Jamaine Dickens, defendant Kilpatrick "dresses down" Dickens for accepting a phone call
from Michael Stefani. People's Motion Exhibit 35. This is, yet again, another example of how the
message content corroborates authenticity.
Whenever defendant Kilpatrick and defendant Beatty engage in "text sex" their messages and their
content obviously speak to authenticating the sender and receiver. The messages and replies can often go
on for multiple messages and days. In between those "text sex" messages one will find other messages
relating to defendant Kilpatrick and defendant Beatty's daily affairs. As mentioned above, these messages
documenting their affair create a whole series of distinctive messages with internal patterns that are self-
-39-
authenticating. See People's Motion Exhibit 36 below and continuing on the next two pages.
Oate Time Sender(ANIIIP) RecIl!lent Messa e Bates Nu 10
Reply from Christine Beatty Is Baby, if I was
with you right now, I would sit you down. get
on my knees in front of you. I would pull
myself up to you and gently suck on your ear
lobe and come around kiss you so
11!2212003 22:33:17 BeattY) 8774813934 (Kwame Kilpatrick) Ipassionatelv, then ... (11/22 11:33PM EST) t T349412 535440
Reply from THE MAYOR is PLEASE TELL ME
MORE! (11/22 11:35PM EST) to Baby, if i was
11f22/20Q3 22:35:00 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) with you right now, I would sit you T349413 535441
Reply from Christine Beatty is Then I would take
off your shirt and kiss you down your neck and
suck on your nipples until they get hard. After
that I would take off your pants and lay you
down on the bed. Then .. (11/2211:40PMEST)
11122/2003 22:40:04 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) to PLEASE TELL ME M T349415 535443
Reply from THE MAYOR is MY SHIT IS SO HARD
ALREADY. (11/22 11 :41PM EST) to Then! would
11/22/2003 22:41:32 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beaf1y) take off your shirt and kiss you down T349416 535444
Reply from Christine Beatty is Then, I would climb
on top of you and start kissing you on the top
of your head, move down to your face, then
gently move to your stomach and gently lick
around your belly button! Then .. (11/22
11122/2003 22:45:04 8774615902 (Christine 8774813934JKwame Kilp.atrlck} 11:45PM ESDJo MY SHIT IS S T349418 535446
Reply from THE MAYOR is DAMN .. I LOVE THIS!
(11/22 11 :46PM EST) to Then, ! would climb on
11/22/2003 22:46:35 8774813934 (Kwame Kilpi;ltrick). 877 4615902jChristine Bea.IM. tQP.9f yOU and start kissin T349419 535447
Reply from Christine Beatty is Then, I would mOVe
my way down to your dick and gently slide it
into my mouth and move it in and out until you
feel like you're inside of me and you're asking
to be in mel Then (11/22 11:50PM EST) 10
11/:?2flQQ3 ??:50:,?3 8774615902 Ir.hristine 8eatM 8774813934 (Kwame Kiloatrick) DAMN ... I LOVE THIS I T349421 T349419
-
.. .. -

. __ __ .
.. ..-.... ... ReplyJroffi_THE.MA. yo.B:Js
..
'. - .. ..
11 :52PM EST) to Then, I would move my way
11/22/2003 22:52:45 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) down to y()ur dick and ge T349422 535450
Reply from Christine Beatty is Then, just when
you're about to come, I would take it out of
mouth and climb back on top of you and slide
it deep inside of me! I would then begin to
slowly ride back and forth on top of you.
11122/2003 22:57:02 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) Then ... (11/22 11 :57PM ESn to S T349424 535452
Reply from THE MAYOR is DAMN CHRIS! (11/22
11 :59PM EST} to Then, jusl when you're about to
11/22/2003 22:59;00 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) corne ! would take T349425 535453
-40-
. .'- .
Reply from Christine Beatty is Then, I would pull
'>',
your chest to mine while you're stiU deep
"1."
inside of me and kiss you so passionately
while riding youl I would then ask you to gently
grab my ass and you would put your finger in
11/22/2003 23:01 :55 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) ust enouqh to make beQ vo T349427 535455
Reply from THE MAYOR is Don't STOP! PLEASE.
(11/23 12;04AM EST) to Then, I would pull your
11/22/2003 23:04:00 8774813934 (Kwame Kilpatrlck) 8774615902 (Christine Beatty) chest to mine while YOU're T349428 535456
Reply from Christine Beatty is Then, we are so
close to each other that sweat from our bodies
makes us stick together and you are moving in
and out of me so slow and 50 strong and you
are hitting my spot so right and I'm sucking
11/22/2003 23;09:08 8774615902 (Christine Beatty) 8774813934 (Kwame Kiloatricl<) our ear and booaina YOU n T349430 535458
Reply from THE MAYOR is COME ONI (11123
12:11AM EST) to Then, we are so dose to each
1112212003 23:11:00 8774813934 (Kwame Kilpatrick) 8774615902 (Chnstine Beatty) other that S'Neat fro T349431 535459
Reply from THE MAYOR is I'm ABOUT TO COME
RIGHT NOW! (11123 12:16AM EST) to Then you
1112212003 23:16:20 87748139341Kwame Kilpa1rick) 8774615902 (ChOsline Bealtv) lay back on the bed still deeD inside me T349432 535460
Reply from Christine Beatty is Then, Ilay on top
of you, still trembling from coming so hard and
you put arms around me and hold me so tight
and I lay my head on your chest and you rub
my hair so gently. Then ... (11/23 12:20AM ESn
1112212003 23:20:49 87746159021Chnstine Beattv! 8774813934 (Kwame Kilpatrick) to I'm ABOUT TO COME R T349434 535462
Reply from THE MAYOR is I LOVE YOU! (11/23
12:22AM EST) to Then. I lay on top of you, sill!
1112212003 23:22:03 8774813934 (Kwame Kilpatrick) 8774615902 (ChOstine Bealtv) trembling from co T349435 535463
Reply from Christine Beatty is Then I lay on my
side and you lay behind me and pull me so
close to you and I say "I Love You So MUch"
and you say "I Love You too" and kiss my neck
so soft. And then we pull up the covers and go
11/22/2003 23:26:19 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) to sleeD and wake t!p:Jn an h T349437 535465
Reply from THE MAYOR is HELL YEAH!
CHRRRRISSS! HOW 00 You FEEL? (11/23
12:28AM EST) to Then 1 lay on my side and you lay
11/22/2003 23:28:05 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) behind me and pu T349438 535466
.. ."' ... . . .". e._, - . ~ . , .. " . _._.. - .
".
. .
youuu feel! (11/23""12":29AMES1,}"ttfHEtt""
~ ~ . " . ... .. "
I
11/22/2003 23:29:55 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) YEAHI CHRRRRISSS! HOW DO You FEEL? T349440 535468
Reply from THE MAYOR is NO NIGGAI You 1ST.
(11/23 12:31AM EST) to First tell me howyouuu
11/22/2003 23:31:20 8774813934 (Kwame Kilpatrick) 8774615902 fChristine Beatty) reell 1349441 535469
-41-

-"."":
,.-._-""-"
' ...

Reply from Christine Beatty is I feel like I did
something that I've never done before and
typically, I did it with you! I was really into it
and thought about each word and visualized
every single thing. TBC. (11/23 12:34AM EST)
11/22/2003 23:34:22 8774615902 (Christine Beatty). 8774813934 (Kwame Kilpatrick) to NO NIGGA! You 1ST. T349443 535471
Reply from Christine Beatty is I wanted to make
you FEEL me with every word! (11/2312:36AM
1112212003 23:36:21 8774615902 (Christine Beatty) 87748139341Kwame Kilpatrick) EST) to NO NIGGA! You 1ST. T349445 535473
Reply from THE MAYOR is That's EXACTLY
how I felt last night. That's why I didn't answer
your questions. Both times I was totally into it
TBC (1112312:38AM EST) to I wanted to make
11/22/2003 23:38:47 87748139341Kwame Kilpatrick) 8774615902 (Christine Beatty) you FEEL me with every word! T349446 535474
Reply from Christine Beatly is I Love You
Kwame Malik Kilpatrick. Thank you for every
experience. (11/2312:48AM EST) to I have
11122/2003 23:48:56 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) never done that either! I totally enjoyed i T349448 535476
Reply from THE MAYOR is Anytime ... Love you
too, Christine Lynn RowlandBeatty! (11/23
12:53AM EST) to I Love You Kwame Malik
11/22/2003 23:53:49 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) Kilpatrick" Thank you for e 1349449 535477
In another message string defendant Kilpatrick and defendant Beatty discuss family. See
People's Motion Exhibit 37:
"
Oate Time Sender(ANI/IP Recipient MessaQe Bates Num ID
Reply from Christine Beatty is Can I ask a
question? {03/iS 10:17PM EST} to Don't know.1
311812004 21:1.lc5A 8Z7.46J,@02_ ChristIne Beat! warne ! a nc
Reply from TH.E !V1A?bfrrs'i'es
" _._-_ .
..
.
311812004 21:18:56 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) EST) to Can I ask a Question? T359575 545601
Reply from Christine Beatty is What do you get
8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick)
from CEK that you don't get from me? (03/18
3/1812004 21:20:04 10:20PM EST) to Yes T359577 545603
Reply from THE MAYOR is The tremendous
bond of Parenthood. J,J & J's Mama. The Birth
Experiences and the Dreams for our children.
(03/18 10:25PM EST) to What do you get from
311812004 21:25:17 8774813934 (Kwame Klipatrick) 8774615902 (Christine Beatty) CEK that you don't Qet from m T359578 545604
Reply from Christine Beatty is Is that it? {03/18
10;27PM EST) to The tremendous bond of
311812004 21:27:54 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) Parenthood. J,J & J's Mama. T359580 545606
Reply from THE MAYOR is That's it. I was
thinking real hard. Its ALL the Family thing.
Structure and Comfort. (03118 10:30PM EST)
3/18/2004 21:30:47 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) to Is that it? T359581 545607
From the content of the messages themselves it IS indisputable to whom these messages
belong.
-42
Finally, you have the ultimate example the use of a particular PIN
number/pager number, when they tell everyone else that they are shutting it off. Defendant Kilpatrick
notifYing others that he is shutting off his pager (marked as People's Motion Exhibit #38 seen
below). The defendant is acknowledging use of this particular pager and PIN number. In fact,
defendant Kilpatrick gets a reply from defendant Beatty where she acknowledges it as well. How can
either defendant argue the records from their respective PINS are not authentic when there are
countless examples of the defendants using these PIN numbers and countless examples of how the
defendants rely on these paging devices in their daily business?
Date Time Sender(ANIIIP) Recipient Message Bates Num 10
I AM TURNING OFF MY 2WAY! IN
EMERGENCY (ONLY) CONTACT CARLITA BY
2WAY! HOllA!!! MAYOR KILPATRICK (04/13
4/13/2004 8:47:04 8774813934 (Kwame Kilpatrick) 4239922 (Iris Ojeda) 09:47AM EDT) T361990 164996
I AM TURNING OFF MY 2WAY! IN
EMERGENCY (ONLY) CONTACT CARLITA BY
2WAY! HOlLA!!! MAYOR KilPATRICK (04/13
4/13/2004 8:47:04 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beally) 09:47AM EDT) T361990 548016
Reply from Christine Beatty is Yep. (04/13
09:50AM EDT) to I AM TURNING OFF MY
4/13/2004 8:50;03 8774615902 (Christine Beatly} 8774813934 (Kwame Kilpatrick) 2WAY! IN EMERGENCY (ONLY) CONT T045767 95837
IX. Conclusion
The text messages included within this motionlbrief are for the Court's convenience when
reviewing the issue of authenticity. The People have also attached a non-exhaustive list of additional
exhibits of additional text messages that we intend on introducing at the September 22
nd
, 2008
Preliminary Examination. People's Motion Exhibits #39-#44.
The People have also included People's Motion Exhibit #2. This is a disc of the seven
compact discs provided via SkyTei to this office. They contain the original Excel spreadsheets
referred to in Mr. Oshinsky's declaration and ALL the text messages in this case up to this point. A
-43-
review of those prN numbers and spreadsheets would further show the self-authenticating Of
all the messages. When the Court considers the totality of the evidence it can clearly see why these
messages are authentic. In order to receive evidence into the record, the Court must make a finding
that there is sufficient evidence to conclude that a reasonable fact-finder could find that the item is
what the proponent claims it to be. The standard of review applied to the question of admissibility is
the preponderance standard. When the Court looks at the content of the text messages clearly it can
see from the appearance, intemal pattems, content, and other distinctive characteristics that the text
messages are authentic. Also, the digital signatures of the messages indicate the messages belong to
the defendants. In addition, when the Court looks at circumstantial evidence, including calendars,
newspaper articles and expense reports it will find further corroborating evidence that the text
messages are what the People purport them to be. Furthermore, business records from SkyTel provide
a list of PIN numbers that reflect that the pagers are assigned ifnot to the defendant to the defendant's
office. Lastly, the defendants themselves have ADMITTED that these text messages were sent and/or
received by them.
For all the reasons stated above the People respectfully request this Honorable Court to
GRANT the People's Motion In Limine to Admit Evidence at the Preliminary Examination and
----DENy the defendants' request for-an evideritiary-hearingb this matter.-
-44-

Robert
Assistant Prosecuting Attomeys
1441 St. Antoine
Detroit, MI 48226
(313) 224-5777
'\'
People's Motion Exhibit #1
Declaration of Stephen Oshinsky
Affiant states:
I, Stephen Oshinsky, am an adult United States citizen residing in Madison County,
Mississippi. I am under no legal disability and am competent to testify to the facts set forth
below of which I have personal knowledge unless otherwise noted.
I. I graduated from the College of Charleston in 1976 with a degree in Mathematics.
I then received a Masters Degree in Mathematics from the University of Kentucky where I also
received computer science training. I worked as a compnter programmer from 1978 to 1992.
2. I am currently employed by Velocita Wireless. Velocita Wireless recently
acquired the SkyTel business assets of Bell Industries, Inc. d/b/a SkyTel. Immediately before
this acquisition, I was employed by Bell Industries, Inc. d/b/a SkyTel. Immediately before Bell
Industries, Inc. acquired SkyTel, I was employed by SkyTel. The term "Velocita
WirelesS/SkyTel" as used in this Affidavit means Velocita Wireless, which acquired the SkyTel
business assets of Bell Industries, Inc. d/b/a SkyTei.
3. I began my employment with Velocita Wireless/SkyTel in 1990 as a computer
.... - .... -- "-programmer, and-workedin than:apacity tintirT992:
4. From 1992 to current, my duties include project manager, systems designer,
custodian of the log files described in this Affidavit, and director of systems architecture.
5. My current title is Director of Business Ops. In that capacity, I am working as a
product developer as well as device vendor management, teclmical sales help arid representing
Velocita Wireless/SkyTei within the industry association for paging carriers.
6. Velocita Wireless/SkyTel previously provided two-way service to the City of
Detroit, Michigan. I have personal knowledge of the operation of Velocita Wireless/SkyTel's
Page 1 of4
,
I
I
two-way pager system, the transmission of text messages, the storage of text messages and the
retrieval oftext messageS from the Velocita WirelessfSkyTel server.
7. Text messages are electronic data stored on the Velocita WirelessfSkyTel server
in the form of a log file. Text messages are stored in the log file as they are sent and received by
the individual user. This log file is kept daily for purposes of system analysis. The log file
containing these text messages was made at the time the text message itself was created.
8. The log file is stored on Sun 10k computer systems. Thls computer data is
reliable, used by Velocita WirelessfSkytel for research and system analysis, is complete and is
the result of a non-complex method of computer processing. This log file is generated daily and
it is part of the routine ofVelocita WirelessfSkyTel's business practice to keep this data in the
normal course of business. The files are kept on a RAID disk array.
9. In 1993, I designed the systems archltecture for the proprietary software that
Skytel currently uses to process messages for our two-way customers.
10. The software used to retrieve text messages is proprietary and designed
specifically for thls task. It is password-protected and has a secure log-in. Access is limited.
-who work at Veloclta -WireiessfSkyTel may only use this software to search and
retrieve messages. It does not allow the original data to be changed. The proce!,s to retrieve the
messages is as follows:
number is aSsigned to a specific pager and reflects the usage of that particular device.
1 Microsoft Excel spreadsheets use the flle extension .XLS

Page 2 of4
1
I
I
i
i
I
I
12. Pursuant to court ordered investigative subpoenas and search warrants, I provided
the Wayne County Prosecutor's Office with seven compact disks containing the text messages
requested. I retrieved them by their unique PIN number from the log file on the Velocita
WirelesS/Skytel server/computer systems. My handwriting appears on each disk (see copies
below):
",.,
text messages listed on these compact disks are organized by the PIN number
of pagers leased to the City of Detroit by Velocita Wireless/SkyTei for the times indicated
(2002- 2008).
14. The PIN mmibers reflected on the seven compacts disks sent to the Wayne
County Prosecutor's Office are authentic, accurate, complete and full digital copies of text
messages obtained from the log file located on the Velocita WirelessfSkyTel server/computer
system. I personally retrieved these messages from the log file, exported them to the EKcel
Page 3 of4
. ".'"
I
\-
I
i'
!
( 1
spreadsheets and made the seven compact disks that were sent to the Wayne County Prosecutor's
Office.
Affiant further sayeth not:
Stephen M. Oshlnsky
Director of Business Ops
Velocita Wireless
500 Clinton Center Drive
Clinton, MS 39056
N olary Public
Date Signed __ t-z-'1'-,-'1_2._0_0_8" __ _
Page 40f4
I
~
I
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I
I
(o41\v1"
DiSGS
f(om s ~ 1-1
Date
~
-
:0
:c
X
IJJ
c
o
~
~
(/)
-",
1111312003
11113/2003
a.
o
'"
0...
I
Time Sender(ANIIIP) Recipient
16:12:083995980 (Patricia Peeples) 8774615902 (Christine Beatty)
16:51:118774615902 (Christine Beatty) 3995980 (Patricia Peeples)
Message I I Bates NUrT ID
Fwd from Patricia
THE PAGER
BEATTY HAS
ABLE TO CATCH
DEADUNE . THE
A V E A G ~ D
evENING DONNAlSKYTEL (\1113 05:10PM
T348497 534525 ESn (11/130 i
Reply from Christine
(11/13 05:51PM ES1) to
Peoples MS. PEOPLES. THE PAG T032343 82413
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Memorandum
To: Jim Burdick
From: Patricia Peoples
Re: Skytel Pager Infonnation
Dated: 3/17/2008
Per your request for:
"All records relating to the issuance of pagers, cell phones, or other communication
devices issued by the City of Detroit to Mayor Kilpatrick, Christiue Beatty, and Mayor's
Executive staff, Department Heads, and the Executive Protection Unit, including
identification of which devicesltelephone numbers were assigned to each of these
individuals."
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The Mayor's Offlce maintains a list of office numbers and assigned cell phones, which I /.
believe you may have: It is continually updated as numbers change and individuals leave I.
-:-:::-:-.:::.::: .. :::.=.=.= ... ::: ... .. :I1
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1
The Skytel pagers assigned to the Office were discontinued in three phases: The first
phase included fue Mayor's Office executive staff in April of 2004. Phase two of the
process occurred in July of 2005 with the majority of the pagers having been
discontinued at the time. Phase three occurred in January of 2006 and included the
remaining 14 pagers.
Any records pertaining to the Mayor's Office executive staffs SkyteJ pagers would have
been purged after the audit of September 2004 or after the reconciliation of the final
payment.
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People's Exhibit #5
March 11,2008
Chief James A. Bivens
12th Floor
Wayne County Prosecutors Office
1441 St. Antoine
Detroit, MI 48226
Re: Subpoena dated 311 0108
Chief Bivens:
. ~ H ! ..
Si<yTel
Enclosed is listing of all PINs assigned to the city of Detroit froln January 2002 to
January 2008. The listing shows our internal customer number and name, the PIN
number, equipment number (number assigned to the physical device), the Holder (User
name if provided to us by the city) and the start and stop dates that the equipment was in
service. If you have any questions, please call me.
Sincerely,
______ : ; : ! : ~ ~
Keeper anne Records
SkyTel
, . ~
3/11/2008
Page 1 of 14
', ..
City of Detroit Pagers Jan 2002 - Jan 3/11/2008
Page 2 of 14
..... _---+.._-_ .. _ ..
"
Page 3 of 14
Page 4 of 14
3/11/2008
Page 5 of 14
Page 6 of 14
Page 7 of 14
Page 8 of 14
~ - - - - - - - - - - - - - - - - - - ' - - - - - - - - ' - " ':,-- - ' - - ~ - - . - - - - - . - - . - - ' ---,f----:,--------
3/11/2008
Page 9 of 14
I
3/11/2008
Page 10 of 14
City of Detroit Pagers Jan 2002 - Jan 311112008
Page 11 of 14
3/11/2008
Page 12 of 14
:;'.s..
3/11/2008
Page 130f14
3/11/2008
Page 140f14
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Date Time Sender(ANIJIP) Recipient
7/2112003 13:13:596774813934 (Kwame Kilpatrick) 4789145 (LIsa Stokes)
7/2112003 13:54:254789145 (Lisa Stokes)
Message
Bates Num 10
Reply from THE MAYOR is E ~ O :
MY CONTACTS. (07/21
KEEP
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1'372203 558229
T372204 558230
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Date Time Sender(ANlnp) Recipient
7/21/2003 14:05:298714813934 (KYJame Kilpatrick) 5279077 (Can;!a Kilpatrick)
712112003 14:05:298774813934 (Kwame Kilpatrick) 4239922 (Iris Ojeda)
712112003 14:05:298774813934 (Kwame Kilpatrick) 4677167 (Derek Miller)
.. , ...... "'"".. ....... ., .... " " ..... 41 ........ "". "' __ "" __ , ...... 1.- "''"- __ , ,,,, __ -,-,-,.\
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Message
BEGtN:VCARD .1\
N:Kllpatrick;Kwame FN:K . trick Kwame
ORG:Mayor"s. Office TITL :Mayor
.. qO-OA- 2
Woodward Avonua=OD=O Suite
BEGIN:VCARD
N:KUpatriek;Kwame
ORG:Mayor's Office
Kwame
2
BEGIN:VCARD VERSION: .,1
N:KlJpatnck;Kwi!me FN: IPiatrick Kwame
ORG:Mayor's Office TITL :Mayor
ADROOMoWORK:;'CAYM =OO=OA:t 2
... ' ... .'. -',"'. '!
Suite
Bates Nurr 10
1372142 558168
1372143 558169
1372144 558170
7/21/2003 14:05:298774813934 (Kwame KilpatJick)
7/2112003 14:05:298774813934 (Kwame Kilpatrick)
7/2112003 14:05:298774813934 (Kwame KllpatJick)
7/21/2003 14:05:298774813934 (Kwame Kilpatrtck)
(Ayanna KllpatJick)
4679147 (eMstine Beatty)
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ION:2, 1
N:Kllpatrtct<;Kwame FN" :Kilpatrlck Kwame
ORG:Mayor's Office TITLE:Mayor
AOR;DOM;WORK:;; A)tMC=OD=IlA= 2
Woodward Avenu DFOA= Suite
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J3EGIN:VCARD VE1Rc!lN:2.1
N:KUpatrlCk;Kwame :KUpatrtck Kwame
ORG:Mayofs OffIce ITLE:Mayor
AOR;DOM;WORK:;; 2
Woodward Avenue= of=OA= Suite
4643899 (Bernard Kilpatrick)
5143776 (DeDan Milton)
BEGIN:VCARD VERlON:2.1
;Kilpatrlck Kwame
ORG:Mayor's OffIce ITLE:Mayor
AOR;OOM:WORK::; YMC=OD=IlA= 2
Avenue=qOf.oA= Suite
T372146 558172
T372147 558173
T372148 558174
T372149 558175
.;.G"
Date Time Sender(ANI/IP) Recipient . Message Bates Nurr 10
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(1)
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7/21/2003 14:05:29 8774813934 (Kwame Kilpatrick) 5279077 (Carlita Kilpatrick)
T372142 558168
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7/21/2003 14:12:255279077 (Carma Kilpatrick) 8774813934 (KwameKilpatrt
T372151 558177
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7/21/2003 14:14:04 8774813934 (Kwame Kilpatrtck) 5279077 (Carlita Kilpatrtck)' .
T372209 558235
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. - . - - - - - - - . - . ~ . - - - - . - - ~ . - - - - - - - - . - - - - - . - - - - - - - , -----.
<1AR 134 21308
4: 10 PM FR C' . OF DET /LAW DEPT 224 5505 . , 812482818025
Jim 5<:haeter
Slaff Wlile.
313-223-4$42:
W'IItt .tn:ql.COtt\
.1Jfttt t)TtSS
_"",Sf fOf'T STREET DlITROrT, .. ICH ...... A8Z2!l (313) 222.(;)Q
Iscl1a<lfer@/reepms.Wm
Oct 19,2007
. Ellen Ha
supervisIng /IS.Islanl Corporation Coun",,1
OetIQIl Law Department
Freedom of Inl\>m\ation Seotion
Dear Ms. Hill
EOIA REOI,IE(t; e"""" g Nellh.ope \IS, Kilpat(lCk Cily 01
ANO Ham. .. Kapallick & Cily 01 OelrOil
PIIn;uanl to the Michigan f,eooom Of tnfolmatitn At1 (MetA 15.231, et seq.), f req\l4l$\
access to end C<lp1es ollila fullowing racordG:
TIle entire nlemonl agrwmenta in !he !itO parat. Wrryne County cllcua Coul1law.ul1s
between the abov .. """,tionod partle&. This request includes but 10 not "miled II> .11 document.,
alU>chment., el<hlDi1s, or o1her in1ooml1lorl ",Jole<! to \he $elllem .... ts.
II yDIII18VO any quesU""., ple e wI! me. I1IhIs reqll"st is denied, in whole Of In part. 1 ask thai
yoU providfllegal jU31iticalJon in wrtUn910r each red.eli"", while prO\ll<:li"ll all no"",,,empl rna\erlel
... !he law requlJell. .
log'oo \0 pay re.sonable copying cbergos, .... Ik>wed Itle FOIA. How .... r pi",," notif!
me In edv .. n"" flyou expect V108e ohollles As \he re\oo5e oftnls infolTl1llllon
wal be u..,d In a new. ar1Jcle and .. HI pnmarllj ben.lillhe public, I requesl "'81 any _ ""
waived.
flook forwsrd b:l hearing from you within five buoino&l5 dt>y6 .,. reqUired by law.
$!"""",Iy,
Jim $t:hae!.n
StaJrWriIer
P.ll/46
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MAR 04 2008 4:10 PM FR C' . OF DET/LAW DEPT 224 5505 . 912482918025
.................. ". ... ................ oI,a'" ......... " .. ..
October 29, 2007
Jim
S I.aff Writer
Dctrl>it Frn: Pt;e.ss
600 West Fort Str<Ct
DeU'"Oit, Mitbigllll4 8226
RE: Frceaom of lnfonndlon Aet n31<d Otloher 19, Z007
Settlewonl In l!rQ!t'D Ne1lllropt v Mayor ISDvntti!!l! and
CiI:Y ofbmgll ""d ID.!l:a v Maxor KUpllnjd, obd die at\! ofPttrllit
ThIs letter serves esm. Cllyofb.tzol1's Your I""",,
was recelved.t the City om.ttvlt Law:D<wartmenl F.rtedom OfWOlIIJlltlOD Scr;tjon. via ra .urule,.
on Oct6b<!X 19; 2007. J3CCSIlIlC;Your lettCl" W8!J re<:t!vedby .'Illoil, is deemed, pumunt
to ScctJon 5(1) ofllle Michigan l'"cet:dom oIInfollllJlllon MI, os amended, btingMCL 15.235(1),
10 bave b..., T"".ived at thela'" bop_ent on lbe.nat bw:iness day, Octabcr22, 2007. l'umumt
10 SectioD 5(2) of Ibe MicbiglUl f)-c<.dom oflrJfoanatlOll Ac:t, .. amonded, being MeL 15.23S(2),
OUrTespoD.e Is due wiIhln five (5) business day
"The cnlite SeUlemont ol:Teem'ents In 1he IWO 8Cplmlle Wayn.
Colmly Ci1l'lllt COUr1 Jaw"";t& octw= the abOyc--mentiOTled pemes
[J3roym and N.!throJlev illQroe CitY oroetroi1 and
HM:i& v Mi!yor KtIMrrlcl< tho CitY gt"D!!IroiO. 'l"bJ. request
incJudes but Is llOt llmi"llla 11> all dooummto, 1J1I.Mbm"""',
notes or other infommlion related tathe selllcmClllS,'
Your rluest \$ denled, or this lime, plmUIlI1110 MeL 11 is oW"undcrn;ll\n<ling iI:uI1,
curt""lly, \bet. Is ..., as parties .... worlcit.g on Ibe det';!s ofth. "S'=cni.
Thcrcforo,lfyou Ie-submit yout Te1jtlcSl81 a late< time, we will '.px<>ocSs your f"'luest.
P.13/46
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1:18R 04 2008 4: 10 PM FR C" OF DET /t-AW DEPT 224 5505 - 1 812482818025
..
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Tllll Schaefer
Oclobe( 29, 2007
Page 2
Please be a.M.ed pllmlanlto Sa:rion IOoflhc Michigan ProedomofInl'oooationAet,
being MCL 15.240, 8 written dOli.lora ,eque,n may do one. ofllie following'
1) Submit a written appeal to the bead of the public body dtllying the Te<jUcst. Such
appeal, if ou'bmined, should specmcaIly stat. the word "a),pea1" and identi:iY the
reason or lC4S0IlS for rcvm.u of lb. d<milll. MCL IS.240(1}(a); Qr
2) Commenc. '1lll action in tho oircilil coUlt to compel the discloMC of IhS public
records within ]80 days after the POblic body'a dem..J of the TeqUes\. Ma..
15.240(1)(b). ll'a courl.finds that lheinfOlIll>nOD withheld by a publle body is not
""""'PI fro", d;,c;\OSDlC, Ibe requC$1ing pl\Jl)l Tllay ree<:ivc the requested !Coord and,
at Ibe di..,,,,tion of the co1lJt, rea!lonable at1prncy fe., and lor =. MCL 15.240(6)
BUd (1).
v cry truly )'oma,

Ellen lh. supervisinll
AuiSlallt Corporation Counsel
Freedolll ofWfonnatiOD Secoon
(313) 23N067
P.14/46
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17 pages
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
CIVIL DIVISION
DETROIT FREE PRESS, INC.,
a Michigan COIporation,
Plaintiff,
DETROIT NEWS, INC.,
Plaintiff.Intervenor,
v.
CITY OF DETROIT,
Defendant,
HERSCHEL P. FINK (P 13427)
RICHARD E. ZUCKERMAN (P2652I)
BRIAN D. WASSOM (P60381)
Honigman Miller Schwartz and Cohn
Attorneys for Detroit Free Press
2290 First National Building
Detroit, MI 48226
313.465.7400
JAMES E. STEWART (P23254)
LAURIE J. MICHELSON (P47214)
ROBIN LUCE HERMANN (P46880)
Butzel Long
Attorneys for Intervenor Plaintiff
The Detroit News
150 W. Jefferson Ave, Ste. 100
Detroit, MI 48226
313.225.7000
Case No. 08100214CZ
Hon. Robert J. Colombo, Jr.
WILLIAM LIEDEL
Liedel Orinnan and Liedel, P.C.
630 E. Fourth Street
Royal Oak, MI 48067
248.291.8020
COMBINED OBJECTION AND MEMORANDUM OF LAW REGARDING
DETROIT FREE PRESS, INC. AND DETROIT NEWS, INC. 'S
MOTION FOR DISCLOSURE OF SKYTEL RECORDS, STEFANI ATTORNEY FEE
MOTION, AND STEFANI EMAlLS
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Now comes your Intervenor, Kwame Kilpatrick, by and through these presents does
herby object to Detroit Free Press, Inc. and Detroit News, Inco's Motion For Disclosure OfSkytel
Records, Stefani Attomey Fee Motion, And Stefani Emails ("Motion'1. In support hereof, your
Intervenor states as follows:
Detroit Free Press and Detroit News ("Petitioners") seek an Order from this Court
compelling the City of Detroit or Bell Industries, Jnc. ("Bell") to produce, among other things,
the content of text messages sent from and received by two-way pagers used by Detroit Mayor
K warne Kilpatrick and ChristIne Beatty, his former Chief of Staff. Mayor Kilpatrick vehemently
objects to this attempt to obtain these private communications. ,
Argument
At the outset, the Petitioners' Motion is replete with unproven assumptions, allegations,
and hyperbole that should not be considered by this Court. Furthermore, Petitioners' arguments
are not supported and in fact wholly ignore the federal law that governs the non-
disclosure ofthe contents of the requested communications.
The Motion seeks, among other things, the disclosure of private and confidential
electronic communications, and should be denied for many reasons. First. the Petitioners cite the
Michigan Freedom of Information Act ("FOIA") as their authority to obtain these records, but
completely ignore the Stored Communications Act, which is the federal statute that governs the
limited disclosure of these records, and prohibits disclosure of these private communications.
The Stored Communications Act, 18 USC 2701, et seq. (the "Act"), mandates that absent very
particular circumstances and exceptions - none of which are met bere - electronic
communication providers "shall not knowingly divulge to any person or entity the contents of a
communication" that is in the provider's possession. See 18 USC 2702 (a)(1). The law could not
,
"
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be more clear. Congress enacted the legislation to maintain the privacy of electronic
communications. The Act protects the privacy of users of electronic communication systems,
i. e. those who send and receive electronic messages, and thus users have standing to assert their
rights under the Acl Secong, eVen ifFOlA could somehow trump the federal statute, the content
of private communications is clearly exempted from disclosure pursuant to FOIA. Third, the Act
plainly does not allow for the disclosure of the conlents of electronic communications in the
process of civil discovery. Fourth. the Fourth Amendment to the United States Constitution
protects Mayor Kilpatrick's expectation of privacy in these communications, and they therefore
carmot be disclosed absent a showing of probable cause by the appropriate governmental entity.
Finally, communications between the Mayor and his staff are protected by the "deliberative
process" privilege.
I. Mayor Kilpatrick Has Standing To Assert His Rights Under the Act.
There is no dispute tbat Mayor Kilpatrick was a user of the Bell two-way pager
service that was used to transmit the communications at jss!.!e. Although Mayor Kilpatrick did
not have a contractual relationship with Bell, nor did he own tbe pager or pagers at issue, the
clear purpose of the Act is to protect tbe privacy of "users," regardless of who owns or pays for
the equipment or service. In a case involving the disclosure of messages sent and received by a
municipal employee on his city-owned pager, a federal district court held that such an employee
was a "user" of the service, and therefore afforded protection by the Stored Communications Act.
Quon v. Arch Wireless, 309 F. Supp.2d 1204, 1209 (C.D. Cal. 2004). lnreaching its holding, the
court noted that city employees "used the electronic communication service, and that they were
authorized by the City to do so. [The service provider] provided the alphanumeric text messaging
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pagers to the City knowing the pagers would be distributed to and used by City employees." ld.
As a result, the Quon court held that the employees had standing to raise claims sounding in a
violation of the Act. Just like the city employee in Quon, Mayor Kilpatrick was undoubtedly
authorized to use the pager service and equipment provided by the city. Therefore, as a "user" of
the electronic communication service, Mayor Kilpatrick has standing to object to the unlawful
disclosure of messages that he sent orreceived via tbat service.
In further suppor! of the Mayor's right to object to the release. of his private
communications, the remedies portion of the Act, which provides for injunctive or declaratory
relief for violations of the Act, gives "any aggrieved person" standing to maintain a such a suit.
See 18 USC 2707. The Act does not limit standing to subscribers or those in contractual
privity with the service provider.
II. Private Communications Are Not Public Records and Arc Exempted From
Disclosure Pursuant to FOIA.
Petitioners have identified two separate groups of text messages that they allege
are "public records" to which they are entitled under FOIA.
1
First, they seek disclosure of the
so-called "2002-2003" text messages between Mayor Kilpatrick and his then-Chief of Staff
Christine Beatty. They aUege that these messages are "public records" but at the same time
insinuate that the content is of an intensely private nature. The Petitioners also seek the so-called
"2007-2008" text messages, and they allege that these are "integral to the settlement agreement"
in the "WhistlebJowcr Lawsuit and therefore "public records." As a general matter, Petitioners
I It is important to recognize that Petitioners seek the content of these text messages, not simply
records of their existence or subscriber infotmation. As with law enforcement requests for
wiretaps as opposed to pen register data, this is far more invasive and requires a higher level of
scrutiny from the Court.
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are only able to argue that Mayor Kilpatrick's private communications bear any relationship to
his public office by virtue of speculation, innuendo, and unfounded allegations about the
circumstances of that settlement. Moreover, the relationship that Petitioners try to establish
between the content of the 2002-2003 text messages and the settlement in "Whistleblower
Lawsuit" is tenuous at best.
As an initial matter, the content of text messages are not "documents" but rather
are "stored electronic communications" which are given special protections by Congress under
the Stored Communications Act. In this way, the messages are perhaps more akin to telephone
conversations than memoranda and correspondence written for public consumption. As such,
FOIA should not even apply.
If the Court holds that Michigan's FOIA does apply, it must be remembered that
the statute does not stand for the proposition that every document that is prepared, owned, used,
or in the possession of a public body is a public record that is subject to disclosure. Rather,
FOIA stands for the proposition that such documents are subject to disclosure to the extent they
are prepared, owned, used, or in possession of a public body "in the performance of an official
function." MCL 15.232(e). As the Michigan Supreme Court noted in Kastenbaum v. Michigan
State UniverSity, 414 Mich. 510, 537, 327 N.W.2d 783 (1982) "unofficial private writings
belonging solely to an individual should not be subject to public disclosure merely because that
individual is a state employee." In keeping with this language, and the purpose ofthe statute, it
is hard to imagine how the content of the text messages at issue - which if as-described by
Petitioners are extremely personal, and could have had absolutely nothing to do with the
"performance of an official function" at the time they were sent - could possibly be considered
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public records. The Petitioners' after-the-fact rationalization for how these purported text
messages are public records cannot be the basis for the disclosure of personal communications.
The Petitioners also make the unsupported assertion that in the 2007.2008
timeframe, Mayor Kilpatrick would have communicated with Ms. Beatty via two-way pager
about the settlement, his testimony, or other potentially public matters. Once again Petitioners
are asking the Court to accept their suppositions and guesses about the facts as support for their
requests. Public officials' personal communications should not be deemed "public records"
based only on another party's willy-nilly assertion that they are.
Even were these text messages "public records" as defined by FOIA, they are
subject to the statute's privacy exemption. Under the FOIA statute, a public body may exempt
from disclosure "[i]nformation of a personal nature where the public disclosure of the
information would constitute a clearly lUlwarranted invasion of an individual's privacy." MCLA
15.243(1)(a). The contents of these messages, if asdescribed by the Petitioners, could not be of
a more personal nature. Disclosure of personal text messages that have nothing at all to do with
the administration of the City would undoubtedly constitute an unwarranted invasion of the
Mayor's privacy. The purpose behind F?JA is to allow legitimate exploration of governmental
undertakings, not to fuel media speCUlation and serve prurient interests. No insight into the
workings ofDetroi! city government would be gained from disclosing messages that Petitioners
allege contain only personal communications.
1
In the very least, the Court should review the
communications in camera to detennine on a casebycase basis whether they truly are public
2 No court bas determined the authenticity or admissibility oflhe messages at issue. A real
danger exists that in the event Prosecutor Worthy brings charges against Mayor Kilpatrick, the
relesse of these messages not yet proven to even be his will infringe on Mayor Kilpatrick's Sixth
Amendment right to a fair trial. The Court should take all necessary action to guard against this
danger, and to protect Mayor Kilpatrick's rights under the Constitution.
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records subject to disclosure. Absent such a review, messages that should clearly not be
disclosed, i.e. messages that contain information covered by the deliberative process privilege (as
discussed in Section V below) or other privileges will be improperly revealed. This kind of
considered reyjew by the Court is absolutely necessary before messages are released, and should
be the most the Petitioners could hope to be granted.
l
Lastly, Petitioners' reliance on the June 26, 2000 policy regarding the use of the
City's electronic communication system is misplaced. By its own terms, the Policy applies to
city-owned and operated systems. The Bell pagers at issue were not owned by the City, nor was
the network the City's property. Moreover, even if the BeU pagers were a part of that system, it
is nOt a foregone conclusion that the Mayor has forfeited his right to maintain the privacy of his
communications under ForA or the Fourth Amendment. Although the policy addresses the
possibility that communications that are sent via that system will be subject to public disclosure,
it plainly limits that language to the "certain instances" where the communications are actually
deemed subject to disclosure under FOrA. As discussed above, the communications at issue are
quite clearly excepted from FOIA disclosure.
The Mayor's expectation of privacy under the Fourth Amendment, which is
discussed below, is not impacted by this policy. First, because the policy does not apply to the
SkyTel equipment Of network, the Mayor had no reason to believe that his communications were
subject to disclosure or public consumption. Second, even if the policy did apply to
communications oyer SkyTel's network and equipment, private communications would not be
public records under FOIA, and thus do not fall within the "certain instances" discussed in the
J United States District Court Judge Gerald Rosen, who is presiding over civil litigation where
text messages have also been sought, recently ruled that any text messages produced to plaintiffs
must first be reviewed by a magistrate to avoid disclosure of privileged and personal information
in which a privacy interest exists.
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policy. Finally, because there was no ongoing practice of monitoring text messages sent on the
Bell equipment and network, Mayor Kilpatrick maintained his subjective expectation of privacy.
See Quon v. Arch Wireless, 445 F. Supp.2d 1116, 114142 (C.D. Cal. 2006).
III. Tbe Act Does Not Permit Disclosure oflhe Contents of Electronic Communications
in Civil Discovery.
Regardless of the Court's ruling with respect to disclosure pursuant to FOIA,
federal law prohibits the disclosure of these communications. The Stored Communications Act
governs the privacy and limited disclosure of electronic communications such as text messages.
Section 2702 of the Act details a service provider's obligation to maintain the confidentiality of
the content of communications that it transmits and stores. Subsection (a)(l) states that Ua
person or entity providing an electronic communication service to the public shall not knowingly
divulge to any person or entity the contents of a communication while in electronic storage by
that service ...
Section 2702 (a)(2) similarly prohibits the disclosure of electronic
communications held in "remote computing service." The language of the Act plainly expresses
the ongressional intent to protect the privacy of electronic communications, except in limited
circumstances which do not exist in the present matter. Disclosure of the contents of the
requested communications to the Petitioners would be contrary to 2702.
AJthough there are exceptions to the Act's prohibition against disclosure, there is
IlQ exception for disclosure of the contents in civil discovery (and notably, neither is there an
exception for disclosure pursuant to state freedom of information legislation). At least one court
that has considered the question of whether civil discovery of stored electronic communications
is appropriate has ruled that the plain language of the statute makes clear that it is DOt. O'Grady
v. Superior Court, 139 Cal. App. 4th 1423, 1447,44 Cal.Rptr. 3d 72,89 (Cal. Ct. App. 2006)
(holding that because "the Act makes no exception for civil discovery and no repugnancy has
been shown between a denial of such discovery and congressional intent or purpose, the Act
must be applied, in accordance with its plain terms, to render unenforceable" civil discovery
subpoenas). The court in O'Grady engaged in a lengthy analysis of the Act's history and
purpose, and held that it is perfectly consistent with the Act's purpose - to protect the privacy of
electronic communications - to disallow civil discovery of the contents of these
communications. The eight exceptions to the ban on voluntary disclosure, as well as the Act's
provision for required disclosure to certain governmental agencies, are explicitly provided for in
the Act. See 18 USC 2702 (b) and 18 USC 2703. The legislature carefully considered under
what circumstances disclosure of private electronic communications should be permltted, and
deliberately did not include civil discovery.
The sulJpoenas served and the complaint filed by the Petitioners amount to
nothing more than civil discovery. Just like any other civil litigant, absent the authority of the
Michigan courts, the Petitioners have no power to compel production of documents from a
Mississippi company like Bel1.
4
In this case, the information sought by the Petitioners from Bell
is protected from prodUction in civillitigalion, and it would Ix: contrary to federal law to provide
the Petitioners the relief they seek.
4 It is also worth noting that Bell is outside the jurisdiction of the Michigan courts, and therefore
the Michigan Rules of Civil Procedure do not even allow for service of the subpoena on Bell.
See Ml.R.C.P. 2.305(D). A subpoena from the Mississippi courts would be necessary to compel
any response from Bell. Id. Under the Act, however, eVen production in response to a
Mississippi subpoena would be prohibited.
IV. The Commuuications are Constitutionally Protected.
Perhaps most important to this analysis is the principle that the content of these
communications is protected by the Fourth Amendment of the United States Constitution. The
Sixth Circuit recently held that individuals have a reasonable expectation of privacy in their
electronic communications. See Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007)
(vacated on rehearing en banc) (holding that a person has a reasonable expectation of privacy in
email content that is stored with, Of sent or received through, a commercial ISP). Although the
Warshak opinion was vacated, it has been argued to the full court, and is cumintly pending
before it. Regardless, the Warshak opinion merely confirms the holding of the court Quon v.
Arch Wireless in an opinion subsequent to the one discussed in section I, supra. In Quon, a case
that is markedly similar to this one, the court held that a city employee had a reasonable
expectation of privacy in his electronic messages, even though they were sent and received on a
city-provided pager. Quon v. Arch Wireless, 445 F. Supp.2d 1116, 1141-42 (C.D. Cal. 2006). It
~
is perfectly reasonable for Mayor Kilpatrick and those on his staff with whom he communicated
"---- ----------------- -
via text message to expect that their message.JYQuld remain private, These communications are
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undoubtedly protected by the fourth Amendment, ~ d he.J.lce cannot be...Qptained absent a search
warrant based on probable case.. See, e.g. Berger v. New York, 388 U.S. 41 (1967); Katz v.
Uniled Slates, 389 U.S. 347 (1967) (holding that private telephone conversations processed
through a third-party intermediary are protected by the Fourth Amendment and can be obtained
from the intennediary only upon a showing of probable cause) The Petitioners are clearly not a
law enforcement agency and are not in the position to obtain such a warrant, and therefore
should not have access to these communications.
'"
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v. Commuuications Amongst the Mayor and his Staff Are Protected by the
Deliberative Proeess Privilege.
The Mayor and his staf4 with whom he regularly communicated via text
messages, were and are engaged in the business or running the City of Detroit. Although the
Petitioners aUege that they are seeking communications that relate to particular subjects, and
which are limited in time, the breadth of the subpoena goes well beyond the scope of anything
the Petitioners may reasonably be entitled to. The requested communications will undoubtedly
include communications that include suggestions, advice, recommendations, and opinions
between the Mayor and his staff, As such, those communications are covered by the official
infonnation, or "deliberative process privilege. See United States v. Leggett & Platt, Inc., 542
F.2d 655, 658 (6th Cir. 1976). ihis privilege "resls on the obvious realization that officials will
nol communicate candidly among themselves if each remark is a potential item of discovery and
front page news, and its object is to enhance the quality of agency decisions' ... by protecting
open and frank discussion among those who make them within the government." Dept. of
Interior v. Klamath Water Users Protective Assn, 532 u.s, 1, 8 (2001) (internal citations
omitted).
Even if - contrary to the protections of the Stored Communications Act and the
Fourth Amendment - the Court were to rule that the Petitioners were entitled to any of the
messages it is seeking, the Petitioners are not entitled to messages that are protected by this
privilege. Petitioners have made no attempt to narrow the focus of their requests in order to
maintain this privilege. and should be required to do so before any messages are produced.
Moreover, if the Court orders the text messages produced, it shOUld conduct an in camera review
of any text messages before production so that this privilege can be guarded.
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Conclusion
For all of the foregoing reasons, Plaintiff Detroit Free Press' and Detroit News'
Motions should be denied.
Respectfully Submitted,
WINSTON & STRAWN LLP

Dan K. Webb (of counsel) 1<jf ,/t!
Lawrence R. Desideri (of counsel)
Elizabeth C. Scott (of counsel)
35 W. Wacker Drive
Chicago. IL 60601-9703
TEL: (312) 558-5600
FAX: (312) 558-57
. Thomas (P2
53 . swold St.. Suite 2632
Detroit, MI 48226
TEL: (313) 963-6320
FAX: (313) 963-9258
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PLAINTIFF NAME(S)
DETROIT FREE PRESS, INC., a Michigan corporation
PLAINTIFF'S ATTORNEY,BAR NO., ADDRESS,
AND TELEPHONE NO.
Herschel P. Fink (P13427)
Richard E. Zuckerman (P26521)
Brian D. Wassom (P60381) .
Detroit, Michigan 48226
(313) 465-7400
. List additional attorneys on other side.
vs.
DEFENDANT NAME(S)
CITY OF DETROIT
DEFENDANT'S Address:
WilliamJ. Liedel (p24826)
630 East Fourth Street
,." V .. ...,....
Royal Oak, Michigan 48067
(248) 291-8020
1. Motion Title: MOTION FOR PROTECTIVE ORDER AND STAY OF PROCEEDINGS BY
KWAMEM.KILPATRICK .
2. Moving Party: Intevenor-Defendant I Telephone No. (313) 963-2420
3. Please place on the motion calendar for:
Judge BarNo. Date Time
Robert J. Colombo, Jr. P25806 Friday, May 30, 2008 8:30 a.m.
Adjourned to: ______ Adjourned to: ______ Adjourned to:. _____ _
4. I certifY that I have made contact with attorney Herschel Fink on May 23, 2008, regarding concurrence in relief
sought in this motion and that concurrence has been denied or that I have made reasonable concurrence with motion
Date Attorney: BarNo. 23801 I
May 23, 2008 James C. Thomas .

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DATED: ____ _
IT IS HEREBY ORDERED THAT THIS MOTION IS:
o DENIED 0 GRANTED IN PART/DENIED IN PART 0 TAKEN UNDER ADVISEMENT o DISMISSED
o GRANTED, AND IT IS FURTHER ORDERED AND ADJUDGED:
Approved as to fonn and substance by Counsel for:
Plaintiff: _____________ _
Defendant:;, ___________
Dated: ___________ .
CIRCUIT COURT JUDGE
FILE EITIlER IN PERSON OR BY MAIL
WITH THE WAYNE COUNTY CLERK
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Richard E. Zuckennan (P26521)
Lara Fetsco Phillip (P67353)
Brian D. Wassom (P60381)
HONIGMAN MILLER SCHWARTZ
ANDCOHNLLP
Attorneys for Plaintiff Detroit Free Press
(313) 465-7400
William J. Liedel (P24826)
LIEDEL, GRINNAN & LIEDEL, P.C.
Attorneys for Defendant City of Detroit
(248) 291-8020
Mayer Morganroth (PI7966)
Jeffrey B. Morganroth (P41670)
MORGANROTH & MORGANROTH
Attorneys for Intervenor-Defendant.
Christine Beatty
3000 Town Center
Suite 1500
Southfield, Michigan 48075
(248) 355-3084
Blmfield.20099.81556.990914-1
James E. Stewart P23254)
Laurie J. Michelson (P47214)
Robin Luce Herrmann (P46880)
BUTZEL LONG
Attorneys for Intervenor-Plaintiff
. The Detroit News
150 VI est Jefferson Avenue
Suite 100
Detroit, Michigan 48226.
(313) 225-7000
William H. Goodman (P14173)
GOODMAN & HURWITZ, P.C.
Detroit City Council
1394 East Jefferson Avenue
(313) 567-6170 ..
PLUNKETT COONEY .
Attorneys for Intervenor-Defendant
Kwame M. Kilpatrick
2632 Buh] Building
535 Griswold Street
Detroit, Micbigan 48226
(313) 963-2420
: ;
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. STATE OF MICHIGAN
a Michigan corporation;
Plaintiff,
v.
DETROIT NEWS, INC.,
Intervenor-Plaintiff, .
v.
CITY OF DETROIT,
Defendant.
AND COHN LLP
(313) 465-7400
William J. Leidel (P24826)
(248) 291-8020 .
Mayer Morganroth (P17966) .
MORGAN ROTH & MORGAN ROTH
Christine Beatty
3000 Town Center
Suite 1500
Southfield, Michigan. 48075
(248) 355-3084
Case No. 08-100214-CZ
NOTICE OF HEARING
~ L a u r i e J. Michelson (P47214)
BUTZEL LONG
The Detroit News
150 West Jefferson Avenue
Suite 100
(313) 225-7000
William H. Goodrnan (P14173)
(313) 567-6170
PLUNKETT COONEY
Kwame M. Kilpatrick
2632 Buhl Building
535 Griswold Street
(313) 963-2420
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PLEASE TAKE NOTICE that the hearing on IntervenorcDefendant's Motion for
Protective Order and Stay of Proceedings by Kwame M. Kilpatrick will be held before
the Honorable Robert J. Colombo, Jr. on Friday, May 30, 2008 at 8:30 a.m. or as soon
thereafter as counsel may be heard.
Dated: May 23, 2008
Blmfield.20099.81556.990931-1
By:
2
PLUNKETT 20NEY
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James/Ahomas (P23801) .
AttorrWfs for Intervenor-Defendant
Kwame M. Kilpatrick
2632 Buhl Building
535 Griswold Street
(313) 963-2420
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PLEASE TAKE NOTICE that the hearing on Motion for
Protective Order and Stay of Proceedings by Kwame M. Kilpatrick will be held before
the Honorable Robert J. Colombo, Jr. on Friday, May 30, 2008 at 8:30 a.m. or as soon
thereafter as counsel may be heard.
Dated: May 23, 2008
8Imfield.20099.81556.9909311
By:
2
(.;;. .
James;Cjrhomas (P23801)
Attor#s for Intervenor-Defendant
Kwame M. Kilpatrick
2632 Buhl Building
535 Griswold Street
(313) 963-2420
STATE OF MICHIGAN
a Michigan corporation,
Plaintiff,
v.
DETROIT NEWS, INC.,
Intervenor Plaintiff,
v.
CITY OF DETROIT,
Defendant.
HONIG MAN MILLER SCHWARTZ
AND COHN LLP
Detroit. Michigan 48226
(313) 465-7400
(248) 291-8020
Mayer Morganroth (P17966)
MORGAN ROTH & MORGAN ROTH
Christine Beatty
3000 Town Center
Suite 150.0
Southfield. Michigan 48075
(248) 355-3084
Case No. 08100214CZ
MOTION FOR PROTECTIVE
ORDER AND STAY OF
PROCEEDINGS BY
KWAME M. KILPATRICK
. BUTZEL LONG
Attorneys for IntervenorPlaintiff
The Detroit News
Suite 100
(313) 225-7000
(313) 567-6170
PLUN.KETT COONEY
Kwame M. Kilpatrick
2632 Buhl Building
535 Griswold Street
(313) 9632420
, >.
'"'6,"
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KK Motion and Brief in Support of Protective Order
STATE OF MICHIGAN
Plaintiff,
v.
DETROIT NEWS, INC.,
Intervenor-Plaintiff,
v.
CITY OF DETROIT,
Defendant
HONIG MAN MILLER SCHWARTZ
AND COHN LLP
(313) 465-7400
(248) 291-8020
MORGAN ROTH & MORGANROTH
Attomeys for Intervenor-Defendant
Christine Beatty
3000 Town Center
Suite 150.0
(248) 355-3084
Case No. 08-100214-CZ
MOTION FOR PROTECTIVE
ORDER AND STAY OF
PROCEEDINGS BY
KWAME M. KILPATRICK
. BUTZEL LONG
Attomeys for Intervenor-Plaintiff
The Detroit News
Suite 100
(313) 225-7000
Attoineys for Intervenor-f?laintiff
(313) 567-6170
PLUNKETT COONEY
Attomeys for Intervenor-Defendant
Kwame M. Kilpatrick
2632 Buhl Building
535 Griswold Sfreet
(313) 963-2420
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. MOTION FOR PROTECTIVE ORDER AND STAY
OF PROCEEDINGS BY KWAME M. KILPATRICK
NOW COMES Intervenor-Defendant, Kwame M. Kilpatrick ("Kilpatrick") by and
through his attomeys James C. Thomas, of counsel to Plunkett Cooney and hereby
moves this Court pursuant to MCR 2.302(C) and MCR 2.306{D)(1) and (0)(3) for entry
of a protective order regarding proposed discovery and' for a stay of proceedings in this
matter. In support of this Motion, Kilpatrick states as follows:
'i. That this action is a claim under Michigan's Freedom of Information Act.
2. That the Plaintiffs have noticed a num.ber of depgsitions in connection with
this case. One of those depositions is that of Kilpatrick which has been noticed for
Thursday, May 29, 2008.
3. That Kilpatrick is a Defendant in a criminal proceeding entitled People of the
State of Michigan v. KwameM. Kilpatrick and Christine Beatty, Case No. 08-58169.
which is presently pending in the 36
th
District Court for the City of Detroit b e f o ~ e the
Honorable Ronald Giles. In that proceeding. Kilpatrick is charged by a Complaint and
Information of the following: Conspiracy to Commit a legal Act in an Illegal Manner, a
violation of MCl 750.157a; Obstruction of Justice, a violation of MCL 750,505; Two
counts of Misconduct in Office, a Common law Offense; Two counts of Perjury in a
Court Proceeding, a violation of MCL 750.422; and Two counts of Perjury in an Action
Other Than a Court Proceeding, a violation of MCl 750.423. Kilpatrick has pled not
guilty to all of the charges and has asserted his constitutional right to a trial by jury in the
criminal matter .
. 4. At this time, Kilpatrick knows that he will assert various privileges as to part
or all of his deposition testimony scheduled to be taken in this case. The privileges to
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be asserted include those afforded Kilpatrick by the Stored Communications Act, 18
USC 2701 et.seq. as well as privileges under the United States and Michigan
Constitutions. In addition, Kilpatrick has asserted and will assert the deliberative
process privilege. Kilpatrick anticipates that some, if not all, of the questions to be
asked of him at his deposition fall within the ambit of one or more of these privileges
including, but not limited to, his right against self-incrimination guaranteed 'under the
Fifth Amendment to the United States Constitution and Article I, 17 of the Michigan
Constitution.
5. Since Kilpatrick will assert the various privileges referenced in paragraph 4
above (and discussed in more detail in the attached supporting brief), Kilpatrick
respectfully requests that this Honorable Court issue a Protective Order that his
discoverY deposition not be had.
6. That Plaintiffs have also issues subpoenas to Valeria A. Colbert-Osamuede,
Esq., Wilson A. Copeland II, Esq., Samuel E. McCargo, Esq. and William Mitchell III,
Esq. as reflected in Exhibits 2, 3, 4 and 5 of the Motion for Protective Order Re
Discovery filed by Defendant City of Detroit in connection with the above-entitled
proceeding.
7. That as of the time of filling this Motion, it does not appear that Plaintiffs have
filed a subpoena upon Bell Ind., Inc. d/b/a SkyTel Corp. although the deposition notice
to that entity encompasses many of the items which will be requested to be produced.
8. As set forth in the Motion for Protective Order Re Discovery filed by
Defendarit City of Detroit, many of the items being requested to be produced by Ms.
Colbert-Osamuede and Messrs. McCargo, Copeland, Mitchell and SkyTel have already
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been ordered by this Court to be withheld until such time as a determination is made as
to whether or not they would be protected under the federal Stored Communications
. Act.
9. As set forth in the Motion for Protective Order Re Discovery filed by
Defendant City of Detroit, the deposition notices and subpoenas issued to various
attorneys seek information that is outside the parameters of this Freedom of Information
Act lawsuit.
10. The issues involved in this case are related to some of the issues posed in
the criminal proceeding referenced in paragraph 3 above.
,
WHEREFORE, Intervenor-Defendant Kwame M. Kilpatrick respectfully requests.
that this Honorable Court enter a protective order which provides that his deposition to
be had. Further, Intervenor-Defendant requests that this proceeding be stayed until the
criminal proceeding is completed. Finally, Intervenor-Defendant also joins and concurs
in the Motion for Protective Order Regarding Discovery which has been filed by
Dated: May 23, 2008
Blmlield.20099.61556.990!llJ9-1
By:
4
Ja s . Thomas (P23 1)
Att eys for Kwame M. Kil rick
2632 Buhl Building
535 Griswold Street
(313) 963-2420
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STATE OF MICHIGAN
Plaintiff,
DETROIT NEWS, INC.,
Case No. 08-100214-CZ
v.
CITY OF DETROIT,
Defendant.
BRIEF IN SUPPORT OF
MOTION FOR PROTECTIVE ORDER AND STAY
OF PROCEEDINGS BY KWAME M. KILPATRICK
INTRODUCTION
On April 15, 2008, Plaintiff Detroit Free Press noticed the discovery deposition of
Intervenor-Defendant Kwame M. Kilpatrick ("Kilpatrick") for Thursday, May 29, 2008 at
9:00 A.M. At that time, Plaintiff also noticed the depositions of several attorneys and
representatives of the City of Detroit and SkyTel Corporation.
On May 13, 2008, Defendant City of Detroit filed its Motion For Protective Order
Re Discovery which is currently pending before this Court. Kilpatrick joins and concurs
in the City's Motion. However, Kilpatrick also has additional grounds which justify
issuance of a Protective Order, which are discussed below. Finally, Kilpatrick also
submits that this civil proceeding should be stayed until the criminal proceeding against
him has been concluded.
'.
MCR 2.302(C) permits this Court "to issue <lny order that justice requires to
protect a party or person from ... oppression, or undue burden or expense, including
one or more of the following orders: (1) that the discovery not be had .... " MCR
2.306(0)(1) permits a deponent "on a showing that ... the matter inquired about is
privileged" to ask this Court to "order the person conducting the examination to cease
taking the deposition .... " MCR 2.306(0)(3} further provides that if a party "knows
before the time scheduled for the taking. of a deposition that he or she will assert that
the matter to be inquired about is privileged, the party must move to prevent the taking
of the deposition before its occurrence or be subject to costs .... "
The upcoming deposition would require Kilpatrick to testify about matters that are
privileged. Kilpatrick asks this Court, pursuant to MeR 2.302(C) and 2.306(0), to issue
an order preventing the taking of the scheduled deposition, and to stay further
proceedings in this matter.
ARGUMENT
The taking of the discovery deposition of Kilpatrick in this civil proceeding would
violate his privileges and rights undrin the federal Stored Communications Act; the
Fourth Amendment to the United States Constitution; the "deliberative process"
privilege; and the right against self-incrimination guaranteed by both the United States
and Michigan Constitutions.
I. Deposing Kilpatrick Would Violate His Rights Under The Federal
Stored Communications Act
The Stored Communications Act, 18 USC 2701 et seq. (the "Act"), mandates
that absent very particular circumstances and exceptions - none of which are met here
- electronic communication providers "shall not knowingly divulge to any person or
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entity the contents of a communication" that is in the provider's possession. See 18
usc 2702(a)(1). The law could not be more clear. Congress enacted the legislation
to maintain the privacy of electronic communications. The Act protects the privacy of
users of electronic communication systems, i.e. those who send and receive electronic
messages, and thus users have standing to assert their rights under the Act.
Furthermore, the Act plainly does not allow for the disclosure of the contents of
electronic communications in the process of civil discovery.
j ~ " " Although Kilpatrick did not have a contractual relationship
.- . 4
with Bell, and did not own the pager or pagers at issue, the clear purpose of the Act is to
protect the privacy of "users," regardless of who owns or pays for the equipment or
service. In a case involving the disclosure of messages sent and received by a
municipal employee on his city-owned pager, a federal district court held that such an
employee was a "user" of the service, and therefore was afforded protection by the
Stored Communications Act. Quon v. Arch Wireless, 309 F. Supp. 2d 1204, 1209 (C.D.
Cal. 2004). In reaching its holding, the court noted that city employees "used the
electronic communication service, and that they were authorized by the City to do so.
(The service provider] provided the alphanumeric text messaging pagers to the City
knowing the pagers would be distributed to and used by City employees." Id. As a
result, the. Quon court held that the employees had standing to raise claims sounding in
a violation of the Act. Just like the city employee in Quon, Defendant Kilpatrick was
undoubtedly authorized to use the pager service and equipnient provided by the city.
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In further support of Kilpatrick's 'right to object to the release of his private
communications, the remedies portion of the Act, which provides for injunctive or
declaratory relief for violations of the Act, gives "any aggrieved person" standing to
maintain such a suit. See 18 USC 2707. The Act does not limit standing to
subscribers or to those in contractual privity with the service provider.
The Act governs the privacy and limited disclosure of electronic communications
such as text messages, and does not permit the disclosure of their contents in civil
discovery. ' Section 2702 of the Act details a service provider's obligation to maintain the
confidentiality of the content of communications that it transmits and stores, Subsection
(8)(1) states that "a person or entity providing an electronic communication service to
the public shall not knowingly divulge to any person or entity the contents of a
communication while in electronic storage by that service." Section 2702(a)(2) similarly
prohibits the of electronic communications held in "remote computing
service." The language of the Act plainly expresses the Congressional intent to protect
the privacy of electronic communications, except in limited circumstances which do not
exist in the present matter. Disclosure of the contents of the requested communications
at deposition would be contrary to 2702.
Although there are exceptions to the Act's prohibition against disclosure, there is
no exception for disclosure of the contents in civil discovery. At least one court that has
considered the question of whether civil discovery of stored electronic communications
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is appropriate has ruled that the plain language of the statute makes clear that it is not.
O'Grady v. Superior Court, 139Ca!. App. 4th 1423, 1447, 44 Cal. Rptr. 3d 72, 89 (Cal.
Ct. App. 2006) (holding that because "the Act makes no exception for civil discovery
.and no repugnancy has been shown between a denial of such discovery and
congressional intent or purpose, the Act must be applied, in accordance with its plain
terms, to render unenforceable" civil discovery subpoenas). The court in O'Grady
engaged in a lengthy analysis of the Act's history and purpose, and held that. it is
. perfectly consistent with the Act's purpose - to protect the privacy of electronic
communications - to disallow civil discovery of the contents of these communications.
The eight exceptions to the ban on voluntarY disclosure, as well as the Act's provision
for required disclosure to certain governmental agencies, are explicitly provided for in
the Act. See 18 USC 2702(b) and 18 USC 2703. The Legislature carefully
considered under what circumstances disclosure of private electronic communications
should be permitted, and deliberately did not include civil discovery,
The purpose of the scheduled deposition of Kilpatrick is to compel his testimony
regarding electronic communications protected by the Act. This is precisely the type of
civil discovery prohibited by the Act.
II. Deposing Kilpatrick Would Violate His Rights Under The Fourth
Amendment Of The United States Constitution.
The communications at issue are protected by the Fourth Amendment of the
United States Constitution. The Sixth Circuit recently held that individuals have a
reasonabl.e expectation of privacy in their electronic communications. See Warshak v .
. United States, 490 F. 3
d
455, 473 (6
th
Cir. 2007) (vacated on rehearing en bane)
(holding that a person has a reasonable expectation of privacy in e-mail content that is
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stored with, or sent or received through, a commercial ISP). Although the Warshak
opinion was vacated, it has been argued to the full court, and is currently pending
before it. Regardless, the Warshak opinion merely confirms the holding of the court in
Quon v. Arch Wireless in an opinion subsequent to the one discussed supra . . In Quon,
a case that is markedly similar to this one, the court held that a city employee had a
reasonable expectation of privacy in his electronic messages, even though they were
sent and received on a city-provided pager. Quon v. Arch Wireless, 445 F. Supp. 2d
1116, 1141-42 (C. D . Cal. 2006) .
. .

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States, 389 U.S. 347 (1967) (holding that private telephone conversations processed
through a third-party intermediary are protected by the Fourth Amendment and can be
obtained from the intermediary only upon a showing of probable cause).
Obviously, in this civil litigation there has been no warrant and no showing of
probable cause. The Fourth Amendment shields these communications from disclosure
by means of a civil deposition.
III. Communications Amongst Mayor Kilpatrick And His Staff Are
Protected By the Deliberative Process Privilege.
... "C"
<
The
communications sought by the upcoming deposition will undoubtedly include
communications that include suggestions, advice, recommendations, and opinions
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between Kilpatrick and his staff. As such, those communications are covered by the
official information, or "deliberative process" privilege. See United States v. Leggett &
Platt, Inc., 542 F. 2d 655, 658 (6
th
Cir. 1976). This privilege "rests on the obvious
realization that officials will not communicate candidly among themselves if each remark
is a potential item of discovery and front page news, and its object is to 'enhance the
quality of agency decisions' ... by protecting open and frank discussion among those
who make them within the government. Dept. of Interior v Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal citations omitted).
The communications sought by means of the scheduled deposition are
privileged, and therefore, not discoverable.
IV. Deposing Kilpatrick Would Violate Kilpatrick's Rights Against Self-
Incrimination Guaranteed By The United States And Michigan
Constitutions.
The right against self-incrimination is guaranteed by both the United States
Constitution, U.S. Const., Am. IV, and the Michigan Constitution, Const. 1963, art. 1,
17. The right "protects an accused from being compelled to testify against himself or
provide evidence of a testimonial or communicative nature." Massey v. City of
Ferndale, 206 Mich. App. 698, 701 (1994). Defendant Kilpatrick is a subject of a
pending criminal proceeding, the subject matter of which overlaps substantially with the
subject matter of the instant Freedom of Information Act claim.
. Although the instant proceeding is civil rather than criminal, it is well-established
that the constitutional guarantees against self-incrimination apply in civil proceedings as
well. The Supreme Court of Michigan held in Berney v Volk. 341 Mich. 647. 651, 653
(1955):
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It has been generally held that the constitutional provisions
regarding the privilege against self-incrimination also apply
to evidence in a civil proceeding which might subject the
witness to criminal prosecution [internal citations omitted] ...
Of course, in a civil case as well as a criminal one the
defendant's right to his privilege against testimonial
compulsion should be preserved unimpaired, even though its
assertion would work a hardship upon the civil plaintiff who
has no interest whatever in a criminal action if brought.
The Court of Appeals has held that the privilege against self-incrimination is even
"somewhat more comprehensive." The Court held: "'the privilege can be claimed in
any proceeding, be it criminal or civil, administrative or judicial, investigatory or
adjudicatory ... .''' In the matter of Baker, 117 Mich. App. 591, 593 (1982), quoting with
approval Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 94 (1964)
(Justice White concurring.)
The Michigan Supreme Court has also recognized that a Court has discretion to
stay civil proceedings pending the resolution of a parallel criminal proceeding. See
Gebhardt v. O'Rourke, 444 Mich. 535, 551 (1994). Furthermore, Massey, 206 Mich.
App. at 736-37 (1994) stands for the principle that: "Discovery sanctions cannot be
imposed where a witness exercises his or her Fifth Amendment right against self-
incrimination." Michigan Practice Guide: Civil Procedure Before Trial 6: 728.
As noted in paragraph 3 of Kilpatrick's Motion, he is a Defendant in a criminal
proceeding entitled People of the State of Michigan v. Kwame M. Kilpatrick and
Christine Beatty, Case No. 08-58169, which is presently pending in the 36
th
District
Court for the City of Detroit before the Honorable Ronald Giles. In that proceeding,
Kilpatrick is charged by a Complaint and Information of the following: Conspiracy to
Commit a legal Act in an Illegal Manner, a violation of MCl 750.157a; Obstruction of
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Justice, a violation of MCl 750.505; Two counts of Misconduct in Office, a Common
law Offense; Two counts of Perjury in a Court Proceeding, a violation of MCl
750.422;and Two counts of Perjury in an Action Other Than a Court Proceeding, a
violation of MCl 750.423. Kilpatrick has pled not guilty to all of the charges and has
asserted his constitutional right to a trial by jury in the criminal matter.
It is likely that Kilpatrick will invoke his constitutional rights against self-
incrimination in his upcoming civil deposition, if it is held. He would do so in light of the
parallel ongoing criminal proceeding, at the heart of which is the privileged information
sought by the deposition in the instant civil case. Under MCR 2.302(C)(1) and under
MCR 2.306(0), it is well within the power of this Court to order that the deposition not be
held in light of the ongoing parallel criminal proceeding.
CONCLUSION
For all of the foregoing reasons, Intervenor-Defendant Kwame M. Kilpatrick
respectfully requests this Honorable Court enter a protective order which provides that
his deposition to be had. Further, Intervenor-Defendant requests that this proceeding
_ be stayed until the criminal proceeding is completed. Finally, also
joins and concurs in the Motion for Protective Order Discovery which has
been filed by Defendant City of Detroit in proceeding.
- (PLUNKS: - 7- EY -
./
, By:,"
ames C: Thomas (P 801)
Attomeys for Kwame M. ffilpatrick
2632 Buhl Building
Dated: May 23, 2008
Blmfield.20099,81556,990813-1
9
535 Griswold Street
(313) 963-2420
'.
STATE OF MICHIGAN
l'! Michigan corporation,
Plaintiff,
v.
PETROIT NEWS, INC.,
v.
CITY OF DETROIT,
Defendant.
AND COHNLLP
(313) 465-7400
WiUiam J. Leidel (P24826)
630 East Fourth Street .
(248) 291-8020
JeffreyB. Morganroth (P41670)
MORGANROTH & MORGANROTH
Christine Beatty .
3000 Town Center
Suite 1500
(248) 355-3084
Case No. 08-100214-CZ
PROOF OF SERVICE
Jarnes E. Stewart P23254)
BUTZELLONG
The Detroit News
Suite 100
(313) 225-7000
Williarn H. Goodman (P14173)
. Detroit, Michigan' 48207
(313) 567-6170
PLUNKETT COONEY
Kwame M. Kilpatrick '
2632 Buhl Building
535 Griswold Street
, (313) 963-2420
The undersigned states that on May 23, 2008 Motion for Protective Order and
Stay of Proceedings by Kwame M. Kilpatrick, Brief in Support, Praecipe, Notice of
Hearing and this Proof of Service were selVed upon all counsel of record by h':md
delivery.
i Bonnie Tessier
Blmfleld.20099.81556.9909361
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CB Brief in Support of Application to Intervene
STA IE OF MICHIGAN
J:N" THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
DETROIT FREE PRESS, J:N"C.,
Plaintiff,
DETROIT NEWS, J:N"C.,
v
CITY OF DETROIT,
Defendant
_.
Z 1103/2008
COL JR
. J . REE PRESS \1\ ,
1111111111111 III III 1111
DETROli CITY OF
__________________________________________________ --J
1
HERSCHEL P. FINK (P13427)
RICHARD E. ZUCKERMAN (p2652I)
BRIAN D. WASSOM (P6038)
Honigman Miller Schwartz and Cohn LLP
Attorneys for Plaintiff, Detroit Free Press
Detroit, MI 48226
(313) 465-7400
WILLIAM 1. LIEDEL (P24826) .
Liedel, Grinnan & Liedel, P.C.
Attorney for Defendant
630 E. Fourth Street
'Royal Oak, MI 48067
(248) 291-8020
JAMES E. STEWART (P23254)
. LAURIE J. MICHELSON (P47214)
ROBJ:N" LUCE HERRMANN (P46880)
Butzel Long
Attorneys for Intervenor Detroit News
150 West Jefferson, Suite 100
Detroit MI 48226
(313) 225-7000

CHRISTINE BEATTY'S BRIEF IN SUPPORT OF APPLICATION TO INTERVENE
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INTRODUCTION
Plaintiff, Detroit Free Press, Inc., and Intervenor-Plaintiff, Detroit News, Inc. (collectively,
"Plaintiffs") seek an Order from this Court compelling the City of Detroit or Bell Industries, Inc.
("Bell") to produce, among other things, the content of text messages sent from and received by
two-way pagers purportedly used by Christine Beatty. Ms. Beatty only recently became aware of the
nature of these proceedings, and she vehemently objects to Plaintiff's attempts to obtain her private
communications inasmuch as the contents gf her text messages are protected by the Stored
Communications Act, 18 USC 2701 et seq. and inasmuch as the communications contained in her
text messages are protected by various privileges, including, but not limited to, the attomey-client
privilege, accountant-client privilege, physicianpatient privilege, marital communication privilege,
clergy-communicant privilege, and the official iuformation privilege, often referred to as the
"deliberative process" privilege. Accordingly, Ms. Beatty seeks to intervene in this action to protect
her personal rights that are clearly and definitively at stake in this action.
ARGUMENT
I. STANDARD OF REVIEW.
MCR 2.209 states,
(A) Intervention of Right. On timely application a person has
a right to intervene in an action:
(1) when a Michigan statute or court rule confers an
unconditional right to intervene;
(2)
(3)
by stipulation of all the parties; or
when the app Ii cant claims an interest relating to the
property or transaction which is the subject of the
action and is so situated that the disposition of the
action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the
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applicant's interest is adequately represented by
existing parties.
(B) Permissive Intervention. On timely application a person
may intervene in an action
(1) when a Michigan statute or court rule confers a
conditional right to intervene; or
(2) when an applicant's claim or defense and the main
action have a question of law or fact in common.
In exercising its discretion, the court shall consider whether
the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
(C) A person seeking to intervene must apply to the court by
motion and give notice in writing to all parties under MeR
2.107. The motion must
(1) state the grounds for intervention, and
(2) be accompanied by a pleading stating the claim or
defense for which intervention is sought. (emphasis
added).
Because Ms. Beatty clearly has an interest in this action, this Court should permit her to
intervene in this action and her interests.
II. MS. BEATTY SHOULD BE PERMITTED TO INTERVENE IN TIDS ACTION
PURSUANT TO MCR 2.209.
A. Ms. Beatty Has an Interest in this Action Which is Not Adequately Represented
by Existing Parties.
Ms. Beatty clearly has a personal and distinct interest in this action inasmuch as Plaintiffs
specifically seek text messages that were purportedly sent and received by Ms. BealtY. Indeed, as
the purported sender or recipient of the text messages that are sought, a myriad of Ms. Beatty's
constitutional, federal, and common-law rights will be irreparably hanned ifthis Court were to allow
the production of Ms. Beatty's text messages. As discussed below, such rights include her privacy
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ri ghts afforded to her under the Fourth Amendment of the United States Constitution and specifically
provided for by the Stored Communication Act, and her rights to various privileges, including the
attomey-client privilege, accountant-client privilege, confidential marital communication privilege,
physician-patient privilege and the deliberative process privilege. Ms. Beatty should be permitted
to intervene in this action to assert and protect her personal rights.
1. Ms. Beatty's Privacy Rights Pursuant to the Stored Communication Act
are at Stake.
Ms. Beatty's privacy rights are certainly at stake in this action. Indeed, pursuant to the Stored
Communication Act, 18 USC 2701, et seq. (the "Act"), Ms. Beatty had an expectation that her text
messages would be kept private. The Act mandates that absent very particular circumstanGes and
exceptions - none of which are met here - electronic GOmmunication providers "shall not knowingly
divulge to any person or entity the contents of a communication" that is in the provider's possession.
See 18 USC 2702(a)(1). The law could not be more clear. Congress enacted the legislation to
maintain the privacy of electronic communications. As such, Ms. Beatty has an interest in protecting
her privacy rights with respect to her private communications.
2. Ms. Beatty's Fourth Amen!Iment Privacy Rights are at Stake. -
The content of the communications sought in this action is protected by the Fourth
Amendment of the United States Constitution. The Sixth Circuit recently held that individuals have
a reasonable expectation of privacy in their electronic communications. See Warshak v United
States, 490 F3d 455, 473 (6th Cir 2007) (vacated on rehearing en banc) (holding that a person has
a reasonable expectation of privacy in email content that is stored with, or sent or received through,
a commercial ISP). Although the Warshak opinion was vacated, it has been argued to the full court,
and is currently pending before it. Regardless, the Warshak opinion merely confirms the holding of
the court in Quon v Arch Wireless, 445 F Supp2d 1116, 1141-42 (CD Cal 2006), a case that is
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markedly similar to this one. There. the court held that a city employee had a reasonable expectation
of privacy in his electronic messages, even though they were sent and received on a city-provided
pager. Id. It is perfectly reasonable for Christine Beatty to expect that her messages would remain
private. These communications are undoubtedly protected by the Fourth Amendment, and hence
carmot be obtained absent a search warrant based on probable case. See, e.g. Berger v New York,
388 US 41 (1967); Katz v United States, 389 US 347 (1967) (holding that private telephone
conversations processed through a third-party intermediary are protected by the Fourth Amendment
and can be obtained from the intermediary only upon a showing of probable cause j.
3. The Text Messages That Are Sought by Plaintiffs Are Also Protected by
the Deliberative Process Privilege as Well as Other Common-law
Privileges.
Christine Beatty was Mayer Kilpatrick's Chief of Staff, and she communicated regularly with
the Mayor and the rest of the administration via text messages in furtherance of the administration's
charge to run the City of Detroit. The requested communications will undoubtedly include
communications that include suggestions, advice, recommendations, and opinions between the
Mayor and his staff. As such, those communications are covered by the official information, or
"deliberative process" privilege. See United States v Leggett & Platt, Inc, 542 F2d 655, 658 (6th Cir .
1976). This privilege "rests on the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news, and its object
is to enhance the quality of agency decisions' ... by protecting open and frank discussion among those
who make them within the govemment." Dept. of Interior v Klamath Water Users Protective Ass'n,
532 US 1,8 (2001) (internal citations omitted).
Furthermore, various other privileges are at stake here. Indeed, it is possible that Ms. Beati)'
has (i) engaged in communications with her attorneys in these communications and that such
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communications would be protected by the attomey-client privilege or work-product doctrine, I has
engaged in conversations with her physicians, which would be protected by the physician-patient
privilege,
2
(ii) engaged in conversations with her spouse, which would be protected by the
confidential marital communications privilege,; (iii) engaged in conversations with a minister or
priest, which would be protected by the clergy-communicant privilege,
4
or (iv) engaged in
conversations with her accountant, which would be protected by the accountant-client privilege!
All of these privileges are designed to further important societal goals by fostering open and
frank communication between the parties: Disclosure of these communications would harui these
societal goals
6
and would also result in irreparable harm due to the possible waiver of these
1/ See Upjohn Co v United States, 449 US 383,389 (1981) (''The attorney-client privilege is the
oldest of the privileges for confidential communications known to the common law. Its purpose is
to encourage full andfrank communications between attorneys and their clients and thereby promote
broader public interests in the observance of law aiJd administration of justice. ").
2/ See Swickard v Wayne County Medical Examiner, 475 NW2d 304,314 (Mica 1991) ("The
[physician-patient] statute is one passed for the sole purpose of enabling persons to secure medical
aid without betrayal of confidence .... [T]he purpose of the act is to protect the confidential nature of
the physician-patient relationship ... [and] to encourage free discussion between doctors and their
patients.").
;/ See Blauv United States, 340 US 332, 333 (1951) ("[M]arital commUnications are presumptively
confidential. ").
'/ See III re GrandJury Investigation, 918 F2d 374, 3 85 (3d Cir 1990) (,,[T]he clergy-communicant
privilege ... appl[ies) ... [where a] communication '" [is] made with a reasonable expectation of
confidentiality to a member of the clergy acting in his or her professional or spiritual capacity.").
S/ People v Paasche, 207 Mich. App. 698, 706; 525 NW2d 914 (1994), Citillg, People v Safiedine,
163 Mich App 25, 31; 414 NW2d 143 (l987)("The purpose behind the accountant-client privilege
... is to protect from disclosure the substance of the information conveyed by the client to the
accountant. ")
6/ See United States v Byrd, 750 F2d 585, 589 (7th Cir 1984) ("Privileges such as the attorney-client,
doctor-patient, or marital communications privilege exist as common law or by statute to protect
those interpersonal relationships which are highly valued by society and peculiarly wlnerable to
deterioration should their necessary component of privacy be continually disregarded by courts of
law.") .
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privileges through the act of disclosure. See, e.g.,ln re GrandJury Proceedings Oct. 12, 1995,78
FJd 251,254 (6th Cir 1996).
B. Ms. Beatty's Application to Intervene is Timely.
MCR 2.209 does not provide any guidance for when an application to intervene is timely.
However, the, Michigan Court of Appeals has held:
Tbere are several factors to consider when determining if an
application to intervene is timely. See Bradley v Milliken, 828 F2d
1186, 1191 (CA 6, 1987)7, where the court stated:
Timeliness should be evaluated in the context of all relevant
circumstances, such as the purpose of the motion to intervene, the
length oftime the applicant for intervention should have known ofrus
interest in the case, whether the original parties would be prejudiced
by further delays, whether there are any unusUal circumstances which
would bear on granting or denying the motion and to what stage the
lawsuit has progressed.
Smith v losco County Bd of Comm 'rs, 1999 Mich App LEXIS 1123, *3-*4 (1999) (per curiam)
(attached hereto as Exh. 1) (emphasis supplied, original footnote renumbered).
In the case at bar, Ms. Beatty only recently learned of the nature 0 f the proceedings inasmuch
as she was not served or provided with any paperwork regarding these proceeding whatsoever nor
was she provided any reports with respect thereto because she is nc;> longer employed by the City.
Despite the fact that the text messages that are sought by Plaintiffs were purportedly sent by or
received by her, and despite the fact that various rights belonging to Ms. Beatty are clearly at stake
in these proceedings, Ms. Beatty was never provided any notice of the proceedings by Plaintiffs
whatsoever. Indeed, Ms. J3eatty recently retained counsel, Mayer Morganroth, to determine whether
these proceedings in anyway affected her personal interests, and he oilly attended the hearing before
7/ Because MeR 2.209 is similar to Fed R Civ P 24 it is proper to look to the federal courts for
guidance. D 'Agostini v City of Roseville , 396 Mich 185, 188; 240 NW2d 252 (1976).
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this COurt on March 21, 2008 after learning of such hearing from the media. Even then, Ms .
. Beatty's counsel still did not have a dear understanding as to the nature of these proceedings in light
of the extremely limited time he had after learning that the hearing had even been scheduled, and he
only learned of the exact nature of these proceedings during his attendance at the March 21, 2008
hearing itself. In fact, prior to attending this Court's March 21, 2008 hearing, Ms. Beatty's counsel
had not received nor had counsel ever seen a single pleading in this case. Moreover, it is clear that
the instant Application has a bona fide purpose inasmuch as Ms. Beatty's privacy rights and her
rights to vario1l$ privileges are clearly and definitively at stake in this action.
CONCLUSION
For all of the foregoing reasons, Ms. Beatty's Application to Intervene should be granted and
Ms. Beatty should be permitted to intervene in this action and to protect her various rights that are
at stake in this action.
MORGANROTIf & MORGANROTH, PLLC
Dated: March 24, 2008
7
KK to CM "Ben's Chili Bowl'
O.te Time Sender(ANIIIP) Recipient Message B.tes Num 10
Reply nom Christine Beatty is WE ARE AT
BEN'S CHILI BOWL HIT ME WHEN YOU
GUYS ARE LEAVING. (09115 02:21AM EDl) to
9115/2002 1:21:194679147 (Christine Beal1y) 4677164 (Kwame KilpatJic!<) 30-45MINS. T335758 521786
Reply fiom lHE MAYOR is HAVE YOU
ORDERED YET? (09115 02:22AM EOl) to WE
ARE AT BEN'S CHILI BOWL. HIT ME WHEN
911512002 1:22:41 4677164 (Kwame Kilpatrick) 4679147 (Christine Beatty) yoU GUYS A T335759 521787
Reply fiom Christine Beatty is ORDERING
NOW. (09115 02:24AM EOl] to HAVE YOU
911512002 1:24:00 4679147 (Christine Beatty) 4677164 (Kwame KilpatJic!<) ORDERED YET? T335761 521789
Reply from lHE MAYOR is GO AHEAD, (09115
911512002 1:25:244677164 (Kwame Kilpatric!<) 4679147 (Christine Beatty) 02:25AM EOl] to ORDERING NOW. T335762 521790
Reply fiom Christine Beatty is JIle you all stili
911512002 2:29:174679147 (eMstine Beal1y) 4677164 (Kwame KilpatJic!<) out? (09115 03:29AM EOl) to GO AHEAD. 1335764 521792
fiom lHE MAYOR is YES, WILL BE
BACK IN 35MINS. (09115 03:30AM EOl) to
9/1512002 2:30:524677164 (Kwame Kcpatrick) 4679147 (Chlistine Beatty) JIle you .UsHa out? T335765 521793
Reply from Christine Beatty is I'll see you
tomorrow. (09115 03:32AM EOl) to YES,
911512002 2:32:02 4679147 (Christine Bea",,) 4677164 (KwameKilpalIic!<) WILL BE BACK IN 35MINS. T335767 521795
Reply from lHE MAYOR is NO, WHY? (09115
911512002 2:33:574677164 (Kwame KUpatric!<) 4679147 (Christine Beatty) 03:33AM EOl) to I'll see yOll tomorrow. 1335768 521796
Reply from Christine Beatty is I'm on my way
to your room now. but by the time you get
thore I'll be steep and It will be 5aml (09/15
9/15/2002 2:38:51 4679147 (Christine Beatty) 4677164 (Kwame Kilpatrick) 03:38AM EDT) to NO, WHY? T335770 521798
Reply from lHE MAYOR is I GOT SOMETHING
FOR yOU, (09115 03:42AM EDT) to I'm on my
9115/2002 2:42:38 46n164 (Kwame Kilpatrick} 4619147 (Christine Beatty) way to your room now, but by the time yo 1'335771 521799
Reply from Christine 8eatty Is lOl.ls that s07
!
I'm In your room. Don't let Mike check it. Are
"
you In route or still hanging? What do have
i
for me? (09/15 03:46AM EDl) to I GOT
I
9115/2002 2:46:494679147 (Christine Beatty) 4677164 (Kwame Kilpatrick) SOMETHING FOR YOU. T335773 521801
Repty fiom Christine Beatty 101 realty wanled
to g1ve you some good head thls morning
and I didn't know how to ask you to let me
me do It. I have wanted to sInce Friday night
when you asked me at the club. (09/15
9/15/2002 8:42:004679147 (Chri,tine Beatty) 4677164 (Kwame Kilpalrick) 09:42AM EDl) to 10mins. T328768 514796
lHE MAYOR Is Damn. I lust got
out the showor and looked atmy 2way.
NEXT TIME, JUST TELL ME TO SIT DOWN,
I
SHUT UP, and DO YOUR THINGll'm lucked
up nowl (09/15 09:49AM EDl) 10 I really
!
9/1512002 8:49:28 4677164 (Kwame Kilpatrick) 4679147 (ChrisUno Beatty) wanted to give you some good head this mo T328769 514797
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\
A WASHINGTON LANDMARK FOR OVER 50 YEARS
-SINCE '958-
HOME OF THE FAMOUS CHILI HALF-SMOKE
\.
Experience,
TH.E TASTE OF
!Bowl
Breakfast - Mon-Fri : 6am - 1Iam
Sat 7am - 1Iam
Regular Menu - Mon-Thurs: llam - 2am
Fri-Sat lIam - 4ain ..
Sun : lIam, 8pm
1213 "U" ST. N.W. - (202 6 6 7 ~ 0 9 0 9
Visit us on the web at www.benschilibowl.com
or e-mail usatbenschilibowl@aol.com
., fax 2026676608
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Expense reports, etc. for D.C, during Ben's
Chili Bowl texts
:;,.s",
,
Mayor .... .Jffice
January 1, 2002 - September 30, 2004
Summary of Mayor's Credit Card Statement
Amount Oate 01
Date Dr. Cr. Net Bal Vendor Purpose Traveler/Comment Travel SupPOrted Not Supported
8/2812002 158.00 Air Atlanta Dedan Miitan 9117/2002 158.00
8/2612002 35.00 \' Agent Fee KiJpatrtck 35.00
8/2812002 35,00 Agent Fee Roberto Moidanado 35.00.
612812002 35.00 Agent Fee Dedan Milton 35.00
8129/2002 61.94 PF Changes, Troy Meal 61.94
8130/2002 I (5.428.10) . Payment .. '
9/1/2002 122.09 . Max & Erma's. Birmingham Mea! . 122.09
9/1/2002 "67.71 '___ Finance Charge -RIL
$IJbTotal 3,317.1& (1D,503.13) 4,153.71 2,766.49 550.67
9/13/2002 175.95 , Mccormick & Schmick, Washington Mea! 175.95
9/1412002 474.00 , Dream Washinglon Night Club 474.00
9/1512002 112.36 I Hyatt. WaShington Hotel Kilpa.triCk. 112.36 'j;
9/1512002 66.78 . Hyatt. Washington Hotel 86.78
9119/2002 3.00 Ritz Carllon, Atlanta Holel 3.00
9/19/2002 215.46 Ritz Canton, Atlanta Hotel Dezani Milton 215.46
9/1912002 215.46 Ritz Cartton. Atlanta Hote! Derrick Miller 215.46
9/19/2002 215.46 Ritz CarHon, Atlanta Hotel Roberto Maldanabo 215,46
9/19/2002 17.00 Ritz Carlton, Atlanta Holel Derrick Miller 17.00 " .'
9/29/2002 (3.317.16) payment
9/30/2002 52.68 Oxford lnn. Royal Oak Holel 52.68
10/3/2002 33.75 Finance Charge 33.75
SubTota! 1.601.90 (3,317.16) 2,438,45 1,459M 142,46
1016/2002 (862.4S) Payment
1017/2002 1.272.81 Air - Atlanta Kllpatrick 10116/2002 1,272.81
101712002 228.00 Air - Atlanta Dedan Milton 10/1612002 228.00
1017/2002 35.00 Agent Fee Knpatrick 35.00
10n/2002 35.00 Agent Fee Michael Martin 35.00
10/1112002 366.00 Air-AUanta Mlchae! Marlin 10/1612002 368.00
10111/2002 35.00 Agen! Fee Dedan Milton 35.00
1011212002 69.31 Streetslde Seafood. Birmingham Meal 69.31,
10/1212002 93.86 Streetside Seafood, BirmIngham Meal 93.86 \
1011212002 127.35 Detroll Robin Inc Meal 127.35 "
10113/2002 40.33 Southern Fires Restaurant, Detroit Meal 40.33
10/17/2002. 198.61 Omn! Hotel. Atlanta Hotel 198.61
:lOS.56 Omni Holel, AlIan.la Hotel Kilpatrick 305.56 ..
266.50 Air. Chi.ago KUpatrlck 256.50' .
10/1812.002 100.50 Air - Ch.icBgo Oerrl.Ck Miller 1012212002 100.50, 'f, ..
100.50 Air .. Chicago Dedj!n Milton 10/2212002 100.50 . . I
1011812002 100.50 Air Chicago Samer Jaafar 1012212002 100.50
10/1612002 35.00 Agent Fee Dedan Milton 10/2212002 35.00 . I!
10/18/2002.. 35.00 Agent Fee Derrick Miller 1012212002 35.00 , ..
10118/2002 35.00 Agent Fee SamerJaafar 1012212002
10/16/2002 35.00. Agent Fee KUpatrick 35.00' It .;. '.':"'j
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09/13 GRAN CAFE-BKFST 60.11
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4/18/2003 12:19:584679147 (Chrtstine Beatty) (Jamalne Dickens)
T471575 657599
4/18/2003 12:27:584679147 (Chrlsfjne Beatty) (Jamalne Dickens)
T203276 352099
4/2812003 9:18:43 (Jameine Dickens) 4677164 (Kwame Kilpatrick)
T456716 642740
4/28/2003 9:20:05 4677164 (Kwame Kilpatrick) Jamalne Dickens)
T456718 642742
412812003 9:28:53 (Jamalne Dickens)
4677164 (Kwame KilP<ltrlc:k).
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T456719 642743
5/1/2003 14:01:40 (Jamalne Dickens)
4677164 (Kwams Kilpatrick)
T457293 643317
IPeoPle'S Motion Exhibit #16
Date Time Sender{ANInp} Recipient
51612003 10:59:36 4677164 (Kwame Kllpablck) 4677167 (Derek M1IIer)
516/2003 11:02:17 4677167 (Derek Miller) 4677164 (Kwame Kilpatrick)
""
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Message Bat$$NuJ1' ID
T457871 64389
T457920 64394
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IPeOPle'S Motion Exhibit #17
Time

1/1012004 21 :44:06 6714813934 (Kwame Kilpatrick) 4677167 (Derek Miler)
1110/2004 21:46:51 6774813934 (Kwame Kilpatrick) 4677167 (0-MIller)
1/1012004 21:47:054677167 (DErek Maler) 6714613934 (Kwame Klpatricl<j
1/1012004 21:50:04 6774813934 (Kwame Kilpetrlck) 4677167 (Derek MIler)
ID
756552
758553
608419
758554
I
,
i
I
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I
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Time Sender(ANUlp) Recipient
212312004 6:33:40 4677167 (Derek Miller) 8774813934 (Kwame KilpalJick)
2123/2004 6:33:404677167 (Derek Miller) 8774615902 (Christine Beatty)
2123/2004 6:34:50 8774615902 (ChlisUne Beatty) 4677167 (Derek Miller)
Zi23120()4 6:42:338774813934 (Kwame Kilpatrick) 4677167 (Derek Miller)
Message Bates NUlI' In
T357705 54373'
1357706 54373:
1357779 54380'
T575084 78110,
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USATODA Y.com - Police arrest two men suspected of vandalizing Joe Louis statue Page I of3
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Boxing
E-t..,wL THIS PRINT THIS SA.VE THIS MpST POPUlAR SUBSCRIBE
Posted 212312004 3:03 PM Updated 212412004 12:27 NIl
Police arrest two men suspected of
vandalizing Joe Louis statue
By Sarah Karush, The Associated Press
DETROIT - Vandals coated a monument to boxing great Joe
Louis with white paint early Monday, and two men were in
custody, police said. The 8,OOO-pound sculpture, a 24-foot-long
arm with a fist suspended from a frame, is an important landmark
both because it represents a hometown hero and because many
people view it as an assertion of black political power and triumph
over injustice. Louis was black.
The two suspects were stopped by police in the suburb of
Romulus and brought back to Detroit after authorities were tipped
off by a motorist, Romulus police Lt. Cora Semrau said. The
motorist, who saw two men covered with white paint driving out of
Detroit before dawn, followed them while calling state police on his
cell phone, Semrau said.
One of the suspects, 45-year-old Brett James Cashman, is a
parks commissioner for Washtenaw County's Superior Township.
The second suspect is 28-year-old John Timothy Price of
Ypsilanti.
The men are to be arraigned Tuesday on charges of malicious
destruction of property, police spokeswoman Malika Nixon said.
Firefighters used high-powered hoses to remove the gloss paint
from the sculpture. Workers later removed the remaining paint
after consulting with the Detroit Institute of Arts, so as not to
damage the piece.
The suspects "haven't given police an exact reason why they did
it," Officer Glen Woods, a Detroit Police spokesman, told the
Detroit Free Press. "An investigator said one of them has alluded
to the fist being representative of violence In Detroit."
Another officer, speaking on condition of anonymity, told the Free
Press that pictures of two Detroit police officers killed on duty last
week were found Monday morning at the base of the sculpture.
The fatal shootings of Officers Jennifer Fettig and Matthew
http://www.usatoday.comlsportslboxingl2004-02-23 -louis-statue _ x.hun
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Bowens have heightened concerns about violence in a city where
35 people were slain in January, nine more than in January 2003,
and where killings have averaged about one a day this month.
Some critics of the fist sculpture said when it was unveiled in 1986
that it was emblematic of violence in Detroit.
"I feel like there are some stupid people out here," said Jeffrey
January, a 46"year-old Delroit resident who was standing outside
a municipal building across the slreet from the statue Monday
morning. "Joe Louis was an important man to the city."
January said he believed the attack was motivated by prejudice.
Police had not yet drawn conclusions about whether race played a
role in the attack.
"Maybe these guys don't like Delroit or they have something
against Joe Louis," Woods said.
Dorothy Collins, a retired employee of the Detroit Institute of Arts,
said she was appalied that anyone would deface a work of art.
"It's downright hateful," Collins said. "It's a slap in Joe Louis' face."
Superior Township said the community was "saddened" by Ih"
aliegations against Cashman.
. "Certainly this is not something that is reflective of our community.
We have a very diverse community and good residents,"
Supervisor William McFarlane told WXYZ-TV.
The artist who created the fist, Robert Graham, said the
monument has had "a polarizing effect" since it was unveiled.
"It also attests to the power of the memorial that it still raises
complex passions, stupid and otherwise," Graham said in a
statement.
Louis, who was born Joseph Louis Barrow in Alabama and moved to Detroit with his
family when he was 12, is a hero in the city. The Red Wings play in a downtown arena
named for him, and the sculpture, calied Monument to Joe t.ouis but known to
residents as simply "the fist," enjoys a prominent location downtown along Jefferson
Avenue.
One of the greatest heavyweight fighters of aHlime, Louis famously knocked oul
Germany's Max Schmeling for the heavyweight title in June 1938. The sensational
first-round victory, heard by a nationwide radio audience, not only avenged Louis' loss
to Schmeling in a 1936 nontitle bout, it countered Adolf Hitler's belief of Aryan
supremacy.
The fist was erected in 1986 as a gift from Sports IIluslrated to celebrate the centennial
of the Detroillnstitute of Arts. At the time, it evoked a variety of reactions.
"It almost obviously says black power," said Richard Marback, an associate professor
of English at Wayne State University who has written about the fist. "People said that
is the appropriate way to honor Joe Louis. Here is a black man fighting against racial
oppression: He knocked out Max Schmeling, the Nazi boxer."
http://www.usatoday.comlsportslboxing/2004-02-23-louis-statue_X.htm 7/2/2008
USATODA Y.com - Police arrest two men suspected of vandalizing-Joe Louis statue Page 3 of3
But others said it was not "respectful of the whole man because he's more than the
fist," Marback said.
However, Rebecca Hart, assistant curator of contemporary art at the DIA, said
Graham did not intend to make a political statement.
"He considers the piece to be about personal strength and the quest for achievement"
she said.
Copyright 2005 The Associated Press. All rights reserved. This material may not be
published, broadcast, rewritten or redistributed.
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http://www.usatoday.com!sports/boxing/2004-02-23-louis-statue_x.htm 7/2/2008
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Date Time Sender(ANIJIP) RecipIent Message Bates NUrT ID
511512003 14:41 :00 5847282 (Ruth Carter) 4677184 (Kwame Kilpatrick) 451949
Date Time Semler{ANIIIPI Recipient Message Bates Nurr 10
5115/2003 14:41 :00 5847282 (Ruth Carter) 4677164 (Kwame Kilpatrick) 451949
To: James Gonzales
2 pages
MEMORANDUM
Deputy Chief, Homicide Unit
From:
Re:
Date: 15 May 2003
At your request, I reviewed this file in light ofthe report by the City of Detroit Department of
Transportation(DOT).
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3 pages
STATE OF MICHIGAN

)
DEPUTY CHIEF GARY A. BROWN and }
POLICE OFFICER HAROLD C. NELTHROPE.)
Plaintiffs.
. v s -
JERRY A. OLIVER. SR .. Chief of
Police. KWAME KILPATRICK. Mayor.
City of Detroit. ROBERT BERG,
Media "Consultant to the City of
Detroit. and\the C1TY OF DETROIT,
a Municipal Jointly
and Severally,
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Defendants. }
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Civil Action
No. 03-317557 NZ
The Deposition of CHRISTINE BEATTY taken
before me, Sheila D. Rice. CSR4163," a Notary Public
wi thi n and for. the County of Wayne. State of Mi chi gan. at'
I
660 Woodward. 17th Floor. Detroit. Michigan. on
Tuesday. December 9. 2003.
APPEARANCES:
STEFANI and STEFANI
5435 Corporate Drive. Suite 225
Troy. Michigan 480982624
(By M i c h a elL, S t e fan i. E sq.
and Brady Stefani. Esq.).
I
Appearing on behalf of Plaintiffs.
(Appearances continued on next page.)
Penobscot Building
645 Griswold. Suite 2200
Detroit, MI48226
Luzod Reporting Service
(313) 962-Il76
30903 Northwestern Hwy.
Suite 100 -'
Farmington Hills, MI48333
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APPEARANCES:
(Continued)
CITY OF DETROIT LAW DEPARTMENT
660 Woodward Avenue, Suite 1650
(By Valerie ColbertOsamuede. Esq.
and Brenda Braceful. Esq.).
Appearing on behalf of Defendants. Oliver.
Kilpatrick and City of Detroit.
PLUNKETT & COONEY. P.C.
535 Griswold. Suite 2400
(By Laurel McGiffert. Esq.).
Appeari ng on Jlehal f of Defendant. Berg.
ALSO PRESENT:
Gary Brown
Penobscot Building
645 Gri<wold, Suite 2200
Detroit, MI48226
(JIJ) 962-1176
2
30903 Northwestern Hwy.
Suite 100 '
.,
Farmington Hills, Ml48333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Witness Examined by
Christine Beatty Mr. Stefani
Exhibit No,
Penobscot Building
Detroit, Ml48226
E..K./illLll lli!lE..K.
Description
(None marked)
(313) 962-1176
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3
39903 Northwestent Hwy.
S ~ i t e 100
Farming/on Hilis, Mf 48333
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IPeople's Motion Exhibit #23
Oate TIme Sender ANIIIP Recipient
12/912003 20:21:21 8774813934IKwame Kilpatrick} 8774615902 (Christine Beatty)

I-
,
Date Time Sender(ANI/IP) Recipient
711/2003 18:49:15 (Jaroaine Dickens) 4677164 (Kwame Kilpatrick)
7/1/2003 18:51 :17 4677164 (K ...... me Kllpallick) (Jamaine Dickens)
Message Bates Nul1'
REDACTED Paul Rosenberg said you agreed
to do some sort of skit for the concert, Are you
familiar? Jamalne Dickens (07/01 07:49PM
EDT) T467109
RepJyfrom THE MAYOR is Yes, A video before
Em comes on about him doing a shoo in
Detroit. to REDACTED Paul Rosenbmg said y T467111
ID
653133
653135
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Pcc ________________ . ________________ -___________________________________ _
11:00AM
12:00 PM
1:00 PM
(1 :00 PM - 4:00 PM) Tiger Game,Derrick & Lucius(lnvite top CEO's) (Mayor's SUib,.at Comerica
____ ____ ______ ____ .
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2:00 PM
3:00 PM
4:00 PM
5:00 PM
6:00 PM
PM - 7:00 PM) Judy Smith (Detroit Renaissance Club - 200 Renaissance Center, Suite 3660) .
with
8:00 PM
9:00 PM
10:00 PM
...
Late
Notes
...... __ . ,. - .. -----_ ...... ' .. "'--"---'-'-
001741

IPeOPle'S Motion Exhibit #26
Date Time Sender(ANUIP)
Recipient
21412003 12:42:08 4877164 (Kwame Kilpatrick)
Message
Reply ffom lHEMAYOR lsVou tool I was
about to jUinp your bones in Ford Field! lOL
to REDACTED RE: Just have 2 say..once
again,
Bates NUiT
T145959
ID
195745
\peoPle'S Motion Exhibit #26
Date
TIme
Sender(ANUIp)
Recipient
Message Bates Null' m
Reply from THE MAYOR is You toot I was
Clbout to jump your bones In Ford Fieldl Lot..
to REDAClED RE: Just have 2 say-once
21412003 12:42:08 4677164 (Kwame Kilpatrick)
again,
T145959 195745
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IPeople's Motion Exhibit #
27
1
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9 to 11
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8:00 PM
9:00 PM
10:00 PM
. Late
Notes
(10:00 AM -10:30 AM) Hiram Jackson & Derrick Miller (Mayor"s Office) Contact: Hiram Jackson, (
Jasmine, 967-0774 x2252) .:
------------.----------------------------.--------------------------------------.
(11:00 AM -12:00 PM) Detroit Football Classic Press Conf. (Ford Reid, Gate G, meet on the Adams
St. Concourse outside the Paradise Deli by 10:30am) Contact:Jamainei4-4034
9_a-"."_ _____________________________ :.: _ .. ___________________ _
v.il"TG
.
(1 :00 PM: 2:00 PM) Carolyn W. Meza, Rodney Stokes & Lee Steptjenson (Mayor's Offica) Conlact;
T aniia, 4-0869
Confirmed
-----------------------------------------------.----------------------------:----
(3:00 PM 4:00 PM) Judge Feikins, Victor Mercado (Judge Feikens Office, U.S. Courthouse, 231 W.
lalayette, 8th Floor) Contact:
____ __ . ______ _________________________ _________________________ _
.- ,_.' ..
, ...... ;;:: :
(6:25 PM - 6:55 PM) WALKTHRUfSBC Alrican American Excellance Awards Program (Charles H.
of African American History, 315 E. Warren Avenue) Contact: Robert Jones, .
Honorees: Monica Morgan,(Arts & Culture) Sheila Terry-Sanders, (Civic Leadership) Jacquelyn
Vaughn,(Economic Development) Paula Cunningham (Education) & Rev. Florance McElroy (Health
& Human Services)

..
001582
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Exhibit #28
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________ . __ .. ____ . ___ .. __ .. _. _ .. _ . _ .. _ . __ .... _ : ... _. __ ....... __ .. _
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9:00AM
10:00 AM
11:00AM
12:00 PM
1:00 PM
2:00 PM
.3:00 PM
(3:45 PM - 4:45PM) Northwest Flight #1830 Arrives Detroit at 3:47PM KMK .::-.
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(7:00 PM 8:00 PM) American Federation ofT eachers' Annual Paraprofessional Conference (
Marriott Renaissance Center) Contact: Tish Olshefskim mlP.lm ! W 3 XIS; I .
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(7:30 P 9:00 PM) STOP BY: DPOA'S 1Bth Annual District Officer Year Awards Dinner ( -
Roostertail, 100 Marquette) Contact: Marty Bandemer, Bonnie Heintz dJE. J:Q Lib
Mayor to stop by, Confirmed vAlh Bonnie 4/16 .
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PAG[ NO. 1
10 BUliL BUILDINC FLOOR. DETROI", MICHIGAN PNR I 1 P--M:3H8EH . =--
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Date Time Sender(ANII1Pj
RecipIent
412512003 15:25:004677164 (Kwame Kilpatrick)
412512003 15;26:074677164 (Kwame Kllpatrtckj
Message
Bates NUIT ID
Reply from THE MAYOR is I am on a plane from
Houston. I'll try this evening. to REDACTED.Re:
-html-<liv sljle='b T156176 205961
Reply from THE MAYOR is On a plane leaving
Houston. How {Ire u? to REDACTED Hay Yoo ~
ii's been a while, jlls T156176 205961
IpeoPle'S Motion Exhibit #31
Date Time Sendor(ANJnP) Recipient
71912003 22:13:394$79147 (Christine Beatty) 4677164 (Kwame KilpatfGk)
71912003 4677164 (Kwame Kilpatrick)
Message
Reply from Christine Bealty i.lOL! YEPI NOW
YOU SEE HOW I WAS FEEUNGIIT WAS
HORRIBLEI THAT FIRST MEAL WASN'T
RIGHTI (07109 11:13PM EDl) loOk. My
Bales Nurr 10
slomach is tom upl MAYOR KILPATRICK 1212972 361794
REDACTED I Just drove by I just drove by
the k seasons and got goose bumpsll can
not walt ro see youl(07l10 12:16AM EOl) T467915 653939
I
I
i
I
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I
Date Time Sender(ANIIIP)
Recipient
Message
Bates NUIT 10
REDACTED- Bad n e w s ~ a m e on my perJod.
Do you want me to stili get the room? (03/14
4677164 (Kwame Kilpalrick)
11:21AM EST)
T401450 5874:
REDACTED W. canlt'li be a little messy,
4677164 (Kwame Kllpalnck)
LOLl It's up to you, (03/14 05:48PM EST)
T401474 58751
Reply from THE MAYOR is LOll Nexi
weekend Is fine. to REDACTED. I take that to
3/14/2004
17:32:364677164 (Kwame Kilpatrick)
mean we
T401475 58751
I.
Date Time Sender(ANIRP)
5115/2003 11:02:57 4679147 (Chtisline Beatty)
5/15/2003 11:05:044677164 (Kwame Kilpatrick)
Date Time Sond9r(ANIIIPI
5115/2003 12:01:594679147 (Chrisllne Beatty)
5/15/2003 12:03:47 4677164 (Kwame Kilpatrick)
Recipient
4677164 (Kwam. Kllpalrick)
4679147 (Christine Beatty)
Recipient
4677164 (Kwame Kllpatrick)
4679147 (Christine Beatty)
Bates Nun ID
T474545 6605E
T459791 64581
Bates NUll 10
T159655 20944(
T159759 .20954'
I
I
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IpeoPle's Motion Exhibit #34 I
,IJ.!!1.!.,. ,Sender(ANIIIP)
! 1
8123102; 20:46:08\4677164 (Kwame Kilpatrick)
,
I I
,----"81",2",31.,,0,,,2,,-' (Christine Beatty)
Recipient
4679147 (Chrisline Beatty)
Bates NUIT 10
.... -. "-',--_.. . ... _,- ._ .. "._",--
:Reply from THE MAYOR is GOODNIGHT G.
!MY WIFE 15 NOT COMING TO DC. I
!DEFINITELYWANT SOMEI (08123 09:46PM
IEDnta See va later. Have a QOod onel lT126710
\Reply from Christine Beatty is Some what?
1(08123 09:47PM EDT} to GOODNIGHT G. MY
!WIFE IS NOT COMING TO DC. I DEFINI fT126711

\176496
176497
Date Time Sender{ANlnp) Recipient
ID
5/19/2003 12:07:475847282 (Ruth Carter) 4677164 (Kwame KilpalIick)
452201
5/19/2003 11:18:41 (Jamaine Dickens) 4617164 (Kwame Kilpatrick)
646470
5/19/2003 12:12:524677164 (Kwame Kilpatrick) (Jamalne D!ckens)
646474
People's Exhibit #36
Date Time Sender{ANIJlPl Reel ient Message Bates Nu 10
Reply from Christine Beatty is Baby, If I was
with you right now, I would sit you down, get
on my knees in front of you. I would pull
myself up to you and gently suck on your ear
lobe and come around kiss you so
11/22/2003 22:33:17 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) passionately. then ... (11/22 11 :33PM EST) t T349412 535440
Reply from THE MAYOR is PLEASE TELL ME
MOREl (11/22 11:35PM EST) to Baby, if I was
11/2212003 22:35:00 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) with you fight now, I would sit you T349413 535441
Reply from Christine Beatty is Then I would take
off your shirt and kiss you down your neck and
suck on your nipples until they get hard. After
that I would take off your pants and lay you
down on the bed. Then .. (11/2211:40PM ESl)
11122/2003 22:40:04 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) to PLEASE TELL ME M T349415 535443
Rep!yfrom THE MAYOR is MY SHIT IS SO HARD
ALREADY. (11/22 11:41PM ESl) to Then I would
11122/2003 22:41:32 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) take off your shirt and kiss you down T349416 535444
Reply from Christine Beatty is Then,l would climb
on top of you and start kissing you on the top
of your head, move down to your face, then
gently move to your stomach and gently lick
around your belly button! Then ... (11/22
11122/2003 22:45:04 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) 11 :45PM ESl) to MY SHIT IS S T349418 535446
Rep!yfrom THE MAYOR is DAMN .. I LOVE THIS!
(11/22 11 :46PM ESl) 10 Then, I would climb on
11/22/2003 22:46:35 8774813934 (Kwame Kilpatrick) 8774615902 (Chrisline Bealtv) top of YOU and start kissin T349419 535447
Reply from Christine Beatty is Then. I would move
my way down to your dick and gently slide It
,--,.
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feel like inside of me and"you're asking
._.. -
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to be in mel Then . (11/22 11:50PM ESl) to
11122/2003 22:50:23 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) DAMN .. ,I LOVE THIS! T349421 T349419
Reply from THE MAYOR is SHUITI (11/22
-
11 :52PM EST) to Then. I would move my way
11/22/2003 22:52:45 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) down to 'lour dick and OIJ T349422 535450
Reply from Christine Beatty is Then, just when
you're about to come, I would take it out of
mouth and climb back on top ofyoLJ and slide
it deep Inside of mel I would then begin to
slowly ride back and forth on top of you.
11/22/2003 22:57:02 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) Then .. (11/22 11:57PM ESl) to S T349424 535452
Reply from THE MAYOR is DAMN CHRIS! (11/22
11 :59PM ESl) to Then, just when you're about to
11/22/2003 22:59:00 8774813934 (Kwame Kil atrick) 8774615902 (Christine Beatty) come. I would take T349425 535453
-40-
>.
"\1:"
Reply from Christine Beatty is Then, 1 would pull
your chest to mine while you're still deep
inside of me and kiss you so passionately
while riding youll would then ask you to gently
grab my ass and you would put your finger in
11/22/2003 23:01:55 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) 'ust enouah to make bea vo T349427 535455
Reply from THE MAYOR is Don't STOP! PLEASE.
(11/23 12:04AM ES1) to Then. i 'MJuld pull your
11/22/2003 23:04:00 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) chest to mine \-\tIile you're T349428 535456
Reply from Christine Beatty is Then, we are so
close to each other that sweat from our bodies
makes us stick together and you are moving In
and out of me so slow and so strong and you
are hiWng my spot so right and I'm sucking
11/2212003 23:09:08 8774615902 (Christine Beatty). 8774813934 (Kwame Kilpatrick) your ear and begging you n T349430 535458
Reply from THE MAYOR is COME ONI (11123
12:11AM EST) to Then, we are so close to each
11122/2003 23:11:00 8774813934 (Kwame Kiloatrick) 8774615902 (Christine Bealtv) other that sweat fro T349431 535459
Reply from THE MAYOR is I'm ABOUT TO COME
RIGHT NOWI (11/2312:16AM ES1] to Then you
11122/2003 23:16:20 8774813934 (Kwame Kiloatrick) 8774615902 (Christine Bealtv) lav back on the bed stlll dee/) inside me T349432 535460
Reply from Christine Beatty is Then, I lay on top
of you, still trembling from coming so hard and
you put arms around me and hold me so tight
and I lay my head on your chest and you rub
my hair so gently. Then." (11/23 12:20AM EST)
11122/2003 23:20:49 8774615902 (Chostine BeatlYl 8774813934 (Kwame Kilpatrick) to I'm ABOUTTO COME R T349434 535462
Reply from THE MAYOR is I LOVE YOUI (11/23
12:22AM EST) to Then, 1 lay on top of you, still
1112212003 23:22:03 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beatty) trembling from co T349435 535463
Reply from Christine Beatty is Then I lay on my
side and you lay behind me and pull me so
close to you and I say "llove You So Much"
and you say "I Love You too" and kiss my neck
so soft And then we pull up the covers and go
11f22/2003 23:26:19 8774615902 (Christine Beatty) 8774813934 (Kwame Kilpatrick) to sleep and wake up in an h T349437 535465
Reply from 1HE MAYOR is HELL YEAHI
,,??
~ .... . ~
- ~
- - . - . - . ~ " - - " " -
+-
.. - -
12:28AM EST) to' Then-'I lay on mysideand you lay
_.- ..
11/22/2003 23:28:05 8774813934 (Kwame Kilpatrick) 8774615902 (Christir.e Beattv) behind me and DU 1349438 535466
Reply from Christine Beatty is First tell me how
8774615902 (Christine Beatty) 8774813934 (Kwame K"patriCk)
youuu feel! (11/23 12:29AM EST) to HELL
11/22/2003 23:29:55 YEAHI CHRRRRISSS! HOW DO You FEEL? T349440 535468
Reply from THE MAYOR is NO NIGGA! You 1ST.
(11/23 12:31AM EST) to First ten me how youuu
11/22/2003 23:31:20 8774813934 (Kwame Kilpatrick) 8774615902 (Christine Beattv) feel! 1349441 535469
-41-
iPeoPle's Motion Exhibit #37
hard. Its ALL the Family thing.
(03/18 10:30PM EST)
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12/9/2003
Time Sender(ANIIIP)
13:28:198774615902 (Christine Beatty)
Recipient
Message Bates NUIT
I'm TURNING OFF MY TWO WAY NOW. I
10
WILL BE UNAVAILABLE FOR ABOUT THE
NEXT 4 HOURS, IF ANYONE NEEDS TO
REACH ME URGENTLY, THEY CAN CALL
RUTH CARTER'S OFFICE. Christine L Beatty
8774813934 (Kwame Kilpatrick) (12109 02:28PM EST) T351108 537136
",
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!pages #1-38
MessaQes to or from Christine
Page 1/38
-.--: . , . .. -. ....,.
I -: __
Kwame's Messages Excluding any MessaQes to or from Christine
64
Page 2138
~ ~ . - - - - ... -------.--..--..-+-
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Kwame1s Messages Excluding any Messages to or from Christine
Page 3/38
_.,.'-.;-"-'" ...... " .. , ~ - - .....
Kwame's Messages Excluding any Messages to or from Christine
~
Page 4/38
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Page6J38
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i
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ill bring byron, Would u feel ok
Page 7138
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Page 8138
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Kwame's Messages Excluding any NiessaQes to or from Christine
Page 9138
.. __ .. '.'-'-'';"'
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. Kwame's Messages Excluding any IMessaqes to or from Christine
Page 10138
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Kwame's Messages Excluding any MessageS to or from Christine
Page 11/38
~ ~ ... ~ - ,
Kwame's Messages Excluding any M e ~ s a g e s to or from Christine
Page 12/38
Kwame's Messages Excluding any ~ ~ : : ; : : ; i : : 1 ~ ~ : : ; to or from Christine
Page 13/38
"j
Kwame's Messages Excluding any essages to or from Christine
!
210201
Page 14138
'.""- .._-.. --_ ...... ------.- ------..--- .. ---------
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Kwame's Messages Excluding any MessaQes to or from Christine
Page 15/38
Kwame's Messages Excluding any l\.j1essages to or from Christine
210371
4677164
16:19:11
my
big enough 5 peopi w?a big screen
Page 16138
Kwame's Messages Excluding any Messaqes to or from Christine
21
Page 17/38
Kwame's Messages Excluding any Nlessaqes to or from Christine
212541
Page 18/38
_ ... -,--,_.,--_._"---_.-
.;.G..
Kwame's Messages Excluding any fvlessages to or from Christine
453901
Page 19138
Kwame's Messages Excluding any Messa;Qes to or from Christine
4541
21421
Page 20/38
Kwame's Messages Excluding anyrytessages to or from Christine
\ 215991
Page 21138
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4677164
13:29:11
21
Page 22138
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some
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Frankie's nephew was shot today on
up to 4 times. Now in surgery. Critical
Page 23/38
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- - - - - - ~ - - .... - - - - ...--.------'---- . II
7121
877481
..
ORG:Mayor's Office TITLE:Mayor ADR;DOM;WORK:;;CAYMC=OD=OA= 2
Woodward Avenue=DD=OA= Suite 1126;Detroit;MI;48226;USA;
EL;WORK;FAX:313.224.4128 TEL;PAGERTwo way,
ORG:Mayor's Office TITLE:Mayor ADR;DOM;WORK:;;CAYMC=OD=OA= 2
IWoodward Avenue=OD=OA= Suite 1126;Detroit;MI;48226;USA;
EL:WORK;FAX;313.224.4128 TEL;PAGER:Two way.
ORG:Mayor's Office TITLE:Mayor ADR;DOM;WORK:;;CAYMC=DD=OA= 2
Woodward Avenue=OD=OA= Suite 1126;Detroit;MI;48226;USA;
EL;WORK:FAX:313.224.4128 TEL;PAGER:Two way,
ORG:Mayor's Office TITLE:Mayor ADR;DOM;WORK:;;CAYMC=OD=OA=' 2
(Woodward Avenue=OD=OA= Suite 1126;Detroit;MI;48226;USA;
;WORK;FAX;313.224.4128 TEL;PAGER:Two way,
Page 24138
877481
realize I know u d
Page 25138
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DERRICK NOW. FUCK CONRAD, SID OR WHOEVER. ITS MY ASS
. (12/08 07:32PM EST) to Mr. Mayor this is a piece offallout from
WE FUCKED UP ROYALLY I Sit down with Media, 2, 4, 7, Frankie,
Serch, etc. Stop Ignorance Now! MAYOR KILPATRICK {12i15 02:25PM

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is deep, This might sound funny, but I am honored that you feel that
about me, You pretty much described what I feel sometimes as well. The
to be with
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WAS ABOUTTO BE SELFISH, BUT GO
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FRIEND, AND I KNOWTHEY TALK ABOUT WHAT'S GOING ON
YOU AND HER! ALL SHE WOULD NEED IS TO HEAR THAT.
REMEMBER THE #1 EXCUSE OF A CHEATING MAN "I WAS WORKING
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ABOUT TO ORDER AT MAX & ERMA'S. I WILL BE FREE
ITONIGHT AT ABOUT 9PM WHEN,AYANNA GETS BACK. I MUST SEE
. (09/0101 :22PM EDT) to Good morning to you! Me and the girls are
to
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THINKING ABOUT YOU.
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i"REASONED NECEssrtY':; I LIKE lTI LOL. I DON'T THINK I'm IN DANGER
GETTING PUT OUTJUST YET. BUT I'll KEEP YOU UPDATED. LOL. I
GETTING ALL OF MY TWO WAYING OUT NOW BECAUSE I KNOW
from Christine Beatty is LOUYOU DON'T SAY. YOU ARE ALSO
'miTriNG GOOD ATNOTACKNOWLEDGING ALL OF MY TWO WAY
MESSAGES! LOL. NO COMMENT ON THE UNAVAILABLE THING, HUH?
tbLOL LOL. NIGGA. I WENT TO CASS TOO.
HAVE A GOOD EVENING: I'm TRYING REAL HARD NOT TO BE JEALOUS
KNOWING THATYOUARE ABOUT TO SPEND A ROMATIC EVENING
YOUR WIFE, HAD TO GETTHATOFF MY CHEST. I HOPE YOU
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,
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SAFE AND WARM BY MYSELF .. BECAUSE IT Can't HAPPEN. IF
ARE IN A STORM, I'm IN IT TOO. DAMN THAT SAFE AND WARM
(09/27 04:07PM EDT) to "I'd RATHER HAVE BAD TIMES WITH YOU,
GOOD
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RECENT SATURDAY AT THE RESIDENCE INN! YOU MADE ME FEEL SO
DAMN GOOD THATNIGt-lT;.ASYOUCAN SEE I Can't LET IT GO! I FELT
SENSATIONS THAT NIGHT THAT I HAVE NEVER FELT! I DON'T THINK
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Or did it even cross your mind? (10/11 02:20PM EDT) to FIRST OF
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pull myself away for a minute.LOL. You must understand this is tough for me
to not be present at cabinet or anything work related. It's like I'm not doing my
if I miss. S
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I MUST SAY THAT YOU LOOK INCREDIBLE AT WORK ANYWAY. YOU
BEAUTIFUL. INSIDE&OUT.l'mGOING TO BE ALL OVER THE BIKINI
SECTION OF XOURBODY. LOL (11/04 12:04AM EST) to LOL! JUST
Reply from Christine Beatty is LOt.:. THANK YOU AND GOODNIGHT B.
(ERASE YOUR MESSAGES! SENT AND RECEIVED! LOU (11/Q412:07AM
"YCANTWAITTO SEE YOU. I MUST SA iT134683
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07:10PM EST) to EVERYTHING
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you so;;;"uch:"'fh"nkyou for coming to
me. I was very happy to see you. (04/06 08:49PM COT) to NOPE. CHILL.
ON TOMORROW. SEE You IN A FEW .
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from THEMAVOR is LOU The mightis on YOU! LOL (04/0811:16AM
. What
from Christine!3eattyisLOL! Nigga I already claimed it! KCK 2012,
. ,.. that you wouldbeiny boyfriend everyday until I was your wife. Are
1 ___ __
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46771 47 did
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!absolutely nothing to say but, damn. Ok, on a lighter nOle. Me, Carolyn and
saw your father at the mall with a young ass girl. LOL! COULDN'T BE
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09:50PM COT) to Do you know I love you? REALLY? Shaw was
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yourbirthdayyet where 'your birthday
D! Happy Birthday B! I wanted to be the first one to wish you happy
Ibirthdav. I wish 1 could be the last. Love you much! Have a wonderful day.
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me? Please let me know what's going on. 1 can be better if you just say
o
from Christine Beatty is And please don't send, will call later. (08/01
mvlifp., I feel that its possible to lose you! Not to another
scares me about that is the thought of losing OUR
you get to us losing our
ifrienship? (08/01 08:24PMEDT)tcfForthe lirst time in my life, I feel that its

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iMORE NOW. LOU ENJOY YOUR NIGHT. I'm SO JEALOUS OF THE
(11/08 01:21AM EST) to Just FYI: I just got buck naked, took a
By the way, have a safe trip tomorrow. I'm having a girls dinner with Ruth, Ella
and Carolyn. Remind me to tell you about my "Freeman Hendrix"
with Sean. Christine l. Beatty (111
we
the number of moments that take our breath awayl Christine L. Beatty
you
them I LOVE them for their personal
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1 __ Tl'en I wilt look you in the
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Parents Divorced when I was 10yrs old. I Thank God for them. They were
for Me, Yann, Diarra, because of it. I REALLY don't remember them
Reply from Christine Beatty is And what's different for you and your situation?
your children see that you andlor CEK aren't happy? Won't they be ok?
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RF!nl\l from Christine Beatty is LOLOL I hope you have AT LEAST 16 more
L YSM. Call me later If you can or when Chris Rock Is on. (04117
NOSE IS WIDE OPEN. STILL!!! AFTER 16YRIT046138

GJ
Page 70173
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TO BE THINKING ABOUT ME LIKE THAT. I MEAN, ONE OF THOSE
IT IN YOUR GUT NIGHTS THAT I WANT TO BE WITH YOUI (05/01
to OK What's HT?

Page 71173
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got in Car accident. We just got hit by a Damn car. Hard! Don't call
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Page 73/73
Christine's Messages Excluding any Messages to or from Kwame
14:31
9:48:51
!BOOKING, HOTEL, EXEC. PROTECTION, RECONCILIATION OF CREDIT
ICARD .. "IT MAKES MORE SENSE IFI'M HANDLING THE BUDGET AND
iCREDIT CARD PART..UUUUUUGGGGGHHHHHH Misty C. Evans (10/18
....
Page 1/21
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NORTHLAND, SUNDAY AT 4:30 FYI: SHE WEARS A 4T AND LOVES BABY
DOLLS AND BARBIES. I KNOW THIS IS A BAD INVITE, BUT FORGIVE
COME CELEBRATE WITH US. Christine L. Beatty (03107 01:51PM
Page 2121
~ . : :
Page 3/21
~ ,
4679147
though. I just talked to the
wai
Reply Message: Reply from Christine
I just talked to the Mayor about it. to
Jerry Oliver DPD Chief Sorry I was in my
basement and my cell doesn't there. Yes I received your response to our
........... _-- .-. -.- .... ........ ---
675731
PagEl 4/21
___ ... e Res 0 - t chief did not
" ! re:Garys termination. Just that It was true but he didn't have all of the
inf"'M"tiM as to why. Also garys lawyer is suppose to be calling your office, I
whisle b
5/21
511210
Page 6121
~ ..":
Christine's Messages Excluding any to or from Kwame
(Dur Message: What did Gary Brown
()')1Q0tu1 J:;r1T'
Page 7121

I...M::5)o' said no. Tad saie his bosses are
and wants us to call on the feds to do it. I wll! speak with Hulon again
Page 8121
Page 9/21
'---;---,-
Page 10121
~ ' - , '
-..
Page 11121
--.. - - . - - . - . - - . - . - ~ -
.;- M __
lO'On'( worK. Another storY for tomorrow. All they are doing is rehaslng what
Rrown's memo, ML eating it up. Greg's turn as far as Freep goes.
..__.,..... __ -:- ___ --:-.. _____ ;:-..--.. .. _ .._ ... -:-__ __ , ____ . _______
Page 12121
21 :37:41
356741
Page 13121
.. ... ............... :!!!!.!!!4 7r84 __ Christine L
j I Indicated I had a place in mind that I was going to send Greg, My first choice
vice, If you think he would prefer someplace else, have him contact me
Iplease, Thanks NC Shoulders
I haven't read the paper today, I'll get one now, I'll wait to hear
you regarding Greg, by the way I have a lieutenant and sergeant that I
will do Yoor Message
Page 14121
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CLEARED AND THE TRUTH PREVAILED! LOVE YOU BOTH! I'm THE
Page 15121
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Page 16121
1----;----
Page 17121
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Page 18121
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Page 19/21
I
.... ....l_6..'1!:_15L ... _. __
, I I Chri.line. Just tried your cell. rreep hea<:!line (front pg
story on front) is 'Major Turmoil Began With An Unsigned Note'
isub-headline says its the Inside Story of the big risk GB took investigating the,

Page 20/21
5847282
Page 21/21
... _ .. ,-..-_._--,---_.---._._--_._---_ .. .,. .'.
Ruth Carter
t::::OA7,}0'1IAa77-t64
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Page 1111
Ruth Carter
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451
Page 2/11
................. - .. _----
Ruth Carter
Page 3/11
,. . ............ - - - - . - ' - . - - - . - - - . - . - - - - - - - - - - - - ' - - . - - - - - . - ~ . . . . . . - . - .. ----.-.-.. ~ . -
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Ruth Carter
Page 4111
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Page 5/11
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Page 6111
........ -.---.......-... -------- .- ... _ .. _--------_._-_ ....
Ruth Carter
215291
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10121
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Page 7111
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10/22/03: 17:16:1
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Page 8/11
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Page 9/11
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Andrea Carroll
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,7:04:04: 5279077i4974957 lQ6:04PM EDT) to I sdont know her, her name is I::lIa I:lully Collins'!'!
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iT232569 394101
17:29:1 527907714974957 :envelope, I s
, .......... ::.= '-., , __ !_,_.o. __ " ___ ____
<;?7Q()77:4974957
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f i I !In best friend complete secrecy mode: do you swear? Carlita E, Kilpatrick .
5/6/03: 15:31 :481 5279077i4974957
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5/6/03! 15:37:581 527907714974957 1(05/06 04:37PM EDT) to YES! dang, you're scaring me!
" "_ ....... L __" ... _ _.', ___ . ___ ,, __,__ _ ___ ..... ."" ___ "'_, .__ ___.. __ ...... ___ _____.. ___ .._.,,_,_ ... _ .. __'" ___.....,, __ -'" ______.. ._ ... "_ , __ ____ ,- ___' .. __ .'_'-' .... _. __ ,_ .. """ .____." _ . ",,_ ..
5/6/031 15:47:34:
.'-------.-- -1-'-
! iReply from FIRST LADY is I don't know any particulars, But if she
Knows,ldon'iwherethingsare
from here, Nelthrop went to IA and told them that the party did happen
and that I did beat up some girl. What in the world is going on? (05/06
terr
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her to go where she wants to go but KMK said I CANNOT get in it.
,sad yesterday. Did Lt. Say anything else? (01/0610:22AM EST) to Who's
wth you today? An
- - - - , - - . - ~ .. ~ ~ - - -... ~ - - . - " ~ - . - . -
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106 10,51AM --_. . .
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STATE OF MICHlGAN
IN THE 36TII JUDICIAL DISTRlCT COURT
THE PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
KWAME KILPATRICK 82-08707051-01
CHRISTINE BEATIY 82-08707051-02,
Hon. Ronald Giles
Case No. 08-58169

ROBERT A. MORAN (P56475) JAMES C. THOMAS (P23801)
Defendants.
ATHINA T. SIRINGAS (P35761) JAMES C. THOMAS, P.C.
LISA D. LINDSEY (P39570) Attorney for Defendant Kwame Kilpatrick
ROBERT W. SPADA (P46295) 535 Griswold St, Suite 2632
WAYNE COUNTY PROSECUTOR ' Detroit, MI 48226
1441 Saint Antoine Street (313) 963-2420
Detroit, MI 48226
(313) 224-5777
MAYER MORGANROTH (P17966) ,
JEFFREY B. MORGANROTH (P41670)
MORGANROTH & MORGANROTH, PLLC
Attorneys for Defendant Christine Beatty
(248) 355-3084
ELBERT 1. HATCHETI (P14735)
HATCHETIDEWALTHATCHETI & HALL
Co-counsel for Defendant Christine Beatty
485 Orchard Lake Rd '
, Pontiac, MI 48341 ,
(248) 334-1587
DANK. WEBB
Co-counsel for Defendant Kwame Kilpatrick
35:West Wacker Drive
Chicago, lllinois 60601
(312) 558c5600
JAMES W. PARKMAN, III
WILLIAM C. WHITE. II
THE COCHRAN FIRM
Co-counsel for Defendant Kwame Kilpatrick
11 N. Water Street, Suite 14290
Mobile, AL 36602
(251) 434-9992
______________________________________
DEFENDANT. CHRISTINE BEATTY'S. IN CAMERA MEMORANDUM AND
PRIVILEGE LOG REGARDING MAINTAINING CERTAIN TEXT MESSAGES
UNDER SEAL
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PRELIMINARY STATEMENT
On July 1, 2008, tbe Prosecutor sent notice to Defendants that it "intend[ s] to file a pleading
with the 36th District Court on July 3, 2008 [which] will include numerous text messages from
[Beatty] and others." Despite requests from Defendants that such motion (the "Motion in Limine")
only be ftled under seal, the Prosecutor insisted that it was going to publicly ftle such motion,
I
including the text messages, on July 3, 2008. I
Because sucb text messages will not be admissible as evidence, and are in fact protected from / .
. -
disclosure by tb,e Federal Stored Communications Act,.18 USC 2701 et seq. (the "SCA"), .
Constitutional rights to privacy and various common law privileges, Defendant, Christine Beatty
("Beatty"), had no choice butto file ber Emergency Motion to Preclude the Prosecutor from Publicly
Filing Alleged Electronic Communications Prior to this Court's Ruling on Beatty's Motion to
Preclude Such Evidence (the "Emergency Motion") on July 2, 2008.
On July 3,2008, this Court held a bearing regarding the Emergency Motion. Thereat, this
Conrt ruled that. the Prosecutor could not publicly file the Motion in Limine until the Court
considered the issues raised by Defi:ndants and reviewed the Prosecutor's Motion in Limine. The
Court thus ordered that the Prosecutor file a copy of the Motion in Limine with tbe Court under seal,
,
and serve a copy of the Motion in Limine upon Defendants. The Court further ordered that it would
;
hold a follow-up hearing on July 14, 2008 in order to further address this issue after it and
Defendants had received copies of the Motion in Limine.
On July 7, 2008, the Prosecutor served the Motion in Limine upon Defendants.
During the July 14,2008 hearing, this Court ruled that it would not publicly release text
messages which are subject to any privileges, are merely evidence of "other bad acts" and/or which
may not have already been published in the news media. As a result, this Court requested that
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Defendants provide a "privilege log" explaining the reason(s) why the text messages attached as
exhibits to the Prosecutor's Brief, andlor referenced in the body of such Brief, should not be publicly
released based upon the Court's ruling!.
In accord with this Court's ruling, Beatty hereby attaches hereto as Exhibit 1 alog delineating
the Exhibits attached to the Prosecutor's Motion in Limine, andlor in the body of the Prosecutor's
Motion, which explains the reasons why such text messages should not be publicly
ARGUMENT
I. . THE TEXT MESSAGES ARE SUBJEcT TO NUMEROUSPruV:u.EGES
WHICH PRECLUDE THEIR PUBLIC DISCLOSURE.
A. Many of the Text Messaees are Protected by the Attorney/Client Privilege.
The Michigan Court of Appeals held that the attorney/client privilege attaches to a1l
confidential communications between the client and its adviser that are made for the purpose of
obtaining legal advice. Liebel v General Motors Com, 250 Mieb App 229, 236; 646 NW2d 179
(2002).
The attorney/client privilege is "the oldest of the privileges for confidential conununications
known to the common law." Upjohn Co v United States, 449 US 383, 389 (1981). The
attomey/clientprivilege is meant"to encourage full and frank communication between attorneys and
their clients." Swidler&BerIin v United States, 524 US 399,403 (1998). Indeed, theattorneyfclient
privilege provides a "necessary IDWldation for the adversarial system of justice. " In re Lott, 424 F3d
II The Prosecutor aIsoattacbed as Exhibit 2 to its Motion in Limine seven CD-ROMs containing .11625,000 (in
excess thereof) text messages. Defendaot Beatty, does not separately address the CD-ROMs inasmuch as it would be
impossible to do so within the four day time period provided by the Court, and the CD-ROMs appear to have been
attached in response to the argwnents made by counsel fur Mayor Kilpatrick that the text messages have been doctored.
Of course, Defendant Beatty, objects to the attachment oflbe seven CD-ROM's in theirtotaiity inasmuch as the specific
text messages that this Court allows to be attached without seal can be attached to the Prosecutor's Motion without
attaching all seven CD-ROM's containing in excess of 625,000 text messages.
21 For this Court's convenience, Beatty has delineated the reasons why numerous text messages attached to the .
Prosecutor's Motion in Limine shOUld not be publicly released, even those to which Beatty is not aUegedly a party.
2
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446, 450 (6th Cir 2005). Furthermore, it is well settled that, once established, the attorney!client
privilege is inviolate and sacrosanct. Official Cornm of AsbestosClaimants ofG-fHolding.
Iru; v Heyman, 342 BR 416, 426 ( SDNY 2006).
Thus, because many of the text messages were sent to, or received from, attorneys for the
purpose of obtaining or providing legal advice, such text messages are absoluteJyprivileged, are not
admissible and can not be publicly disclosed. See, Prosecutor's Exhs. 35; 41.
B. Mauv of the Te:d Messages Are Protected by the Deliberative Process Privilege.
The Michigan deliberative process privilege protects "thatportiorl of a [governmental] report
that comprises material of a deliberative or evaluative nature." See, In re Subpoena Duces Tecum
to the Wayne Co Prosecutor (On Remand), 205 MichApp 700, 703; 518 NW2d 522 (1994). The
deliberative-process privilege is based upon a policy of protecting "open, frank discussion"
concerning governmental action. Ostoin v Waterford Townsbip Police Dep't, 189 Mich App 334,
337; 471 NW2d 666 (1991), citing, Kaiser Aluminum & Chern Com v United States, 157 F Supp
939,946 (Ct CI1958).
f
Thus, any text messages which encompass discussions regarding the business, operations, I I
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administration, working as and governance of the City of Detroit absolutely are privileged, .are not I I:
I' .
admissible and cali. not be publicly disclosed. rd. See, Prosecutor's Exhs. 15-17,20,33,35,39-41, I I::
44.
C. Many of tbe Text Messages On Their Face Purportedly Represent
Communications Between SP9uses Whicb Are Privileged Pursuant to the
Michigan Confidential Communications Privilegll.
The Michigan confidential communications privilege, MCL 600.2162(2), states, in
pertinent part,
In a criminal prosecution, a husband shall not be examined as a
witness for or against his wife without his consent or a wife for or
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against her husband without her consent[.]
It is well settled that the Michigan confidential communications privilege applies to
communications made during a marriage, and remains in force even after the marriage has ended.
People v Zg 184 Mich App I; 457 NW2d 59 (1990). Thus, any communications between
spouses (i.e., Beatty and her former spouse, and Mayor Kilpatrick and his wife) which occurred
during the course of the marriage are absolutely privileged, are inadmissible and can not be publicly
disclosed. See, Prosecutor's Exhs. 8,9,42
II. THIS COURT RULED THAT TEXT MESSAGES PERTAINING TO
ALLEGED "OTHER BAD ACfS" MAY NOT BE PUBLICLY DISCLOSED.
MRE 404(b)( 1) states, in pertinent part,
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. (emphasis added).
In light of the Michigan Rules of Evidence's clear prohibition regarding the evidence of
"other bad acts" to attempt to show poor character, on July 14, 2008, this Court ruled that text
messages which allegedly demoustrate such "other bad acts" can not be publicly disclosed. See,
Prosecutor's Exhs. 26, 30, 31, 32 .
. m. TEXT MESSAGES WHICH HAVE NOT YET BEEN MADE PUBLIC MAY
NOT BE PUBLICLY FILED INTmS CASE INASMUCH AS THEY WOULD
ONLY SERVE TO TAINT THE JURY POOL AND FURTHER
COMPROMISEDEFENDANTS' RIGHT TO A FAm TRIAL.
On July 14, 2008, this Court noted that:
For the most part those text messages are already out there ... The
issue of a tair trial has to some degree already been threatened.
Therefore, in order to prevent any further taint of the jury pool, and ameliorate any further
threat to Defendants' right to a fair trial, no further text messages should be publicly released at this
time in connection with the Prosecutor's iustant Motion. See, Prosecutor's Exhs. 3, 6,24, 34,36,
4

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37,40,43.
CONCLUSION
For all the foregoing reasons, Beatty respectfully requests that this Court order that the
Prosecutor only be permitted to file text messages subject to the foregoing privileges and
prohibitions from dissemination under seal for in camera review by this Court.
MORGANROTII & MORGANROTH, PLLC

Dated: July 18, 2008
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Date
11/13/2003
11113/2003
Date
7/21/2003
7/2112003
Date
7/21/2003
CHRISTINE BEATTY'S IN CAMERA PRIVILEGE LOG OF REASONS TO SEAL EXHIBITS
TO PROSECUTOR'S BRIEF'
Prosecutor's Exhibit 3
Alleged Send!;jr
Recillien t B&UQIIU) to
Peoples Beatty Not previously released
Beatty Peoples Not previously released
. Prosecutor's Exhibit 6
Alleged Sender Alleg!lQ BllCinieni Reason!) to Keen Sealed
Mayor Kilpatrick Stokes Not previously released
Stokes Mayor Kilpatrick Not previously released
Sendet Alleg!:d Recinient ReU!!n(s) tIl Kilen S!l!!led
Mayor Kilpatrick Carlita Kilpatrick Spousal Privilege'
1/ Portions of the exhibits set forth below also appear os part of the text Dfthe Prosecutor's Brief. Br at 17, 19,20-23,30, 32, 3343. Those
portions of the text ofth. Prosecutor's Bdefshould be sealed for the reasons set forth herein with respect to the corresponding exhibits.
21 Beatty does not purport to raise the spousal privilege on behalf of Mayor Kilpatrick or his wife, Carlita Kilpatrick, but does note that these text messages
would be subject to such privilege,just as any text messages between Beatty and her fonnerspouse which were sent during the course of the marl'iage are subject
to this privilege.
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Date Alleged Sender Alleged Recillimt ReM!!IIC) 111 Keell
7/21/2003 Mayor I).i1patrick Carlita Kilpatrick Spousal Privilege
7/2112003 Carlita Kilpatrick Mayor Kilpatrick Spousal Privilege
,
712112003 Mayor Kilpatrick Carlita Kilpatrick Spousal Privilege
-_ ...-
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Pmsecutor's Exhibit 15
.
Date AlIelled Sllnder Reeillient til Sealed
4/28/2003 (entire exchange)
-_ ...... _--_. . ........ _-_. __ .. _---- .......
Mayor Jarname Dickens Deliberative process privilege
Date Alleged Allelled Reas!!uC) to Keel'! Se!li!:d
516/2003 Mayor Kilpatrick Derek Miller Deliberative process privilege
Pmseeutor's Exhibit 17
Date Alleged to Keen S!:I!I!:Q
,
I II 0/2004 (entire exchange) Mayor Kilpatrick Derek Miller Deliberative process privilege
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5/1512003
Date
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71112003 (entire exchange)
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Mayor Kilpatrick Derek Miller Deliberative process privilege
Christine Beatty Derek Miller Deliberative process privilege
S!\nder Recinient Re!!lmn(v to K!\el! S!:i!I!:!l
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Ruth Carter Mayor Kilpatrick Attomey/Client privilege
-------- .
. Deliberative
AlI!.lll:ed Sender Alleged 12 Keen SeBled
I
Mayor Kilpatrick Beatty Not previously released !
Sender &illillnt
R!l!!S2n(s) t2 Keen SealllQ
Mayor Kilpatrick Dickens Not previously released
3
' .. , n . --. --.----.-....... --... --........ . --,-----_._-----
: , . . ~ ~
Date
Reason(s)Jo Ke.en S.ealed
2/4/2003 Other bad acts
Date Reason(sHo _ KeeD..B.Illll.rn
4125/2003 Mayor Other bad acts
4/25/2003 Other bad acts
Date AII@ied ReciDient Reason(sHo Keen Sealed
7/9/2003 MA.vo't"
Kilpatrick Other bad acts
Date Allel!edRecililiml Reason(s) .tDKeen Sealed
3/14/2004 (entire Other bad acts
4
-.:._ .. _ ..__ . __ ._ ..... --_ .. -:--....._._._.-.----_ ...... _._--_.:-------
i
j
Date Alleeed Alleged Recil!illnt
5/15/2003 (entire Beatty Mayor Kilpatrick
Date Alleged Send!l[ Alleell!! R!:ciniegt
7/9/2003 Mayor Kilpatrick Beatty
Date Alleeed Sell!illt Recinient
5/1912003 Ruth Carter Mayor Kilpatrick
_5/19/2003 (entire exchange) Dickens Mayor Kilpatrick
Date Alleged Se!lder Alleged Recil!ient
11/2212003 (entire exchange) Beatty Mayor Kilpatrick
5
.... _---.., .. _,_.
----------- -------------
:, \-
to Keel! Sealeg
Deliberative process privilege
Rea2g(s) t2 KIlIlIl Sealed
Not previously released
R!l/lll!n() to K!lllll tlilaled
Attorney/Client privilege
process privilege
BIl!l2n(l t2 Keen tlealed
,
Date Sender AII!:2!ld Recinjent . KIlI:R Sealed
3/1812004 (entire exchange) Beatty Mayor Kilpatrick Not previously released
PrQsecutor's Exhibit 39

Alleied Senger Alleied Recilliellt to Kellll Sei!led
615/02 (entire exchange) Mayor Kilpatrick Beatty Not previously released
i 611 0/02 (entire exchange) Mayor Kilpatrick Beatty Not previously released
i 6111102 Beatty Kilpatrick Deliberative process privilege
6/22/02 Mayor Kilpatrick Beatty Not previously released
I
I
I
6123102 (entire exchange) Mayor Kilpatrick . Beatty Not previously released
6129102 Mayor Kilpatrick Beatty Not previously released
7/3102 Beatty Mayor Kilpatrick Not previously released
7/8/02 Beatty Mayor Kilpatrick Not previously released
7/9/02 (entire exchange) Mayor Kilpatrick Beatty Not previously released
6
---'+--.-._' .... + .'"._-. -------:---7"..":---------------
r
7/12/02 (entire exchange) Beatty Mayor Kilpatrick Not previously released
. 8/22/02 (entire exchange) Beatty Mayor Kilpatrick Not previously released
!
I 8/23/02 (entire Beatty Mayor Kilpatrick Not previously released
9/1/02 (entire exchange) Beatty. Mayor Kilpatrick Not previously released
912102 (entire exchange) Beatty Mayor Kilpatrick Not previously released
9/6/02 Mayor' Kilpatrick Beatty Not previously released
9/10/02 (entire exchangel Beatty Mayor Kilpatrick Not previously released
7
I.
.--.-.. -----.. ---..
.<.;...
. . l
i 9/14/02 (entire exchange) Beatty Mayor Kilpatrick Not previously released
9/19/02 (entire exchange) . Beatty Mayor Kilpatrick Not previously released
I
!
.
.
10/5/02 (entire exchange) Beatty Mayor Kilpatrick Not previously released, Bates
No. T130909
10/9/02 Mayor Kilpatrick Beatty Not pj'eviously released
31 Two messages from this exchange have been released, Bates No. Tl28713rr180 182.
8
.---- .. - ~ ~ ..-----. -. _._-----------------,---- --------,
! 10/22102 Maydr Kilpatrick Beatty Not previously released
1 0/31102 (entire exchange) Beatty Mayor Kilpatrick Not previously released
3/4103 Beatty Bully-Cummings Deliberative process privilege
~ - - - - - . - - - - - - . - . - . - . - - - - .. --
9
.. ,,:,"
.. -_ ..__ .. _ .. _ ..- ..... _._..... " - ~ . " .... - - - - - - - . - -
4f2S/03 (entire exchange) Beatty Mayor Kilpatrick Not previously released
5/1/03 Beatty Mayor Kilpatrick Deliberative process privilege
Deliberative process privilege' I
!
5/6/03 (entire exchange) Beatty Mayor Kilpatrick Deliberative process privilege
(except Bates Nos. 1'204978
and T20S118)

41 Message, Bates Nos. T4S72641T489058.
51 Applies to Bates No: T157453.
10
... _- .. _-_ .... _--_._- .. ,--.... --,_. __ _ - : - ; - - - - - , - - - - - . . . . . , . - - - - - - - - ~ - -
5/9/03 (entire exchange) Beatty MayO!' Kilpatrick Deliberative process plivilege
6
i
I
5/15/03 (entire exchange)' Beatty Mayor Kilpatrick Not previously released
5/17/03 Mayor Kilpatrick
. Beatty
6/7/03 Beatty , J.Iilayor Kilpatrick Not previously released
. _- ~ - - - ---.....-.. ~ - - - . 1 ..... _-_...... _- ... , _______
61 Applies to Bates Nos. T205490 and 1'205568.
71 Some portions of this exchange were previously released.
11
. -.----.-.. - .. --- _._----.. -----------;--;-r--.,..-
.. I
> . ~
6t9/03( entire exchange) Beatty Mayor Kilpatrick Not previously released
. 6/10/03 Mayor Kilpatrick Beatty Not previously released
,
,
i 6111103 (entire exchange) Beatty Mayor Kilpatrick Not previously released
I
Deliberative process privilege.
. Beatty
Mayor Kilpatrick Not previously released
6/16/03 (entire exchange) Beatty. Mayor Kilpatrick Not previously released
.
--- ----------
12
.
7/1/03 (elltire exchange) Beatty Mayor Kilpatrick Not previously released
i
7/21/03 (entire exchange) Beatty . Mayor Kilpatrick Not previously released
7/27/03 (entire exchange) Mayor Kilpatrick Beatty Not previously released
8/1103 (entire exchange) Beatty Mayor Kilpatrick Not previousl)'l-:Itl.ased ___
13

,_,. ,. 7 . - ... ~ - . ~ .. ,.. _ . 'r' . ._.----_. . " " - - - . " - - ~ - - -
[
817103 (entire exchange) Beatty
1
8/24/03 (entire exchange) Beatty
i
Mayor Kilpatrick Not previously released ,
10/23/03 Mayor Kilp:a rick Beatty Not previously released
\10/31103 !rick Beatty
.
Not preVlously released
i
I
I
11121/03 (entire exchange) Beatty
!
,
I
11/23/03 Beatty
I
i
1214/03 rick Beatty Not previously released
i
12118/03 (entire exchange) . Beatty
j
I
12122/03 (entire exchange) Beatty I Mayor Kilpatrick Not previously released
,
12125103 (entire exchange) Beatty
i
i
I
,
I
I
I
!
Mayor Kilpatrick Not previously released ,
I
\
14
I
I
I
I
-- ......... -... .- ...._ ... " ..
;t
-.'-'---
..
1
1102/04 Mayor Kilpatric Beatty Not previously released
116104 (entire exchange) Mayor Beatty Not previously released
1
1128/04 (entire exchange) Mayor Kilpatrilh Beatty Not previously released
1129/04 Beatty \
1
317/04 {entire exchange) Mayor Beatty Not previously released
i
,
Mayor Kilpatri* Beatty Not previously released
1
I
3115104 (entire exchange)
I
Mayor Kilpatrick Beatty Not previously released
I
3/18/04 (entire exchange) Mayor Beatty Not previously released
4/6104 (entire exchange) Mayor Kilpatric* Beatty Not previously released
1
417104 (entire exchange) Mayor KilpatricIf Beatty Not previously released
4/9/04 (entire exchange) Mayor Beatty Not previously released
I-
4123/04 Mayor Kilpatrick, Beatty Not previously released
,
4126/04 (entire exchange) Mayor Kilpatrick\ Beatty Not previously released
4/27/04 (entire exchange) Mayor Kilpatrick! Beatty Not previously released
4/30/04 Beatty
I
\
M' Kil -cl I
ayor patti (1 Beatty Not previously released
I
512104 (entire exchange) Mayor- Kilpatrick I Beatty Not previously released
15
- .. '--- .-._. -. . -, -". -.-.-..
:.: " - . . i
,
I
I
,
Exhi!;!it 41
i

Date AlIelnlll Sgl!der! Alleged Relli!!!l(S} to Keel! ::;ealed
various
.I
Ruth Carter/various Ruth Carter/vaIJ!o Attorney/Client privilege
I
I
Prosecutor's E;mbit 42
I
Date
I
Alleged Senden Alleged Reeinient Reason() t2 Keen Sealed
various . Carlita Kilpatri4k Mayor Kilpatrick Spousal privilege
various Mayor Carlita Kilpatrick Spousal privilege
i
I
fr!!!.ll:ytor' Exhibit 43
j
i
tg Keen Sealed Date AUel:ed Se!.ld!lr &s:i1lient
various Andrea Carrolli Carlita Kilpatrick Not previously released
various Carlita Kilpatri*l Andrea Carroll Not previously released
Exhibit 44
I
Date Alleged ::;end!l!= Allegeg Reasonu} til Keen Sellied
various
I
Oliver/various I various/Oliver Deliberative process privilege
I
17
"':;'..;
........ -...... "'.'."'-
..
. .. --.... --' .. _---... - _.' .... _---_ ..
;
, ..
"
I
I 513/04 (entire exchange)
I
Beatty
I
I
516104 (entire exchange) Mayor Kilpatrict< Beatty Not previously released
. I
Mayor Kilpatricf Beatty Not previously released
I
6/26/04 Mayor KilPatricf
Beatty Not previously released
i
6/27/04 (entire exchange) Mayor Kilpatrick Beatty Not previously reI eased
I
,
6/29/04 Mayor Kilpatri4 Beatty Not previously released
I
. I
Chri.<tine's Ex"ludin" anv es to or from Kwame
i
,
,
Date A!lllgeg Sgndt[ \
,
Alleged Recipient to Kegn
813102 Beattylvarious
\
Beatty/various
,
I
I Prosecutor's Exhibit 40
Identical to Prosecutor's Exhibit 39, Section
'tied "Kwame to Christine and Christine to Kwanle" - Same Reasous apply
\
\

I
16
". . .. ".,.- -,-- . ," _ ....-... -
, . ,
f--:----..- .. -... --.
I
STATE OF MJCHIGAN
IN THE 36m JUDICIAL DISTRICT COURT
THE PEOPLE OF THE STATE OF MJCHlGAN,
Plaintiff,
v
KWAME KILPATRICK 82-08707051-01
CHRISTINE BEATTY 82-08707051-02,
Defendants.
Hon. Ronald Giles
Case No. 08-58169
R=-O=B=E=R:::r:-:A:-. m=O=MA-:-:-:S::-(p=23=-=8=O IC:-) _-..!'
ATHINA T. SIRINGAS (P3S761) JAMES C. mOMAS, P.C.
LISA D. LINDSEY (P39570) Attorney for Defendant Kwame Kilpatrick
ROBERT W. SPADA (P46295) 535 Griswold St, Suite 2632
WAYNE COUNTY PROSECUTOR Detroit, M148226
1441 Saint Antoine Street (313) 963-2420.
Detroit, M148226
(313) 224-5777
MAYER MORGANROTH (P17966)
JEFFREY B. MORGANROTH (P4 I 670)
MORGANROTH & MORGANROTII, PLLC
.. - '" 11
DANK. WEBB
Co-counsel for Defendant K warne Kilpatrick
1" W pct U1o;a ... L-pt' nrivp.
. _-"-_".1 .ti.lLU!_UCY"""
3000 Town
'---Chicago-;-IllinoiS"60601
(312) 558-5600
MORGANROTH
&
MORGANROTH,
PLLC
ATrORNEYSAllAW
Mlt:H.IGAN OffICE
3000 'TO'MII
SUITE 1500
$OI.1THf1a.D. M! .c!K)75

124Co} 35$4011
ItEWYORK OFFICS
1511 W. 5ti S1"ftfET
-SVIfl; H01
NEWYORK,NY 10019
(i12) 5aa.5f/!lS
fAXt2U)5$-UOZ
Southfield, M14807S
(248) 355-3084
ELBERT L. HATCHETT (PI4735)
HATCHETT DEWALT HATCHETT & HALL
Co-counsel for Defendant Christine Beatty
485 Orchard Lake Rd
Pontiac, MI 48341
(248) 334-1587
JAMES W. PARKMAN, ill
WILLIAM C. WHITE, II
THE COCHRAN FIRM
Co-counsel for Defendant Kwarne Kilpatrick
11 N. Water Street, Suite 14290
Mobile, AL 36602
(251) 434-9992
,
PROOF OF SERVICE
STATE OF MICHIGAN
COUNTY OF OAKLAND
)
)
)
MAR1A Y. REED, being frrst duly sworn, deposes and states that on the 18
ili
day of July, 2008, she
did serve a copy of the following:
I-
i
MORGANROTH
&
MORGANROTH.
PllC
ATrnRNl:!'V'SAT LAW

surre 1'00
SOUTHFIEtO, hi! 48075
3ss.JU04
FAX p-0) !l$S-3U17
UEWYOru<OfACE

sum:: 1101
tIEW'fORI(.I'/\' 10019
(?1l)
fAX 5M-13l12
1. Defendant, Christine Beatty's, In Camera Memorandum and Privilege Log R<:garding
Maintaining Certain Text Messages Under Seal; and
2. Proof of Service upon:
JAMES C. THOMAS, ESQ.
JAMES C. THOMAS. P.C.
535 Griswold St., Suite 2632
Detroit, MI 48226
DAN K. WEBB, ESQ.
35 West Wacker Drive
Chicago, lllinois 6060 I
ELBERT L. HATCHETT, ESQ.
485 Orchard Lake Rd
Pontiac, MI 48341
JAMES W. PARKMAN, m, ESQ.
WILLIAM C. WHITE, II, ESQ.
clo JAMES C. THOMAS, ESQ.
535 Griswold St, Suite 2632
Detroit, MI 48226
by placing same in envelopes addressed as indicated with sufficient first-class postage affIXed thereto and .
depositing said envelope in the United States mail at Southfield, Michigan.
r'
'''-{;;Ii
Y.
2
,
! .
I
I
' ..
MAYER MORGAI'lROTH'
JEFFREY B. MOROAlVROm"
CHJ/IE E. MOROANROm
JASON R HIMCH
DANIEL E. HAROlJ)
JIll A. OUlIFINKEL
AMY R SAPEIKA
AARON 1. HEJlSKOVIC
.wM1T1ED IN MICH, .em N. y_
.... .fDM1T1ED INMlCH .. Jl.r. AND D,C.
Hon. Ronald Giles
36
th
District Court
421 Madison
Detroit, M148226
MORGANROTH & MORGANROm, PLLe
ATTORNEYSAT UW
3000 TOWN CENTER
SUfI'E1500
SOUTHFIELD, MICHIGAN 48075
(248) 3$5-3084
FAX(248) m-30I7
July 18, 2008
VIA HAND DELIVERY
NEW YORK OFFICE
156 II': 56STREET
SUrrEnOI
NEW YORK. NY 10019-3800
(212) $8659Q5
FAX (212) 586-7302
Re: The People of the State of Michigan v Kwame Kilpatrick 82-08707051-01
and Christine Beatty 82-08707051-02
Dear SirlMadam:
Relative to the above matter, enclosed please find an original and one (1) copy of the
following:
L Defendant, Christine Beatty's, In Camera Memorandum and Privilege Log
Regarding Maintaining Certain Text Messages Under Seal; and
-2: -Proofof-8crvice.
Kindly file in your usual manner, and return one time-stamped copy of each pleading to the
courier delivering same to you.
Imyr
Enclosures
Sincerely,
MORGANROT1& PLLC
JC:1.L"1
cc w/encls: Hon. Ronald Giles (via hand delivery)
Robert A. Moran, Esq. (via hand delivery)
Counsel of Record (via first class mail)

,. >',
,.
i
_1 .
STATE OF MICHIGAN
IN THE 36
m
DlSTRICf COURT FOR THE COUNTY OF WAYNE
PEOPLE OF THE STATE OF MICHIGAN
Plaintiff,
-vs-
KW AME KILPATRICK,
Defendant,
KYM WORTIIY (P38875)
Wayne County Prosecuting Attorney
1441 St. Antoine St.
Detroit, MI 48226
(313) 224-5777
ROBERT A. MORAN (P46346)
A11IINA SIRINGAS (P35761)
LISA LINDSEY (P46295)
Wayne County Prosecutors
Attorneys for Plaintiff
1441 St. Antoine Street
Detroit, MI 48226
(313) 224-5777
HON. RONALD GILES
Case No. 08-58169
*UNDER SEAL"
DAN K. WEBB
WINSTON & STRAWN
Attorney for Defendant Kilpatrick
35 W. Wacker Dr. #4200
Chicago, IL 60601
(312) 558-5600
THE COCHRAN FIRM
505 North 20
th
Street, Suite 825
Binningham, AL 35203
(205) 244-1171
MAYER MORGANROTH (P17966) JAMES C. THOMAS (P23801)
----------MORGANROTH-&-MORGANROTH---Of-ounsel,-PbUNKETFOONE
(248) 355-3084
JOSEPH A. NISKAR (P55538)
MICHAEL NAYGHTON (P70856) .
535 Griswold Street, Suite 2632
Detroit, M1 48226
ELBERT L. HATCHETT (P14735) (313) 963-2420
Co-Counsel for Defendant Beatty
485 Orchard Lake Road
Pontiac, MI 48341
(248) 334-1587
DEFENDANT KWAME KILPATRICK'S
PRIVILEGE LOG AND REOUEST FOR REDACTION
I
,.
t
'.
I
) ...
NOW COMES Defendant KW AME KILPATRICK by and through his counsel, Dan K.
Webb, James Parkman, and James C. Thomas, and submits the following privilege log pursuant to
Koster v. Jone's Trucking, Inc., 244 Mich App 162 (2000) for this Honorable Court to review in
camera.
TAKE NOTICE that Defendant, KWAME KILPATRlCK, does hereby further assert his
StatutoI)' Rights, First, Fourth, and Fourteenth Amendment rights Wlder the United States
Constitution, along with his Michigan Constitotional Rights, in regard to any additional discs, text
messages, subscriber information or other communications not specifically delineated in the
Prosecutor's Motion to Admit Evidence.
Dated: July 18, 2008

WINSTON & STRA WN
DAN K. WEBB TV 7'
35 W. Wacker Dr. #4200
Chicago, IL 6060 I .
(312) 558-5600

lOo{bi f..,
'COONEY
By: JAl1Es C. THOMAS (P23801), Of Counsel
Detroit. MI 48226
(313) 963-2420
L
J
! .
I'
!
,-
,
PROSECUTION'S BRIEF IN SUPPORT OF
OTION IN LIMINE TO ADMIT EVIDENCE
General Nature Privilege
Page(s) Date Author Recipient of Document !Claim
17
516/2003 Christine Beatty &. Christine Beatty & Text Messages DP
K warne Kilpatrick[ Kwarne Kilpatrick
21
7/2112003 Carlita Kilpatrick
Carlita Kilpatrick &
Text Messages Spousal
K warne
I
K warne Kilpatrick
23
7!211 2003 Carlita Kilpatrick
Carlita Kilpatrick &
Text Messages Spousal
Kwarne Kilpatrick!
Kwarne Kilpatrick
- I
32 4/28/2003@ Jarnaine Dickens Kwarne Kilpatrick Text Message DP
9: 18, 9:20:05,
9:28:53
1/4/2004
Kwame Kilpatrickl Kwame Kilpatrick & Text Messages
-
DP
33 - I
Derek Miller
1
Derek Miller
33 2/23/2004 Derek Miller, KWl\! e K warne Kilpatrick, Text Messages DP
Kilpatrick & Chri1t Christine Beatty & Derek
Beatty Miller
34 5/15/2003 Ruth Carter
!
Kwame Kilpatrick Text Message CCIDP
34 12/9/2003 Kwame Kilpatrick Christine Beatty Text Message DP
35-36
2/412003 Kwame Kilpatrick
r-
Text Messages 404(b)
37 4/25/2003
Kwame Kilpatricki Text Messages 404(b)
I
1
j
CC = Counsel Communications DP = Deliberative Proge slExecutive Privilege 404(b) = MRE 404(b) Spousal = Spousal Privilege
:

" .. ---- -- -; .-. -"-.'- - '--. -.. -.---- .. -----. -'-"- .. i
.-... _--._.
..
.-
!
General Nature Privllege
Page(s) Date Recipient of Document IClaim
37 7/9/2003 Kwame Kilpatrick Text Messages 404(b)
38 13/14/2004 Text Messages
38 I 5/15/2003 1 Christine Beatty Kwame Kilpatrick & Text Messages IDP
Kwame Kilpatrick! Christine Beatty
39
I 1 K wame
Christine Beatty & Text Messages DP
Christine Beattv . Kwame Kilpatrick
39 I 5119/2003 1 Ruth Carter, Kwam
Kwame Kilpatrick &
I Text Messages Icc, DP
I
Kilpatrick & Jam,*" e
J amaine Dickens
Dickens I
I
40-42
I 11122/2003 I Christine Beatty &j Kwame Kilpatrick & I Text Messages i
404
(b)
K wame Kilpatrick[ Christine Beatty
42
13118/2004 I Christine Beatty &i Kwame Kilpatrick &
Text Messages
1
404
(b)
Kwame Kiloatrickl Christine Beatty
PEOPLE'S MOTION EXHIBIT 2 -Disk of SF ten Compact Disks provided by SkYTel to Wayne County Prosecutor's
Office
, I
CC,
ALL
I ALL I ALL
II
jALL j Text Messages
I Spousal,
DP&
404(b)
CC = Counsel Communications DP = Dellbemtive Ptcx!eJslExecutive Privilege 404(b) = MRE 404(b) Spousal = Spousal Ptivilege 6"..:
.. , ",--,,'
.
, .
Page(s) Date Author
.
Recipient of Document IClaim
PEOPLE'S MOTION EXHIBIT 5 - P.LN. Nb MBERS ASSIGNED TO CITY OF DETROIT PAGERS
FROMi'
2002 TO JANUARY, 2008
PIN Numbers and Subscriber Mich. &
ALL
ALL ALL ALL Infonnation for City of u.S.
..
Detroit Pagers . Const.,
First
Am.,
Fourth
Am.,
Fourteen
thAm.,
PEOPLE'S MOTION EXHIBIT 8
7/2112003 . K warne Kilpatric' & Carlita Kilpatrick & Text Messages Spousal
Carlita Kilpatrickl Kwarne Kilpatrick
2:33:57 - 9/15/02 Kwarne Kilpatrick & Christine Beatty & Kwarne Text Message
2:46:49 Christine Beatty I Kilpatrick 404(b)
I
8:42:00- 9/15/02 Christine Beatty &. K warne Kilpatrick & Text Message 404(b)
,
8:49:28 Kwame Christine Beatty
!
cc - Counsel Communications DP = Deliberative Pro
. I
ess/Executive Privilege 404(b) = MRE 404(b) Spousal = Spousal Privilege
... .. "... '
I
j
,
Author I
Page(s) Date
Recipient of Document IClaim
PEOPLE'S MOTION EXHmIT 15
4/18/2003, Kwarne Kilpatrick, Kwarne Kilpatrick, Text Messages DP
4/28/2003, Jarnaine Dickens ~ Jarnaine Dickens &
5/112003 Christine Beatty i Christine Beatty
!
I
I
1/10/04 K warne Kilpatricr. & Kwarne Kilpatrick & Text Messages DP
Derek Miller I Derek Miller
I
PEOPLE'S MOTION EXHBIT 20
I
,
I
14:41 5/15/03 Ruth Carter
I
K warne Kilpatrick Text Message CCIDP
,
,
I
I
I
I
,
PEOPLE'S MOTION EXmBIT 23
I
I
.
12/9/03 @ K warne Kilpatrick
~
Kwarne Kilpatrick & Text Messages DP
20:21:21 Christine Beatty I Christine Beatty
I
PEOPLE'S MOTION EXHIBIT 26 I
I
2/4/03 Kwarne Kilpatric\< Text Messages 404(b)
cc = Counsel Communications DP = Deliberative PJc
I
sslExecutive Privilege 404(b) = MRE 404(b) Spousal = Spousal Privilege
I
... ~ . - ... -.. . ~ - ...... _---_ ... ", - - . - - = - . - ~ ~ ... _._,
, I
--_._- ..
,
I
PEOPLE'S MOTION EXHmIT 30
3114/04
PEOPLE'S EXHIBIT 34
Kwame Kilpatrick
Christine Beatty &
Kwarne Kllpatrick
Kwarne Kllpatrick &
Christine Beatty
c==--==--
Text Messages
Kwame Messages
& Text
Kwarne & Text Messages
& K warne I Text Messages
CC = Counsel Communications DP = Deliberative ProcesslExecutive Privilege I f04(b) = MRE 404(b) Spousal = Spousal Privilege
"- . - . - - - - - - . ~ - .. , ..
:;_5;;.
.. I
-
PEOPLE'S EXHIBIT 35
5/19/03 Ruth Carter, Jamaine KwameK "lpatrick & Text Messages Dl'
'.

. "
Dickens & Kwame JamaineI i\:kens

Kilpatrick
I
,
" ,
:'Y.- .
"
11/22/03 Christine Beatty & KwameK ifpatrick & Text Messages 404(b)
Kwame Kilpatrick Christine
PEOPLE'S EXHBIT 36
,
I
I
I
ALL ALL ALL ALL Text Message 404(b)
PEOPLE'S EXHBIT 37
I
I
ALL ALL ALL ALL Text Message 404(b)
PEOPLE'S EXHmIT 39 - KW Al\1E'S MESSAGES EXCLUDIN( !ANY MESSAGES TOIFROM CHRISTINE
! "
,
19:18:38 8/5/2 Kwame Kilpatr'ick UnknOWI i Text Message DP
t
I
9:39:28 8/16/02 Ruth Carter KwameI< i}patrick Text Message CCIDP
15:40:33 10/10/02 Ruth Carter KwameI< ilpatrick Text Message CCIDP
15:42:04 10/10/02 Kwame Kilpatrick Ruth Carl el: Text Message CC/DP
15:57:12 1216/02 Kwame Kilpatrick Ruth Can er Text Message CC
17:53:53 1128103 K Kilpatrick Ruth Carl
,
Text Message CC er
,
, I

"
I
CC = Counsel Communications DP = qeliberative ProcesslExecutive Privilege = MRE 404{b) ,SPfiusal = Spousal Privilege
............. - ........ -... -......... -- ......... : .. ..,...,:..--:. __ .-----_.-..... _ .. _ .. _ ....._--_._-
' .. t , .. _---"
-4
CC = Counsel Communications
DP = Deliberative ProcesslExecutive Privilege
=MRE404(b) Spousal = Spousal Privilege
. ~ - - ; - - - - ....----------- I I . ~
"
404(b)
Spousal
5/8/03 Unknown & Kwame 404(b)
5/9/03 404(b)
& Kwame KwameK' Ipatrick& Text Message
Unknown
I
,
,
Jamaine Dickens & K warne K Ipatrick & Text Message
Kwarne Kilpatrick Jamaine
Loronzo Jones & Kwame Kwame Kilpatrick & I Text Message IDP
Loronzo
5/12/03 I Ruth Carter & K warne . I Kwarne Iqlpatrick & Ruth I Text Messal!e Icc
Carter
5/12/03 I Kwame'Kilpatrick . Derek Mil er Text Message DP
,
I
Jamaine Dickens KwameK Ipatrick Text Message DP
Dickens & KwameK Ibatrick& Text Message DP
CC - Counsel Communications DP = Deliberative ProcesslExo<:utive Privilege = MRE 404(b) Spousal = Spousal Privilege
7:16:28-
7:28:00
8:24:59
11:56:04-
11 :59:39
12:01:12
12:08:19 -
12:44:01
18:50:49 -
18:50:50
10:24:42
10:36:10
14:41:00
11:35:39
10:27:11-
10:32:19
14:28:00
15:12:39
5:49:39
6:52:06
6:59:47 -
7:05:13
7:41:45 -
8:19:15
11:18:41
12:07:47
12: 10:51
12:11:58
12:12:52 -
12:17:26
5/13/03
5114/03
5114/03
5/14/03
5/14/03
5/14/03
5/14/03
5114103
5115/03
5/16/03
5/17/03
5/17/03
5/18/03
5/19/03
5/19/03
5/19/03
5/19/03
5/19/03
5119/03
5/19/03
5/19/03
5/19/03
CC = COWlsel Communications
Jamaine Dickens &
Kwarne Kilpatrick
K warne
Jarnaine Dickens &
Kwarne Kilpatrick
Ruth Carter
Kwarne Kilpatrick &
Jamaine Dickens
K warne Kilpatrick
Unknown
Jarnaine Dickens
Ruth Carter
Unknown
Jarnaine Dickens &
Kwarne Kilpatrick
K warne Kilpatrick
Unknown
Jamaine Dickens
K warne Kilpatrick
K warne Kilpatrick &
Derek Miller
Ruth Carter & Kwarne
Kilpatrick
Jamaine Dickens
Ruth Carter
Kwame Kilpatrick
Kwame Kilpatrick
Jarnaine Dickens &
K warne Kilpatrick
Kwarne &
Jarnaine Ditl,{ens
Derek Milled
K warne Kif;pirtrick &
Jarnaine
Text Message

Text Message
Kwarne I Text Message
Jarnaine & Kwarnel Text Message
Kilpatrick I i
Dedan Milioh & Derek
Miller II
Kwarne Ki./Ratrick
Kwarne Ki/iatrick
Kwarne
Kwarne
Kwarne &
J arnaine Dickens
Andrea C:al:oll
Kwarne KMatrick

J amaine
Derek & Kwarne

Text Message
Text Mess!&.e

Text Messllge
Text Message
Text Message

Text Messlige
Text Messll&.e

Text Message
Kwarne KIlPatriCk & Ruth I Text Message
Carter i

Kwarne K11patrick
Unknown I I
Ruth Cartei
K warne K/ilpatrick &
Jarnainer)ickens

Text Mess!l.ge

Text Messll&.e
Text Message
DP = Deliberative Process/Executive Privilege I 404(b) = MRE 404(b) Spousal = Spousal Privilege
........ .. ""-.-::, -.-.. ..---..
DP
DP
DP
CC
DP
DP
DP
DP
CC
DP
DP
DP
DP
DP
DP
DP
CCiDP
DP
CCIDP
CCIDP
CCIDP
DP
---,-
:;,.s..
12:19:27 - 5/19/03
5/19/03 -
1/03
:09- 1 5/20/03
16: 19:
21 :18:04- 15120/03
21:1
14:43:12 - 5/21103
15:04:47
21:18:27 - 5/23/03
Unknown & Kwarne
Kilpatrick
J arnaine Dickens &
I Unknown & Kwarne
&
Kwarne Kilpatrick
Kilpatrick
Jarnaine Dickens
Ruth Carter
Jarnaine Dickens &
I
I
KwameK" patrick & Ruth
Carter
KwarneK" ipatrick&
Unknown
I
KwarneK Ipatrick&
1 Kwarne K!lpatrick &
KwarneK Ipatrick&
Jarnaine[ ikkens
KwarneK Ipatrick & Ruth
Carter
K warne KiUpatrick
Kwame
Kwarne
Jarnaine
&
&
Text Message
Text Message
Text Message
I Text Message
Text Message
Text Message
I Text Message
Text Message
Text Message
DP = Deliberative ProcesslExecutive Privilege i404(b) = MRE 404(b) Spousal = Spousal Privilege
CCfDP
404(b)
DP
1404(b)
IDP
iDP
DP
13:43:46- 6/12/03 Ruth Carter & K warne K warne Kflpatrick & Ruth I Text Message
16:58:03 Kilpatrick Carter
14:04:10 - 6/13/03 Ruth Carter & Kwarne Kwarne KIlpatrick & Ruth I Text Message
21:55:27 6/13/03 Dedan Milton Kwarnl
Ruth Carter Kwarne
Carter Kwarne COUP
Loronzo Jones Kwarne DP
Ruth Carter & K warne Kwarne CCIDP
Ruth Carteri& Kwarne
& Ruth I Text Message
& Ruth I Text Message
Text Message 404(b)
CC = Counsel Communications DF = DeUberative ProcesslExecutive Privilege = MRE 404(b) Spousal = Spousal Privilege
!
-
.. . l
-
. 16:36:53 7/11103 K warne Kilpatrick Ruth Carte
I
Text Message CCIDP
! 14: 12:25 - 7/21103 Carlita Kilpatrick & KwarneKi
n
atrick
&
Text Message Spousal
I 14:14:04 Kwame Kilpatrick Carlita Kil atrick
118:55:28- 7/23/03 K wame Kilpatrick & CarlitaKil atrlck & Text Message Spousal
19:05:09 Carlita Kilpatrick KwarneKi
9:33:00 - 8/3/03 Text Message 404(b)
9:50:29
20:02:50 - 8/4/03 Text Message 404(b)
21:03:11 Kilpatrick Unknown
i
23:44:55 - 8/4/03 K warne Kilpatrick RuthCartl
I
Text Message CCIDP
rl
8:51:58
I
I
17:09:29 - 9126/03 - Ruth Carter & Kwarne KwarneK Ipatrick & Ruth Text Message CCIDP
13:25:16 1114/03 Kilpatrick Carter
i
I
10:01 :55 11/22/03 K warne Kilpatrick CarlitaKi Text Message Spousal
22:19:03 - 12/19/03 - Kwame Kilpatrick & Unknown 8fKwarne Text Message 404(b)
15:52:17 117104 Unknown Kilpatrick
i
9:56:29 1/12/04 Carlita Kilpatrick KwarneK Ipatrick Text Message Spousal-
16:14:30 - 1/13/04 Jarnaine Dickens & KwarneK Ipatrick& Text Message DP
16:18:06 K warne Kilpatrick IamaineI ickens
15:09:31 - 1/15/04 - Ruth Carter & Kwame KwarneK lpatrick & Ruth Text Message CCIDP
14:38:47 1116/04 Kilpatrick Carter I
16:49:36- 1119/04 Unknown & Kwarne Kwarne.K i1patrick & Text Message 404(b)
17:13:36 Kilpatrick Unknown
I
15:09:17- 2/20/04 - 5/4104 Ruth Carter & Kwarne KwarneK ilpatrick & Ruth Text Message CCIDP
I
I
7:11:21- 515/04 - 5/9/04 Unknown & Kwame KwarneI<
'ipatriCk &
Text Message 404(b)
22:40:27 Kilpatrick UnknOWIJ
11 :38:58- 5/10/04 Ruth Carter & K warne KwameI< i1patrick & Ruth Text Message CCIDP
I
r
"
I
I
CC = Counsel Communications Dll = Deliberative PrpcesslExecutive :404(b) = MRE 404(b) -Spousal = Spousal Privilege
\
!
....... : ";. -. ": . ",'
-------------
I
I
9:28:00-
21:21:30
10:46:18 -
11:59:55
21:17:21-
20:15:24
9:29:57 -
11:36:06
5/20/04
5/21104
5123/04-
5/26/04
6/2/04-
11/10/04
Unknown & Kwarne
KilJlatrick .

Unknown & Kwarne
Kilpatrick
Ruth Carter & Kwame

Kwarne & I Text Message
Unknown II
Kwarne & Ruth I Text Message
Carter I i
Kwarne & I Text Message
Unknown Ii
K warne Kl11atrick & Ruth I Text Message
Carter Ii
i
PEOPLE'S EXHffiIT 40 - KW A1\'IE TO CHRISTINE AND TO KW AME
I
Time I Date I Sender I Recipi+t1t
I
General
Nature of
Document
13:37:09 to 6/5/02 Kwame Kilpatrick/Christine Kwarn Kilpatrick/Christine
16:06:38 Beatty Beatty
I .
Text
Messages
22:53:15 to 6/9/02 K warne Kilpatrick/Christine Kwarn filPatrick/Christine
23:04:06 Beatty_ Beatty
Text
Messages
20:20:51 to 8/26/02 Kwame Kilpatrick/Christine Kwarn e filpatrick/Cbristine
Text
Messages
10:18:55 to 9/25/02 Kwarne Kilpatrick/Christine Kwarn iilpatrick/Christine
Text .
Messages
22:54:41 to 9/28/02 Kwarne Kilpatrick/Christine Kwarn e
i
I
Text
Messages
13:58:24 to 9/29/02 K warne Kilpatrick/Christine Kwarn e \Kilpatrick/Christine
i
Text
Messages
22:20:37 1017102 K warne Kilpatrick/Christine Kwarn e IKilpatrick/Christine Text
Beatty
Bea!tY I
9:18:25 110/8/02 I Kwarne Kilpatrick/Christine K wam,eKilpatrick/Christine
Messages
Text
Bea!tY __ Beatty Messages
404(b)
CCIDP
404(b)
CCIDP.
I PrivilegelClaim
j404(b)
1404(b)
i404(b)
1404(b)
i404(b)
i 404(b)
1404(b)
1404(b)
DP = Deliberative ProcesslExecutive Privilege I 404(b) = MRE 404(b) Spousal = Spousal Privilege
.- _ .. -._.......... '-:=:-.-...-. ---.---. ----.-.... -.--.. -.J
!
-
'''.;;';'
16:07:17 to 10/11102 K warne Kilpatrick/Christine Kwarne Text 404(b)
i
Messages
!
20:24:27 to 10/31102 Kwarne Kilpatrick/Christine Kwarnl I,Glpatrick/Christine Text 404(b)
3:12:02 to 1111/02 Beatty Beatty
I
Messages
22:12:38 1114/02 Kwarne Kilpatrick/Christine Kwarnl Kilpatrick/Christine Text 404(b)
Beatty Beatty
i
Messages
18:18:16 1116/02 Kwame Kilpatrick/Christine Kwam( Text 404(b)
Beatty Beatty
!
Messages
18:10:04 to 11/9/02 Kwarne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text 404(b)
18:15:09 Beatty Beatty I Messages
16:58:43 4/3/03 Kwarne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text 404(b)
Beatty Beatty
,
Messages
i
,
23:47:43 to 4/9/03 Kwame Kilpatrick/Christine Kwarn kilpatrick/Christine Text 404(b)
,
!
Messages
,
!
21:38:20 4/23/03 K warne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text 404(b)
Beatty Beatty
!
Messages ,
14:43:38 to 4/24/03 Kwarne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text DP
t
Messages
15:34:11 to 4/26/03 Kwame Kilpatrick/Christine Kwarn Kilpatrick/Christine Text 404(b)
I
Messages
21:41:54 to 5/1/03 K warne Kilpatrick/Christine Kwarn
iilPatrick/ChriStine
Text DP
21:43:55 Beatty Beatty Messages
11:35:15 to 5/2/03 K warne Kilpatrick/Christine Kwarn e IKilpatrick/Christine Text DP
18:21:02 Beatty Beatty Messages
20:41:58 to 5/6/03 K warne Kilpatrick/Christine Kwarn e iKilpatrick/Christine Text DP
22:03:16 Beatty Bea!t}i
,
Messages
r
11 :00:04 to 517103 to Kwame Kilpatrick/Christine Kwarr
e/KilPatriCk/Christine Text DP
8:45:24 5/8/03 Beatty Bean) Messages
6:29:11 to 5/12/03 K warne Kilpatrick/Christine Kwarr el Kilpatrick/Christine Text DP
11:41:45 Beatty BeaU)
I
Messages
,
!
cc = Counsel Communications DP = Deliberative ProcesslExecutive Privilege = MRE 404(b) Spousal = Spousal Privilege
,
;
':. ., .. ---....... ---- ... -.... _.. . -"'-"'-"'---' It
-.,----------
I
, ,
I
I
. '--r,:::-
15:54:01 to
16:22:50
12:35:38
21:34:35 to
22:14:04
18:21:00 to
23:45:52 .
1l:02:57 to
19:11:01
10:47:28 to
, 11:04:34
11:22:40 to
13:05:30
20:03:01 to
20:12:43
7:08:47 to
7:14:17
19:47:11 to
19:51:50
17:58:04 to
17:59:39
12:51:23
13:06:46 to
13:50:00
7:47:28 to
9:59:06
10:58:44 to
11:04:00
5{12/03
5113/03
5/13/03
5/14/03
5/15/03
5/18/03
5/29/03
6/4/03
6/12/03
6/12/03
6/24/03
6/26/03
6/26/03
7/1/3
7/8/03
._.-r-
Kwarne Kilpatrick/Christine
Beatty
K warne Kilpatrick/Christine
Beatty

Beatty

Beatty
Beatty
Beatty
Beatty
Beatty
Be.!I!tY
Beatty
Beatty
Beatty
Beatty
Kwarnt F-ilpatrick/Christine'
Beatty !

Beatty
"lpatrick/Christine

Kilpatrick/Christine
Beatty I I
Kw. Kilpatrick/Christine

iKilpatrick/Christine
Beattyll
IKilpatrick/Christine
Beattyl i .,

K
Beatty!
K wa*IKilpatrick/Christine
Beattyj !
K w.atr\e
l
Kilpatrick/Christine
Beat1)1 i
K wattle.: Kilpatrick/Christine
BeattJl i
K wan).. d Kilpatrick/Christine
I
K Kilpatrick/Christine
Beam
K Kilpatrick/Christine
BeattY I
Text

Text

Text

Text
Mess!!Res
Text .

Text
Mess!ges
Text

Text

Text
Messages
Text
Messages
Text
Mess!ges
Text

Text
Messages
Text

Text

DP
DP
DP
404(b)
DP
DP
DP
DP
DP'
DP/404(b)
DP
404(b)
DP
DP
DP
DP = Deliberative ProcesslExecutive Privilege I 404(b) = MRE 404(b) Spousal = Spousal Privilege
' ..... ,._ ... -.. , .. '-.,,-
!
,.
14:57:55 to 7/8/03 K warne Kilpatrick/Christine Kwarn r<ilpatrick/Christine Text
.
404(b)
15:09:15
Beatty .
Beatty
i
Messages
22:24:58 to 7/12/03 K warne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text 404(b)
22:30:21 Bel!tty BeC!!tY I
Messages
14:09:12 to 7/13/03 K warne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text DP
!
17:12:47 7/15/03
..
Kwarne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text DP/Context
Beatty Beatty
i
Messages
,
17:17:36 to 7/18/03 Kwarne Kilpatrick/Christine Kwarn Kilpatrick/Christine Text DP
I
7:28:57 to 7/23/03 Kwarne Kilpatrick/Christine Kwarn . !Kilpatrick/Christine Text DP
,
i
22:31:15 7/24/03 Kwarne Kilpatrick/Christine Kwam e ,Kilpatrick/Christine Text 404(b)
Beatty
Bea..!tY I

22:48:58 8/6/03 Kwarne Kilpatrick/Christine Kwan: e !Kilpatrick/Christine Text DP
Beatty Beatty ,
16:13:28 8/7/03 Kwarne Kilpatrick/Christine Kwan: elKilpatriCk/Christine Text 404(b)
Beatty Beatty Messages
10:19:01 to 12126/03 Kwarne Kilpatrick/Christine Kwan: Text 404(b)
13:09:02 Beatty

I .
Messages
13:25:15 to 4/7/04 K warne Kilpatrick/Christine Kwan
e/KilPatriCk/Christine Text 404(b)
15:27:30 Beatty Beattj Messages
8:32:49 to 4/9/04 Kwarne Kilpatrick/Christine Kwan el Kilpatrick/Christine Text 404(b)
9:14:15 Beatty
i
-
20:21:35 4/17/04 K warne Kilpatrick/Christine Kwan ej Kilpatrick/Christine Text 404(b)
Beatty Beattj I . . Messages
14:09:55 4/30/04 K warne Kilpatrick/Christine Kwan Kilpatrick/Christine Text DP
Beatty
I
13:56:04 5/3/04 K warne Kilpatrick/Christine Kwan 1 Kilpatrick/Christine Text DP
Beatty Beatt)
!
CC = Counsel Communications DP = Deliberative l'rocesslExecutive Privilege i404(b) = MRE 404(b) Spousal = Spousal Privilege
.. " ...-..- ........ .......- ..
'----"'- _._--. .-... ...
j
,

,
,
!
"
15:58:06 5/5/04 Kwarne Kilpatrick/Christine Kwarn( Kilpatrick/Christine Text DP
Beatty Beatty
I
Messages
13:12:24 to 5/6/04 K warne Kilpatrick/Christine Kwarn( Kilpatrick/Christine Text 404(b)
i
Messages
23:51:30 5/26/04 Kwarne Kilpatrick/Christine Kwarn(
flpatriCk/ChriStine
Text DP
Beatty Beatty Messages
10:06:32 6/26/04 K warne Kilpatrick/Christine Kwarnl Kilpatrick/Christine Text DP
Beatty Beatty
i
Messages
14:52:08 to 6/27/04 K wame Kilpatrick/Christine Kwam( kilpatrick/Christine Text DP
I
Messages
I
PEOPLE'S MOTION EXHIBIT 41- RUTH CARTER i
,
HFor the pUIposes of brevity, Mayor Kilpatrick objects to all message ijIcluded in Exhibit 41 based upon the Counsel
Communication Privilege and Deliberative ProcesslExecutive Privilege I
PEOPLE'S MOTION EXHmIT 42 - CARLITA KILPATRICK
I
Time Date Sender Recipi nt General PrivilegelClaim
,
Nature of
I
,
Document
,
I
15:40:11 5/5/03 Carlita Kilpatrick Kwarn 'Kilpatrick Text Spousal
I
Messages
I
;
18:25:00 5/9/03 Carlita Kilpatrick Kwam Kilpatrick Text Spousal
i '
Messages
I
14:12:25 to 7/21/03 Carlita Kilpatrick Kwarn Kilpatrick Text Spousal
14:14:04
I
Messages
18:55:28 to 7/23/03 Carlita Kilpatrick Kwam (Kilpatrick Text Spousal
19:05:09
I
Messages
,
9:56:29 1/12/04 Carlita Kilpatrick Kwarn Kilpatrick Text S p o ~ 1
I
Messages I
I
CC = Counsel Communications DP = Deliberative ProcesslExecutive Privilege
[
104(b) = MRE 404(b) Spousal = Spousal Privilege
I
..
--- _. -.. - "'_ ... - ". _ ..-. __ ._--_ ..... -
".-'--"--.. _-".. _- -_._-_.,.._--_._--
,
, -,---. T
.".;;;".
"'.
PEOPLE'S MOTION EXHIBIT 44 - JERRY OLIVER
Time I Date
15:22:49 to I 515/03
15:35:20
9:41:38 to
19:10:54
16:46:16
10:46:24
7:23:08 to
9:36:40
12:44:01
14:04:06 to
14:06:45
15:39:54 to
16:13:19
9:31:13 to
9:39:28
11:35:39
10:59:23
517103
5/9/03
5/10/03
5/14/03
5/14/03
5/14/03
5/14/03
5/15/03
5/16/03
5/23/03
Sender
Kwame Kilpatrick
I Jerry Oliver/Christine Beatty
Jerry Oliver/Christine Beatty
Christine Beatty
Jerry OliverlRuth Carter
Kwame Kilpatrick
Jerry OliverlRuth Carter
Jerry Oliver
Christiu Beatty/Jerry Oliver
Jerry Oliver
Jerry Oliver

I
Jerry Q4ver
I
Chris$b Beatty/Jerry Oliver
I
Christipp BeattylJerry Oliver
I
J erryq1iver
I
Jerry <j)lrverlRUth Carter
Jerry
I
Jerry <j)l!verlRuth Carter
I
Christine Beatty
I
Jerry <!>liver/Christine Beatty
I .
K warqei Kilpatrick
I
Christine Beatty
I
General
Nature of
Document
Text
Messages
Text
Messages
Text
Messl:lg!ls
Text
Messages
Text
Messages
Text
Messages
Text
Messages
Text
Messages
Text
Messages
Text

Text

Privilege/Claim
DP
DP
DP
DP
DP/CC
DP
DP/CC
DP
DP
DP
DP
CC Counsel Communications DP Uioliberative ProcesslExecutive Privilege
.... -)
SpQusal = Spousal Privilege
I
-,-----....... -" I; " I
I
.... --,-... ,-
STATE OF MICHIGAN
IN THE 3c;r" DISTRICT COURT FOR THE COUNTY OF WAYNE
PEOPLE OF TIlE STATE OF MlCIDGAN
Plaintiff,
-vs-
KW AME KILPATRICK,
Defendant.
KYM WORTHY (P38875)
Wayne County Prosecuting Attorney
1441 St. Antoine St.
Detroit, MI 48226
(313) 224-5777
HON. RONALD GILES
Case No. 08-58169
*UNDER SEAL'"
DANK. WEBB
WINSTON & STRAWN
35 W. Wacker Dr. #4200 -
Chicago, IL 6060 I
__ _______ i3..!.2_} 5_58-5600 _______________________ _
ATHlNA SIRINGAS (P35761)
LISA LINDSEY (P46295)
Wayne County Prosecutors
Attorneys for Plaintiff
1441 St. Antoine Street
Detroit, MI 48226
(313) 224-5777
MAYER MORGANROTH (PI7966)
MORGANR01H & MORGANR01H
3000 :rown Center, Suite 1500
(248) 355-3084
TIlE COCHRAN FIRM
505 North 20
th
Street, Suite 825
Birmingham, AL 35203
(205) 244-1171
JAMES C. THOMAS (P23801)
Of Counsel, PLUNKETT COONEY
JOSEPH A. NISKAR (P55538)
MICHAEL NAUGHTON (P70856)
Detroit, MI 48226
ELBERT L. HATCHETT (P14735) (313) 963-2420
Co-Counsel for Defendant Beatty
485 Orchard Lake Road .
Pontiac, MI 48341
(248) 334-1587
PROOF OF SERVICE
L
r
!
,
,
i
I
i-
,
i
r"
: ..
j,
.. I'
The undersigned hereby states that on July 18, 2008, she served a copy of Defendant
K warne Kilpatrick's Privilege Log and Request for Redaction and this Proof of Service upon
Robert A. Moran, Wayne County Prosecutor's Office, 1441 St. Antoine, Detroit, MI 48226
via hand-delivery; and upon Mayer Morganroth, Morganroth & Morganroth, 3000 Town
Center, Suite 1500, Southfield, MI 48075 via first class mail.
I declare, under the penalty of perjury, that the above information is true to the best
of my knowledge, information and belief.
D BORAH SAUVE
Dated: July 18,2008
j-'
,
, .
,.
STATE OF MICHIGAN
IN THE 36
TH
DISTRICT COURT FOR THE CITY OF DETROIT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
vs Case No. 08-58169
Hon. Ronald Giles
KWAME KILPATRICK and
CHRISTINE BEATTY,
Defendants.
/
PEOPLE'S ANSWER TO DEFENDANT KILPATRICK'S PRIVILEGE LOG AND!
REQUEST FOR REDACTION AND DEFENDANT BEATTY'S PRIVILEGE LOG
REGARDING MAINTAINING CERTAIN TEXT MESSAGES UNDER SEAL
NOW COMES the Wayne County Prosecutor, Kyrn L. Worthy, by and through her
Assistant. Prosecuting Attorneys, and requests this Honorable Court to reject Defendants'
Privilege Logs, and Defendant Kilpatrick's Request for Redaction, and states as follows:
Defendants seek redaction of the proffered evidence set forth in the PEOPLE'S MOTION
-""- INl:IMINE"TO'"ftDMIT"-E"VTDEN-CE __ '_OM_
U.S.C 270 et seq, Constitutional Privacy Rights, and the blanket assertion of various
privileges. Defendants argue without legal basis that because evidence has not been
previously released it must remain sealed .. Additionally, merely labeling numerous text
messages as 404(b) evidence does not mandate filing under seal.
2. The reasons cited by Defendants are without merit.
3. The proffered evidence was obtained by search warrant. Thus, the evidence would be
admissible on its face.
4. If evidence is admissible on its face, then the court may admit it. If a separate evidentiary
hearing on the question is requested, the court need not proceed or consider the evidence
but may properly defer it to the Circuit Court in the event of a bindover. MCR 6.11 O(D).
5. Defendants have no standing to raise Fourth Amendment claims because they have not
acknowledged authorship of the text messages. Defendants must assert and prove a
reasonable and personal expectation of privacy. People v. Smith, 420 Mich I (1984).
Defendants have no reasonable expectation of privacy in someone else's text messages.
I
6. The United States Supreme Court has stated that is proper to require one who seeks to
challenge the legality of search as a basis for suppression of evidence to establish that an
invasion of privacy actually occurred. Jones v. United States, 362 US 257 (1962); and
Rakas v. Illinois, 439 US 128 (1978).
7. Defendants cannot establish a reasonable expectation of privacy in the text messages
even if they acknowledge authorship. Under the City of Detroit policy, signed by
Defendant Kilpatrick and enacted on June 26, 2000, there can be no claim of any
reasonable expectation of privacy.
8. In the case cited by Defendants, Quon v. Arch Wireless, 529 F:3d 892, 906 (CA 9, 2008),
the plaintiff only had a reasonable expectation of privacy because the city had established
a policy of not auditing text message use if the user paid for any overages. The present
case has no similar facts to establish a reasonable expectation of privacy, and is therefore
distinguished from the Quon case.
9. No exclusionary relief is available to Defendants under the Fourth Amendment. The
affidavits used in this case show probable cause, but the court does not even need to
reach that question because under the good-faith exception the affidavits cannot be
. excluded unless the circuit judges wholly abdicated their judicial role in ordering the.
searches because the affidavits are "so pitifully bereft of substance as to be laughable:;'
Ashford v. State, 807 A.2d 732, 745 (Md.App. ,2002); People v. Goldston, 470 Mich 523
(2004); and People v. Russo, 439 Mich 584 (1992). Such a situation has not occurred.
10. No exclusionary relief is available to Defendants under the Stored Communications Act
("SCA"). There is no need to examine the SCA at all .. First; valid search warrants were
employed, which entirely moots any claim of error under the SCA. Second, even if
warrants had not also been used and there had been some error under the SCA, the statute
preclud.es anY exdu.si.Q!).lJl)' hay.e .. so_held. See. e.g.
United States v. Steiger, 318 F.3d 1039, 1049 (CA 11, 2003)("The SCA creates criminal
and civil penalties, but no exclusionary remedy ... "); United States v. Smith, 155 F.3d
1051,1056 (CA 9,1998) ("the Stored Communications Act expressly rules out exclusion
as a remedy 2708, entitled 'Exclusivity of Remedies,' states specifically that 2707's
civil cause of action and 2701(b)'s criminal penalties 'are the only judicial remedies
and sanctions for violations of the Stored Communications Act"); United States v.
Perrine, 518 F. 3d 1196, 1202 (CA 10,2008) no exclusion of evidence for violation of
the Act).
II. The attorney-client privilege is inapplicable to the proffered text messages. The text
messages are not confidential communications seeking legal advice. The crime fraud
exception to the privilege vitiates any privilege that may apply
12. The "deliberative-process" privilege is inapplicable to the proffered evidence.
13. Cases cited by Defendants do not support the application of the "deliberative-process"
privilege. It is worth noting that all cases dealing with this privilege are discovery cases
not cases concerning the admissibility of materials already obtained.
2
14. The law makes clear that no privilege-preventing discovery of materials may be asserted
where the cause of action turns on the governmental decision-making process itself. See
In Re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,
145 F.3d 1422 (1988); and In Re Sealed Case, 121 F.3d 729 (1997). The proffered
evidence in this case goes directly to the charges involving Defendants misconduct in
office. In these types of cases, the privilege is routinely denied.
15. Both Defendants have testified under oath at depositions and during a civil trial
concerning their deliberative process, thus they have already revealed this subject matter
to the pUblic. Furthermore, several messages have already been disclosed to the public
concerning these communications.
16. The Spousal privilege is inapplicable to the proffered evidence. A careful reading of the
language employed in MCLA 600.2162 reveals that the so-called marital and marital
communication privilege is testimonial in nature. It only bars spousal testimony. That
is, the privilege only bars the testimony of one spouse against the other or the testimony
of one spouse concerning communications between the spouses.
17. The marital privilege/marital.communication privilege does not bar evidence that can be
introduced without either spouse's testimony. The statute has no effect on third persons
from testifying about statements or the introduction of documents containing.
communications.
18. The People have filed an amended complaint and warrant as to count 4 which reads as
follows:DefendantKilpatrick did commit misconduct in office, an indictable offense at
common law, as the Mayor for the City of Detroit, authorized the City of Detroit to enter
into an 8.4 million dollar settlement of the Gary Brown/Nelthrope and Harris litigations
with the corrupt motive of preventing the release of text messages or other information
------evidencing that Mayor-Kilpatrick and his-Ghief-Of Staff GhristineBeatt-y-lied underoath,------
andlor with the corrupt motive of preventing the release of text messages containing other
information which is embarrassing to the mayor; contrary to MCL 750.505.
19. The People have filed an amended complaint and warrant as to count 6 which reads as
follows: Defendant Kilpatrick did, being lawfully required to depose the truth as a
witness in a jury trial, a court proceeding in the case of Gary Brown and Harold
Nelthorpe v. Kwame Kilpatrick, City of Detroit, Case Number 03-317557-NZ, the case
being a civil lawsuit before the Honorable Michael J. Callahan, for the Third Circuit for
County of Wayne, on August 29,2007, commit perjury by testifying he did not have a
romantic or sexual relationship with Christine Beatty andlor others; contrary to MCL
750.442.
20. 404(b) evidence is evidence of other wrongs and acts. The proffered evidence of
defendant Kilpatrick's textual relationships with at least 3 other women besides
defendant Beatty is not 404(b) evidence. It is evidence that goes directly to and is
included in the charged offenses. It also goes to the hotly contested issue of
authentication.
3
21. Defendant Beatty cannot challenge evidence as it relates to counts that only pertain to
Defendant Kilpatrick.
22. The amount of previously released text messages is lilliputian when measured against the
staggering volume of unreleased proffered evidence. One would expect the People to
introduce more evidence as the case proceeds onwards.
23. Defendants argue that the release of additional text messages would taint the potential
jury pool. This argument should be rejected given Defendant Kilpatrick's recent
inflammatory comments to the media. Defendant Beatty has also made several
comments to the media directed at the jury pool. Defendants cannot use these arguments
in the media as both a shield and a sword.
24. This case should be tried in court. Evidence in this case will be offered in the same
manner as evidence is offered in any criminal case. The arguments related to the
proffered evidence cannot be argued in the dark; rather, the arguments on the
admissibility of the text messages will be, and must be, argued in open court.
Additionally, the public is entitled to know what evidence the People intend to introduce
and why the evidence is being offered. The People are also entitled to a fair trial, and for
the People to receive a fair trial; the People must be allowed to argue evidentiary issues
. related to the text messages in open court.
WHEREFORE, the People pray that this Honorable Court to reject Defendants' Privilege Logs
and deny Defendants' request for redaction.
4
STATE OF MICHIGAN
IN THE 36
TH
DISTRICT COURT FOR THE CITY OF DETROIT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
vs
KW AME KILPATRICK and
CHRISTINE BEATTY,
Defendants.
Case No. 08-58169
Hon. Ronald Giles
PEOPLE'S BRIEF IN SUPPORT OF ANSWER TO DEFENDANT KILPATRICK'S AND
DEFENDANT BEATTY'S PRIVILEGE LOG AND REQUEST FOR REDACTION ...
I. The Attorney-Client Privilege is Inapplicable to the Proffered Text Messages
A. In general the text messages are not privileged
1. Established City Policy
On April 6, 1998, the City of Detroit enacted a written policy for the use of electronic
communication devices. This policy, entitled, "Directive for the use of the City of Detroit
electronic communication system" was adopted and signed by defendant Kilpatrick sometime
after he assumed office in 2001.(Attached as Exhibit One). The electronic communication
policy covers all communications that use electronic devices. The first paragraph of this policy
established the broad scope ofthis policy:
5
1. Scope
The City's electronic communication system includes Intranet and Internet
e-mail, internal electronic bulletin boards, Intranet and Internet services,
news groups, transmissions and receipt of data, calendars, directories and
distribution lists, draft documents, and all other forms of electronic
communications (emphasis added). City of Detroit Policy
The messages at issue in the present case were messages sent or received by the SkyTel
pagers under a contract with the City of Detroit. The city paid the fees for the services of the
pagers and issued the paging devices to City employees. The pagers themselves were designed
to send communications electronically from the sender to the receiver. In fact, the pagers were
obtained from SkyTel specifically so that the defendants could communicate with each other and
with others in an efficient manner. The defendants cannot now claim that these devices are not a
form of electronic communication. As such, users of these devices were put on notice that when
communicating, they have no expectation of privacy because they were in fact creating a public
record:
. '4. Public Records
..
Generally, public record means information created, owned, and used in
the possession of, or otherwise retained by, a public body in the
performance of an official function, from the time it is created. See the
Michigan Freedom of Information Act (FOIA), being MCL 15.231 et seq;
MSA 4 1801(1) et seq. Since electronic communications are often
deemed under the law to be public records, all authorized users are put on
notice the law provides that, in certain instances, electronic
communications transmitted, or stored, via any electronic system are
subject to disclosure and litigation. Therefore, authorized users of the
City's electronic communications system must bear in mind that,
whenever creating and sending an electronic communication, they are
almost always creating a public record which is subject to disclosure
whether the communication is routine or intended to be confidential
(emphasis added). City of Detroit Policy
Clearly, this policy, which was signed by defendant Kilpatrick, establishes that regardless of
the intent of the sender, the communications sent electronically are public record. The policy
goes on to warn users that any message sent could therefore be read by anyone.
6
8. Privacy and Inspections
Because all electronic communications are the sole property. of the City,
an authorized user may assume as a 'rule of thumb' that any electronic
communication created, received, transmitted, or stored on the City's
electronic communication system is public information and may be read
by anyone. City of Detroit Policy.
Ruth Carter I , as Corporation Counsel for the City was aware of the electronic communication
policy. She sent this text message to another city employee.
2. The defendants were aware that there was no expectation of privacy in the
SkyTel text messages.
The defendants were aware that their communications on the SkyTel pagers were public.
This becomes clearwhen one sees how the defendants conducted themselves when they wished
to engage in privileged or confidential communications. In this situation, they would ask the
person with whom they wished to communicate confidentially to call them on a telephone or to
see to hllve just such .. conversatioi1: There are examples In the text'
messages of the defendants asking for a "private" conversation when the subject matter is
sensitive. In the first example, Ruth Carter who was at the time the Corporation Counsel for the
City, asks to speak privately to defendant Kilpatrick about the ongoing criminal investigation of
the firing of Gary Brown by the Michigan Attorney General:
6/1 13:43:46
6/12/2003
I Ruth Carter's PIN numberlpager number is 5847282. This message is to Derrick Miller (4677167).
7
The very next day it is defendant Kilpatrick who wishes to speak privately with Ruth
Carter. Kilpatrick sends a text message asking to speak with her in person as soon as possible:
6/1 14:04:1
6/13/2003 14:09:1
When defendant Kilpatrick asks Ruth Carter for confidential advice, this is not
accomplished over the SkyTel pager; rather he sends her a text message telling her that he needs
to see her about a confidential matter. This is clear evidence that the defendant knows that he
has no expectation of privacy in the text messages that he sent and that the text messages are not
confidential communications:
.. -
"-...... -
--
16:50:21 877481
... .-
_I
-
;. .
.; .. - ......
--...... -
17:05:46
-
8774615902
----
: ~ ;
14:04:31 877481
10/23/2003
Even defendant Beatty2 asks for a private conversation when it relates to matters that are
confidential or privileged (emphasis added):
877461
2 Ruth Carter is 5847282 and Christine Beatty 8774813934.
8
While Ruth Carter was corporation counsel she recognized that the content of the text
messages were not private. In the following text message she wishes to speak to the defendant
Kilpatrick privately and thus requests the opportunity to speak to him over the telephone. This
example illustrates perfectly that the defendants and other users of the SkyTel pagers
acknowledged that they had no expectation of privacy in the text messages:
The defendants even used their SkyTel pagers to set up confidential meetings:
5847282
-----------------------------
The SkyTel pagers were used to notify the defendants of confidential packages or information
.. . that was sent " . ~ C H " :Y.'r'
Had the defendants wished the content of the SkyTel pagers to be confidential they could
have stamped them as such and notified the recipient that the message was to be kept in
confidence. This tactic was employed occasionally to notify persons receiving the messages that
they are in fact privileged: (TMS).
9:58:43
Even Ruth Carter would send the privilege and confidential stamp to defendant Kilpatrick
when she wanted to send him a confidential communication. It is ironic that this message which
she marks "privileged and confidential" is sent to defendant Kilpatrick to remind him not only to
delete his messages, but to "dump" his trash as well: (TM9).
REDACTED.
blackberry.n Confidential & Priveledged Mr. Mayor, you are still dumping your trash are you
5/23/2005 16:23:28 5847282 et not?? Peace, Ruth
This method of stamping communications "Confidential" or "Privileged" when the text
message sent were intended to be private is a means of showing the intent of sender. Attorneys
in the City of Detroit law department often used this technique when they communicated
electronically about active cases
3
.
The process of identifying the messages that are sensitive in nature is simple and direct
It not only demonstrates the intent of the sender, but it also recognizes that electronic
communication by its very nature is different than telephonic or direct communication because it
is not personal and can be intercepted by third parties. Even the courts have recognized that the
simple act of labeling a document "privileged or confidential" can assist in making a
person whqwepare i.t intended it to be, In Leibel v.
General lvfOW!!COfPora;i;n,250 Midh. App. 229, 646 NW2d 179 (2002), the communications
. .;' '" --, "., ,- " _: ,'_ ".::',' ? -, .. i ' .' - "I _ .' '" ". - - .
...
was meillorandllf!! drafted by attorneys woiidng in GM's legal department. The
memorandum was labeled "privileged and confidential" and there was a paragraph announcing
the private nature of the communication. The Leibel court found that while not dispositive on
the issue, the simple act oflabeling could be a factor on the issue of whether the communication
was meant to be confidentiaL
The defendants even acknowledge that third parties could read text messages. On several
occasions when embarrassing or explicit messages are sent to each other, the defendants tell each
other to delete the particular message. See next page where defendant Kilpatrick and defendant
Beatty are reminding each other to delete their messages.
'These three longer messages are attached as Exhibit Five.
10
In addition to erasmg explicit text messages, defendant Beatty reminds defendant
Kilpatrick to erase all of his messages, sent and received. Why would she request that they be
deleted if she were not concerned about a third party gaining access to his and her messages?
8/2/2002 4679147
..... pefendant Kilpatri",l\: e v ~ n acknowledged that defendant Beatty slleuld be more
concerned about getting "caught" and less concerned about managing his SkyTel pager. These
exchanges clearly indicate that both defendants were aware that there was no expectation of
privacy in the text messages.
B. The text messages to Ruth Carter are not privileged attorney-client
communications.
1. The text messages are not confidential communications.
In Michigan, the attorney-client privilege is part of the common law, and it IS also
governed by statute, MeL 767.Sa (2) states:
Any communications between attorneys and their clients,
between members of the clergy and members of their
respective churches, and between physicians and their
11
patients are hereby declared to be privileged and
confidential when those communications were necessary to
enable the attorneys, members of the clergy, or physicians
to serve as such attorney, member of the clergy, or
physician.
The purpose of this privilege is to allow clients to confide in their attorneys secure in the
knowledge that the communications will not be disclosed. The key to attorney-client privilege is
confidentiality. A communication made to an attorney that is not made confidentially is not
protected by the privilege. In People v. Compeau, 244 Mich. App. 595,625 NW2d 120 (2001),
the court held that the attorney-client privilege is waived when the defendant failed to take
reasonable precautions to keep his remarks to his attorney confidential. In Compeau, the
defendant's statements to his attorney were admitted into evidence and used against him when a .'
courtroom bailiff overheard the statements. The court ruled that the defendant could have easily
cOlnniunicated with his attorney:in a manner that wOilld Ifot have been overheard by others. This
failure to take eventhesimPles{ steps to safeguardthecornrilUnication meant that they were not
I:" ,,":' '
confidential, and therefore they were not privileged.
In the' present case, the defendanfSilicnaKe precautionary-measures to'make--certain'that
confidential communications with Ruth Carter were in fact protected communications. Quite
often, when the defendants wished to speak with her about an important matter, arraignments
would be made for a face-to-face meeting or for a private telephone conversation, not
communication on a two-way paging device (See example outlined above). The examples also
demonstrate that when the defendant, and others, wished to send a confidential message, it could
easily be so stamped. Moreover, these examples also indicate that neither party wanted to
discuss sensitive matters on the SkyTel pagers for fear of creating a public record. It is clear that
neither defendant had a reasonable expectation that they were engaging in confidential
communications with Ruth Carter on the SkyTel pagers.
12
2. The communications to Ruth Carter were not for legal advice.
The attomey-client privilege statute not only establishes the legal basis for the privileges,
but it also defines the limits of the privilege. The attomey-client privilege does not apply to all
communications between an attorney and their client. Rather, to be privileged, the
communication must be confidential and made for the purpose of obtaining legal advice. "The
scope of the privilege is narrow; it applies '''only to confidential communications by the client to
his attorney, which are made for the purpose of obtaining legal advice.'" Krug v. Ingham County
Sheriff's Office, 264 Mich.App 475, 484-85, 691 N.W.2d 50 (2005). The purpose of the
privilege is to allow a client to confide in his attomey, knowing that the confidential
communication will be safe from disclosure. As the Krug Court pointed out, the confidential
communication must be for the purpose of obtaining legal advice to be privileged. When a
person has a non-legal conversationorrequests advice froI1'ian attorney that is not legal advice,
the communication is therefore not privileged. Furthermore', a conversati()n seeking legal advice
-----frfrmn aft attorney, wllich is not Gonfidmtial, is also not privileged Simply having a conversation
""->".,------.... " ' " ~ .'-- ',." "--" - - . " ~ - - ~ - .-.- ~ . " -,'" ,, __ . _ _ _ ~ .. ,,:.,_M"" .._'_
with an attorney does not mean automatically mean that the content of the communication is
privileged.
In the present case, the defendants assert that all the text message communications
between them and Ruth Carter are privileged attorney-client communications. This is simply not
true, and is a gross misstatement of the law of this privilege. Many of the communications
between the defendants and Ruth Carter relate to non-legal matters. Many others are not
confidential, nor were they intended to be.
On June 24, 2003, the Michigan Attorney General announced the finding of his
investigation into the firing of Gary Brown. Ruth Carter is involved in carefully orchestrating
the media response to the Attorney General's announcement. First, she contacts defendant
13
Kilpatrick asks ifhe would like members of the Detroit Police EPU present at the Mayor's press
conference. (TMIO).
Later the same day, Ruth Carter is attempting to coordinate people friendly to the
administration to comment on the results ofthe investigation by the Attorney General (TMll):
4677164
Perhaps the. best example of defendant Kilpatrick using Ruth Carter to assist in the media
prepare for his press statement about the Attorney General report: (TM A)
6/24/2003 11 :05:25 4677164
6/24/2003
The defendant sent this text message to Ruth Carter, and to others including Derrick
Miller and Howard Hughey. Clearly, this message is not protected by the attorney-client
14
privilege because it was never intended to be a confidential communication. It was sent to other
city employees who are not attorneys. More importantly, the defendant is not asking for legal
advice, he's asking for help with how to "spin" certain information.
When Ruth Carter tries to warn him about being "careful blc of pending litigation" she is
rebuffed. Kilpatrick just wants a good reason for the firing whatever that might be. An attorney,
acting as an attorney, would tell her client "You need to tell me why you fired Gary Brown, so
that I can properly represent you." Instead, Ruth Carter suggests to the defendant that he get the
Police Chief to say that he supported the decision in a public statement. This is clearly outside
the scope of legal advice.
Another example of Ruth Carter being asked by defendant Kilpatrick to become involved
in media relations directly relates to the Brown whistleblower lawsuit. Ruth Carter notifies the .'
. ,'.,:' .
. defendarttoftherriediation resJlts and what they mean to the city. Defendant Kilpatrick, instead
of asking for legal advice, instructs Ruth Carter assist inthe media response.
51412004
This is clearly not legal advice. Nor is it confidential. Defendant Kilpatrick instructs
Ruth Carter to work with others to fashion a strong statement for the media. He never intended
this information to remain private, nor did he seek his attorney's legal advice. It is well settled
that a communication is not confidential if it is made for the purpose of disclosure to third
parties. Yates v. Keane, 184 Mich. App. 80, 457 N.W.2d 693 (1990), citing Owens v.
Birmingham Federal Savings and Loan, 27 Mich. App. 148, 183 N. W.2d 403( 1970).
15
1
On another occasion, Ruth Carter is the one who initiates an attempt to influence the
direction of the media inquiry into the firing of Gary Brown. She makes a suggestion to
defendant Kilpatrick about redirecting the focus of the investigation.
4677164
Clearly this is not legal advice. Ruth Carter is asking permission from her boss to
provide him cover by attempting to pI,ace blame on the Police Department instead of him where
the blame correctly lies. This communication is not protected by attorney client privilege.
These are a few examples of text messages in which the defendants ask Ruth Carter to
become involved in media relations, not seeking legal advice. Other times, she is asked to
engage in political maneuvering:
4677164
The best example of Ruth Carter becoming involved in the political process of the
administration relates directly to the Attorney General's investigation into the firing of Gary
16
Brown. Before it is even decided who will conduct the investigation, Ruth Carter is invited to
participate in deciding exactly who will conduct the investigation:
5/1
In this text message, Ruth Carter is not giving legal advice. She is simply telling the
defendant that she helped to decide who will clear the Mayor of any wrongdoing.
Another illustration why the text messages to and from Ruth Carter are not protected
attorney-client communications is because they contain facts and not opinions or advice. It is
well established that the attorney client privilege applies only to legal advice or opinions. The
facts that are supplied to an attorney in a confidential communication are not protected. This was .
the ruling of the Michigan Court of Appeals in Reed Dairy Farm v. Consumers Power Company,
ApE. 614, 576 NW2d 709 (1998). The court held:
" ____ " .. ____ ,,"" ________ "'"""" __, ____ "'",",.,,"" __ , __ ____ " _______ ,_." __ __ ., __ ." __ .", .. ____ _____ _. __
Furthermore, we find that the information sought to be disclosed
by plaintiff from defendant's paralegal is not the type of
information that the attorney-client privilege is designed to protect.
The United States Supreme Court had occasion to consider the
issue in Upjohn Co. v. United States, 449 U.S. 383, 393-394
(1981), and determined that the attorney-client privilege is limited
to communications between employees and counsel, not facts.
Thus, clients and their agents must disclose on request any relevant
fact within their knowledge even if it is incorporated a statement of
that fact into a communication to the attorney. Reed, at 619-620.
The best example of Ruth Carter receiving "facts" relate directly to the firing of Gary
Brown and the investigation that his department was conducting. The evidence will show that
when the allegation about improper conduct at EPU was made by Harold Nelthrope to Gary
Brown's internal affairs unit, Lt. Brian Stair, was assigned to that unit. Once Stair learned of the
17
allegations, he notified an officer at EPU. That officer, in turn, contacted Nelthorpe before he
was interviewed by internal affairs. In one text, Ruth Carter is attempting to determine if Lt.
Stair told anyone about contacting the EPU officer. This message occurs during the Attorney
General investigation:
8004794717@REDACTED.WirelessMessage Response:Replyfrom BELIKE
8004794717@RED Call me, Your Message: Did Brian speak to the NG? Peace, Ruth
611312003 14:53:43 ACTED 5847282 (06113 03:53PM EDT)
.
Reply from RUTH CARTER is Yes to 8004794717@archwireless.net
611312003 14:54:48 5847282 8004794717@REDACTED Wireless Message Respo
Dfd he admit to caUing anyone, you Chris Of Greg about the memo, Peace,
611312003 14:57:13 5847282 8004794717@REDACTED Ruth
The last example of a text message from Ruth Carter that is not related to any legal
advice or analysis, is a message sent just days before Gary Brown is fired from his job as a
Deputy Chief with the Detroit Police Department:
4/25/2003/12:36:58/ 5847282/8884343507@REDACTED -----=
3. The text messages are not attorney-client privileged communications because they are
exempt due to the crime fraud exception.
It is the People's position that the text messages between the defendants and Ruth Carter
are not subject to the attorney-client privilege because they are not confidential communication
made for the purpose of obtaining legal advice. However, if the Court holds that the messages
are confidential communications made for the purpose of seeking legal advice, then the majority
of them are not privileged communications because of the crime fraud exception to the attorney-
client privilege. The crime fraud exception to the attorney-client relationship is predicated on the
recognition that where the attorney-client relationship advances a criminal enterprise or a fraud
the privilege fails:
We turn to the precedents in the search for an analogy, and
the search is not in vain. There is a privilege protecting
communications between attorney and client. The privilege
takes flight if the relation is abused. A client who consults
18
an attorney for advice that will serve him in the
commission of a fraud will have no help from the law. He
must let the truth be told. There are early cases apparently
to the effect that a mere charge of illegality, not supported
by any evidence, will set the confidences free. Clark v.
u.s., 289 U.S. 1, 15,53 S.Ct. 465 (1933).
The crime fraud exception to the attorney-client privilege does not require a
showing that the attorney was equally culpable in the criminal enterprise or the fraud. In
fact, the attorney may be completely innocent of any wrongdoing. This exception to the
attorney-client privilege merely requires a showing that the attorney in some way assisted
in the on-going criminal action:
Nor does the loss of the privilege depend upon the showing
of a conspiracy, upon proof that client and attorney are
involved in equal guilt. The attorney may be innocent, and
still the guilty client must let the truth come out. Clark v.
Us., 289 U.S. 1, 15,53 S.Ct. 465 (1933).
The Michigan Supreme Court has recognized the crime fraud exception to the attorney .
client privilege in People v. Paasche, 207 Mich.App 698, 705-707, 525 N.W.2d 914 (1995):
In order for the crime-fraud exception to apply to the privileges, the prosecution must show
that there is a reasonable basis to (1) suspect the perpetration or attempted perpetration of a
crime or fraud and (2) that the communications were in furtherance thereof. In re John Doe,
Inc., 13 F.3d 633, 637 (C.A.2 1994). This showing must be made without reference to the
allegedly privileged material. MRE 104(a). The Paasche Court relied on u.s. v. Zolin in
holding:
"[S]ince the privilege has the effect of withholding relevant
information from the factfinder, it applies only where necessary to
achieve its purpose." The attorney-client privilege must necessarily
protect the confidences of wrongdoers, but the reasons for the
protection-the centrality of open client and attorney
communication to the proper functioning of our adversary system
of justice-"ceas[ es 1 to operate at a certain point, namely, where the
desired advice refers not to prior wrongdoing, but to future
wrongdoing." [Citations omitted. Emphasis in original.] United
19
States v. lolin, 491 U.S. 554,562-563, 109 S.Ct. 2619, 2626, 105
L.Ed.2d 469 (1989)
The latin Court differs from the Paasche Court in one important distinction. In
latin, the U.S. Supreme Court held that in order to determine if the crime fraud exception
applies to alleged privilege communications it is permissible for the Court making the
determination to conduct an in-camera review of the material to determine whether the
allegedly privilege attorney-client communications fall within the crime fraud exception:
"We begin our analysis by recognizing that disclosure of allegedly
privileged materials to the district court for purposes of
determining the merits of a claim of privilege does not have the
legal effect of terminating the privilege. Indeed, this Court has
approved the practice of requiring parties who seek to avoid
disclosure of documents to make the documents available for in
camera inspection, see Kerr v. United States District Court for
Northern District of Cal., 426 U.S. 394,404-405, 96 S.Ct. 2119,
2124-25, 48 L.Ed.2d 725 (1976), and the practice is well
established in the federal courts. See, e.g., In re Antitrust Grand
Jury, 805 F.2d 155, 168 (CA6 1986); In re Vargas, 723 F.2d 1461,
1467 (CAlO 1983); United States v.Lawless, 709 F.2d 485, 486,
488 (CA 7 1983); In re Grand Jury Witness, 695 F.2d 359, 362
(CA91982).
Once It IS clear that in C.flmJ,rtJ ~ i ! l w ,;tQ!Os J19tdestlO)' the
privileged nature of the contested communications, the question of
the propriety of that review turns on whether the policies
underlying the privilege and its exceptions are better fostered by
permitting such review or by prohibiting it. In our view, the costs
of imposing an absolute bar to consideration of the
communications in camera for purpose of establishing the crime-
fraud exception are intolerably high .
. . . A per se rule that the communications in question may never
be considered creates, we feel, too great an impediment to the
proper functioning of the adversary process. See generally 2 D.
Louisell & C. Mueller, Federal Evidence 213, pp. 828-829
(1985); 2 J. Weinstein. & M, Berger, Weinstein's Evidence ~
503( d)(1 )[01], p. 503-71 (1988),"
The crime fraud exception does Dot require that the attorney be a knowing
participate in the on-going fraud. All that is required is that she provide advice that
would assist the wrongdoers with the perpetration of a crime or a fraud. In the present
20
case there is ample evidence that the text messages to Ruth Carter were sent by the
defendants to assist them in the perpetration of a fraud. She is asked to supply an
explanation and a justifiable reason for the firing of Gary Brown. She gives advice that
aids defendant Kilpatrick in perpetuating his fraud not only to a court of law, but also to
the pUblic. She also gives advice on the fraudulent claim of defendant Beatty that the
firing of Gary Brown was based on an anonymous letter that she received and then
destroyed:
IAnll"7(''' 71 7
6/13/2003
6/13/2003 14:57:1
6/1
'Anl1A7(M71 7
Additionally, Rmh Carter participates in a contrived investigation into the firing
of Gary Brown, and even suggests ways to divert attention from defendant Kilpatrick to
the police department. It is the People's position that the messages cited above are not
privileged attorney-client communication because they do not fit the definition of the
privilege. However, if the Court believes that they are protected by the attorney-client
privilege then they are exempt from the privilege due to the crime fraud exception.
The Michigan Supreme Court summarized the justification for the crime fraud exception
in 1885. These same principles annunciated by the Michigan Supreme Court are still
applicable today and require the disclosure of these text messages:
"These cases lay down the rule, everywhere recognized, that the
privilege is the privilege of the client, and not of the attorney, and
may be waived by him. But there are exceptions to the general
rule, based upon public policy and public security. Professional
21
communications are not privileged when such communications are
for an unlawful purpose, having for their object the commission of
a crime. They then partake of the nature of a conspiracy, or
attempted conspiracy, and it is not only lawful to divulge such
communications, but under certain circumstances it might become
the duty of the attorney to do so. The interests of public justice
require that no such shield from merited exposure shall be
interposed to protect a person who takes counsel how he can safely
commit a crime. The relation of attorney and client cannot exist for
the purpose of counsel in concocting crimes. The privilege does
not exist in such cases. 1 Gilb.Ev. 277; Greenough v. Gaskell, 1
Mylne & K. 98; Coveney v. Tannahill, 1 Hill, (N.Y.) 33; Bank of
Utica v. Mersereau, 3 Barb.Ch. 528; People v. Blakeley, 4 Parker,
Crim.R. 176; I Whart.Crim.Law, 773; Roscoe, Crim.Ev. 190."
People v. Van Alstine, 57 Mich 69, 78-79, 23 N.W 594 (1885).
II. Defendants' Assertion of the Deliberative-Process Privilege is without Merit
The first case to recognize a qualified "deliberative:process" privilege in Michigan was
Ostoin v. Waterford Township Police Department, 189 Mich. App. 334 (1991). It is crucial to
, note before going further t h a t ~ l l cases concerning this qualified privilege are discovery cases
. ,. ~
!
and not cases concerning the admissibility of materials already obtained. In the latter context,
whic . s this case the ualified rivilege does not enter into the 'question of admissibility.
."--
In the Ostoin case, an individual was struck with a baseball bat during a robbery; He was
disoriented and wandering when the police encountered him. The p01ice thought he was
intoxicated and took him home. Subsequently, he died from his injury and his estate sued the
municipality and police department, as well as the individual officers. Discovery was sought and
denied with regard to a portion of the internal affairs investigation file, personnel files of
officers, and an arbitration record (one officer had been disciplined, but prevailed in arbitration
of his grievance filed as a result of the discipline). Basing its decision of federal law, the Court
of Appeals found that a qualified "deliberative-process" privilege exists in Michigan.
The scope of the privilege relates to the freedom of expression that is involved III
decision-making and policy formation. Factual material falls outside the scope of the
22
"deliberative-process" privilege. The privilege IS not absolute and may be overcome by a
sufficient showing of need. Ostoin, at 338.
This approach was followed in In re Subpoena Duces Tecum to Wayne County
Prosecutor, 205 Mich. App. 700, 703 (1994). This case dealt with a report prepared after an
investigation by an assistant prosecuting attorney, the court held that "the deliberative-process
privilege would protect the portion of a report that comprises material of a deliberative or
evaluative nature" but not that portion that "was merely factual in nature," and found that the
showing of need overcame the privilege in any event. Again, one should note this a case
concerning discovery not admissibility.
It is clear that no privilege exists where the cause of action turns on the governmental
decision making process itself. In In re Subpoena Duces Tecum Served on the Office of the
Comptroller of the Currency, 145 F.3d 1422 (CA DC 1998), the court said that "if the plaintiffs
cause of action is directed at the government's intent ... it makes no sense to permit the
government to use the privilege as a shield ... if either the Constitution or a statute makes the
governmentalofficlals'deliberations-ilie-issiIe, the pmiilege"iif"a nonsequitur." Further;
in In re Sealed Case, 121 F.3d 729 (CA DC 1997), the court observed that "where there is reason
to believe the documents sought may shed light on government misconduct, 'the privilege is
routinely denied' on the grounds that shielding internal government deliberations in this context
does not serve 'the public's interest in honest, effective government:
The qualified "deliberative-process" privilege is inapplicable to the instant case. The
materials were previously in the hands of a third party and many have already been disclosed.
The People properly obtained the messages based on a showing of need (the issuance of a search
warrant). Finally, since the communications at issue go to governmental misconduct, the
privilege should be routinely denied.
23
III. MeL 600.2162 Marital Privilege is Inapplicable to tbe Proffered Evidence
A careful reading of the language employed in the so-called marital/marital
communication privilege reveals that the privilege applies to the testimony of spouses. MCL
600.2162 reads in pertinent part:
(2) In a criminal prosecution, a husband shall not be examined as a
witness for or against his wife without his consent or a wife for or
against her husband without her consent, except as provided in
subsection (3).
(7) Except as otherwise provided in subsection (3), a married
person or a person who has been married previously shall not be
examined in a criminal prosecution as to any communication made
between that person and his or her spouse or former spouse during
the marriage without the consent of the person to be examined.
The plain language of the statute indicates that spouses may not be examined as witnesses
against each other. The statute however does not bar evidence from other sources or the
introduction of documents containing communications.
This principle of law is illustrated by People v. Fisher, 442 Mich. 560 (1993). The
Fisher court noted that the undisputed modern trend is toward a restrictive interpretation of the
marital privilege, not an expansive interpretation of the marital privilege. The Court focused on
the language used in the Michigan Sfatute and held:
The statute provides that neither spouse may "be examined" with respect to any
communication made by one to the other during the marriage. This phrase, "be examined,"
connotes a narrow testimonial privilege only - a spouse's privilege against being questioned as a
sworn witness about the described communications. In other words, the spouse must testify for
the privilege to apply. The introduction of the marital communication through other means is not
precluded. Fisher, at 575. See also People v Burton, 177 Mich. App. 358 (1989); People v.
Williams, 181 Mich. App. 551 (1989); and People v. Morgan, 2007 WL 301524 (Mich App).
24
IV. Evidence Concerning Other Women is Not 404(b) Evidence
The Defendants clearly do not understand that 404(b) evidence is "Evidence of other
crimes, wrongs, or acts ... ", thus, direct evidence of the charges in the complaint and warrant
cannot be considered 404(b) evidence.
Defendants have alleged that a majority of the text messages that are directly related to
the charged crimes are 404(b) evidence. This argument is preposterous and, simply put, is as
ridiculous as the defendant in a murder case objecting at preliminary exam or trial to the use of
the statements taken and/or the testimony of eyewitnesses who observed the defendant commit
the murder. Taken even further, it would be similar to keeping the murder weapon with the
defendant's fingerprints on it from being introduced into evidence because it is alleged to be
404(b) evidence.
Defendant Beatty has no standing to seek to limit evidence that is admissible only to
Defendant Kilpatrick.
V. "Not Previously Released" is Not a Valid Legal Objection
Defendants "Not Previously Released" objection is based on the notion that listing the
proffered evidence will taint the jury pool in the event that the evidence is ruled inadmissible.
The problem with this notion is that even if the motion is sealed, the arguments on the proffered
evidence will be made in open court. The sum and substance will be revealed in open court. If
after a full and fair argument, the evidence is ruled inadmissible it has still been released in open
court. This procedure is no different that the procedure in any other criminal case.
Furthermore, Defendant Kilpatrick has recently made several inflammatory comments in
the media about the evidence in this case. Defendant cannot use the media as both a shield and a
sword.
25
Finally, the People have attached (as Exhibits #3 and #4) detailed lists and legal
responses to each individual message challenged by the respective parties in their original
motion.
For the reasons stated above, the Wayne County Prosecutor's Office asks this Honorable
Court to reject the Defendant's Privilege Log and the Defendant's request for Redaction.
Exhibits Attached:
Kym 1. Worthy
Robert Moran (P34346)
Lisa Lindsey (P39570)
Robert Spada (P46295)
Athina Siringas(P35761)
1441 St. Antoine
313 .224 ,5777
Exhibit #1 Directivefor the use of the City of Detroit Electronic Communication System
Exhibit #2 Case law cited regarding the Attorney-Client Privilege
Exhibit #3 Case law cited regarding the Deliberative Process
Exhibit #4 Case law cited regarding the Spousal Privilege
Exhibit #5 Text messages referred to on page 10
Exhibit #6 People's response to the defendant's "privilege log" organized by individual message.
26
MEMO
TO:
FROM:
DATE:
SUBJECT:
1. Scope
DEPARTMENT DIRECTORS, AGENCY HEADS, f,{EMBERS Or BOARDS AND
COMMISSIONS, CITY COUNCIL ME"WERS, AND TIlE CITY CLERK
Information Technology Services Department
Human Resollrces Department
June 26, 200,')
DIRECTIVE FOR THE USE OF TILE crTY OF DETROIT'S ELECTRON1C
COMM1JNlCATIONS SYSTEM
l4.)VU(::/Vll
Due to the City's increased use of electron.ic technology, the City is establishing this directive
for the creation and use of its electronic conununications system, including electronic mail
(",,mail"). This Directive, which Is subject to moclification at any time, shaU govern the use
of the City's electronic communications system b\" ali City emplovees, in-house contractors,
independent interns, and other persons having authorized
aCcess to, and using an)' 0[, the City's electronic communlcations system, The City's elec-
(J'{Jllic communication system inclUdes Intranet and Internet e-mail, internal elec(J'onic bul
ieUn boards, Intranet and Internet service.s, ncv..'s groups, transmissions and recdpt of data,
calendars, directories and distribution lists, draft documents, and all other forms of electroniC
cu rruTIunlcations.
Except as prOVided for in SectJon 6 of tbis clirecti':(;, use of tbe City's electronic communica-
ti(,OS system shall be restricted to the per('oro1aocc of matters which relate co otl1cial func-
lions of tile Cit)' of Detroit government. These marttrs include aU activities ,,,hlch concc:m
_." " nf Citf government, and (he. delivel'\' ,)f governmental sen-ices [to the public
['l",diTective'provick,----gt,i,kMfles,,[Grau\.Ilor.lztlLU.;<0--.!.0 Cl'!1.u I'C_r--"-= ............ , . ' .' f
th: system. Further, this ciirective establishes a pol.iCy for the protection of one
most valuable assets: information.
2. Authortzed Users
AU City department and agency employees, in-house contractors. independent contractors,
interns, students, volUnteers, and all other persons having authorized access to City systems
shall be considered authorized users of the City', electronic cc'mmUnications system and,
therefore, are SUbject to this directive. However, the Cit)' retains tbe right to callcel, restrict,
or otherwise change an ctuthorized user's acceso to the City'S electronic communications
system.
). Cit)' Property
It is the policy of the: City that any electronic communication created, received, transmitted,
or stored t!trough use of any part of the City'S electronic communications system including,
but not limited to, all hardware and software, is the property of the City. N:;cordingly, any
electronic communication created, received, transmitted, or stored in the CitT's electronic
communications system is not conSidered, in whole or in part, as private in nature regardless
01' the level of security on the communication. ftlnher, in accordance With the appllcable
law governing acceSS or diSclosure, the City resen'cs dle right to access electronic commu-
nJcalions under certain circumstances and/or to disclose the contents of the communlcation
without the consent of the authOriZed user who created, received, transmitted, or stored the
como1urtication.
4. Public Records
\'Fhile the City's electronic communications system provides its authorlzed users with a con-
venient and efficient mearcS of communication, this resource must be consistently managed
with due regard for the applicable law governing the creatIon, receipt, retentJan, use, and
ui"c1osure of public recor:l5. Generally, a public record means In.formation created, owned,
,lrId used in the possession 0f, or otherWise n:raintCl by, a public body in the performance of
'H' ,,('ficial function, from the tirne it is cr"'<ted. Set. the Michigan Fnedom of lniormation Act
(TO) .-\). being Mel, J 5.231 C':t seq; MSA 4 1801(1) er seq. Since eiectron-ic. communlcationo arC
(,fttn deemed uncler the law to be public records, ,ul authorized users are: put on notice. the
{;l\V provides that, in certaIn instances, ekccfonlc commUnications transnliued! or Stored, via
all)' electronic system are subject to disclosure and litigation, Therefore, authorized users of
the City's eltctronic comrnurUcations syst-em must bear in mind ctlat
j
creating and
sending an elecuonlc con:munication, thc)' are almost always creating a public record which
is subject (0 disclosure the communic .. aUon is routine or intended to be confidentiaL
Further. a recent amendment to me <Micbigan FOIA provides th.at a "vnittcn request" for a
puhlic rc:cord means a 'wriung that asks for informaCion, and includes a "''1'iting transmitt,ed
hy e-mail orotherdectro!licmeans.11ms.<lurllodzt::dusersv.-.Do "receive any electronic com
rnurdcation from a Don-City person who; or enl1(Y \vhich, requests" iniorn1ation from the Cicy
immediately forward the request tu I.he Department for an appropriate response..
S. Securiry
--
The Information Technology Services (11'S) Department Is responSible for the development,
j mpkmentation, maintenance, and enforcement of security procedures to ensure the integ
ricy of the City'S electronic communications system, regardless of tl1e rl1ccUum. This includes,
.. 1;ut 1S QQI::!"_'LlLCU Lv.a . .' > , ,,, ,';tv that Uses identification
:1U pro-0--a-m5. aCcess fogs, and iUl'rlt ___ _
(:nuyption tcclUlology; C! security sta.n(hrd,; bKk up procedures and schedules; coat!"olled
software coniigurations: "ccess adminlstratiorl; individual passwords; and hard"'are theft
protection. Authorized user passwords sball be requlred to access the CitT'S electronic com
munications s),stem,and software shall be programmed to change all user passwords periodi-
cally. All authorized users are responsible for exercising due care in maintaining the secrecy
of their individual password, and in monitorlng the use of '.heir individual workstation.
G. ACCeptable Usage
The use of electronic communication is encouraged when such use is the most cost-effective
. and/or efficient means of conununication. However, use of the City's electronic conununica-
lions system shall avoid Interference with the work of other authorized users, and disrup-
Lion of any network services or stored data. TIle use of electronic communications shall be
governed by the same poliCies and guidelines tllat govern the use of any other type of Grl'
resourCe. Therefore, the Cirv's electronic comnlUn.ications SYstem shall be used in an honest,
c. ch leal, and legal manner ';hich follows applicable contracts, and policies accord-
ing to their intended USe. Authorized users are responsible for being aware of available infor-
mation resources, and that these resources are being shared. Authorized userS shall refrain
44
I
!eJVU1.I/V!!
fro In aU acts which waste, or prevent, other authorized users from utilizing avallable City
resources.
Use of the City's electronic communications system by any authorized user for advertising, for
commercial lise, or for solicilation, in any form or format is prohibited. In accordance with the
applicable law and consistent with efficient government, practicality, and thls directive, depart-
rnl':nt directors, agency heads, members ofboards,;wd commissions, City Councilmernbers, and
lb., City Clerk, or mdr deignees, shall be for defining and mOrtitoring the use of
UK City's electronic COIDfIlwUcations sys(cm for malters not in the performance of an offiCial
Cir), functlon.
Authoriz.ed users arc prohibited from using the Cir:y's access to me Internet for matters not
related to any officiaJ Cit)' functlon, including personal searches and per:;onaJ Internet e-mail
mt:s53ges. Ho",,'ever, aumorized users Inay use Intranet e-mail for communications mat are
incidental to (he performance of an official Ci(y function, such as notifying other autllOrlzed
users of an employee'S illness. Authorized users shouid bear in mind that Intemal, or =ternal,
aueii(s may be used to cx:,rnine the etl)'" aCCeSS to the Internet and, where appropriate, the
ell",\-' may block access to discourage usc l)f the 11!re::rnet th;;n is inconsistent vlirll this dirt:c
t i .
.. __ ) __
unethical t:.-:.i.sts v,.rhich CHt intr()duc(: '\irllses into the srstem. break passwords,
;;pti observe mail packel.s. Although it is the intent to detect and eradicate this type
of software and/or infected data; aUthl1rized u.scrs are: advised to use appropriate precau-
lions when using progra.m5, Or data from a suurc<: outside one's own department or agency,
including downioadlng software programs and data from the Internet. Authori1ed users must
"Iso bear in mind that downioading programs and files from the Internet may violate federal
copyright 1<1:".
/. Appropriate Content
Tile workforce for the Cty Is a diverse populotlon, which holds divergent opinions. However,
til,: Gir)"s electronic communications system s)1;\l1 not be used to cranmit any commurti
cation tllat contains stw=ments, or material, of a derogatory nature toward any speCified
person, or toward any race, nationality, gender, marital starus, sexual orienta tion, religion,
disability Or physical characteristic, or age group. Any language or statements that are made
on, Or aCts made via, the City's electronic communications s),stem which could be construed
<LS defamatory, diSCriminatory, Or harassing, are prohibited. All guidelines and prohibltlons
that are cOntained in federal, state, and City laws and which govern the protection of civil
rights shall be strictly ertforced. The City's electronic communications system shalJ not be
IJsed for proselytizing, Or for promoting an)' religious bdicf O( tenet, Or for campaigning for,
l _______ ---------'
45
r-. -or "gaillst, aoy ballot proposal, or any political candidate or issue.
8. Privacy and Inspections
Because all electronic communications are the sole propeny of the City, an authorized
usC[ may assume a 'rule of thumb' that any electronic communication created, received, y'
transmitted, or stored on the City'S electronic communications system is public infor
mation, and may be read by anyone. All authorized users of the City's electroruc com
rnun1cations systems an: made aware that Oflct: an electronjc conuuunicar:ion Is sent,
tbe sender probably cannot delete or retrieve the message. Further, software programs
a liow backup coples [0 be made of all electronic commurucations On the system, includ
ing communications believed to be 'deler.ed' by the authorized user. Any item Cre
al.ed, received, transmitted, or stored on tite City's elecrroruc commurucations system
is not conSidered to be personal or private commurucation of any .uthorlzed user,
Ekctroruc communications may be intercepted, forwarded, destroyed, stokn, or read Uke a
pCJ$tcard over an open network. Therefore, authurized users are prohibited from electroni
cally transmitting confid(:nlial or sensitive inforLn:ttion via intcJ-, or intra, network services
u n.less it is encrypted.
Ciry technicians, and otbe ... authorized [.)(;[50115, If\;l)' inspect pDgrams, files, documents, Or
:lny other data on the Cirr"5 electronic 'commun.icarjons system for routine system mainte
repairs, updating monitoring aC1J\'iUe:>. (try techniCians, and o"tber 'persons,
:I.i"e authoriz.ed to maint;-;in, repair, Upd.<llr!, or Dlnnitor shall respect the rights of
:nn.horized Therefure, such flOl, inre.nt"ioll:lUy inforn13.tlon on, obt.ain
copies of, o"r mOdify file:;, document...:;, t)1' other (lala that, be ,confidential or nOt open to
public inspection or release. Further, aur:.horll.(:(i must be aware:: that technicians, 'and
(lther authorized persons, may utilize softw,,,'" to legallr assist the Cit)' in monitoring time'
:H-:c;ounting and work contenr., and in ?eterm,ioipg error rates.
co S lemcntal Policies or Guidelines
D';panmcm directors, ogeney heaas, .. ds-"'!'ld-e8rrunissions,_ lJ::r._,Q],l __ .. :"' __ ...
rnc:mbers, and the Ciry Clerk, or th<:ir designe"s, are responsible for the execution of, and
"dherence to, this dirt.ctiyc. Because departments, agendes, boards, commiSSions, Cit)'
Council members, and rhe City Clerk tllUqU'> responsibilities or duties, there may be a
nc:cd to adopt and admillisler supplemental policies and guidelines regarcling the use of the
City'S eiectroruc conununicatiolls system. Any supplemental poliCies Or guidelines imple.
mented b)' any department clirector, agency head, board, commiSSion, Cit)' Council member,
and the CityClerk shail nOt rebut, or conflict with, any policy :)f gwdelitlt contained within
this directive.
10. Ack nowledgment
To ensure compliance with the City's poliC)' .od guidelines governing use of the City'S elec
tronic communications system, all authorlzed users of the City's eiectroruc commurucarions
5)'Stem are responsible for being farruliar ""itD clirective. As such, department clirectors,
ogene)' heads, members of boards and commissions, City Council members, and the City
Clerk shall ensure that each authorized user rectil'es a copy of this directive, and signs and
dates a copy of the attacned acknOWledgment. The completed acknowledgment shall. be
maintained in the authorized user's file.
46
I4J UOb'/Ull
1 L. Compliance Required
L>tjnrtment directors, agency heads, melllbers of boards and commIssIons, City Council
n"'"1bers, and the Ciry Clr:rk, or their desigJ1ees, sholl be responsible for ensuring that autho-
rized users remain in compliance with tJ,is directive. This includes: reporting any Informa-
tion which concerns either a bypass of this directive, or a securiry issue regarding the City's
electronJc conununJcations system; investigating noncompliance with this directIve; and
implementing necessary disciplinary, or corrective, action when the Clry's electronic com-
munications system is used contrary to this dlrective.
\,(,'11tre information is r<::cdyed concerning possible noncompliance with this directlve, the
(k::partmenc director, agency head, merllbers of l:){luds or commissions, City Council mem-
bus, or the Ciry Clerk, "r their deslgn',es, shall ducument and investigate the instance in
,,,xun.lance with departr, '''"t,,1 or agency and with the Cirr Civil Service Rules. Where
aPF1ropriate, the Ciry may institute internal d:scipHne and/or dvll or criminal action.
'[l,t:: Ciry reServes the riglJt to cancel all a"(horilcd lIser's access to the City's e!ectronJc COm-
munications system for noncompliance \vith thi::; di.rective. The City may wichdraw an autho-
ri'l.cd user's password and access v.,rithou{ notice
12 Purge and Archival S,:hedules
"ill(: purging and archiving of ele:ctroruc commlli1icD.uo[1s are created, and used, in the
pui'ormance of an offici:d function shal[ be consi,,"nt wl(h approved public record retention
,:, ncl disposal schedules. 11: conjunction with ITS, ,j"parrment directors, agency heads, mem-
l.h":rs of boards and comrn.issions, City Council ll1c':mbers, and the CItY Clerk shaU ensure th;)t
:1iJ soft",,'are is programn-:cd (0 comply .\'it.11 app"'\'""d retention and disposai schedules.
! ". Effective Date
ntis directive is effective: on April G, 1S>98.
47
Wesfiaw.
646 N. W.2d 179 FOR EDUCA TlONAL USE ONL Y Page I
250 Mich.App. 229, 646 N.W.2d 179
250 Mich.App. 229,646 N.W.2d 179
H
Leibel v. General Motors Corp.
Mich.App.,2002.
Court of Appeals of Michigan.
Charles Allen LEIBEL, Grace Patricia Leibel,
Charles A. Leibel and Jennifer Leibel, Plaintiffs-
Appellees,
v.
GENERAL MOTORS CORPORATION, Defend-
ant-Appellant.
Docket No. 224734.
Submitted Nov. 14,2001, at Detroit.
Decided March I, 2002, at 9:05 a.m.
Released for Publication June 14,2002.
Plaintiffs brought products liability action against
automobile manufacturer alleging negligence in
seatback design. Manufacturer filed motion to re-
trieve memo, which was obtained by plaintiffs,
based on attorney-client and work-product priv-
ileges. The Oakland Circuit Court, Steven N. An-
drews, J., denied motion, and manufacturer ap-
pealed. The Court of Appeals, Saad, PJ., held that:
(1) memorandum was protected by attorney-client
privilege; (2) remand was necessary to determine
whether privilege was waived by disclosure of doc-
ument; and (3) memorandum was protected by
- wBfK-product-doctrine.
Reversed and remanded.
West Headnotes
[II Appeal and Error 30
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
30k892 Trial De Novo
Cited Cases
30k893 Cases Triable in Appellate Court
30k893(1) k. In General. Most
111e question whether the attorney-client privilege
applies to a communication is a question of law that
the Court of Appeals reviews de novo.
[21 Witnesses 410
410 Witnesses
41011 Competency
410II(D) Confidential Relations and Priv-
ileged Communications
41 Ok 197 Communications to or Advice by
Attorney or Counsel
41 0k20 I Subject-Matter of Commu-
nications or Advice in General
41 0k20 I (I) k. In General. Most
Cited Cases
Memorandum drafted by attorney in automobile
manufacturer's legal department contained legal ad-
vice, not merely factual information, and thus was
protected by attorney-client privilege, where
memorandum contained opinions and legal recom-
mendations regarding manufacturer's analysis and
documentation about seatback designs, including
assessment of problems confronted in litigating
seatback lawsuits and suggestions regarding in-
formation needed to support manufacturer's posi-
tion in seatback litigation, and document was ex-
pressly marked confidential and privileged.
I (1)
410 Witnesses
410Il Competency
Attorney or Counsel
41 0k20 I Subject-Matter of Commu-
410k20I(l) k. In General. Most
Cited Cases
Opinions, conclusions, and recommendations based
on facts are protected by the attorney-client priv-
ilege when the facts are confidentially disclosed to
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an attorney for the purpose of legal advice.
[4) Appeal and Error 30
30 Appeal and Error
30XVII Determination and Disposition of Cause
30XVIl(D) Reversal
30k 1178 Ordering New Trial, and Direct-
ing Further Proceedings in Lower Court
30k 1178(6) k. Ordering New Trial of
Certain Issues Only. Most Cited Cases
Witnesses 410 ;=219(3)
410 Witnesses
4101I Competency
410Il(D) Confidential Relations and Priv-
41Ok219 Waiver of Privilege
410k219(3) k. Communications to or
Advice by Attorney or Counsel. Most Cited Cases
Fact that memo from in-house legal counsel to
automobile manufacturer appeared in court file in
separate. litigation did not alone waive attorney-cli-
ent privilege, and thus remand was necessary to de-
termine whether disclosure of document, which led
to its appearance in court file, was inadvertent or
involuntarily compelled, and as such not a true
waiver of privilege.
fSrXppealaniIErrofJW=>893(1r'
30 Appeal and Error
_ 30XVI Review
Cited Cases
30k893(I) k. In General. Most
The question of what constitutes a waiver of the at-
torney-client privilege is a question of law that the
Court of Appeals decides de novo.
[6) Witnesses 410 ;=219(3)
410 Witnesses
4101I Competency
410k219 Waiver of Privilege
The attorney-client privilege is personal to the cli-
ent, and only the client can waive it.
17) Witnesses 410 ;=219(3)
410 Witnesses
410Il Competency
41 Ok219 Waiver ofprivilege
A waiver of the attorney-client privilege does not
arise by accident.
[8J Witnesses 410
410 Witnesses
4101I Competency
Attorney or Counsel
41 Ok 198 In General
41 OH98(l) .. ,_ ....
Cited Cases
Witnesses 410
410 Witnesses
41011 Competency
41 0k219 Waiver of Privilege
Absent a true waiver of the attorney-client priv-
ilege, a document retains its privileged status, re-
gardless of whether it has been publicly disclosed.
[9) Witnesses 410
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7/7J/7(l()Q
250 Mich.App. 229, 646 N. W.2d 179
250 Mich.App. 229, 646 N.W.2d 179
410 Witnesses
41011 Competency
410kl97 Communications to or Advice by
Attorney or Counsel
410k205 k. Confidential Character of
Communications or Advice. Most Cited Cases
Witnesses 410 :=219(3)
410 Witnesses
410Il Competency
410k219 Waiver of Privilege
41Ok219(3) k. Communications to or
The attorney-ciient privilege protects a communica-
tion intended to be confidential, regardless of
whether that confidentiality has been unknowingly
compromised.
110) Appeal and Error 30 :=893(1)
30 Appeal and Error
30XVI Review
'Citea-Cases
30kg9J(J) k. In General Most
Wbether a document is protected by the work-
product doctrine is a question of law that the Court
of Appeals reviews de novo.
Ill) Pretrial Procedure 307A :=358
307 A Pretrial Procedure
307 All Depositions and Discovery
307 AIl(E) Production of Documents and
Things and Entry on Land
307 AII(E)2 Subject Matter in General
307 Ak356 Privileged Matters
307Ak358 k. Preparation for or An-
tlclpation of Litigation; Attorney's Work Product.
Most Cited Cases
Under the work-product doctrine, any notes, work-
ing papers, memoranda or similar materials, pre-
pared by an attorney in anticipation of litigation,
are protected from discovery. MCR 2.302(B)(3)(a).
112J Pretrial Procedure 307 A :=358
307 AII(E) Production of Documents and
307Ak358 k. Preparation for or An-
ticipation of Litigation; Attorney's Work Product.
Most Cited Cases
Memorandum from in-house legal counsel to auto-
mobile manufacmrer assessing problems confronted
in litigating seatback lawsuits and making sugges-
tions regarding information needed to support man-
ufacturer's position in future seatback litigation was
prepared in anticipation of litigation, and thus was
protected by work-product doctrine, even though
attorney prepared memorandum to render legal ad-
vice relating to defense of numerous seatback law-
suits, not specific action in which plaintiffs sought
to introduce l))emorandum. MCR 2.302(B)(3)(a).
P 31 pretrial procedure 3Q7A :?35
307 AlI(A) Discovery in General
307Ak35 k. Work-Product Privilege.
Most Cited Cases
Factual work product receives less protection than
work product that reveals the opinions, judgments,
and thought processes of counsel. MCR
2.302(B)(3)(a).
114J Pretrial Procedure 307A :=358
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250 Mich.App. 229, 646 N.W.2d 179
2S0 Mich.App, 229, 646 N.W.2d 179
307 AlI(E) Production of Documents and
307 Ak358 k. Preparation for or An-
Most Cited Cases
The work-product doctrine does not require that an
attorney prepare the disputed document only after a
specific claim has arisen for the document to be
privileged.
(lSJ Pretrial Procedure 307A =:>3S8
307AII Depositions and Discovery
307 AII(E) Production of Documents and
307 Ak358 k. Preparation for or An-
Most Cited Cases
A document may be prepared in anticipation of lit-
igation, for purposes of work-product docttine, if
the attorney rendered legal advice in order to pro-
tect. the client from future litigation concerning a
particular transaction or issue.
(16J pretrial procednre307A <)::?35
307 AII(A) Discovery in General
307Ak35 k. Work-Product Privilege.
Most Cited Cases
If a party demonstrates the substantial need and un-
due hardship necessary to discover work product,
that party may discover only factual, not deliberat-
ive, work product. MCR 2.302(B)(3)(a).
* * 181 *230 Potter, Carniak, Anderson &
DeAgostino (by Thomas M. DeAgostino), Auburn
Hills, for the plaintiffs.
*231 Bowman and Brooke LLP (by Terrence E.
Haggerty, Frank Nizio, and Norma M. Gant),
McGuire, Woods, Battle and Boothe LLP (by Evan
A. Burkholder), and Kirkland & Ellis (by Jay P.
Leftkowitz and Kelion N. Kasler), Detroit; Rich-
mond, VA; Washington, D.C., for the defendant.
Before: BANDSTRA, C.J., and SAAD, P.l., and
WHITBECK, 1.
SAAD, P.J.
1. Nature of the Case
Plaintiffs attached to their complaint a document
(identified as the "Toth Memo") that General Mo-
tors (GM) says is protected from use in this litiga-
tion by the attorney-client privilege and the work-
product doctrine. This document was prepared by a
GM in-house lawyer, Gary Toth, and renders legal
advice to agents of GM regarding ongoing product
liability litigation involving alleged defectively de-
signed seatbacks in rear-end collisions.
Plaintiffs say that the Toth Memo is not privileged
because (1) the document is essentially factual, not
legal, and (2) GM waived its privilege because it
produced the Toth Meino in other litigation and the
document is open to inspection in other court files.
In response, GM says the Toth Memo is quintessen-
tially legal advice and strategy regarding ongoing
litigation and any disclosure of the Toth Memo in
ether litigatienthroughou!.-the..-lJnited ...
either ordered or done inadvertently and, thus, GM
has not waived its attorney-client or work-product
privileges as a matter of Michigan law.
*232 Without addressing the mixed question of law
and fact whether GM voluntarily disclosed and thus
waived its actual privilege, the trial court essen-
tially ruled that, because the Toth Memo is open to
inspection in other litigation throughout the United
States, it is not privileged.'N! Because we hold
that the Toth Memo is clearly covered by the attor-
ney-client and work-product privileges, and be-
cause we further hold that involuntary disclosure
through inadvertence or court orders in other juris-
dictions does not constitute a voluntary waiver of
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the privilege, we reverse the trial court's holding to
the contrary and remand to the trial court for it to
determine whether OM voluntarily disclosed the
Toth Memo in connection with other litigation.
FNI. The trial court also erroneously ruled
that the Toth Memo is not protected by the
attorney-client and work-product priv-
ileges because the Toth Memo was not pre-
pared specifically for this lawsuit and be-
cause plaintiffs showed substantial need
for the document. These and other erro-
neous trial court rulings are discussed
more fully below.
II. Facts and Procedural History
A. Nature of the Disputed Document
In 1992, Gary Toth, an attorney on GM's legal staff,
prepared a slide presentation (copies of which are
identified as the **182 "Toth Memo") regarding
OM's defense of product liability lawsuits based on
the seatback FN2 design in GM automobiles. Spe-
cifically, the Toth Memo discusses OM's analysis
and documentation supporting the design of
"yielding" seats and the effect of such seats on po-
tential oecup'ant 'ejections and injuries in *233 rear-
end cellisiefl8. IR the memo, Toth also outlines
problems"ericounteredby"vMin-litigating'"Seatback-- .,
lawsuits and suggests particular information needed
to bolster GM's position in seatback litigation.
FN2. The design issues raised in this case
involve the strength, stiffuess, and mech-
anisms inside the back portion of GM
vehicle seats, referred to here, for simpli-
city, as "seatbacks. H
On May 11, 1997, Charles Allen Leibel sustained
severe injuries in an automobile accident involving
a vehicle driven by James Samuel Napier and
owned by Birdie Virginia Fisher. On February 20,
1998, Leibel filed a complaint against Napier and
Fisher for negligence. Thereafter, Leibel filed an
amended complaint and added his wife and children
as plaintiffs and GM as a defendant. Plaintiffs al-
leged that GM negligently designed the seats in the
1988 Pontiac 6000, which Leibel was driving at the
time of the accident. Plaintiffs attached a copy of
the Toth Memo to their amended complaint.
B. The Dispute Regarding How the Toth Memo Be
came Public"
The parties dispute exactly how plaintiffs' counsel
acquired the Toth Memo. Plaintiffs and GM agree
that plaintiffs' attorneys representing clients in oth-
er cases obtained the Toth Memo from a document
repository at the law offices of McGuire, Woods,
Battle & Booth, LLP, in Richmond, Virginia.
FN
)
Plaintiffs further maintain that attorneys in at least
three of the cases FN4 reviewed the documents at
McGuire, Woods and that *234 a GM attorney vol-
untarily copied the Toth Memo, among other docu-
ments, and released it to the plaintiffs' attorneys. In
contrast, GM says that, while the GM attorneys at
McGuire, Woods reviewed approximately lqO,OOO
documents to identifY and eliminate any privileged
documents, the Toth Memo was nonetheless inad-
vertently placed in the repository in the files of GM
engineer Mark Oleszko. GM asserts that it.learned
that the Toth Memo was discovered and copied
when a plaintiffs attorney attempted to introduce
the memQ at the deposition of a GM engineer in
-two ..
ney obtained his copy of the Toth Memo from an
attorney involved in v. General Motors
Corp, No. 96VSOJJ5085A (Fulton Co St Ct, Ga,
1996). GM further claims that before it could cor-
rect the error by removing the Toth Memo from the
McGuire, Woods repository, two additional attor-
neys in other lawsuits also obtained copies of the
Toth Memo.FN6
FN3. According to the parties, GM attor-
neys stored all GM corporate documents
related to seat performance in a "reading
room" at the offices of McGuire, Woods
and allowed plaintiffs' attorneys in numer-
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OtiS cases to review them.
FN4. Woody v. General Motors Corp, No.
96VSOl15085A, (Fulton Co State Ct, Ga,
1996); Wood v. General Motors Corp., No.
95-198 (U.S. Dist Ct, ND Iowa, 1995); and
Dubay v. General Motors Corp, No.
95-506420 NP (Oakland Cir Ct, Mich, 1995).
FN5. Gleason v. General Motors Corp,
No. 97 CI 00154 (Breathitt Co Ct, Ky,
1997); Piaz v. General Motors, No. 93
10141 (Dallas Co, Tex, 1993).
FN6. Wood, supra, and Dubay, supra.
Further, though it is clear that GM produced the
Toth Memo in another case, Simpson v. General
Motors Corp, No. 17972 (Morris Co Ct, Tex), it re-
mains unclear whether this document was produced
**\83 voluntarily or involuntarily. On one hand,
plaintiffs claim that GM stipulated the production
of the Toth Memo in Simpson and that, pursuant to
the court's order, plaintiffs' counsel in this case "is
entitled to full acces's to all documents produced by
General Motors." Fm Conversely, GM asserts that
it was compelled*235 to produce the Toth Memo in
Simpson pursuant-to:court order.
FN7 P),jtltiffs' Brief on Appeal p 3 Ex-
'l1i15irI, P 11.
Here, GM filed a motion in the trial court to re-
trieve the Toth Memo and argued that it is protected
by the attorney-client privilege and the work-
product doctrine and that GM never waived those
protections. The trial court ultimately entered an or-
der denying GM's motion and ruled that the Toth
Memo is not protected by the attorney-client priv-
ilege or the work-product doctrine because it had
been circulated in the "public domain." FN.
FN8. The trial court's use of the phrase
"public domain" is inaccurate, as explained
below.
C. The Trial Court's Ruling
The trial court misapprehended the law regarding
the attorney-client privilege and the work-product
doctrine. The trial court incorrectly stated in its
bench opinion that "the policy justifications for the
application of the attorney/client privilege and the
work product protection do not apply to the subject
documents in this case." fN9 The court also erro-
neously ruled that the Toth Memo is not protected
by the attorney-client privilege because it is no
longer confidential and because GM produced it in
other courts and, speCifically, in a California law-
suit, Hibbard v. General Mators, after the Hibbard
court ruled that the memo was not entitled to pro-
tection. Further, the trial court inaccurately stated
that the Toth Memo "would not have been made in
anticipation of litigation in this case." FNIO Fi-
nally, the trial court held, again *236 incorrectly,
that the Toth Memo is not protected by the work-
product doctrine because plaintiffs demonstrated
that they had substantial need of the document and
that they could not acquire it through other means
without undue hardship.
FN9. Trial court bench opinion, p 6.
FNIO.Id.
Ill. Analysis-Attorney Client Privilege
A. Standard of Review and Applicable Law
[I] The question whether the attorney-client priv-
ilege applies to a communication is a question of
law that this Court reviews de novo. Reed Dairy
Farm v. Consumers Pawer Co., 227 Mich.App.
614, 618, 576 N.W.2d 709 (1998). This Court con-
sidered the scope of the attorney-client privilege in
Reed, at 618-619, 576 N.W.2d 709:
The attorney-client privilege attaches to direct com-
munication between a client and his attorney as
well as communications made through their re-
spective agents. The scope of the attorney-client
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250 Mich.App. 229, 646 N.W.2d 179
250 Mich.App. 229, 646 N.W.2d 179
privilege is narrow, attaching only to confidential
communications by the client to his advisor that are
made for the purpose of obtaining legal advice.
Where an attomeis client is an organization, the
privilege extends to those communications between
attorneys and all agents or employees of the organ-
ization authorized to speak on its behalf in relation
to the subject matter of the communication.
[Citations omitted.J
In Co-Jo, Inc. v. Strand, 226 Mich.App. 108, 112,
572 N. W.2d 251 (1997), our Court further ex-
plained that "[tJhe purpose of the attorney-client
privilege is to permit a client to confide in the cli-
ent's counselor, knowing that the communications
are safe from disclosure." Further, the United
States Supreme Court explained the
importance**184 of the attorney-client privilege in
the company setting in *237 Upjohn Co. v. United
States, 449 U.S. 383, 389, 101 S.C!. 677, 66
L.Ed.2d 584 (1981). The Court articulated the vital
principles underlying the rule:
The attorney-client privilege is the oldest of the
privileges for confidential communications known
to the common law. 8 J Wigmore, Evidence 2290
(McNaughton rev 1961). Its purpose is to encour-
age full and frank communication between attor-
neys and their clients and thereby promote broader
public interests in the observance of law and ad-
minislfatiell ef-:jY . . .
------tfiafsotiiiB' 'lega:rlrGV;ce or'''advocac)'"'servesjJublic
ends and that such advice or advocacy depends
upon the lawyer's being fully informed by the cli-
ent. As we stated last Term in Trammel v. United
States, 445 U.S. 40, 51, 100 S.C!. 906, 63 L.Ed.2d
186 (1980): "The lawyer-client privilege rests on
the need for the advocate and counselor to know all
that relates to the client's reasons for seeking rep-
resentation if the professional mission is to be car-
ried out." And in Fisher v. United States, 425 U.S.
391,96 S.Ct. 1569, 1577,48 L.Ed.2d 39 (1976), we
recognized the purpose of the privilege to be "to
encourage clients to make full disclosure to their at-
torneys."
Professor McCormick echoes this rationale for the
privilege and also plainly explains its purpose:
First the law is complex and in order for members
of the society to comply with it in the management
of their affairs and the settlement of their disputes
they require the assistance of expert lawyers.
Second, lawyers are unable to discharge this func-
tion without the fullest possible knowledge of the
facts of the client's situation. And last, the client
cannot be expected to place the lawyer in full pos-
session of the facts without the assurance that the
lawyer cannot be compelled, over the client's objec-
tion, to reveal the confidences in court. [1 Mc-
Cormick, Evidence (5th ed), 78, P 344.J
*238 B. Application of the Attorney Client Priv-
ilege
We hold that the trial court erred in ruling that the
attorney-client privilege does not apply to the Toth
Memo.
[2J The memorandum, drafted by Gary Toth, an at-
torney in GM's legal department, contains Toth's
legal opinions and legal recommendations regard-
ing GM's analysis and documentation about seat-
back designs. Specifically, Toth assesses problems
GM confronted in litigating seatback lawsuits and
makes su estions regarding the information
needee-te-supportGM!s.position .. in.seat .ac. l.tJga.o. ___ ....
lion.ln his legal memorandum, roth advises OM to
obtain more information on seatback safety and re-
commends ways to overcome deficiencies in seat-
back design and performance testing. The Toth
Memo further sets forth Toth's legal advice about
potential liability regarding seatback safety and
how OM may protect itself against potential law-
suits!"" Contrary to plaintiffs' assertions, the in-
formation in the Toth Memo extends well beyond
"mere business" suggestions and analysis. Indeed,
Toth specifically analyzes GM's legal position and
purposefully discusses how GM should effectively
demonstrate that OM exercised reasonable care re-
garding seatback design. Clearly, the Toth Memo
represents precisely the kind of legal advice in-
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house counsel routinely" 185 provides to a corpor-
ate client. To hold that this kind of memorandum
does not constitute legal advice protected by the at-
torney-client privilege would seriously undennine
the privilege in the corporate setting. Accordingly,
we hold that the Toth Memo contains *239 legal
advice, which, contrary to the trial court's assertion,
places it squarely within "the policy justifications
for the application of the ... privilege."
FN II. Further, Toth testified in an affi-
davit that the Toth Memo contains his leg-
al advice to GM relating to its defense of
seatback lawsuits.
[3] We also reject plaintiffs' argument that the at-
torney-client privilege does not apply because the
infonnation in the Toth Memo is factual, rather
than legal. First, as stated above, this memorandum
so clearly constitutes traditional legal advice that
attempts to characterize it as factual rather than leg-
al border on sophistry. Opinions, conclusions, and
recommendations based on facts are protected by
the attorney-client privilege when the facts are con-
the purpose of rendering legal advice in the
future." Co la, supra at 112, 572 N.W.2d
251 The clear impetus for the Toth Memo
was to advise GM how to approach con-
cerns regarding GM seatbacks during fu-
ture litigation. It is clear from the memor-
andum itself that those concerns arose dur-
ing prior litigation and that identical issues
would appear in imminent and eventual
claims.
Finally, while not dispositive, the Toth Memo is ex-
pressly marked "confidential" and "privileged" and
contains a paragraph announcing the private nature
*240 of the communication. For all the foregoing
reasons, we fmd that the Toth Memo was intended
as a confidential, legal communication between
Toth and GM agents and counsel and that, absent
waiver, it is protected by the attorney-client priv-
ilege.
C. Waiver-Attorney Client Privilege
fidentially disclosed to an attorney for the purpose [4][5][6][7][8] The question of what constitutes a
of legal advice. Hubka v. Penn field Twp., 197 waiver of the attorney-client privilege is a question
Mich.App. 117, 122,.494 N.W.2d 800 (1992), rev'd of law that we decide de novo.'"1J The attorney-cli-
on othergrounds443 Mich. 864, 504 N.W.2d 183 ent privilege is personal to the client, and only the
(1993). While the Toth Memo contains certain fac- client can waive it. Ravary v. Reed, 163 Mich.App.
tual statements, it is olea! that the e. effiding basis 447, 453, 415 N.W.2a 24Q (1987), q',oting Pass
for'aoo'con"tent v.
advice for seatback safety and potential litigation N.W .. 170 (1883). Moreover, a waiver of the priv-
rather than mere facts or technical data concerning ilege does not arise by accident. Sterling v. Keidan,
GM seatbacks'"12 162 Mich.App. 88, 95-96, 99, 412 N.W.2d 255
FN 12. There is clearly no support for the
trial court's rationale that the attorney-cli-
ent privilege does not apply to the Toth
Memo because Toth prepared it before
plaintiffs filed this case. The privilege at-
taches to confidential communications
"made for obtaining legal advice." Reed,
supra at 618-619, 576 N.W.2d 709. As set
forth above, Toth drafted the memorandum
to provide legal advice to GM. Further, the
privilege protects such communication "for
(1987). This Court cogently set forth these prin-
ciples articulated by the Sterling Court in Franzel v.
Kerr MIg. Co" 234 Mich.App. 600, 615-616, 600
N.W.2d 66 (1999):
FN13. This Court grants more deference to
a trial court's decision whether the facts of
a particular case demonstrate a valid
waiver of the privilege and the trial court's
ultimate decision whether to grant or deny
discovery. Koster v. June's Trucking, Inc.,
244 Mich.App. 162, 166, 625 N.W.2d 82
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o
/ /u.1Ph ') ""P<::t bw it 71?41?OOR
250 Mich.App. 229, 646 N.W.2d 179
250 Mich.App. 229, 646 N.W.2d 179
(2000).
(1) The attorney-client privilege has a dual nature,
i.e., it includes both the security against publication
and the right to control the introduction into evid-
ence of such information or knowledge communic-
ated to or possessed by the **186 attorney; (2) This
dual nature of the privilege applies where there has
been inadvertent disclosure of privileged material;
(3) An implied waiver of the privilege must be
judged by standards as stringent as for a "true
waiver," before the right to control the introduction
of privileged matter into evidence will be des-
troyed, even though the inadvertent disclosure *241
has eliminated any security against pUblication; (4)
A "true waiver" requires " 'an intentional, volun-
tary act and cannot arise by implication,' " or " 'the
voluntary relinquishment of a known right;' " and
(5) Error of judgment where the person knows that
privileged information is being released but con-
cludes that the privilege will nevertheless survive
will destroy any privilege. [Citations omitted.]
As discussed above, the fact that confidential in-
formation has been published does not automatic-
ally waive the attorney-client privilege. Sterling,
supra at 93, 412 N.W.2d 255. Further, as Sterling
and Franzel instruct, to constitute a valid waiver,
there -must be 'an intentional, voluntary act or \'true
waiver." Thus, a document inadvertently produced
that is otherwise protected by the attorney-client
i s rotected, Franzel su ra at 618,
600-N:W:2d66. No-Michigan-ease-supports the
proposition that a document loses its privileged
status when it is obtained by one of the parties from
an independent source,FNI4 Absent a true waiyer,
therefore, a document retains its privileged status,
regardless of whether it has been publicly dis-
closed. To hold otherwise would seriously erode
one of the law's most protected privileges.'NI5
FNI4. We frod Haberkorn v. Chrysler
Corp., 210 Mich.App. 354, 533 N.W.2d
373 (1995), inapposite. Contrary to
plaintiffs' argument, Haberkorn does not
stand for the proposition that the attomey-cli-
ent privilege and the work-product doc-
trine do not apply to a document if the doc-
ument has been obtained from an inde-
pendent source. Rather, Haberkarn merely
states that work-product evidence, if ob-
tained from an independent source, might
be admissible evidence even if it is not dis-
coverable, an issue not raised in this case,
Id at 365-366, 533 N.W.2d 373. Further,
the Court in Haberkorn chose not to ana-
lyze the issue in any detail because the de-
fendant "fail[ed] to provide any authority
or argument in support of its bald asser-
tion" that if evidence is not discoverable, it
is also not admissible. Id at 366, 533
N.W.2d 373.
FN 15. In this regard, we agree with the ba
c
sic notion expressed by the Court in United
States v. Hurley, 728 F.supp. 66, 67
(D. Mass., 1990):
The attorney-client privilege is the most
fundamental of all legal relationships
and any interference with or disruption
of that relationship should be exercised
only under extraordinary circumstances,
The privilege is the root of a just and or-
derly judicial process and courts must be
vigilant in sustaining it and shielding it
from encroachment.
.. -
*242 The trial court's assertion that the attorney-cli-
ent privilege is destroyed merely because the Toth
Memo now appears in a public court file is coptrary
to Michigan law,FNl6 Of course, it is true as our
courts have held that "[o]nce otherwise privileged
information is disclosed to a third party by the per-
son who holds the privilege, or if an otherwise con-
fidential communication is ** 187 necessarily inten-
ded to be disclosed to a third party, the privilege
disappears." Oakland Co. Prosecutor v. Dep't oj
Corrections, 222 Mich.App. 654, 658, 564 N.W.2d
922 (1997). However, importantly for our analysis,
our Courts have strongly" 'repudiated the theory
that once the confidential information ha[s] been
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250 Mich.App. 229, 646 N.W.2d 179
250 Mich.App. 229, 646 N.W.2d 179
published, the privilege of objecting to its repetition
hal s 1 been waived ... .' "Sterling, supra at 93, 412
N. W.2d 255, quoting Polish Roman Catholic Union
of America v. Palen, 302 Mich. 557, 562, 5 N.W.2d
463 (1942). While courts in a minority of jurisdic-
tions have held that any public disclosure of other-
wise privileged documents destroys the privilege
because the information is no longer confidential,
the courts of our state *243 clearly hold otherwise.
Sterling, supra. Accordingly, the trial court also
plainly erred in ruling that the Toth Memo is not
protected by the attorney-client privilege on the
theory that "it is no longer confidentiaL"
FNI6. We disagree with the trial court's
conclusion that the Toth Memo is now
"part of the public domain." Trial court
order, p 2 (emphasis added). Outside the
real property context, the public domain is
"[t]he realm of publications, inventions,
and processes that are not protected by
copyright or patent," and "the status of an
invention, creative work, commercial sym-
bol, or any other creation that is not pro-
tected by any form of intellectual prop-
erty." Black's Law Dictionary (7th ed), p
1243, quoting I McCarthy, McCarthy on
Trademarks and Unfair Competition (3d
ed, 1996), 1.01[2J, pp 1-3. While the
Toth Memo may ha ye been placed in a
pubJi-c court file, it' does not come
within the ambit of the public domain.
[9] Were we to affirm the trial court's reasoning,
any party could render an otherwise privileged doc-
ument nonprivileged, regardless of whether the
party obtained jt by inadvertent, fraudUlent, or bad-
faith disclosure, merely by placing the document in
the public record. This runs contrary to the clear
edicts of our state courts. The attorneyclient priv-
ilege is not, nor should it be, so easily comprom-
ised. The attorney-client privilege protects a com-
munication intended to be confidential, regardless
of whether that confidentiality has been unknow-
ingly compromised. Though inadvertent or involun-
tary disclosure "has eliminated any security against
publication," whether the attorney-client privilege
has been destroyed by this disclosure depends on
whether the privilege has been waived. Franzel,
supra at 616, 600 N.W.2d 66, citing Sterling, supra
at 95-96, 412 N.W.2d 255.
Because the trial court erroneously ruled that the at-
torney-client privilege does not apply to the Toth
Memo, it failed to resolve whether GM executed a
"true waiver" of that privilege. Accordingly, the tri-
al court's exercise of discretion in deeming the Toth
Memo nonprivileged was based on an erroneous in-
terpretation and application of the law. As dis-
cussed above, the parties vehemently disagree
whether GM intentionally and voluntarily disclosed
the Toth Memo or if the disclosure was inadvertent
or involuntarily compelled and, therefore, not a
waiver" of the attorney-client privilege., Ac-
cordingly, *244 we remand this case for the trial
court to make the determination whether GM vol-
untarily or inadvertently disclosed the Toth Memo.
IV. Analysis-Work Product Doctrine
A. Standard of Review and Applicable Law
'-[101 ot-the--attorney-elient--
privilege, whether a document is protected by the
work-product doctrine is a question of law that we
review de novo. Koster v. June's Trucking, Inc.,
244 Mich.App. 162, 168, 625 NW.2d 82 (2000);
Cardinal Mooney High School v. Michigan High
School Athletic Ass'n, 437 Mich. 75, 80, 467
N.W.2d 21 (1991).
[IIJ Under the work-product doctrine, " 'any notes,
working papers, memoranda or similar materials,
prepared by an attorney in anticipation of litigation,
are protected from discovery.' " Messenger v. Ing-
ham Co. Prosecutor, 232 Mich.App. 633, 636-637,
591 N.W.2d 393 (1998), quoting Black's Law Dic-
tionary (6th ed, 1990), p 1606. The work-product
doctrine is set forth in MCR 2.302(B)(3)(a), which
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250 Micn.App. 229, 646 N.W.2d 179
provides:
Subject to the provisions of subrule (BlC 4), a party
may obtain discovery of documents and tangible
things otherwise **188 discoverable under subrule
(B)(I) 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 sub-
stantial 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 materi-
als when the required showing has been made, the
court shall protect against disclosure of the mental
impreSSions, conclusions, opinions, or legal theor-
ies *245 of an attorney or other representative of a
party concerning the litigation.
B. Application of the Work-product doctrine
[12) We hold that the trial court erred in ruling that
the work-product doctrine does not apply to the
Toth Memo.
[13) As this Court explained in Powers v. City oj
Troy, 28 Mich. App. 24, 37-38, 184 N.W.2d 340
(1970):
'''ISltatements, except confi3entiar starements 15y'''a
client to his attorney, are not privileged. They are,
however, if obtained in anticipation of litigation or
preparation for trial, work product and, therefore,
cloaked with a qualified immunity without regard
to whether they are prepared by an attorney or by
SOme other person and whether such other person
was engaged by an attorney.
Factual work product receives less protection than
work product that reveals the opinions, judgments,
and thought processes of counsel. Messenger, supra
at 639, 591 N.W.2d 393. Because MCR
2.302(B)(3)(a) is virtually identical to its federal
counterpart, FR Civ P 26(b)(3), it is appropriate to
rely on federal cases for guidance in determining
the scope of the work -product doctrine. Kasler,
supra at 170,625 N.W.2d 82.
[14][15] We agree with GM that Toth prepared the
memorandum in anticipation of litigation.
"It is generally understood that litigation need not
have actually been commenced, or threatened, be-
fore it may be stated that materials were prepared in
anticipation of litigation. It is generally sufficient if
the prospect of litigation is identifiable, either be-
cause of the facts of the situation or the fact that the
claims have already arisen." [*246Great Lakes
Concrete Pole Corp. v. Eash, 148 Mich.App. 649,
654, n. 2, 385 N.W.2d.296 (1986), quoting United
States v. Davis, 636 F.2d 1028 (C.A.5, 1981).]
Furthennore, we agree with the United States Court
of Appeals, District of Columbia Circuit, that the
work-product doctrine does not require that an at-
torney prepare the disputed document only after a
specific claim has arisen. Equal Employment Op-
portunity Comm. v. Lutheran Social Services, 337
U.S. App DC 373, 382-383, 186 F.3d 959 (1999).
Obviously, a document may be prepared in anticip-
ation of litigation if the attorney rendered legal ad-
vice in order to protect the client from future litiga-
tion concerning a'particular transaction or issue. ld.
Here, the trial court incorrectly held that the Toth
~ 4 m o CQylGl got have bee}:') prepared in anticipation
of'litigafion tnthis case 15e-c'ause tlr<f'communication---- _.
was "acted upon and followed or rejected many
times over in the course of similar litigation."
FN" Toth signed an affidavit stating that he pre-
pared the Toth Memo to render legal advice relat-
ing to the defense of seatback**189 lawsuits. The
parties do not dispute that GM confronted numer-
ous seatback product liability lawsuits before Toth
prepared his memorandum. Further, Toth drafted
the memorandum to protect GM from liability in
future lawsuits concerning the same products and
legal issues.
FN17. Trial court bench opinion, p 6.
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250 Mich.App. 229, 646 N.W.2d 179
250 Mich.App. 229, 646 N.W.2d 179
[16] GM argues that the Toth Memo is absolutely
protected by the work-product doctrine because it
constitutes opinion work product. Accordingly, GM
asserts that the Toth Memo is not sUbject to the
substantial need and undue hardship exception to
the doctrine applied by the trial court. Conversely,
plaintiffs*247 contend that the Toth Memo is factu-
al in nature and is, therefore, wholly discoverable.
MeR 2.302(B)(3)(a) states that, even when a party
demonstrates substantial need and undue hardship,
the court "shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal
theories" of the attorney concerning the litigation.
Further:
The plain language of [MCR 2.302(B)(3)(a)] indic-
ates that even when a party may obtain materials
prepared in "anticipation of litigation" by affinnat-
ively showing a substantial need for the materials
and undue hardShip in obtaining them by other
means, the party may not obtain materials that
merely reflect the impressions, conclu-
sions, opinions, or legal theories of an
attorney."[People v. Gilmore, 222 Mich.App. 442,
450,564 N;W.2d 158 (1997).]
Thus, if a party demonstrates the substantial need
and undue hardship necessary to discover work
product, that party may discover "only factual, not
its maximum protection*248 under the work-
product doctrine. Hickman v. Taylor, 329 U.S. 495,
67 S.C!. 385, 91 L.Ed. 451 (1947).
C. Waiver-Work-product doctrine
Similar to the attorney-client privilege, the work-
product protection can be waived. People v. Tronti,
176 Mich.App. 544, 550, 440 N.W.ld 62 (1989),
quoting United States v. Nobles, 422 U.S. 225, 239,
95 S.C!. 2160, 45 L.Ed.2d 141 (1975). Because the
trial court erroneously ruled that the work-product
doctrine does not apply to the Toth Memo, it failed
to consider plaintiffs' argument that GM's attorneys
waived that privilege. Accordingly, in addition to
detennining whether GM waived the attorney-client
privilege, we remand for the trial court to make this
similar detennination regarding the work-product
doctrine.
Reversed and remanded for further proceedings
consistent with this opinion. We do not retain juris-
diction.
Mich.App.,2002.
Leibel v. General Motors Corp.
250 Mich.App. 229, 646 N.W.2d 179
deliberative, work product." Messenger, supra at END OF DOCUMENT
We hold that the Toth Memo is absolutely priv-
ileged under the work-product doctrine because it
constitutes Tothls opinions, conclusions, and legal
advice made in anticipation of litigation for the
reasons thoroughly discussed above. Toth analyzes
GM's exercise of "due care," assesses problems in
testing and prior litigation, and suggests infonna-
tion needed to strengthen GM's defense. Accord-
ingly, we hold that the trial court erred in ruling
that plaintiffs could obtain discovery of the docu-
ment by showing substantial need and undue hard-
ship. This document quite demonstrably contains
the thought processes and legal analysis of counsel.
This is precisely the type of work product that mer-
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244 Mich.App. 595, 625 N.W.2d 120
244 Mich.App. 595, 625 N.W.2d 120
H
People v. Compeau
Mich.App.,2001.
PEOPLE of the State of Michigan, Plaintiff-Ap-
pellee,
v.
Dennis Donald COMPEAU, Defendant-Appellant.
Docket No. 217193.
Submitted Dec. 5, 2000, at Lansing.
Decided Feb. 9, 2001, at 9:10 a.m.
Released for Publication April 5, 200 I.
Defendant was convicted in a jury trial in the Isa-
bella Circuit Court, Lawrence C. Root, J., of assault
with intent to commit criminal sexual conduct in-
volving penetration and attempted kidnapping. De-
fendant appealed. The Court of Appeals held that:
(1) defendant's remark to counsel overheard by
bailiff was not protected by attorney-client priv-
ilege; (2) evidence of defendant's planned jail es-
cape was admissible to show consciousness of
guilt; and (3) habitual offender sentence of concur-
rent prison terms of 25 to 50 years for assault con-
viction and 20 to 40 years for attempted kidnapping
conviction was proportional.
Affi! med.
ileged when they are made to counsel who is acting
as a legal adviser and made for purpose of obtain-
ing legal advice.
(2) Witnesses 410 ;=>198(1)
410 Witnesses
4lOIJ Competency
410IJ(D) Confidential Relations and Priv-
Attorney or Counsel
410kl98In General
410k198(l) k. In General. Most
Cited Cases
Attorney-client privilege exists to allow client to
confide in attorney and be safe in knowledge that
communication will not be disclosed.
(3] Witnesses 410 ;=>206
410 Witnesses
410IJ Competency
410IJ(D) Confidential Relations and Priv-
4lOk 197Communications to or Advice by
Attorney or Counsel
410k206 k. Communications Through
or in Presence or Hearing of Others. Most Cited
Cases
----.--.... --..... ---... -----... ----.--... -----1.5efen-ctllii.i-railed totake--reasonable precautfons to .. -.
West Headnotes
(I) Witnesses 410 ;;:::>198(1)
410 Witnesses
4101I Competency
4101I(D) Confidential Relations and Priv-
Attorney or Counsel
410kl98In General
Cited Cases
Communications from client to attorney are priv-
keep confidential his remark to defense counsel
during complainant's preliminary examination testi
mony, and thus, attorney-client privilege did not
protect communication, where, when defendant
spoke to counsel, a uniformed bailiff who over-
heard remark was in his usual position in
courtroom, bailiffs presence was obvious to all per
sons in room
l
and defendant spoke to counsel in a
tnanner that could be overheard by a third person
rather than covering his mouth and quietly whisper-
ing or by communicating in writing.
(4) Criminal Law 110 ;=>351(9)
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Page 2
244 Mich.App. 595, 625 N. W.2d 120
244 Mich.App. 595, 625 N.W.2d 120
110 Criminal Law
IIOXVII Evidence
IIOXVII(D) Facts in Issue and Relevance
1l0k351 Subsequent Condition or Con-
duct of Accused
I IOk35 1(9) k. Escape, Attempts to Es-
cape, and Opportunity to Escape Declined. Most
Cited Cases
Evidence of defendant's planned jail escape was ad-
missible to show consciousness of guilt.
[51 Criminal Law 110 <=>351(9)
110 Criminal Law
II0XVll Evidence
IIOXVII(D) Facts in Issue and Relevance
IIOk3S1 Subsequent Condition or Con-
duct of Accused
IIOk351(9) k. Escape, Attempts to Es-
cape, and Opportunity to Escape Declined. Most
Cited Cases
Evidence of "flight," which includes attempting to
escape custody, is admissible to show conscious-
ness of guilt.
[61 Criminal Law 110 <=>351(9)
110 Criminal Law
IIOXVII Evidence
I IOXVU!D) Facts in Issue and Relevance
H Ok351 SubsequentCondition or Gon
duct of Accused
II Ok3 SI (9) k. Escape, Attempts to Es-
cape, and Opportunity to Escape Declined .. Most
Cited Cases
Remoteness of flight from time of defendant's ar-
rest did not affect admissibility of evidence of
flight to show consciousness of guilt, but was relev-
ant only to weight of evidence.
171 Criminal Law 110 <=>338(7)
110 Criminal Law
IIOXVII Evidence
II OXVII(D) Facts in Issue and Relevance
IIOk338 Relevancy in General
IIOk338(7) k. Evidence Calculated to
Create Prejudice Against or Sympathy for Accused.
Most Cited Cases
Rule providing for exclusion of relevant evidence
on grounds of prejudice, confusion, or waste of
time is not intended to prohibit prejudicialevid-
ence, but only that which is unfairly prejudicial.
MRE403.
[81 Criminal Law 110 <=>1156.2
110 Criminal Law
II OXXIV Review
Cases
II OXXIV(N) Discretion of Lower Court
II Ok IIS6.1 Sentencing
II Ok IIS6.2 k. In General. Most Cited
(Fonnerly IIOk1147)
Matters of sentencing are reviewed for an abuse of
discretion.
[91 Sentencing and Punishment 350H <=>38
3S0H Sentencing and Punishment
3S0HI Punishment in General
3S0HI(B) Extent of Punishment in General
3S0Hk38 k. Proportionality to Offense.
Most Cited Cases
Sentence must be proportionate to seriousness of
crime and defendantts prior record.
[101 Sentencing and Punishment 350H <=>1401
3S0H Sentencing anq Punishment
3S0HVI Habitual and Career Offenders
350HVI(L) Punishment
3S0Hkl401 k. Proportionality and Ex-
cessiveness in General. Most Cited Cases
If habitual offender's underlying felony and crimin-
al history demonstrate that he is unable to conform
his conduct to the law, a sentence within statutory
limit is proportionate.
[lll Sentencing and Punishment 350H <=>1422
350H Sentencing and Punishment
3S0HVI Habitual and Career Offenders
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"w'
244 Mich.App. 595,625 N.W.2d 120
244 Mich.App. 595, 625 N.W.2d 120
350HVI(L) Punishment
350Hk1422 k. Sex Offenses, Incest, and
Prostitution. Most Cited Cases
Sentence of concurrent prison terms of 25 to 50
years for assault with intent to commit criminal
sexual conduct involving penetration and 20 to 40
years for attempted kidnapping was proportional,
where, as a fourth-offense habitual offender, de-
fendant could have been sentenced to life imprison-
ment, defendant's criminal history, which began in
1981, included four felonies and four misdemean-
ors, and defendant was on parole when he commit-
ted instant offenses. M.CLA 750.349,
750.520g(I),769.12.
**122*596 Jennifer M. Granholm, Attomey Gener-
al, Thomas L. Casey, Solicitor General, Larry
Burdick, Prosecuting Attomey, and J. Ronald Ka-
plansky, Assistant Attorney General, for the people.
Patrick K. Ehlmann, East Lansing, for the defend-
ant on appeaL
Before O'CONNELL, P.J., and ZAHRA and
MAcKENZIE 'N-, J).
FN* Former Court of Appeals judge, sit-
ting on the Court of Appeals by assignment.
PER CURIAM.
Following a jury trial, defendant was convicted of
assault with intent to commit criminal sexual con-
duct involving penetration, M.CL. 750.520g(l);
MSA 28.788(7)(1), and attempted kidnapping,
M.C.L. 750.349; MSA 28.581; MCL 750.92;
MSA 28.287. The trial court sentenced defendant as
a fourth-offense habitual offender, M.C.L.
769.12; MSA 28.1084, to serve concurrent prison
terms of twenty-five to fifty years for the assault
conviction and twenty to forty years for the attemp-
ted kidnapping conviction. Defendant appeals as of
right. We affirm.
*597 Defendant first argues that the trial court ab-
used its discretion in allowing a court officer to
testify concerning the substance of an incriminating
statement that, in his capacity as a bailiff, he heard
defendant make to his attorney during the com-
plainant's preliminary examination testimony. Spe-
cifically, defendant contends that he did not waive
the attorney-client privilege by communicating with
his attorney in court in a manner that allowed the
bailiff, standing six feet away, to hear what was
said. However, we conclude that under these facts
there was no confidential communication and hence
no question Whether there was a valid waiver of a
privileged statement.
[I][2][3J Communications from a client to an attor-
ney are privileged when they are made to counsel
who is acting as a legal adviser and made for the
purpose of obtaining legal advice. Alderman v.
People, 4 Mich. 414, 422 (1857). The privilege ex-
ists to allow a client to confide in the attorney and
be safe in the knowledge that the communication
will not be disclosed. See People v. Nash, 418
Mich. 196, 219, 341 N.W.2d 439 (1983). In this
case, however, the element of confidentiality is
lacking. As the trial court noted, when defendant
spoke to his attorney the uniformed bailiff was in
his usual position in the courtroom and his presence
was obvious to all persons in the room. Situated in
this public location during public proceedings, and
under the scrutiny of the bailiff, defendant chose to
communicate with counsel by speaking to the attor-
ney in a manner that could be overheard by a third
person rather than covering his mouth and quietly
whispering or by communicating in writing. Under
these circumstances, defendant failed to take reas-
onable precautions to keep his remark confidential
*598 and' thus the communication was not priv-
ileged. The trial court did not abuse its discretion
by admitting the bailiffs testimony.
[4][5J[6][7J Defendant next argues that the trial
court abused its discretion by allowing evidence of
his planned jail escape to ** 123 show conscious-
ness of guilt. We find no abuse of discretion. It is
well established that evidence of flight is admiss
ible to show consciousness of guilt. People v. Cole-
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t'age ) or )
244 Mich.App. 595, 625 N.W.2d 120
244 Mich.App. 595, 625 N.W.2d 120
man, 210 Mich.App. 1,4,532 N.W.2d 885 (1995);
People v. Clark, 124 Mich.App. 410, 413, 335
N.W.2d 53 (1983); People v. Cammarata, 257
Mich. 60, 66, 240 N.W. 14 (1932). The term
"flight" includes attempting to escape custody.
Coleman, supra at 4, 532 N. W.2d 885, citing 29
Am. Jur. 2d, Evidence, 532, p. 608. The remote
ness of the flight from the time of defendant's arrest
did not affect the admissibility of the evidence, but
was relevant only to the weight of the evidence. 29
Am. Jur. 2d, Evidence, 532, p. 608; see also 29
Am. Jur. 2d, Evidence, 537, p. 611. Furthermore,
contrary to defendant's contention, the probative
value of the evidence of the escape plan was not
substantially outweighed by unfair prejudice under
MRE 403. Rule 403 is not intended to prohibit pre-
judicial evidence, but only that which is unfairly
prejudicial. people v. Crawford, 458 Mich. 376,
398, 582 N.W.2d 785 (1998). We do not fil)d that
this evidence was substantially outweighed by un-
fair prejudice. Coleman, supra at 5,532 N.W.2d 885.
[8J[9J[10) Finally, defendant argues that his sen-
tence was disproportionately harsh. Again, we dis
agree. Matters of sentencing are reviewed for an ab-
use of discretion. People v. Milbourn, 435 Mich.
630,654,461 N.W.2d I (1990). A sentence must be
proportionate to the seriousness of the crime and
the defendant's prior record .. *599 Id. at 635-636,
461 N. W .2d I. If an habitual offender's underlying
felony and criminal history demonstrate that he is
unable to conform his conduct to the law, a sen-
tence within the statutory limit is proportionate.
People v. Hansford (After Remand). 454 Mich. 320,
326, 562 N. W.2d 460 (1997).
[11] Here, because defendant was sentenced as a
fourth-offense habitual offender, he could have
been sentenced to life imprisonment. Defendant's
criminal history, which began in 1981, included
four felonies and four misdemeanors. Further, he
was on parole when he committed the instant of-
fenses. Through his extensive record, defendant has
demonstrated an inability to conform his conduct to
the law. Thus, we are satisfied that the sentence
was proportional. Hansford, supra.
Affirmed.
Mich.App.,200 I.
People v. Compeau
244Mich.App. 595, 625 N.W.2d 120
END OF DOCUMENT
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264 Mich.App. 475, 691 N.W.2d 50,13 A.L.R.6th 87S
264 Mich.App. 475, 691 N.W.2d 50
C
Krug v. Ingham County Sheriffs Office
Mich.App.,2004.
Thomas L. KRUG, Plaintiff-Appellee,
v.
INGHAM COUNTY SHERlFF'S OFFICE, Defend-
ant-Appellant.
Docket No. 250111.
Submitted Nov. 2, 2004, at Lansing.
Decided Nov. 23, 2004, at 9:30 a.m.
Released for Publication Jan. 18, 200S.
Background: Citizen sued sheriff seeking release
of information previously denied under the Free-
dom of Information Act (FOlA), regarding an in-
vestigation of harassment by a sheriffs deputy.
After sheriff released the records, the Circuit Court,
Ingham County, Thomas L. Brown, J., awarded cit-
izen costs, attomey fees, punitive damages of $SOO,
and ordered that a redacted memorandum be re-
leased in full. Sheriff appealed.
Holdings: The Court of Appeals held that:
(I) sheriff improperly denied initial FOIA request;
(2) lawsuit was continuing request for infonnation
under FOIA;
(3) citizen was entitled to award of costs and attor-
ney fees;
(4) citizen was entitled to award of punitive dam-
ages; and
(S) memorandum Was outside scope of attorney-cli-
ent privilege.
Affrrmed.
West Headnotes
[1] Records 326 <0=60
326 Records
32611 Public Access
32611(8) General Statutory Disclosure Re-
quirements
326kS3 M ~ t t e r s Subject to Disclosure;
Exemptions
326k60 k. Investigatory or Law En-
forcement Records. Most Cited Cases
Sheriff improperly denied citizen's Freedom of In-
formation Act (FOIA) request for information re-
garding an investigation of a deputy on grounds
that investigation was ongoing and case file was ex-
empt from disclosure; sheriff was required to re-
view case file and release any nonexempt informa-
tion, and sheriffs officer testified that it was sher-
iffs policy to issue blanket denials of all FOIA re-
quests regarding open files and that he failed to re-
view file before denying citizen's request. M.C.L.A.
IS.231 et seq.
[2] Records 326 <0=63
326 Records
32611 Public Access
32611(B) General Statutory DisclosW'e Re-
quirements
326k61 Proceedings for Disclosure
326k63 k. Judicial Enforcement in
General. Most Cited Cases
What constitutes a continuing request for infonria-
tion under the Freedom of Information Act (FOIA)
is a matter of statutory interpretation which is re-
viewed de novo. M.C.L.A. IS.231 et seq.
[3] Records 326 <0=62
326 Records
32611 Public Access
32611(B) General Statutory Disclosure Re-
quirements
326k62 k. In General; Request and
Compliance. Most Cited Cases
Citizen's suit against sheriff seeking release of in-
formation previously denied under Freedom of In-
formation Act (FOlA) request was continuing re-
quest for information as basis for release of the in-
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formation; FOIA specifically listed commencement
of an action in circuit court as option after denial of
FOIA request, resubmission of FOIA request was
not required. M.C.L.A. IS.231 et seq.
14) Records 326 ::::>68
326 Records
32611 Public Access
32611(B) General Statutory Disclosure Re-
quirements
326k68 k. Costs and Fees. Most Cited
Cases
Citizen was entitled to award of costs and attorney
fees as prevailing party in suit for release of in-
formation under the Freedom of Information Act
(FOIA) against the sheriff, even though sheriff dis-
closed information in deposition prior to trial;
award of costs and attorney fees was statutorily au-
thorized to successful plaintiff, and disclosure at
deposition did not negate time and effort citizen
had to expend to gain release of the information,
and sheriff falsely answered complaint by claiming
information sought was exempt as an ongoing crim-
inal investigation after the case file had been
closed. M.C.L.A. IS.240(6).
15) Records 326 ::::>63
326 Records
326I1 Public Access
326I1(B) General Statutory Disclosure Re-
quirements
326k63 k. Judicial Enforcement in
Citizen who prevailed in Freedom of Information
Act (FOIA) against sheriff was entitled to statutory
award of punitive damages; sheriff denied citizen's
original FOIA request on grounds investigation was
ongoing without actually reviewing file for nonex-
empt information, sheriff falsely answered com-
plaint by alleging that investigation was ongoing
after case file had been closed, and release of in-
formation was delayed by sheriffs actions.
M.C.L.A. IS.240(6); M.C.L.A. IS.243(l)(b)(i).
16) Records 326 ::::>57
326 Records
32611 Public Access
326II(B) General Statutory Disclosure Re-
quirements
326kS3 Matters Subject to Disclosure;
Exemptions
326kS7 k. Internal Memoranda or Let-
ters; Executive PriVilege. Most Cited Cases
Memorandum from one nonattomey to another
nonattomey within the sheriffs department sent to
give instructions regarding a case file was outside
scope of attorney-client privilege, and thus, subject
to complete disclosure to citizen on his Freedom of
Information Act (FOIA) request.
P) Appeal and Error 30 ::::>893(1)
30 Appeal and Error
30XVI Review
30k893(1) k. In General. Most
Cited Cases
Whether the attorney-client privilege applies to a
communication is a question of law, that is reviewed
de novo.
18] Witnesses 410 ::::>198(l)
410 Witnesses
410Il Competency
4 J Ok I 97 Communications to or Advice by
Attorney or Counsel
41 Ok 198 In General
4JOk198(1) k. In General. Most
Cited Cases
The scope of the attorney-client privilege is narrow;
it applies only to confidential communications by
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the client to his attorney, which are made for the
purpose of obtaining legal advice.
19J Witnesses 410 :=199(2)
410 Witnesses
41011 Competency
4101l(D) Confidential Relations and Priv-
Attorney or Counsel
41 Ok 199 Relation of Attorney and Cli-
ent
410kI99(2) k. Parties and Interests
Represented by Attorney. Most Cited Cases
When the client is an organization, the attorney-cli-
ent privilege attaches to communications between
the attorney and any employee or agent authorized
to speak on its behalf in relation to the subject mat-
ter of the communication.
**52 *476 Wilson, Lawler & Lett, PLC (by R.
David Wilson), Lansing, for the plaintiff.
Cohl, Stoker, Toskey & McGlinchey, P.c. (by Ruth
E. Mason), Lansing, for the defendant.
Before: COOPER, PJ., and FITZGERALD and
HOEKSTRA, JJ.
PER CURIAM.
Defendant, the Ingham County Sheriffs Office, ap-
peals as of right from the trial court judgment in fa-
vor of plaintiff Thomas L. Krug in his suit seeking
public records under the Freedom of Information
Act (FOIA).FNI We affirm.
FNI. MCL 15.231 e/ seq.
L Facts and Procedural History
In November of 2000, Detective Lieutenant
Timothy Howery began investigating allegations
that a sheriff's deputy was being sexually harassed
via an Internet site by one or more of her co-
deputies. Upon the advice of an assistant attorney
general (AAG) with expertise in *477 investigating
computer crimes, Lt. Howery continued to monitor
the site for further postings until he learned that the
Internet provider hosting the site went out of busi-
ness. Lt. Howery only identified one person using
the site who he interviewed on March 8, 200 I, after
the site had been removed from the Internet.
Subsequently, the complaining deputy indicated her
desire to discontinue the investigation. In Mayor
June, Lt. Howery contacted Undersheriff Matthew
Myers to advise him that no more information
would be forthcoming in the investigation. Under-
sheriff Myers did not declare the investigation in-
active or closed, although Lt. Howery believed it
should have been closed at that time. On August I,
2001, the AAG contacted Lt. Howery to determine
if he could close his file on the complaint. Lt.
Howery told the AAG that the investigation could
go no further and he assumed that the AAG closed
his portion of the file.
On August 23, 200 I, plaintiff submitted an FOIA
request to defendant to receive a copy of the case
file involved in this investigation. Although
plaintiff was the head of the deputies' union, he
identified himself as a citizen rather than a repres-
entative of an organization on the FOIA request
form. Staff Services Administrator Major Allan C.
Spyke informed Undersheriff Myers that the union
had filed an FOIA request. Plaintiffs request was
denied on August 27, 200 I, by Maj. Spyke, who
stated that the investigation was still open and,
therefore, disclosure would interfere with an ongo-
ing criminal investigation pursuant to MeL
15.243(l)(b)(i).FN2 Before denymg the **53 re-
quest, Maj. Spyke *478 asked Lt. Howery if the
case was still open, but failed to review the file.
Defendant's policy was to deny any FOIA request
regarding open investigations. Even though no ac-
tion was being taken with the file, Undersheriff
Myers testified that the investigation would have
been compromised if the information had been re-
leased.
FN2. The disclosure exemption specific-
ally provides in part:
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(I) A public body may exempt from dis-
closure as a public record under this act
any of the following:
* * *
(b) Investigating records compiled for
law enforcement purposes, but only to
the extent that disclosure as a public re-
cord would do any of the following:
(i) mterfere with law enforcement pro-
ceedings. [MCL 15.243.]
Rather than file a second FOIA request, plaintiff
filed suit on October 19, 2001, seeking the release
of the information. On October 30, Undersheriff
Myers sent Lt. Howery a memo indicating that he
was no longer interested in pursuing the investiga-
tion, and Lt. Howery officially closed the investiga-
tion on November 8. On that same day, however,
defendant's attorney prepared the answer in this
case and included as an affinnative defense that the
file was exempt from FOIA disclosure because it
would interfere with an ongoing criminal investiga-
tion. Defendant failed to file the answer until
November 13. Plaintiff finally discovered that the
investigation had been closed on December 18,
2001, when he deposed Lt. Howery. In response to
the subpoena, Lt. Howery brought the case file to
the deposition. However, Undersheriff Myers's
memo had been redacted based on attorney-client
privilege.
The trial court determined that defendant properly
denied plaintiffs first request, but found that de-
fendant should have treated the lawsuit as a con-
tinuing request for information under the FOlA and
timely *479 released the requested records. As
plaintiff was required to resort to the courts to ob-
tain the records, the trial court awarded plaintiff
costs and attorney fees pursuant to MCL 15.240(6).
As defendant falsely indicated in its affinmative de-
fenses that the release of the public record would
interfere with an ongoing investigation that had ac-
tually been closed, the trial court awarded plaintiff
punitive damages of $500 pursuant to MCL
15.240(7). The trial court also ordered that Under-
sheriff Myers's memo be released in full as the re-
dacted infonmation was innocuous and did not in-
vade the privilege of any attorney-client relation-
ship. This appeal followed.
II. Continuing Request
[I] Defendant contends that the trial court erro-
neously found plaintiffs lawsuit to be a continuing
request for infonmation. We first note that the trial
court incorrectly detenmined that. plaintiffs initial
request was properly denied. Defendant was not en-
titled to deny plaintiffs FOIA request without actu-
ally determining that the entire case file was ex-
empt from disclosure. Defendant was required to
review the case file and release any nonexempt in-
formation-any information whose release would not
have interfered with the investigation."" As Maj.
Spyke admitted that defendant's policy is to issue
blanket denials of all FOiA requests relating to
open case files and that he actually failed to review
the file before issuing defendant's response, defend-
ant's denial was clearly improper.
FN3 .. Evening News Ass'n v. City of Troy,
417 Mich. 481, 491-494, 339 NW.2d 421
(1983), citing MCL 15.243(1)(b)(i) and
MeL 15.244(1).
Subsequently, the trial court properly ordered the
release of the information after determining that de-
fendant's*480 lawsuit **54 constituted a continuing
request for infonmation under the FOJAFN'Pursu-
ant to MCL 15.235(7),
FN4. As the trial court did order the re-
lease of the requested records, the court's
erroneous ruling that plaintiffs initial
FOIA request was properly denied is moot
and does not merit reversaL
If a public body makes a final detenmination to
deny in whole or in part a request to inspect or
receive a copy of a public record or portion of
that public record, the requesting person may do
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either of the following:
(a) Appeal the denial to the head of the public
body pursuant to section 10.
(b) Commence an action in circuit court, pursu-
ant to section IO.f
FN5
]
FN5. MCL 15.235(7). Section 10 is located
at MCL 15.240.
Defendant argues that the trial court's ruling is
overly burdensome, as it requires defendant to con-
tinually review the status of case files requested Un-
der the FOIA Defendant contends that only a re-
submission of an FOIA request is sufficient to ob-
tain the information following a change in circum-
stances. However, nothing in the plain language of
the FOJA indicates that a party must continually re-
submit his or her FOJA request to determine if a
change of circumstances has occurred. In fact, the
FOlA specifically directs a requesting party to only
one of two options following a denial: appeal the
denial to the head of the public body or commence
an action in circuit court.
[2][3] What constitutes a continuing request for in-
formation under the FOIA is a matter of statutory
interpretation which we review de novo .flIt:. The
primary goal in statutory construction is to ascer-
tain and give effect to *481 the intent of the Legis-
lature. FN7 When a statute's language is clear and
unambiguous, we must assume that the Legislature
intended its plain meaning and enforce the statute
as written.
FN
' It is only when the statutory lan-
guage is ambiguous that this Court is permitted to
look beyond the statute to determine the Legis-
lature's intent.
FN
' Statutory language is con-
sidered ambiguous when reasonable minds can dif-
fer with respect to its meaning.FN10
FN6. Eggleston v. Bio-Medical Applica-
tions of Detroit, Inc., 468 Mich. 29, 32,
658 N,W.2d 139 (2003).
FN7. Weakland v. Toledo Engineering Co.,
467 Mich. 344, 347, 656 N.W.2d 175
(2003), mod468 Mich. 1216, 656 N.W.2d
175 (2003).
FN8. People v. Morey, 461 Mich. 325,
330,603 NW.2d 250 (1999).
FN9. DiBenedetto v. West Shore Hasp.,
461 Mich. 394,402,605 N.W.2d 300 (2000).
FN I O. In re MCI Telecom. Complaint, 460
Mich. 396, 411, 596 NW.2d 164 (1999).
Section 10 of the FOIA allows a party to either ap-
peal a denial of an FOIA request to the head of the
public body or to file suit in the circuit court to
compel the disclosure of the requested
records.FN II The plain language of the FOIA does
not impose a duty on the requesting party to also re-
submit a request. We must assume that the Legis-
lature intentionally omitted such a requirement, and
we are not entitled to read into the statute any pro-
visions to this effect,fN!2
FNII. MeL 15.240(1).
FN 12. See AFSCME v. Detroit, 468 Mich.
388, 400, 662 N.W.2d 695 (2003) (the
courts must derive the intent
from the language of the statute and not
from missing language).
In a similar case, this Court found that a party's
right to seek judicial intervention following a denial
of an FOIA request was not destroyed when the
party also resubmitted**55 the request to the public
body. In Scharret v. Berkley.'NIl the plaintiff re-
submitted her FOIA request to the defendant after
the defendant failed to respond in *482 the statutor-
ily required period of time. When the defendant fi-
nally denied her initial request in writing, the
plaintiff filed suit'N" This Court reversed the
trial court's grant of summary disposition in favor
of the defendant.
FN13. Scharret v. Berkley, 249 Mich.App.
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264 Mich.App. 475,691 N.W.2d 50
405,642 N. W.2d 685 (2002).
FNI4.1d. at 407-408, 642 N.W.2d 685.
MCL 15.235(7) provides that if a public body
makes a final determination to deny a request, the
requesting person may either appeal the denial to
the head of the public body or commence an ac-
tion in the circuit court within 180 days. Nothing
in the FOIA states that the resubmission of a re-
quest denied by virtue of the public body's failure
to respond divests the requesting person of the
ability to exercise the options granted under MCL
15.240(1 lea) or (b ).I[[
FNI5
1
FNI5.1d. at 412-413, 642 N.W.2d 685.
The statute does not state that a party resubmitting
an FOIA request loses the right to file suit. Simil-
arly, the statute does not indicate that a party is re-
quired to resubmit an FOIA request to ensure that it
receives the requested information if the public
body determines that the information has become
nonexempt during the course of litigation.
Although defendant contends that the circuit court's
order places a heavy burden on its shoulders-to.
monitor the status of all files upon which FOIA re- .
quests have been made-defendant's assertion ig-
nores the fact that "the FOIA is a prodisclosure
starute." FNI6 Defendant had denied plaintiffs re-
quest and plaintiff had filed suit in this matter. Ac-
cordingly, defendant would already have been mon-
itoring this file more closely and could easily have
released the information as soon as it became
nonexempt. As such, we find that the trial court
*483 properly considered plaintiffs lawsuit a con-
tinuing request for information under the FOIA and
ordered its re1ease,FN17
FN 16. Herald Co. v. Bay City, 463 Mich.
III, 119,614 N.W.2d 873 (2000).
FN 17. Defendant also asserts that the trial
court improperly found that defendant had
a duty to release the requested information,
as the requesting party was the head of the
deputies' union. Defendant correctly as-
serts that a party's identity may not be con-
sidered when responding to an FOIA re-
quest. State Employees Ass'n v. Dep't oj
Mgt. & Budget, 428 Mich. 104, 121, 404
N.W.2d 606 (1987) (opinion by Cavanagh,
J.). However the trial court's order was not
based on this ground. Therefore, it does
not merit further review.
Ill. Propriety of Award of Costs, Attorney Fees and
Punitive Damages
[4) Defendant further argues that the trial court im-
properly awarded plaintiff costs and attorney fees
and punitive damages. Pursuant to MCL 15.240(6),
a trial court must award reasonable costs and attor-
ney fees to a plaintiff who successfully seeks the
release of records in the circuit court. FNl&
Plaintiff was clearly entitled to costs and fees in
this case. Plaintiff filed suit as a result of defend-
ant's denial of his FOIA request. Plaintiff was
forced to file this action to acquire the release of
the requested information. The fact that defendant
disclosed these records in a deposition before trial
could occur does not negate the time and effort
plaintiff was required to expend'NI' Had defend-
ant notified**56 plaintiff that the case file had been
closed rather than filing a false answer in this case,
such an award might not be justified. However, de-
fendant's tactics caused the continuation of the litig-
ation in which plaintiff prevailed, and the court's
award of costs and attorney fees was proper.
FNI8. MCL-15.240(6).
FNI9. Thomas v. New Baltimore, 254
Mich.App. 196, 202, 657 N.W.2d 530
(2002) (an award under MCL 15.240(6)
was proper even though the public body
disclosed the requested records while litig-
ation was pending).
[5) *484 The trial court's award of punitive dam-
ages in the amount of $500 was also proper.
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264 Mich;App. 475,691 N.W.2d 50
If the circuit court determines in an action com-
menced under this section that the public body
has arbitrarily and capriciously violated this act
by refusal or delay in disclosing or providing
copies of a public record, the court shall award,
in addition to any actual or compensatory dam-
ages, punitive damages in the amount of $500.00
to the person seeking the right to inspect or re-
ceive a copy of a pUblic record .... IFN201
FN20. MCL 15.240(7) (emphasis added).
Defendant continued to conceal the requested re-
cords after the case file was closed and disclosure
could no longer interfere with an ongoing investiga-
tion. Most importantly, defendant falsely indicated
in its answer that the records were exempt from dis-
closure under MCL 15.243(l)(b)(i). Accordingly,
the trial court properly determined that defendant
had arbitrarily and capriciously violated the FOIA
by delaying the disclosure of records and awarded
punitive damages.
IV. Redacting Information Based on Attorney-Cli-
ent Privilege
[6J[7][8][9] Defendant also contends that it was en-
titled to redact the memo from Undersheriff Myers
to Lt. Howery and the redacted language referenced
Undersheriff Myers's discussion with defendant's
corporate counsel before closing the file. Whether
the attorney-client privilege applies to a communic-
ation is a question of law that we review de
novo.FN21 The scope of tlie privilege is narrow; it
applies" 'only to confidential communications by
the client to his attorney, which are made for the
purpose of *485 obtaining legal advice.' " FN22
When the client is an organization, the privilege at-
taches to communications between the attorney and
any employee or agent" 'authorized to speak on its
behalf in relation to the subject matter of the com-
munication.' " FN2l It is clear that no
ent privilege applies to the redacted memo. Al-
though the memo references a conversation
between Undersheriff Myers and defendant's cor-
porate counsel, the memo was sent from one non-
attorney to another to give instruction On a case
file. As the memo is not within the scope of the at-
torney-client privilege, the trial court properly
ordered its release in full.
FN21. Leibel v. Gen. Motors Corp., 250
Mich.App. 229, 236, 646 N.W.2d 179 (2002).
FN22. In re Costs & Attorney Fees, 250
Mich.App. 89, 99, 645 N. W.2d 697 (2002),
quoting McCartney v. Attorney General,
231 Mich.App. 722, 731, 587 N.W.2d 824
(1998).
FN23. Leibel, supra at 236, 646 N.W.2d
179, quoting Reed Dairy Farm v. Con-
sumers Power Co., 227 Mich.App. 614,
618,576 N.W.2d 709 (1998).
Affirmed.
Mich.App.,2004.
Krug v. Ingham County Sheriffs Office
264 Mich.App. 475, 691 N.W.2d 50, 13 A.L.R.6th
875
END OF DOCUMENT
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184 Mich.App. 80,457 N.W.2d 693
184 Mich.App. 80,457 N. W.2d 693
H
Yates v. Keane
Mich.App.,1990.
Laurie YATES and Richard Yates, Plaintiffs-Ap-
pellants,
v.
Noel P. KEANE, individually, and Noel P. Keane,
P.C., Defendants-Appellees.
Docket No. 114401.
Submitted March 22, 1990.
Decided June 4, 1990.
Released for Publication July 16, 1990.
Prospective surrogate mother and spouse sued at-
torneys to whom she was contractually committed
to provide surrogate services for attorney's clients,
claiming fraud in connection with contract. Attor-
neys moved to quash subpoena seeking discovery
of list of attorneys' clients who had entered into sur-
rogacy agreements and list of other surrogates un-
der contract to attorneys. The Circuit Court, Wayne
County, Sharon Tevis Finch, J., granted motion for
protective order. Prospective surrogate and spouse
appealed. The Court of Appeals, Jansen, J., held
that: (1) request for list satisfied discovery require-
ment of relevance; (2) list of surrogate mothers was
not privileged, as mothers were not clients of attor-
neys; and (3) list of clients was not privileged, as
clients had disclosed names to attornoys for purpose
of further disclosure to potential surrogate mothers.
West Headnotes
(I] Pretrial Procedure 307A C=31
307 Ak31 k. Relevancy and Materiality.
Most Cited Cases
Pretrial Procedure 307 A C=33
307 Ak33 k. Privileged Matters in Gener-
al. Most Cited Cases
In order to proceed with discovery, a plaintiff need
only show that matter upon which discovery is
sought is relevant and not privileged.
(21 Pretrial Procedure 307 A C=40
307 Ak36 Particular Subjects of Disclos- ure
307 Ak40 k. Identity and Location of
Witnesses and Others. Most Cited Cases
Prospective surrogate mother suing law finn with
whom she was contractually committed to provide
services to finn's clients satisfied discovery require-
ment of relevance in seeking copies of names of cli-
ents and persons who had served as surrogate moth-
ers; prospective surrogate mother was claiming
fraudulent misrepresentation of facts in connection
with surrogacy contract, and evidence gleaned :from
. experience of others could be releva'nt as to whether
attorneys had necessary fraudulent intent. MRE 40 I.
13} Witnesses 410 <8=>199(2)
410 Witnesses
41011 Competency
4101I(D) Confidential Relations and Priv-
Attorney or Counsel
ent
410kI99(2) k. Parties and Interests
2008 Thomson Reuters/West. No Clain, to Orig. U.S. GoV!. Works.
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184 Mich.App. 80,457 N.W.2d 693
184 Mich.App. SO, 457 N.W.2d 693
Identities of other surrogate mothers who had con-
tracted with attorneys to act as surrogates for cli-
ents did not fall within purview of attorney-client
privilege, as surrogates were not attorneys' clients.
141 Witnesses 410 :=205
410 Witnesses
41011 Competency
Attorney or Counsel
410k205 k. Confidential Character of
Identities of clients for whom attorneys had con-
tracted with potential surrogate mothers were not
protected by attorney-client privilege, as clients'
identities were not confidential communications be-
cause they were necessarily intended to be dis-
closed to third parties.
**694 *81 Kohl, Secrest, Wardle, Lynch, Clark &
Hampton by Lisa J. Vogler, Farmington. Hills, for
plaintiffs-appellants.
Miller, Canfield, Paddock & Stone by Kay Holsing-
er, Ann Arbor, for defendants-appellees.
. Before HOLBROOK, PJ., and MURPHY and
JANSEN, JJ.
JANSEN, Judge.
Plaintiff Laurie Yates contracted with defendants to
act as a surrogate mother for defendants' clients.
Plaintiffs brought suit against defendants for fraud-
ulent or innocent misrepresentations in the surrog-
ate parenting agreement. Plaintiffs appeal by leave
the order granting defendants' motion to quash a
subpoena, to prevent deposition and for a protective
order pursuant to MCR 2.305, 2.306(D) and
2.302(C). Plaintiffs argue that the circuit court
erred in ordering that they could not seek discovery
of a list of all defendants' clients who had entered
into surrogacy agreements and a list of all surrog-
ates who had served as such. *S2 Plaintiffs argue
that this information was relevant and Was not pro-
tected by a privilege and, therefore, is discoverable.
We agree and reverse.
[I] In order to proceed with discovery, a plaintiff
need only show that the matter upon which discov-
ery is sought is relevant and not privileged. Davis v.
O'Brien,. 152 Mich.App. 495, 503,393 N.W.2d 914
(1986), Iv. den. 426 Mich. 869 (1986). Even inad-
missible evidence is discoverable if good cause for
discovery is shown. Good cause is shown where the
moving party establishes that the information
sought is, or might lead to, admissible evidence, is
material to the moving party's trial preparation, or
is for some other reason necessary to promote the
ends of justice. Haglund v. Van Darn Co., 169
Mich.App. 524, 528, 426 N. W.2d 690 (1988). In
ruling on defendants' motion, the trial court stated
that the discovery request was too vague, there was
no good cause and it interferes with the rights and
privacy of other people without good reason. We
find that the trial court erred in applying the wrong
standard of review.
[2] First, we must determine whether the evidence
sought through discovery is relevant. Evidence is
relevant when it has any tendency to make the ex-
istence of any fact that is of consequence to the de-
tennination of the action more probable or less
probable than it. would be without the evidence.
MRE 40 I. Plaintiffs brought suit alleging that de-
fendants fraudulently misrepresented material facts
in their surrogacy contract. One element for an ac-
tion in fraud is that the defendant made a material
representation that he knew was false, or made it
recklessly, without any knowledge of- its truth and
as a positive assertion. Dumas v. Auto Club Ins.
Ass'n., 168 Mich.App. 619, 636, 425 N.W.2d 4S0
(198S). Transactions with third persons not imme-
diately connected with the alleged fraud can *83 be
probative of defendants' knowledge and therefore
relevant under MRE 401. Temborius v. Slatkin, 157
Mich.App. 587, 403 N.W.2d 821 (1986). Evidence
of other surrogacy contracts to which defendants
were a party is relevant to show the intent element
of fraud. We find that discovery of the identities of
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rage '+ or 'f .:.".
" Ul'
457 N.W2d 693 FOR EDUCATIONAL USE ONLY Page 3
184 Mich.App. 80, 457 N. W.2d 693
IS4 Mich.App. 80, 457 N.W.2d 693
prior clients and surrogate**695 mothers is reason-
ably calculated and is likely to lead to the discovery
and production of relevant evidence.
[3][4] We now must determine whether a privilege
applies to prevent the discovery of the information.
The scope of the attorney-client privilege is narrow.
It attaches only to confidential communications by
the client to his adviser which are made for the pur-
pose of obtaining legal advice. Us. Fire Ins. Co. v.
Citizens Ins. Co. of America, 156 Mich.App. 588,
592, 402 N.W2d 11 (1986); Kubiak v. Hurr, 143
Mich.App. 465, 472-473, 372 NW.2d 341 (1985).
The purpose of the privilege is to permit a client to
confide in his counselor, knowing that such com-
munications are safe from disclosure. u.s. Fire,
supra.
We find that the identity of defendants' clients or
other surrogate mothers is not protected as a priv-
ileged communication. In regard to the identity of
other surrogate mothers, this infonnation is not pro-
tected as a privileged communication because the
prior surrogates were not defendants' clients and,
therefore, do not fall within the purview of the at-
torney-client privilege. Further, the client's identity
is not _8 confidential communication because it was
necessarily intended to be disclosed to a third party-
the potential surrogate mother. A communication is
not confidential if it is made for the purpose of dis-
closure to third parties. Owen v. Birmingham Fed-
eral Savings & Loan Ass'n., 27 Mich.App. 148,
163, 183 N.W2d 403 (1970). 111erefore, we fmd
that the identities of *S4 other surrogate mothers
and defendants' clients are not privileged commu-
nications within the attorney-client privilege.
Although we find plaintiffs have a right to discov-
ery in the present case, the trial court may set lim-
ited restrictions under MCR 2.302(C); Eyde v.
Eyde, 172 Mich.App. 49, 56, 431 N.W.2d 459
(1988), Iv. den. 432 Mich. 852 (1989). On remand,
the trial court may protect the privacy rights in-
volved by issuing a protective order which would
allow disclosure of the information for the sale pur-
poses of litigation and not for public disclosure. A
protective order will preserve defendants' clients'
expectation of privacy and furnish plaintiffs with
the required information.
Reversed and remanded for further proceedings
consistent with this opinion. We do not retain juris-
diction.
Mich.App.,1990.
Yates v. Keane
184 Mich.App. 80,457 N.W.2d 693
END OF DOCUMENT
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227 Mich.App, 614, 576 N,W.2d 709
(Cite as: 227 Mich.App. 614, 576 N.W.2d 709)
po
Rced Dairy Fann v. Consumers Power Co.
Mich.App.,1998.
REED DAIRY FARM, Plaintiff-Appellee,
v.
CONSUMERS POWER COMPANY, Defendant-
Appellant.
Docket Nos. 196818, 196900.
Submitted Oct. 7,1997, at Detroit.
Decided Feb. 3, 1998, at 9:05 a.m.
Released for Publication April 30, 1998.
In a civil action, the Shiawassee Circuit Court, Ger-
ald D. Lostracco, 1., granted the plaintiffs discov-
ery motions, and defendant appealed. The Court of
Appeals held that: (1) authorization of the submis-
sion of interrogatories to defendant
1
s nonparty ex-
pert witnesses was not an abuse of discretion, and
(2) attorney-client privilege did not preclude
plaintiff from compelling a paralegal employed by
defendant to testify at a deposition.
Affirmed.
West Headnotes
[1 J Pretrial Procedure 307 A =>24
307 Ak24 k. Discovery Methods and Pro-
cedure. Most Cited Cases
Pretrial Procedure 307 A =>246
307 AII(D) Interrogatories to Parties
307AII(D)1 In General
307 Ak246 k. Parties and Persons Sub-
ject to Interrogation, Most Cited Cases
The trial court, when essential to facilitate and ex-
pedite the search for accurate and relevant infonna-
tion, may order discovery methods it deems appro-
priate and necessary, including authorizing the sub-
mission of interrogatories to nonparty expert wit-
nesses, despite the omission from the court rules of
language specifically authorizing such a discovery
tecbnique, MCR 2.302(B)(4)(a)(iii), (F)(2),
[2] Appeal and Error 30 =>961
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k961 k, Depositions, Affidavits, or Dis-
covery, Most Cited Cases
A trial court's decision to grant or deny discovery is
reviewed for an abuse of discretion.
[3] Pretrial Procedure 307A =>13
307 AU(A) Discovery in General
307 Ak 13 k, Construction of Discovery
Provisions, Most Cited Cases
The discovery rules should be construed in an effort
to facilitate trial preparation and to further the ends
of justice,
[4] Pretrial Procedure 307A =>IS
- 307 A Pretrial Procedure
307 AlI(A) Discovery in General
307Akl4 Nature and Purpose
307Akl5 k. Discovering Truth, Nar-
rowing Issues, and Eliminating Surprise, Most
Cited Cases
The discovery process should promote the discov-
ery of the facts and circumstances of a controversy,
rather than aid in their concealment.
[5] Pretrial Procedure 307 A =>246
2008 Thomson/West. No Claim to Orig, U,S, Govt. Works,
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Page 3 of 7
227 Mich.App. 614, 576 N.W.2d 709
307AII Depositions and Discovery
307 All (D) Interrogatories to Parties
307AII(D)1 In General
307 Ak246 k. Parties and Persons Sub-
ject to Interrogation. Most Cited Cases
The authorization of the submission of interrogator-
ies to defendant's nonparty expert witnesses was
not an abuse of discretion; the defendant was un-
able to say which of 12 potential expert witnesses
would be used at trial, such that the plaintiff would
have to question each witness by traveling all over
the country, incurring significant expenses and los-
ing valuable trial preparation time, plaintiff had
agreed to pay reasonable fees to the experts for
their time, and there was no indication that defend-
ant would suffer any prejudice from plaintiff sub-
mitting interrogatories that both counsel and the tri-
al court would review and approve. MCR
2.302(B)(4)(a)(iii), (F)(2).
161 Pretrial Procedure 307A ;:;::>27.1
307 AI1(A) Discovery in General
307 Ak27 Scope of Discovery
307 Ak27.1 k. In General. Most Cited
Cases
Court rules are simply guidelines for accessing in-
formation,and are not designed to be an exhaustive
index of every resource available to parties during
discovery.
171 Pretrial Procedure 307 A ;:;::>183.1
307 AIl(C) Discovery Depositions
307 AII(C)4 Scope of Examination
307Akl83 Privileged Matters
307Ak183.1 k. In General. Most
Cited Cases
Witnesses 410 ;:;::>205
410 Witnesses
41011 Competency
Attorney or Counsel
4l0k205 k. Confidential Character of
Witnesses 410 ;:;::>206
410 Witnesses
41011 Competency
Attorney or Counsel
Cases
The attorney-client privilege did not preclude a
plaintiff from compelling a paralegal employed by
the defendant to testilY at a deposition; the
paralegal was not the defendant's agent, authorized
to speak on the defendant's behalf, the information
sought to be discovered was neither of the type the
privilege was designed to protect nor confidential,
but was part of the lower court file, which con-
tained public documents, and additionally, plaintiff
sought to depose the paralegal only to further in-
vestigate the vague and indecisive responses he
provided to interrogatories.
IS] Appeal and Error 30 ;:;::>S93(1)
30 Appeal and Error
30XVI Review
Cited Cases
Whether the attorney-client privilege may be asser-
ted is a legal question reviewed de novo.
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Page 4 of7
576 N.W.2d 709 FOR EDUCATIONAL USE ONLY
Page 3
227 Mich.App. 614, 576 N.W.2d 709
19J Witnesses 410 <:=>206
410 Witnesses
410Il Competency
410k197 Communications to or Advice by
Attorney or Counsel
Cases
The attorney-client privilege attaches to direct com-
munication between a client and his attorney as
well as communications made through their re-
spective agents.
(IOJ Witnesses 410 <:=>I98(I)
410 Witnesses
410Il Competency
Attorney or Counsel
41 Okl98 In General
410kI98(l) k. In General. Most
Cited Cases
The scope of the attorney-client privilege is narrow,
attaching only to confidential communications by
the client to his advisor that are made for the pur-
pose of obtaining legal advice.
1111 Witnesses 410 <:=>199(2)
410 Witnesses
410Il Competency
410k197 Communications to or Advice by
Attorney or Counsel
ent
41 Ok 199(2) k. Parties and Interests
Where an attorney's client is an organization, the
privilege extends to those communications between
attorneys and all agents or employees of the organ-
**710 *615 John S. Paterson, Sandusky and Rose-
mary A. Gordon, Grosse Pointe, for Plaintiff-Ap-
pellee.
Smith, Haughey, Rice & Roegge by Lance R.
Mather, Grand Rapids, for Defendant-Appellant.
Before FITZGERALD, P.J., and MARKEY and
J.B. SULLIVAN FN', JJ.
FN* Former Court of Appeals judge, sit-
ting on the Court of Appeals by assignment.
PERCURlAM.
This interlocutory appeal arises from two orders
granting plaintiffs motions pertaining to discovery
matters. Defendant appeals both orders by leave
granted. We affirm.
[I] Defendant first argues that the trial court erred
in granting plaintiffs motion to submit a set of in-
terrogatories to defendant's out-of-state experts
named on its witness list. Defendant insists that
plaintiff should not be permitted to submit interrog-
atories to defendant's experts because the court
rules authorize interrogatories to be served only on
parties to a lawsuit, and the expert witnesses are not
named parties in this case. On the other hand,
plaintiff asserts that the trial court has broad discre-
tion over discovery matters . and that MCR
2.302(B)(4)(a)(iii) provides *616 authority for the
trial court's decision to grant the motion.
[2][3][4] A trial court's decision to grant or deny
discovery is reviewed by this Court for an abuse of
discretion. Mercy MI. Clemens Corp. v. Auto Club
Ins. Ass'n, 219 Mich.App. 46, 50-51, 555 N.W.2d
871 (1996). It is well settled that Michigan follows
an open, broad discovery policy that permits liberal
discovery of any matter, not privileged, that is rel-
evant to the subject matter involved in the pending
case. MCR 2.302(B)(1); Domako v. Rowe, 438
Page 5 ofT;"
227 Mich.App. 614, 576 N.W.2d 709
Mich. 347, 353, 359, 475 N.W.2d 30 (1991); In re
Hammond Estate, 215 Mich.App. 379, 386, 547
N.W.2d 36 (1996). In addition, the Supreme Court
has repeatedly emphasized that the purpose of dis-
covery is to simplify and clarify issues. Domako,
supra, at 360, 475 N.W.2d 30. Thus, the rules
should be construed in an effort to facilitate trial
preparation and to further the ends of justice. Id.;
Eyde v. Eyde, 172 Mich.App. 49, 54,431 N.W.2d
459 (1988). Moreover, "[the discovery process]
should promote the discovery of the facts and cir-
cumstances of a controversy, rather than aid in their
concealment." Domako, supra, at 360, 475 N.W.2d
30. Indeed, restricting parties to formal methods of
discovery would serve to complicate trial prepara-
tion, rather than aid in the search for truth. !d. MCR
1.105 explicitly **711 states that the "[court] rules
are to be construed to secure the just, speedy, and
economical detennination of every action."
MCR 2.309(A) provides, in pertinent part:
A party may serve on another party written inter-
rogatories to be answered by the party served or, if
the party served is a public or private corporation,
... by an officer or agent.
*617 The relevant portion of MCR 2.302(B)
provides:
(4) Trial Preparation; Experts. Discovery of facts
known and opinions held by experts, otherwise dis-
coverable ... may be obtained only as follows:
* * * * * *
(a)(iii) On motion, the court may order further dis-
covery by other means, subject to such restrictions
as to scope and such proviSions (pursuant to subrule
[B][4][c] ) concerning fees and expenses as the
court deems appropriate.
We are persuaded that the omission from the court
rules of language specifically authorizing interrog-
atories to be submitted to nonparty expert witnesses
does not necessarily imply that such a discovery
technique may not be utilized, especially where
there are compelling circumstances. See MeR
2.302(F)(2); Domako, supra, at 361-362, 475
N.W.2d 30; Nurie! v. YWCA, 186 Mich.App. 141,
146,463 N.W.2d 206 (1990).
[5] In this case, defendant has provided a list of
twelve potential expert witnesses, but is unable to
say for certain which ones will be used at trial. This
leaves plaintiff with little choice except to question
each expert individually, requiring plaintiff to
travel all over the country, incurring significant ex-
penses and losing valuable time that could be spent
preparing for trial. In light of the available alternat-
ive, such a requirement would be unduly burden-
SOme. In addition, plaintiff has agreed to pay reas-
onable fees to the experts for their time. Finally,
there is no indication that defendant would suffer
any prejudice from plaintiff submitting interrogat-
ories to the experts. Plaintiffs inquiry would be
limited to the interrogatories that both counsel and
the trial court review and approve.
*618 [6] Because the court rules are simply
guidelines for accessing infonnation, and are not
designed to be an exhaustive index of every re-
source available to parties during discovery I we
find that a trial court, when essential to facilitate
and expedite the search for accurate and relevant
information, may order discovery methods it deems
appropriate and necessary. Accordingly, the trial
court's order was not an abuse of discretion under
the circumstances of this case. Eyde, supra.
[7] Defendant next argues that the trial court erred
in granting plaintiffs motion to compel discovery
ordering defendant's paralegal to appear for a de-
position. Specifically, defendant conten'ds that the
paralegal is an agent of defendant and cannot be
compelled to testify at a deposition because such
communication is protected by the attorney-client
privilege.
[8] Whether the attorney-client privilege may be as-
serted is a legal question that this Court reviews de
novo. Monroe Beverage Co., Inc. v. Stroh Brewery
Co., 211 Mich.App. 286, 295, 535 N.W.2d 253
ll-
I
Page 6 on
227 Mich.App. 614, 576 N.W.2d 709
(Cite 3s:227 Mich.App. 614,576 N.W.2d 709)
(1995), rev'd in part on other grounds454 Mich. 41,
559 N.W.2d 297 (1997). Once we determine wheth-
er the attorney-client privilege is applicable to the
facts of this case, we must then determine whether
the trial court's order was proper or an abuse of dis-
cretion. AulO Club. supra. at 50-51, 555 N.W.2d 871.
[9][ I OJ[ 11] The attorney-client privilege attaches to
direct communication between a client and his at-
torney as well as communications made thro.ugh
their respective agents. Grubbs v. K Mart Corp.,
161 Mich.App. 584, 589, 411 N.W.2d 477 (1987).
The scope of the attorney-client privilege is narrow,
attaching only to confidential communications by
the client to his advisor that *619 are made for the
purpose of obtaining legal advice. Yales v. Keane,
184 Mich.App. 80, 83, 457 N.W.2d 693 (1990).
Where an attorney's client is an organization, the
privilege extends to those communications 'between
attorneys and all agent, or employees of the organ-
**712Hubka v. Penn field Twp., 197 Mich.App.
117, 121,494 N.W.2d 800 (1992), rev'd on other
grounds443 Mich. 864, 504 N.W.2d 183 (1993).
Our first inquiry is whether the paralegal was an
agent of defendant, acting in a representative capa-
city and authorized to speak on its behalf. We are
not persuaded that the paralegal, who merely signed
his name to the interrogatories, had first hand
knowledge of the answers to which he affixed his
signature, nor that he was privy to the confidential
communications in which defendant engaged with
its attorney. Moreover, there is no indication that
the paralegal participated in trial strategy or prepar-
ation to the extent that he revealed confidential in-
formation to counsel on behalf of defendant. There-
fore, although he may be an employee of defendant,
we do not find that the paralegal was defendant's
agent, authorized to speak on its behalf. Id.. at
121-122,494 N.W.2d 800.
Furthermore, we find that the information sought to
be discovered by plaintiff from defendant's
paralegal is not the type of information that the at-
torney-client privilege is designed to protect. The
United States Supreme Court had occasion to con-
sider this issue in Upjohn Co. v. United Stales, 449
U.S. 383, 393-394, 101 S.Ct. 677, 684-685, 66
L.Ed.2d 584 (1981), and determined that the attor-
ney-client privilege is limited to communications
between employee and counsel, not *620 facts.
Thus, clients and their agents must disclose on re-
quest any relevant fact within their knowledge even
if it incorporated a statement of that fact into a
communication to the attorney. Id., at 395-396, 101
S.Ct. at 685-686; see also Fruehauf Trailer Corp. v.
Hagellhorn, 208 Mich.App. 447, 451-452, 528
N.W.2d 778 (1995). After reviewing the informa-
tion that defendant asserts would be protected by
the privilege, we have determined that defendant
was not asserting the privilege with respect to com-
munications between its employee and counsel.
Rather, defendant is attempting to shield its em-
ployee from any inquiry by plaintiff, thereby pre-
venting disclosure of essential facts in the case. We
eonclude that the privilege may not be asserted on
this basis.
Finally, we find that the information that plaintiff
seeks to discover from defendant's paralegal is not
confidential. Yales, supra. To the contrary, it is part
of the lower court file, which contains public docu-
ments. In addition, plaintiff requests to depose the
paralegal only to further investigate the vague and
indecisive responses he provided to the interrogat-
ories; it does not seek to obtain nondiscoverable in-
formation. Thus, at this juncture, defendant has not
explained how the information would violate the
privilege, even if it were to attach. Accordingly, the
attorney-client privilege does not preclude defend-
. ant's paralegal from being compelled to testify in a
deposition.
Affirmed.
Mich.App.,1998.
Reed Dairy Farm v. Consumers Power Co.
227 Mich.App. 614, 576 N.W.2d 709
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I'age L or tV

53 S.Ct. 465 FOR EDUCATIONAL USE ONLY Page 1
289 U.S. 1,53 S.Ct. 465, 77 L.Ed. 993
289 U.S. 1,53 S.Ct. 465
(>
CLARK v. UNITED STATES
U.S. 1933.
Supreme Court afthe United States.
CLARK
v.
UNITED STATES.
No. 531.
Argued Feb. 6, 7, 1933.
Decided March 13, 1933.
On Writ of Certiorari to the Circuit Court of Ap-
peals for the Eighth Circuit.
Proceeding by the United States of America on in-
formation charging Genevieve A. Clark with con-
tempt of court for having given answers knowingly
misleading and others knowingly false in response
to questions affecting her qualifications as a juror.
Judgment finding the defendant guilty of contempt
(l F.Supp. 747) was affirmed by the Circuit Court
of Appeals (61 F.(2d) 695), to which certiorari was
granted (287 U.S. 595, 53 S.Ct. 314, 77 L.Ed. 519):
Affirmed.
West Headnotes
[I] Contempt 93 =14
93 Contempt
931 Acts or Conduct Constituting Contempt of
Court
93kI4 k. Misconduct of or Affecting Jury.
Most Cited Cases
Concealment or misstatement by talesman upon
voir dire examination is punishable as a contempt,
if its tendency and design are to obstruct processes
of justice.
[2) Contempt 93 =60(3)
93 Contempt
93 II Power to Punish, and Proceedings Therefor
93k60 Evidence
93k60(3) k. Weight and Sufficiency. Most
Cited Cases
Evidence held to support finding that talesman sub-
sequently accepted as juror had obstructed the pro-
cesses of justice by intentionally concealing on voir
dire examination her previous employment by cor-
poration of which accused had been officers.
[3) Contempt 93 =60(3)
93 Contempt
93 II Power to Punish, and Proceedings Therefor
93k60 Evidence
Cited Cases
Evidence held to support fmding that talesman,
subsequently accepted as juror, had obstructed the
processes of justice by falsely stating on voir dire
examination that she was. unbiased, and that her
verdict would be based solely upon the evidence
and the law as given by the court.
(4) Contempt 93 =14
93 Contempt
Court
93kI4 k. Misconduct of or Affecting Jury.
Most Cited Cases
A talesman when accepted as a jurj)r becomes a
member of the court, and false swearing in order to
be so accepted is punished as a contempt.
(5) Contempt 93 =13
93 Contempt
Court
93k13 k. Suppression or Falsification of
Evidence. Most Cited Cases
In detennining whether perjury is contempt of
court, relation of perjurer to court and other circum-
stances must be considered.
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Page 3 of 10'1"
53 S.Ct. ,65 FOR EDUCATIONAL USE ONLY Page 2
289 U.S. I, 53 S.Ct. 465, 77 LEd. 993
289 U.S. I, 53 S.Ct. 465
161 Contempt 93 <8=60(2)
93 Contempt
93II Power to Punish, and Proceedings Therefor
93k60 Evidence
93k60(2) k. Admissibility. Most Cited
Cases
Admission of testimony as to conduct of juror dur-
ing deliberation of jury was not denial of juror's
privilege against disclosure of happenings in jury
room, where juror admitted that she had voted to
acquit, and there was sufficient prima facie show-
ing that as talesman she had sworn falsely in order
to be accepted as juror.
[71 Constitutional Law 92 <8=2450
92 Constitutional Law
nxx Separation of Powers
nXX(C) Judicial Powers and Functions
92XX(C)1 In General
nk2450 k. Nature and Scope in Gen-
eraL Most Cited Cases
(Formerly. 92k67)
It is function of court to assign proper value to con-
flicting social policies, particularly where claimed
privilege resting upon inveterate but vague tradition
has never been precisely. dermed, and its unquali-
fied recognition is opposed by necessity for purity
in administration of justice.
181 Contempt 93 <8=60(2)
93 Contempt
93k60 Evidence
93k60(2) k. Admissibility. Most Cited
Cases
Juror's privilege against impertinent disclosure of
his arguments and ballots ceases upon prima facie
showing that he became a juror through fraud, or
was thereafter guilty of such conduct as obstructed
processes of justice.
191 Contempt 93 <8=60(3)
93 Contempt
931I Power to Punish, and Proceedings Therefor
93k60 Evidence
Cited Cases
Evidence that talesman, subsequently accepted as
juror, concealed employment by corporation of
which accused had been officers, and argued for
them, on private information, during the trial,
coupled with admission that she voted to acquit,
was sufficient in contempt case to justify admission
of evidence as to happenings in jury room.
1101 Contempt 93 <8=58(4)
93 Contempt
93k58 Plea, Answer, or Counter Affidavit
93k58(4) k. Disclaimer of Intention to
Commit Contempt. Most Cited Cases
Oath of contemnor is now no bar to prosecution for
contempt.
**466 *2 Mr. Sigurd Ueland, of Minneapolis,
Minn., for petitioner.
The Attorney General and *4 Mr. Whitney North
Seymour, of Washington, D.C., for the United States.
*6 Mr. Justice CARDOZO delivered the opinion of
the Court.
The petitioner, Genevieve A. Clark, has been ad-
judged guilty of a criminal contempt, in that with
intent to obstruct justice she gave answers krtow-
ingly misleading and others knowingly false in re-
sponse to questions affecting her qualifications as a
juror (D.C.) I F.Supp. 747.
The conviction by the District Court was affirmed
by the Circuit Court of Appeals for the Eighth Cir-
cuit; the proceeding being remanded, however, to
correct an error in the sentence.61 F.(2d) 695. A
writ of certiorari brings the case here.287 U.S. 595,
53 S.Ct. 314, 77 L.Ed. 519.
In September, 1931, there came on for trial in the
United States District Court for the District of Min-
nesota an indictment which had been returned
'i I") A I,)Af'\O
Page 4 of 10
53 S.O. 465 FOR EDUCATIONAL USE ONLY Page 3
289 U.S. 1,53 S.Ct. 465, 77 L.Ed. 993
289 U.S. 1,53 S.C!. 465
against William B. Foshay and others charging
them with the use of the mails in furtherance of a
scheme to defraud. The petitioner was one of the
panel of jurors summoned to attend. She did not
know when the summons came to her for what case
she had been calI ed, and telephoned *7 a sister,
Mrs. Brown, that she would like to be excused. She
Was advised by her sister, who had made inquiry of
the clerk of the court, that excuses, if there were
any, would have to be presented to the judge. At the
same time she was informed that the trial for which
she had been summoned was the Foshay trial, and
that she would probably not be accepted as a juror
since she had been employed by the Foshay Com-
pany, a corporation with which the indicted men
had been connected as officers.
On the day appointed for the trial, the petitioner, in
company with her husband, reported at the
courtroom. The District Judge examined the mem-
bers of the panel as to their qualifications for ser-
vice. While the examination was going on, the peti-
tioner stated to several women on the panel that she
wished to serve on the jury, that for this she had a
special reason, and that she was afraid her former
employment by the Foshay Company would dis-
qualify her; that she had worked for the company as
a stenographer and typist for about two weeks in
the summer of 1929, but did not know or come in
contact with any of the defendants personally.
Her service as stenographer and typist was not the
only tie of friendliness that linked her to the
,.foshay fmn. There were other contacts or relations-
that are not without**467 significance, though less
direct and personal. Until her marriage in 1922, she
had been employed with the title of assistant eash-
ier in a bank at SI. Paul, of which Mr. Clark was
then the president. Foshay in those years was a cus-
tomer of the bank as depositor and borrower. Mr.
Clark resigned as president in 1925, but his busi-
ness relations with Foshay continued in the years
that followed. Letters that passed between them are
printed in the record. The tone is cordial and almost
intimate. True, there is nothing to show that the
friendly relations had spread to the petitioner. She
denies that she had any *8 acquaintance with
Foshay or his associates, and the District Court by
its findings has accepted her denial. It is next to im-
possible, however, that her husband, who was with
her in the courtroom, had refrained from telling her
of his own friendship for one of the prisoners at the
bar.
The petitioner, upon being called to the jury box,
was questioned under oath by the judge presiding at
the trial. She was asked whether she had ever been
in any business of any kind. She answered, 'I have
been a stenographer before my marriage, yes.'She
was asked in what kind of business she had worked.
She answered, 'WeU, I did some banking and some
real estate and insurance, and I was with an auto-
mobile concern, with a Nash agency.'Finally she
was asked whether she felt that her mind was free
from bias, and whether if accepted as a juror she
would be able and willing to base her verdict on the
evidence and the law as given to her by the court.
To those inquiries she answered that her mind was
clear of bias, and that the law and the evidence
would govern her in arriving at a verdict.
The petitioner after thus testifying became a mem-
ber of the jury, which was thereupon complete. The
trial which followed lasted eight weeks. Two of-
ficers, a man and a woman, were in charge of the
jury from the beginning to the end. During the ftrst
week of the trial, the petitioner made the remark to
several of her fellow jurors that she regarded Mr.
Foshay as a victim of circumstances, that he had
gone to New York in the fall of 1929 to borrow
$18,000,000, but that, because of the stock market
crash, had come back without a dollar. When asked
by a juror where she had procured that information,
which was not supported by the evidence, she said
that it was from a newspaper which she had read
before the trial. Later on she gave expression to dis-
satisfaction with the government because of the
way the soldiers were treated after the war.
*9 During the deliberations of the jury, after the
case was fmally submitted, she announced that
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since the prosecuting attorney had been unable to
convince her of the guilt of the accused, the other
jurors could hardly be expected to do so. At times
she placed her hands over her ears when other jur-
ors tried to reason with her, and argument became
useless because she was unwilling to reply. She
said of a witness for the government that he had
given perjured evidence in the south in an attempt
to convict an innocent man. This infonnation had
come to her in the course of a conversation with her
husband who had seen her at her hotel, in the pres-
ence of a bailiff, while the trial was under way.
After being kept together for a week, the jury was
discharged because unable to agree. The votes of
eleven were for conviction. The single vote for ac-
quittal was cast by the petitioner.
On November 4, 1931, the government filed an in-
formation in support of a rule to show cause why
the petitioner should not be punished for a criminal
contempt. The information charges that her answers
upon the voir dire examination were willfully and
corruptly false, and that the effect of her miscon-
duct had been to hinder and obstruct the trial. In re-
sponse to the rule to show cause, the defendant
filed an answer denying the misconduct, and al-
leging that. her vote for acquittal had been dictated
by her conscience. There was a full and patient
hearing by a District Court of two judges. The court
found the facts as they have been stated in this
opinion. It drew from them the conclusion that the
juror had obstructed the administration of justice,
when examined on her voir dire, by 'deliberately
and intentionally' concealing the fact that she had
been employed during the summer of 1929 by the
Foshay Company. It drew the conclusion also that
she had obstructed the administration of justice by
stating falsely that she was free from bias and that
her verdict would be based only upon the evidence
as * 1 0 introduced, and the law as given by the
court. For the contempt thus adjudged there was a
sentence of imprisorunent and fine.
[I] l. Concealment or misstatement by a juror upon
a voir dire examination is punishable as a contempt
if its tendency and design are to obstruct the pro-
cesses of justice.
[2] There was concealment by the petitioner, and
that willful and deliberate. She had been asked to
state the kinds of work that she had been doing in
other years. She counted off a few, and checked
herself at the very point where the count, if com-
pleted, would be likely to bar her from the box.
There is no room for the excuse of oversight or
negligence. She had been warned that disclosure
would lead to challenge and rejection. With her
mind full of the warning she told the part truth that
was useless, and held back the other part that had
significance **468 and value. Whether this was
perjury or false swearing, there is no occasion to in-
quire, It was a deliberate endeavor to thwart the
process of inquiry, and to tum a trial into a futile
form.
[3 J Added to concealment there was positive mis-
statement. The petitioner stated to the court that her
mind was free from bias. The evidence is persuas-
ive that it was hostile to the government. Bias is to
be gathered from the disingenuous conceahuent
which kept her in the box, She was intruding into a
relation for which she believed herself ineligible,
and intruding with a motive. The only plausible ex-
planation is a preconceived endeavor to uphold the
cause of the defendants and save them from iheir
doom. Bias, thus revealed at the beginning, is COD-
finned by everything that followed. While the trial
was still in progress, she argued with her fellow jur-
ors that Foshay was a hapless victim of circum-
stances too strong for him, and went outside the
evidence, quoting statements in a newspaper to win
them to her view, After the *11 trial was over and
deliberations had begun, she waived aside all argu-
ment and closed her ears to the debate. She had
closed her mind to it before,
[4]'An obstruction to the perfonnance of judicial
duty resulting from an act done in the presence of
the court is * * * the characteristic upon which the
power to puniSh for contempt must rest. 'White,
c.J., in Ex parte Hudgings, 249 U.S. 378, 383, 39
2008 Thomson Reutersrwest. No Claim to Orig. U.S. Govt. Works.
7 1?41?OOR
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S.Ct. 337, 339, 63 L.Ed. 656, II A.L.R. 333. The
petitioner is not condemned for concealment,
though concealment has been proved. She is not
condemned for false swearing, though false swear-
ing has been proved. She is condemned for that she
made use of false swearing and concealment as the
means whereby to accomplish her acceptance as a
juror, and under cover of that relation to obstruct
the course of justice. There is a distinction not to be
ignored between deceit by a witness and deceit by a
talesman. A talesman when accepted as a juror be-
comes a part or member of the court. Ex parte Sav-
in, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150;United
States v. Dachis (D.C.) 36 F.(2d) 601. The judge
who examines on the voir dire is engaged in the
process of organizing the court. If the answers to
the questions are willfully evasive or knowingly un-
true, the talesman, when accepted, is a juror in
name only. His relation to the court and to the
parties is tainted in its origin; it is a mere pretense
and sham. What was sought to be attained Was the
choice of an impartial arbiter. What happened was
the intrusion of a partisan defender. If a kinsman of
one of the litigants had gone into the jury room dis-
guised as the complaisant juror, the effect would
have been no different. The doom of mere sterility
was on the trial from the beginning.
[5] The books propound the question whether per-
jury is contempt, and answer it with nice distinc-
tions. Perjury by a witness has been thought to be
not enough where the obstruction to judicial power
is only that inherent in the wrong of testifying
falsely. Ex -parte Hudgings, supra.*12 For offenses
of that order the remedy by indictment is appropri-
ate and adequate. On the other hand, obstruction to
judicial power will not lose the quality of contempt
though one of its aggravations be the commission
of perjury. Cf. In re Ulmer (D.C.) 208 F.
46 I ;United States v. Appel (D.C.) 21 I F.
495;United States v. Karns (D.C.) 27 F.(2d)
453;United States v. Dachis (D.C.) 36 F. (2d)
60 I ;Lang v. United States (C.C.A.) 55 F.(2d) 922;
Id., 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed.
1267;United States v. McGovern (C.C.A.) 60 F.
(2d) 880. We must give heed to all the circum-
stances, and of these not the least important is the
relation to the court of the one charged as a contem-
nor. Deceit by an attorney may be punished as a
contempt if the deceit is an abuse of the functions
of his office (Bowles v. United States (C.C.A.) 50
F.(2d) 848, 85l;United States v. Ford (D.C.) 9 F.
(2d) 990), and that apart from its punishable quality
if it had been the act of some one else. A talesman,
SWorn as a juror, becomes, like an attorney, an of-
ficer of the court, and must submit to like restraints.
The petitioner blurs the picture when she splits her
misconduct into parts, as if each were a separate
wrong to be separately punished. What is puniShed
is misconceived unless conceived of as a unit; the
abuse of an official relation by concealment and de-
ceit. Some of her acts or none of them may be pun-
ishable as crimes. The result is all one as .to her re-
sponsibility here and now. She has trifled with the
court of which she was a part, and made its pro-
cesses a mockery. This is contempt, whatever it
may be besides.Sinclair v. United States, 279 U.S.
749, 49 S.Ct. 471, 73 L.Ed. 938, 63 A.LR. 1258;
Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed.
150.
[6] 2. The admission of testimony as to the conduct
of the petitioner during the deliberations of the jury
was not a denial or impairment of any lawful priv-
ilege.
[7J The books suggest a doctrine that the argtunents
and votes of jurors, the media concludendi, are
secrets, protected from disclosure unless the priv-
ilege is waived. What is said upon the subject in the
adjudicated cases is *13 dictum rather than de-
cision. See **469Woodward v. Leavitt, 107 Mass.
453, 460, 9 Am.Rep. 49; cf. Matter of Cochran, 237
N.Y. 336, 340, 143 N.E. 212, 32 ALR. 433;
People ex reI. Nunns v. County Court, 188
App.Div. 424, 430,176 N.Y.S. 858. Even so, the
dicta are significant because they bear with them
the implications of an immemorial tradition. The
doctrine is developed, and the privilege broadly
stated, in the writings of a leamed author. Wig-
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more, Evidence (2d Ed.) vol. 5, s 2346. It has re-
cognition to some extent by other authors of repute
(Hughes, Evidence, p. 30 I; Jones, Commentaries
on Evidence (2d Ed.) s 2212; Chamberlayne, Evid-
ence, vol. 5, s 3707), but in a way that has confused
it with something very different; the competency of
witnesses to testify in impeachment of a verdict.
What concerns us at the moment is the privilege
alone. There will be need to recur later to the rule
. as to impeachment. For the origin of the privilege
We are referred to ancient usage, and for its defense
to public policy. Freedom of debate might be stifled
and independence of thought checked if jurors were
made to feel that their arguments and ballots were
to be freely published to the world. The force of
these considerations is not to be gainsaid. But the
recognition of a privilege does not mean that it is
without conditions or exceptions. The social policy
that will prevail in many situations may run foul in
others of a different social policy, competing for
supremacy. It is then the function of a court to me-
. diate between them, assigning, so far as possible, a
proper value to each, and summoning to its aid all
the distinctions and analogies that are the tools of
the judicial process. The function is the more essen-
tial where a privilege has its origin in inveterate but
vague tradition, and where no attempt has been
made either in treatise or in decisions to chart its
limits with preoision.
[8] Assuming that there is a privilege which pro-
tects from impertinent exposure the arguments and
ballots of a juror *14 while considering his verdict,
we think the privilege does not apply where the re-
lation giving birth to it has been fraudulently begun
or fraudulently continued. Other exceptions may
have to be made in other situations not brought be-
fore us now. It is sufficient to mark the one that is
decisive of the case at hand. The privilege takes as
its postulate a genuine relation, honestly created
and honestly maintained. If that condition is not
satisfied, if the relation is merely a sham and a pre-
tense, the juror may not invoke a relation dishon-
estly assumed as a cover and cloak for the conceal-
ment of the truth. In saying this we do not mean
that a mere charge of wrongdoing will avail without
more to put the privilege to II ight There must be a
showing of a prima facie case sufficient to satisfy
the judge that the light should be let inFNIUpon
that showing being made, the debates and ballots in
the jury room are admissible as corroborative evid-
ence, supplementing and con fuming the case that
would exist without them. Let us assume for illus-
tration a prosecution for bribery. Let us assume that
there is evidence, direct or circumstantial, that
money has been paid to a juror in consideration of
his vote. The argument for the petitioner, if accep-
ted, would bring us to a holding that the case for the
people must go to the triers of the facts without
proof that the vote has been responsive to the bribe.
This is paying too high a price for the assurance to
a juror of serenity of mind. People ex reI. Nunns v.
County Court, supra.
FN I As to the function of the judge in the
decision of such preliminary questions, see
Maguire and Epstein, Preliminary Ques-
tions of Fact in Determining the Admissib-
ility of Evidence, 40 Harvard Law Review
392, 397, 403; Morgan, Functions of Judge
and lury, 43 Harvard Law Review 165;
Maguire and Epstein, Rules of Evidence in
Preliminary Controversies as to Admissib-
ility, 36 Yale Law lournal 1101, and the
cases there collected.
*15 We tum to the precedents in the search for an
analogy, and the search is not in vain. There is a
privilege protecting communications between attor-
ney and client. The privilege takes flight if the rela-
tion is abused. A client who consults an attorney for
advice that will serve him in the commission of a
fraud will have no help from the law. He must let
the truth be told. There are early cases apparently to
the effect that a mere charge of illegality, not sup-
ported by any evidence, will set the confidences
free. See, e.g., Reynell v. Sprye, 10 Beav. 51, 54,
11 Beav. 618; In re Postlewaite, 35 Ch. D. 722,
724; cf. Reginav. Bollivant, (1900) 2 Q.B.D. 163,
(1901) A.c' 196. Bul this conception of the priv-
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ilege is without support in later rulings. 'It is obvi-
ous that it would be absurd to say that the privilege
could be got rid of merely by making a charge of
fraud.'O'Rourke v. Darbishire, (1920) A.C. 581,
604. To drive the privilege away, there must be
'something to give colour to the charge'; there must
be 'prima facie evi.dence that it has some founda-
tion in fact.'O'Rourke v. Darbishire, loc. cit., supra;
also pp. 614, 622, 631, 633 of (1920) A.C. When
that evidence is supplied, the seal of secrecy is
broken. See, also, Regina v. Cox, (1884) 14 Q.B.D.
153, 157, 161, 175; cf. Bujac v. Wilson, 27 N.M.
112, 196 P. 513;In re Niday, 15 Idaho, 559, 98 P.
845. The judgment of the House of Lords in
O'Rourke v. Darbishire has given to the whole sub-
ject a definitive exposition. Nor does the loss of the
privilege depend upon the showing of a conspiracy,
upon proof that client and attomey**470 are in-
volved in equal guilt. The attorney may be inno-
cent, and still the guilty client must let the truth
come out. Regina v. Cox, supra;Matthews v. Hoag-
land, 48 NJ.Eq. 455, 469, 21 A. 1054;State v.
Faulkner, 175 Mo. 546, 593, 75 S.W. 116;Standard
Fire Ins. Co. v. Smithhart, 183 Ky. 679, 684, 21 I
S.W. 441, 5 A.L.R. 972;State v. Kidd, 89 Iowa, 54,
56 N.W. 263;*16 cf. Bank of Utica v. Mersereau, 3
Barb.Ch. (N.Y.) 528, 598, 49 Am.Dec. 189;Cove-
ney v. Tannahill, I Hill (N.Y.) 33, 41, 37 Am.Dec.
287.
With the aid of this analogy, we reCUr to the social
policies competing for supremacy. A privilege sur-
viving until the relation is abused and vanishing
when abuse is shown to the satisfaction of the judge
has been found to be a workable technique for the
protection of the confidences of client and attor-
ney. Is there sufficient reason to believe that it will
be found to be inadequate for the protection of a
juror? No doubt the need is weighty that conduct
in the jury room shall be untrammeled by the fear
of embarrassing pUblicity. The need is no less
weighty that it shall be pure and undefiled. A juror
of integrity and reasonable firmness will not fear to
speak his mind if the confidences of debate are
barred to the ears of mere impertinence or
malice. He will not expect to be shielded against
the disclosure of his conduct in the event that there
is evidence reflecting upon his honor. The chance
that now and then there may be found some timid
soul who will take counsel of his fears and give
way to their repressive power is too remote and
shadowy to shape the course of justice. It must
yield to the overmastering need, so vital in our
polity, of preserving trial by jury in its purity
against the inroads of corruption. Cf. Attorney
General v. Pelletier, 240 Mass. 264, 134 N.E.
407;People ex reI. Hirschberg v. Board of Super-
visors, 251 N.Y. 156, 170, 167 N.E. 204;State v.
Campbell, 73 Kan. 688, 85 P. 784,9 L.R.A.(N.S.)
533,9 Ann.Cas. 1203.
Nothing in our decision impairs the authority of
Bushell's Case, Vaughan, 135, 1670, with its histor-
ic vindication of the privilege of jurors to return a
verdict freely according to their conscience. There
had been a trial of Penn and Mead on a charge of
taking part in an unlawful assembly. The jurors
found a verdict of acquittal, though in so doing they
refused to follow the instructions of the *17 court.
For this they were fined and imprisoned, but were
discharged on habeas corpus, Vaughan, CJ., pro-
nouncing 'that memorable opinion which soon
ended the fining of jurors for their verdicts, and
vindicated their character as judges of fact. 'Thayer,
Preliminary Treatise on Evidence at the Common
Law, p. 167. Bushell's Case was born of the fear of
the Star Chamber and of the tyranny of the Stuarts.
Plucknett, Concise History of the Common Law, p.
114. It stands for a great principle, which is not to
be whittled down or sacrificed. On the other hand,
it is not to be strained and distorted into fanciful ex-
tensions. There is a peril of corruption in these days
which is surely no less than the peril of coercion.
The true significance of Bushell's Case is brought
out with clearness in declaratory statutes. By one of
these, a statute of New York, 'No juror shall be
questioned (for any verdict rendered by him), or be
subject to any action, * * * civil or criminal, except
to indictment for corrupt conduct in rendering such
verdict, in the cases prescribed by law'R.S. of
71? 4/7 ()()R
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289 U.S. 1,53 S.C!. 465,77 L.Ed. 993
289 U.S. 1,53 S.C!. 465
N.Y., part 3, c. 7, title 4, s 69; Civil Rights Law
(Consol. Laws, c. 6) s 14. The Revisers tell us in
their notes that the statute, though new in form, is
declaratory of an ancient principle (R.S. (2d Ed.)
vol. 3, p. 741), and so we may assume it is.Matter
of Cochran, 237 N.Y. 336, 340, 143 N.E. 212, 32
A.L.R. 433; cf. People ex reI. Nunns v. County
Court, supra, 188 App. Div. at page 448,176 N.Y.S.
858. It would give no help to the petitioner though
it were enacted for the federal courts. She has not
been held to answer for any verdict that she has
rendered, nor for anything said or done in consider-
ing her verdict.Matter of Cochran, supra. She has
been held to answer for the deceit whereby she
made herself a juror, and was thereby placed in a
position to vote upon the case at all. What was said
and done in the jury room is not the gist of her
wrongdoing. What was said and done in the jury
room is no more than confllIDatory evidence of her
state of mind *18 before. One could urge with as
much reason that she would be subjected to coer-
cion if she had been indicted and tried for bribery
and the same evidence had been accepted in support
of the indictment.
Nor is there anything in our decision at variance
with the rule, which is not without exceptions (Mat,
tox v. United States, 146 U.S. 140, 148, 13 S.Ct.
50,36 L.Ed. 917; cf. Wigmore, Evidence, vol. 5, ss
2353, 2354; Woodward v. Leavitt, 107 Mass. 453,
9 Am.Rep. 49;Hyman v. Eames (e.c.) 41 F.
676;Fuller v. Fletcher (C.C.) 44 F. 34, 39), that the
testimony of a juror is not admissible for the im-
peachment of his verdict. McDonald v. Pless, 238
U.S. 264, 35 S.C!. 783, 59 L.Ed. 1300. Here there
was no verdict, and hence none to be impeached.
But in truth the rule against impeachment is wholly
unrelated to the problem now before us, the limits
of the privilege to maintain a confidence inviolate.
Wigmore, supra, s 2346. Impeachment may be for-
bidden though the jurors waive their privilege, and
combine **471 with the defeated litigant to make
the verdict null. Privilege may be asserted though
there is nothing to impeach.
[9J In the record now before us the evidence of
guilt is ample, without the happenings in the jury
room, to break down the claim of privilege, and
thus let in the light. There is the evidence of the
concealment of the petitioner's employment with all
its sinister implications. There is the evidence of
her arguments with the jurors while the trial was
going on. There is even the evidence of her vote,
for the fact that she had voted for acquittal had been
stated in her answer, and to the extent of the volun-
tary disclosure the privilege had been waived. In-
deed what happened in the jury room added so little
to the case that the error, if there had been any, in
permitting it to be proved, would have to be re-
garded as unsubstantial and without effect on the
result. No one can read the fmdings of the triers of
the facts and hesitate in concluding that even with
this evidence omitted *19 there would have been an
adjudication of contempt. In considering with all
this fullness the merits of the ruling, we have been
moved by the desire to build securely for the future.
[IOJ 3. The oath of a contemnor is no longer a bar
to a prosecution for contempt.
Little was left of that defense after the decision of
this court in United States v. Shipp, 203 U.S. 563,
574,27 S.Ct. 165, 51 L.Ed. 319, 8 Ann.Cas. 265,
Since then there has been no purgation by oath
where an overt act of defiance is the gist of the of-
fense. The point was reserved whether sworn dis-
avowal would retain its ancient force 'if the sole
question were the intent of an ambiguous act.'
The time has come, we think, to renounce the d o c ~
trine altogether and stamp out its dying embers. It
has ceased to be a defense in England since 1796.
Matter of Crossley, 6 Term Reports 701. It has been
rejected generally in the states.Dale v. State, 198
Ind. 110, 150 N.E. 781, 49 A.L.R 647;State v. Dis-
trict Court (Mont.) 10 P.(2d) 586;ln re Singer, 105
NJ.Eq. 220, 147 A. 328;State v. Keller, 36 N.M.
81, 8 P.(2d) 786;Boorde v. Com., 134 Va. 625, 114
S.E. 731 ;Huntington v. McMahon, 48 Conn. 174,
200, 201;State v. Matthews, 37 N.H. 450, 455;In re
Bates, 55 N.H. 325, 327;State v. Harper's Ferry
71? dl? ()() R
53 S.Ct. 465 FOR EDUCA TIONAL USE ONLY
289 U.S. 1,53 S.Ct. 465,77 L.Ed. 993
289 U.S. 1,53 S.C!. 465
Bridge Co., 16 W.Va. 864, 873; cf. Carson v. En-
nis, 146 Ga. 726, 92 S.E. 221, L.R.A. 1917E,
650;Matter of Snyder, 103 N.Y. 178, 181,8 N.E.
479; note 9 L.RA (N.S.) I 119; Curtis, 41 Harvard
Law Review 51, 65. It has even lost, since the de-
cision in the Shipp Case, the title to respect that
comes of a long historical succession. It has taken
its place with ordeal and wager of law and trial by
battle among the dimly remembered curios of out-
worn modes of trial. Thayer, op. cit., supra, p. 8, et
seq.
4. There was no denial to the petitioner of a fair no-
tice of hearing, nor any variance of substance
between the information and the findings.
*20 We have considered the arguments to the con-
!Tar)!, and find them without merit.
The judgment of the Circuit Court of Appeals is ac-
cordingly affIrmed.
U.S. 1933.
Clark v. U.S.
289 U.S. 1,53 S.C!. 465, 77 L.Ed. 993
END OF DOCUMENT
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l uJS ...... ~ Vl 1 J. '
V\TeSflaw.
207 Mich.App. 698, 525 N.W.2d 914
207 Mich.App. 698,525 N.W.2d 914
p>
People v. Paasche
Mich.App.,1994.
pellee,
v.
Joann Gerler PAASCHE, Defendant-Appellant.
Docket No. 147721.
Submitted April 20, 1994, at Detroit.
Decided Dec. 5, 1994, at 9:25 a.m.
Released for Publication Jan. 24, 1995.
Defendant was convicted in the St. Clair Circuit
Court, Ernest F. Oppliger, J., of failing to file in-
come tax return with intent to evade taxes, and she
appealed. The Court of Appeals, Neff, PJ., held
that: (I) defendant and her codefendant spouse
were each entitled to five peremptory challenges;
(2) denial of statutory right to five peremptory chal-
lenges required reversal, even if defendant failed to
prove prejudice; (3) further findings had to be made
regarding applicability of crime-fraud exception to
attorney-client privilege and accountant-client priv-
ilege; and (4) defendant was denied fair trial when
prosecution asked her attorney and accountant
questions for which both of them had to assert testi-
monial privileges in front of jury.
Reversed and remanded for new trial.
West Headnotes
(lJ Jury 230 <8=136(6)
230 Jill)'
230V Competency of Jurors, Challenges, and
Objections
230k134 Peremptory Challenges
230k136 Number
230kI36(6) k. Codefendants. Most
Cited Cases
In criminal tax prosecution, defendant and her
codefendant spouse were statutorily entitled to five
peremptory challenges each, and their statutory
right was violated when they were allowed only
five challenges for both of them. M.C.L.A.
768.12; MCR 6.412(E)(I).
(2J Criminal Law 110 <8=1166.16
110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
1 lOki 166.5 Conduct of Tria! in General
110k1166.16 k. Impaneling Jill)' in
Violation of defendant's statutory right to five per-
emptory challenges required reversal, even if de-
fendant failed to prove prejudice. M.C.L.A.
768.12; MCR 6.412(E)(1).
(3J Jury 230 <8=142
230 Jury
230V Competency of Jurors, Challenges, and
Objections
230k 142 k. Objections and Exceptions. Most
Cited Cases
That defendant and her codefendant spouse used
only four of allotted five peremptory challenges in
criminal tax prosecution did not waive defendant's
claim that she and codefendant were statutorily en-
titled to five peremptory challenges each. M.C.L.A.
768.12; MCR 6.412(E)(I).
(4J Criminal Law llO <8=1115(2)
I I 0 Criminal Law
llOXXIV Review
IIOXXIV(G) Record and Proceedings Not in
Record
1I0XXIV(G)15 Questions Presented for
Review
II Ok! 113 Questions Presented for Re-
view
IIOkl115 Preliminary Proceedings
1 10kil 15(2) k. Selection and
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, /.
" U!'
525 NW.2d 914 FOR EDUCATIONAL USE ONLY Page 2
207 Mich.App. 698, 525 N.W.2d 914
207 Mich.App. 698, 525 N.W.2d 914
Impaneling of Jury. Most Cited Cases
That no record of defense counsel's objections to
limit number of peremptory challenges existed was
not fatal to defendant's claim on appeal that she and
her codefendant spouse were entitled to five per-
emptory challenges each and that she was denied
her statutory right when they were allowed only
five peremptory challenges for the both of them,
where both parties agreed that defense counsel ob-
jected to number of peremptory challenges in
chambers before jury selection began. M.C.L.A.
768.12; MCR 6.412(E)(l).
(5J Searches and Seizures 349 <>102
349 Searches and Seizures
349I1 Warrants
349kl02 k. Permissible Subjects, Objects,
and Purposes. Most Cited Cases
Witnesses 410 <>206
410 Witnesses
410Il Competency
410JI(D) Confidential Relations and Priv-
4 I Ok I 97 Communications to or Advice by
AttorneY or Counsel
41Ok206 k. Communications Through
Cases
Execution of search warrant for defendants' ac-
countant's office during tax investigation implicated
attorney-client privilege, where accountant had
been retained by attorney for assistance in legal
matter, and attorney files were seized from account-
ant's office.
(6J Witnesses 410 <>201(2)
410 Witnesses
410Il Competency
410JI(D) Confidential Relations and Priv-
Attorney or Counsel
41 0k20 I SUbject-Matter of Commu-
410k201(2) k. Criminal or Other
Wrongful Act or Transaction. Most Cited Cases
Crime-fraud exception to attorney-client privilege
is predicated on recognition that where attorney-cli-
ent relationship advances criminal enterprise or
fraud, reasons supporting privilege fail.
(7J Witnesses 410 <>201(2)
4 lOW itnesses
4101I Competency
Attorney or Counsel
41 0k20 I SUbject-Matter of Commu-
41 0k20 I (2) k. Criminal or Other
Where advice from attorney refers to future
l
not
past, wrongdoing, crime-fraud exception applies to
communication otherwise protected by attorney-cli-
ent privilege.
(8J Witnesses 410 <>196.2
410 Witnesses
410II Competency
41 Ok 196 Fiduciary or Contract Relations
in General
410k196.2 k. Accountant and Client.
Most Cited Cases
Accountant-client privilege is subject to crime-
fraud exception when advice sought by client refers
to ongoing or future wrongdoing. M.e.L.A.
339.713.
(9J Witnesses 41 0 ~ 1 9 6 _ 2
41 0 Witnesses
4101l Competency
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207 Mich.App. 698, 525 N.W.2d 914
41 Ok 196 Fiduciary or Contract Relations
in General
41 Ok 196.2 k. Accountant and Client.
Most Cited Cases
Witnesses 410 ;::::>201(2)
410 Witnesses
410Il Competency
Attorney or Counsel
41Ok.20 I Subject-Matter of Commu-
41Ok.20 1(2) k. Criminal or Other
Communication to attorney or accountant must re-
late to crime or fraud that is either ongoing or to oc-
cur in future for crime-fraud exception to attorney-di-
ent or accountant-client privilege to apply.
1101 Witnesses 410 ;::::>196.2
410 Witnesses
410Il Competency
410Il(D) Confidential Relations. and Priv-
410kl96 Fiduciary or Contract Relations
in General
410k196.2 k. Accountant and Client.
Most Cited Cases
Witnesses 410 ;::::>201(2)
410 Witnesses
410Il Competency
Attorney or Counsel
41 0k.20 I Subject-Matter of Commu-
410k.201(2) k. Criminal or Other
For crime-fraud exception to apply to attorney-cli-
ent privilege or accountant-client privilege, prosec-
ution must show that there is reasonable basis to
suspect perpetration or attempted perpetration of
crime or fraud and that communications were in
furtherance thereof, which showing must be made
without reference to alleged privileged material.
MRE 104(a).
1111 Criminal Law 110 ;::::>2038
110 Criminal Law
IIOXXXI Counsel
IIOXXXI(D) Duties and Obligations of Pro-
secuting Attorneys
IIOXXXI(D)5 Presentation of Evidence
110k.2038 k. Calling Witnesses; Com-
pelling Assertion of Privilege. Most Cited Cases
(Formerly 110k706(7))
In prosecution for failing to file income tax return
with intent to evade taxes, defendant's right to fair
trial was denied when prosecution asked her attor-
ney and accountant questions for which both of
them had to assert testimonial privileges in front of
jury, and prosecutor knew that assertions or priv-
ilege would be made, where both were retained to
assist in defending against tax investigation.
[121 Criminal Law 110;::::>829(4)
110 Criminal Law
IIOXX Trial
IIOXX(H) Instructions: Requests
IIOk829 Instructions Already Given
IIOk829(4) k. Matters of Defense.
Most Cited Cases
In criminal tax prosecution, instructions given by
trial court) when reviewed in their entirety, fairly
presented issues to be tried and sufficiently protec-
ted defendant's right, and defendant was not entitled
to have additional requested good faith instruction
given to jury.
(13) Criminal Law 110 ;::::>823(1)
110 Criminal Law
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207 Mich.App. 698, 525 N.W.2d 914
207 Mich.App. 698, 525 N.W.2d 914
110XX Trial
IIOXX(G) Instructions: Necessity, Requis-
ites, and Sufficiency
I IOk823 Error in Instructions Cured by
Withdrawal or Giving Other Instructions
IIOk823(1) k. In General. Most Cited
Cases
Error in instructing jury that defendant was charged
with more than one crime was not reversible error,
where trial court specifically explained in other in-
structions that defendant was charged with only one
crime.
II4J Taxation 371 <>3563
371 Taxation
371 VII11ncome Taxes
37 I VlII(l) Collection and Enforcement
371k3563 k, Penalties, Forfeitures, Of-
fenses and Prosecutions, Most Cited Cases
(Formerly 371kl 103)
Evidence relating to failure of defendant and her
spouse to file income tax returns during four years
when they earned substantial income supported de-
fendant's conviction of failing to file income tax re-
turn with intent to evade taxes, M,C.L.A,
205.27(1 lea),
**915 *700 Frank 1. Kelley, Any, Gen" Thomas L.
Casey, Sol. Gen" and E, David Brockman and Paul
L. Bricker, Ass!. Anys. Gen" for the People,
John A, Lydick, Detroit, for defendant.
Before NEFF, PJ" and WHITE and STACEY!""]J,
FN* Michael L. Stacey, 3rd Judicial Cir-
cuit Judge, sitting on Court of Appeals by
assignment pursuant to Const. I 963, Art. 6,
Sec, 23, as amended 1968,
NEFF, Presiding Judge,
Defendant appeals as of right her conviction of fail-
ing to file a Michigan income tax return for 1988
with intcnt to evade taxes. M,C.L. 205.27(1 lea);
M.S.A. 7.657(27)(I)(a). We reverse.
Defendant and her husband, William Paasche, Were
allegedly in the business of subdividing land. Al-
though they earned substantial income from 1985 to
1988, they failed to file Michigan tax returns for
those years, They also failed to file fedcral tax re-
turns, and as a result, the Internal Revenue Service
began an investigation. In response to the federal
investigation, the Paasches hired attorney Richard
Daguanno, who in turn hired certified public ac-
countant Barry Allen, who *701 had perfol1lled tax
accounting services for the Paasches before being
hired by Daguanno.
In May 1990, agents of the Michigan Department
of Treasury executed a search warrant at the
Paasches' residence, During the course of this
search, William Paasche indicated to the agents that
he kept some of his files at Allen's office. Accord-
ingly, a search **916 warrant was obtained for Al-
Ien's office, and additional files were seized,
Following a joint trial, both Paasches were con-
victed of tax evasion for the tax year 1988!"'
FN I. William's conviction was peremptor-
ily reversed, however, as a result of his un-
timely death during the pendency of his
appeal. People v. Paasche, unpublished
order of the Court of Appeals, decided
June 24, 1993 (Docket No. 148637).
II
At trial, defendants were limited to a total of five
peremptory challenges, Defendants claimed that
each was entitled to five challenges, We agree,
A
[lJ Both M.C.L. 768.12; M.SA 28.1035 and
MCR 6.412(E)(I) provide that each defendant tried
for an offense not punishable by death or life im-
prisonment is entitled to five peremptory chal-
lenges. There is no question that defendants stat-
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utorily were entitled to five peremptory challenges
each, and that this statutory right was violated when
they were allowed only five challenges for both of
them.
The prosecution argues that this error does not re-
quire reversal because defendant failed to show pre-
judice, and because defendant waived this issue by
using only four of the five peremptory challenges.
We disagree.
*702 B
[2] In People v. Miller, 411 Mich. 321, 326, 307
N.W.2d 335 (1981), our Supreme Court noted:
[G]iven the fundamental nature of the right to
trial by an impartial jury, and the inherent diffi-
culty of evaluating such claims, a requirement
that a defendant demonstrate prejudice would im-
pose an often impossible burden. A defendant is
entitled to have the jury selected as provided by
the rule. [Citations omitted.]
In People v. Juarez. 158 Mich.App. 66,71-72,404
N. W.2d 222 (1987), this Court noted that although
there is no constitutional right to peremptory chal-
lenges, the failure to "honor the statutory right of
peremptory challenge is error requiring reversal and
of serious import."
Accordingly, because the trial court failed to follow
the proper procedure and allow defendant five per-
emptory challenges, we conclude that the trial
court's error requires reversal, even if defendant
failed to prove prejudice. See also Leslie v. Allen-
Bradley Co., Inc., 203 Mich.App. 490, 493-494,
513 N.W.2d 179 (1994).
C
[3] We next address whether this issue was waived
because only four of the allotted five peremptory
challenges were used.
Defendants were represented by separate counsel
below and did not share a total identity of interests
with respect to their defenses. Three of the peremp-
tory challenges were exercised by counsel for Mr.
Paasche. The fourth was exercised by Mr. Paasche's
attorney also, but after consulting with Mrs.
Paasche's attorney and by saying "we *703 thank
and excuse [juror's name)." Because the two de-
fendants were limited to a total of five challenges
and we are not privy to any decision they might
have reached concerning how they would share or
divide them, we simply have no way of knowing
whether defendant exercised any, some, or all of
the four challenges that were used. Thus, it would
be mere speculation to conclude that defendant
waived this issue by failing to use all of her per-
emptory challenges.
Even if we .could conclude that defendant exercised
the four peremptory challenges, we still would not
find waiver of this issue. ln People v. Russell. 182
Mich.App. 314, 451 N.W.2d 625 (l990) (Sawyer, J.
dissenting), rev'd434 Mich. 922, 456 N.W.2d 83
(990) (for the reasons stated in the dissent of Saw-
yer, 1), Judge Sawyer concluded that a defendant
who used only thirteen of a possible twenty per-
emptory challenges waived the defective jury selec-
tion procedure. However, Judge Sawyer held that if
the defendant had used all but one of the chal-
lenges, a different result might follow, noting that
commonly accepted trial tactics call for using
**917 all but one peremptory challenge. Id., 182
Mich.App. at 325, n. 5, 451 N. W.2d 625.
We also recognize this commonly followed trial
strategy, and conclude that if defendant's trial coun-
sel used all but one of her peremptory challenges,
that fact would operate to preclude waiver of this
issue on appeal.
D
[4) Finally, it is not fatal to defendant's appeal that
no record of defense counsel's objections to the lim-
ited number of peremptory challenges exists. Both
parties agree that defense counsel objected to the
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number of peremptory challenges in chambers be-
fore jury selection began. This factual backdrop
*704 allows us to conclude that defendant is not us-
ing this issue as an appellate parachute.
The trial court's errOr requires reversal. Because our
decision may result in retrial, we will discuss the is-
sues that may arise during a new trial.
III
Defendant challenges the searches of her home and
of her accountant's office on a number of grounds.
Only one merits review.
Defendant argues that all evidence obtained from
the search of accountant Allen's office should have
been suppressed. According to defendant, the
search and seizure violated the attorney-client and
accountant-client privileges because the crime-
fraud exception to those privileges, relied on by the
trial court to admit the evidence, does not apply.
We conclude that the record is insufficient to sus-
tain either defendant's or the prosecution
1
s
position.FN2
FN2. We are somewhat uncomfortable
with the execution of the search warrant on
Allen's office. See People v. Nash, 418
Mich. 196, 217-218, 341 N.W.2d 439
(1983). We find little distinction in this
case between searching the accountanfs
office and searching an attorney's office.
See discussion of this issue immediately
infra. We note, however, that the prosecu-
tion did not "rurnmag[e] through the files
and papers of a nonsuspect lawyer's of-
fice,"Id at 217, 341 N.W.2d 439, but in-
stead had the files brought to a conference
room. Ultimately, we agree with the Court
in Nash that resolution of this issue is best
left to the Legislature. Id at 218, 341
N.W.2d439.
A
[5) First, we note that the attorney-client privilege
arises with regard to the search of Allen's office be-
cause, when executing the search warrant for that
office, treasury agents seized attorney files as well
as Allen's files. Although the agents eventually re-
turned aU but one of the files, a file dealing exclus-
iveJy with the Paasches' tax returns, we find that the
other files were also seized. Further, AUen *705
had been retained under a Kovel FNJ agreement, so
that all communications by the Paasches to their ac-
countant, made after that retention, faU within the
attorney-client privilege as well. See Lindsay v.
Lipson, 367 Mich. I, 5-8, 116 N.W.2d 60 (1962); In
re Petition of Delaware, 91 Mich.App. 399,
406-407,283 N.W.2d 754 (1979).
FN3. United States v. Kovel. 296 F.2d 918
(CA2 1961).
B
[6) The crime-fraud exception to the attorney-client
privilege is predicated on the recognition that
where the attorney-client relationship advances the
criminal enterprise or fraud, the reasons supporting
the privilege fail. As the Supreme Court in United
States v. Zolin, 491 U.S. 554, 562-563, 109 S.Ct.
2619,2626, 105 L.Ed.2d469 (1989), stated:
"[S)ince the privilege has the effect of with-
holding relevant information from the [actfmder,
it applies only where necessary to achieve its pur-
pose." The attorney-client privilege must neces-
sarily protect the confidences of wrongdoers, but
the reasons for the protection-the centrality of
open client and attorney communication to the
proper functioning of our adversary system of
justice-"ceas[ es] to operate at a certain point,
namely, where the desired advice refers not to
prior wrongdoing, but to future wrongdoing. H
[Citations omitted. Emphasis in original.]
[7) We agree with the Supreme Court's reasoning
and determine that where advice from an attorney
refers to future, not past, wrongdoing, the crime-
fraud exception applies**918 to the otherwise priv-
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ileged communication.
C
We do not limit our review, however, to the *706
attorney-client privilege. The file admitted at trial
was prepared by Allen and could have contained in-
formation acquired by him before he was retained
by attorney Daguanno on behalf of the Paasches. In
that instance, the attorney-client privilege would
not apply. Kovel, supra. However, the accountant-cli-
ent privilege might apply.
[8] The purpose behind the accountant-client priv-
ilege, M.C.L. 339.713; M.S.A. 18.425(713), is
to protect from disclosure the substance of the in-
formation conveyed by the client to the accountant.
People v. Safiedine, 163 Mich.App. 25, 31, 414
N.W.2d 143 (1987). Although the purpose behind
the accoumant-c1ient privilege is not the same as
the purpose behind the attorney-client privilege, the
effect of the two privileges is the same: otherwise
relevant information is withheld from the factfind'
er. Thus, as with the attorney-client privilege, the
purpose behind the accountant-client privilege must
cease to operate when the advice sought by the cli-
ent refers to ongoing or future wrongdoing.
D
[9] It is unclear here exactly how the trial court ap-
plied the crime-fraud exception at the suppression
hearing. Although the issue -was argued by trial
counsel, the court failed to make a specific ruling
with regard to that issue, and trial counsel did not
ask for a ruling. The court, however, later ruled that
the exception applied to Allen's and Daguanno's tri-
al testimony because this case involved the perpet-
ration of a fraud. To the extent the court used this
reasoning for admitting the file in question, the
court erred in failing to recognize the temporal ele-
ment involved: namely, that the communication to
the attorney or the accountant must relate to a crime
or fraud that is either ongoing or to occur in the fu-
ture.
*707 [10] In order for the crime-fraud exception to
apply to the privileges,'"' the prosecution must
show that there is a reasonable basis to (I) suspect
the perpetration or attempted perpetration of a
crime or fraud and (2) that the communications
were in furtherance thereof. In re John Doe, Inc.,
13 F.3d 633, 637 (C.A.2 1994). This showing must
be made without reference to the allegedly priv-
ileged material. MRE 104(a).
FN4. We express no OpInIOn concerning
how the crime-fraud exception applies to
work-product material. The only seized file
that is included in the lower court record
did not contain material that could be con-
sidered work product.
Here, the prosecution met the first prong. Its evid-
enCe suggested that the Paasches earned substantial
amounts of income from 1985 through 1988, but
had not paid taxes on that income, or otherwise no-
tified the treasury department. We conclude that
this evidence constitutes a reasonable basis to sus-
pect the perpetration of the fraud of tax evasion.FN5
FN5. The elements of tax evasion are (I)
failure to file a tax return and (2) intent to
defraud or evade paying taxes to the state.
M.C.L. 205.27(2); M.S.A. 7.657(27)(2).
It is questionable, however, whether the prosecu-
tion established a reasonable basis to believe that
the communications between the Paasches and Da-
guanno were in furtherance of the fraud. The
Paasches were aware of the' federal investigation
and hired Daguanno in response to that investiga-
tion in January 1989. This suggests that communic-
ations between the Paasches and Daguanno related
to past wrongdoings. On the other hand, the 1988
return was not due until April 1989. Further, in
May 1990, when the search warrant was executed,
the Paasches and their counsel still had not filed a
1988 return. Thus, it is possible that the prosecution
could establish that advice relating to tax year 1988
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was solicited by the Paasches in an *708 attempt to
evade paying their 1988 Michigan taxes
FN
'
FN6. We do not suggest wrongdoing on
the part of the Paasches' attorney or ac-
countant. The crime-fraud exception ap-
plies even where the attorney or the ac-
countant is unaware that advice is sought
in furtherance of the improper purpose. In
re Grand Jury Subpaena Duces Tecum,
731 F.2d 1032, 1038 (C.A.2 1984).
**919 It is also unclear whether the prosecution es-
tablished the reasonable basis with respect to Allen.
While Allen did have more of an ongoing,
nondefense-oriented relationship with the Paasches
than did Daguanno, once Allen was retained by Da-
guanno, subsequent communication between him-
self and the Paasches would seem to be related to
past wrongdoings. However, the timing of the re-
tention and the failure to file a 1988 return again
cast doubt on that proposition.
Accordingly, on retrial, the prosecution must estab-
lish that this second prong of the crime-fraud ex-
ception is met before the file seized from Allen's
office may be admitted into evidence.
IV
[I I] Defendant next argues that her right to a fair
trial was denied when the prosecution asked her at-
torney and accountant questions for which both of
them had to assert testimonial privileges in front of
the jury, when the prosecution knew that the asser-
tions of privilege would be made. We agree.
A
Michigan courts have long recognized the danger
involved in allowing a witness intimately connected
with the criminal episode at issue to assert a testi-
monial privilege in front of a jury. In *709Peaple v.
Giacalone, 399 Mich. 642, 645, 250 N.W.2d 492
(1977), our Supreme Court held that "[a] lawyer
may not knowingly offer inadmissible evidence or
call a witness knowing that he will claim a valid
privilege not to testify." The rationale for this mle
is the adverse inference that may be drawn against
the defendant by the jury from the claim of testimo-
nial privilege. !d. at 646, 250 N. W.2d492.
In People v. Porna, 96 Mich.App. 726, 730, 294
N.W.2d 221 (1980), this Court stated:
Both Federal and state courts have recognized
the potential prejudice that results when a witness
is placed on the stand and invokes the Fifth
Amendment. When a witness who is substantially
related to the criminal episode ... asserts this priv-
ilege, critical weight is added to the prosecution's
caSe. [Citations omitted.]
According to the Court in Porn a, the validity of the
asserted privilege is immaterial because the danger
of the adverse inference is present regardless of the
legitimacy of the assertion. Id. at 731, 294 N.W.2d
221.
The Porna opinion established a procedure to pro-
tect the defendant's rights when the trial court is
confronted with a potential witness who plans to as-
sert a testimonial privilege, First, a trial court must
determine whether the witness understands the
privilege and must provide an adequate explanation
if the witness does not. Id. at 732, 294 N.W.2d 221.
The court must then hold an evidentiary hearing
outside the jury's presence to determine the validity
of the witness' claim of privilege. Id. 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. Id. If the
witness continues to assert the privilege, *71 0 the
court must proceed to trial without the witness, be-
cause there is no other way to prevent prejudice to
the defendant. !d.
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B
The prosecution argues that the above case law and
reasoning do not apply to the assertion of testimoni-
al privilege by an attorney or an accountant. The
claim is that the jury would expect an attorney or an
accountant to assert those privileges and thus no
negative inference would be drawn. We disagree.
People v. Dahrooge, 173 Mich. 375, 139 N.W. 22
(1912), a case relied On by the Court in Giacalone,
supra, is instructive on this point. In Dahrooge, the
defendant was charged with perjury on the basis of
his testimony during a civil trial in which he was
the plaintiff and was represented by counsel. After
the defendant testified on his own behalf at the
criminal trial, the prosecutor called the attorney
who represented the defendant in the civil case in
rebuttal. The defendant objected to the attorney's
testimony. The Supreme Court held:
**920 In offering the attorney as a witness and
interrogating him as he did, the prosecutor clearly
intimated to the jury that, if the attorney was per-
mitted to testify 1 his 'evidence would not sustain
the statements made by respondent when upon
the stand in his own behalf. The mere fact that re-
spondent was compelled to interpose an objection
upon the ground of privilege tended to prejudice
him in the eyes of the jury. [/d. at 380, 139 N.W.
22.]
We agree with the rationale in Dahrooge.
Eliciting*7J1 an attorney's refusal to testify based
on the attorney-client privilege is no less prejudicial
than eliciting reliance on the Fifth Amendment by a
codefendant or other witness intimately connected
with the criminal enterprise at issue. In fact, the
likelihood of prejudice where the attorney is called
as a witness is arguably even greater.
Jurors are aware that clients hire and consult attor-
neys and undoubtedly assume that the clients place
trust in the attorneys by truthfully and fully disclos-
ing all the relevant facts. Indeed, an attorney cannot
properly represent a client without full disclosure of
the facts within the client's knowledge. If the attor-
ney refuses to testify on the basis of privilege,
surely the most logical conclus ion is that the attor-
ney knows the answer, but will not reveal it be-
cause it is damaging to the client's interest. To tum
it around, it is reasonable to conclude that if an at-
torney-witness had information helpful to the cli-
ent's cause, the attorney would be eager to share it
with the jury. Viewed in this light, an attorney's re-
fusal to answer based on privilege is akin to an ad-
mission in the eyes of a reasonable juror that the
answer will not advance the client's case, and is,
therefore, inherently prejudiCial.
Here, Daguanno was hired by the Paasches in re-
sponse to a federal investigation, so it is reasonable
to aSSUme that, as their attorney, he was intimately
knowledgeable about their tax matters. Further,
both the trial judge and the prosecution knew that
Daguanno would invoke the attorney-client priv-
ilege because defense counsel raised the issue be-
fore trial. We conclude, therefore, that Daguanno's
assertion of privilege in front of the jury denied de-
fendant a fair trial.
2
Although we are not prepared to extend this *712
rule to all situations where an accountant asserts a
testimonial privilege, we do apply it here. We hold
that when an accountant is retained in order to as-
sist in defending against a criminal tax fraud invest-
igation, as Allen was here,"'" the rule applies for
much the same reasons as when an attorney is in-
volved. Kove!, supra.
FN7. Although Allen was retained by the
Paasches before the federal investigation
began, Allen asserted a testimonial priv-
ilege only in response to questions seeking
information pertaining to the period after
he was retained by Daguanno to assist in
the Paasches' defense.
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207 Mich.App. 698, 525 N.W.2d 914
207 Mich.App. 698, 525 N.W.2d 914
Here, when examining Allen, the prosecutor eli-
cited testimony from him regarding the fact that he
had invoked the attorney-client privilege before tri-
al, in response to the state investigation. This line
of questioning left the jury free to infer that the
privilege was asserted in order to hide damaging in-
formation from the investigators.
C
We conclude that defendant's right to a fair trial
was denied because the lower court failed to re-
solve this issue outside the jury's presence!N. We
note that defense counsel requested that issues of
privilege be resolved outside the presence of the
jury, but the trial court refused. Accordingly, if a
new trial is held, the issues of the attorney's and the
accountant's testimonial privileges must be dealt
with outside the jury's presence and in the manner
set forth above.
FN8. Although the lower court ruled, out-
side the jury's presence, that the attorney's
and the accountant's testimony was not
protected by a privilege because of the
crime-fraud exception, the court also stated
that the exception might not apply depend-
ing on the testimony elicited at trial. Thus,
the court ultimately made the determina-
tion whether the exception applied in the
presence of the jury.
**921 V
[12] Defendant next argues that the trial court erred
*713 in failing to give a requested good-faith in-
struction to the jury. After a careful review of the
record, we disagree. The jury instructions given by
the court, when reviewed in their entirety, fairly
presented the issues to be tried and sufficiently pro-
tected defendant's rights. People v. Davis, 199
Mich.App. 502, 515,503 N.W.2d 457 (1993).
[13] We also conclude that the trial court did not
commit error requiring reversal when it erroneously
instructed the jury that defendant was charged with
more than one crime. The court specifically ex-
plained, in other instructions, that defendant was
charged with only one crime. On retrial, however,
we caution the trial judge to not repeat this mistake.
VI
[14] Last, we conclude that sufficient evidence ex-
isted to support defendant's conviction. To make
this detennination 'we must view the evidence in a
light most favorable to the prosecution and determ-
ine whether a rational trier of fact could have found
the essential elements of the crime proved beyond a
reasonable doubt. People v. Ja/fray, 445 Mich. 287,
296,519 N.W.2d 108 (1994).
On the basis of evidence that defendant failed to
file income tax returns during four years when she
and her husband earned substantial income, we con-
clude that a rational trier of fact could find both that
the returns were not filed and that defendant pos-
sessed the requisite intent in failing to file. See. n. 5,
supra.
Reversed and remanded for a new trial. We do not
retain jurisdiction.
Mich.App.,1994.
People v. Paasche
207 Mich.App. 698, 525 N.W.2d 914
END OF DOCUMENT
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Fed. R. Evid. Servo 833
491 U.S. 554, 109 S.C!. 2619
P>
U.S. v. Zolin
U.S.Cal.,1989.
Supreme Court of the United States
UNITED STATES, Petitioner
v.
Frank S, ZOLIN et al.
No. 88-40.
Argued March 20, 1989.
Decided June 21,1989.
In connection with tax investigation the United
States brought action to compel state court clerk to
produce sealed documents. Church and taxpayer's
wife intervened. The United States District Court
for the Central District of Califomia, Harry L.
Hupp, J., ordered production of some, but not all,
documents. Intervenors appealed, and United States
cross-appealed. The Court of Appeals, 809 F.2d
1411, affirmed. Thereafter, the Court of Appeals,
832 F.2d 127, granted en banc rehearing and with-
drew prior panel assignment. Subsequently, the
Court of Appeals, 842.F.2d 1135, vacated its order
for en bane hearing. The Supreme Court, Justice
Blackmun, held that: (1) District Coun may condi-
tion order enforcing IRS summons by plaCing re-
strictions upon IRS's dissemination of information
obtained through subpoena-enforcement action; (2)
in camera review may be used to determine whether
allegedly privileged attorney-client communica-
tions fall within crime-fraud exception; (3) before
district court may engage in in camera review of al-
legedly privileged communications at request of
party opposing privilege, that party must present
evidence sufficient to support reasonable belief that
in camera review may yield evidence establishing
the applicability of the crime-fraud exception; and
(4) threshold joined to obtain in camera review may
be met by using any relevant evidence, lawfully ob-
tained, that has not been adjudicated to be priv-
ileged, even if the evidence is not independent of
the allegedly privileged communications.
Afftrmed in part; vacated in part; and remanded.
Justice Brennan took no part in the consideration or
decision of the case.
Opinion on remand, 905 F.2d 1344.
West Headnotes
(I) Federal Courts 170B :=13
170B Federal Courts
170BI Jurisdiction and Powers in General
170BI(A) In General
170Bkl2 Case or Controversy Require-
ment
170Bk 13 k. Particular Cases or Ques-
tions, Justiciable Controversy. Most Cited Cases
Issue of whether IRS was entitled to compel state
court clerk to produce sealed documents in connec-
tion with tax investigation was not rendered moot
by death of taxpayer whose returns Were subject of
investigation that foreclosed any further criminal
investigation of taxpayer, where civil tax audit had
not been terminated and its result could affect liab-
ility of the taxpayer's estate.
(2) Internal Revenue 220 :=4508
220 Internal Revenue
noxx Examination of Persons and Records
220k4508 k. Enforcement. Most Cited Cases
District court which enforces IRS summons may
condition enforcement order by placing restrictions
upon the IRS's dissemination of information ob-
tained through subpoena-enforcement action. 26
V.S.C.A. 7604 (per equally-divided court).
(3) Federal Courts 170B :=460.l
170B Federal Courts
170BVII Supreme Court
170BVIl(B) Review of Decisions of Courts
of Appeals
170Bk460 Review on Certiorari
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49 I U.S. 554, 109 S.Ct. 26 I 9, 105 L.Ed.2d 469, 63 A.FTR.2d 89-1483, 57 USLW 4781, 89- I USTC P 9380, 27
Fed. R Evid. Serv. 833
491 U.S. 554, 109 S.C!. 2619
170Bk460.1 k. In GeneraL Most Cited
Cases
(Formerly 170Bk460)
Issue of whether partial transcripts of tapes al-
legedly within scope of attorney-client privilege
could be used by IRS to establish applicability of
crime-fraud exception to the privilege would be ad-
dressed by the Supreme Court, although question
presented for review and relevant discussion in pe-
tition related solely to whether in camera review of
the tapes to determine whether crime-fraud excep-
tion applied was available.
(4] Witnesses 410
410 Witnesses
410Il Competency
410JJ(D) Confidential Relations and Priv-
410k223 Ie Determination as to Admissib-
ility. Most Cited Cases
In camera review of allegedly privileged attorney-cli-
ent comml..lnications may be used to detennine
whether communications fall within crime-fraud
exception to privilege, in appropriate circumstances.
[5] Witnesses 410
410 Witnesses
410Il Competency
4IOIl(D) Confidential Relations and Priv-
410k223 k. Determination as to Admissib-
Federal rule 104(a), providing that court is
bound by rules of evidence with respect to priv-
ileges when determining existence of privilege,
does not prohibit in camera review of allegedlY
privileged attorney-client communications to de-
telmine whether those communications faU within
crime-fraud exception to privilege, even though
federal evidence rule II0I(c) provides that rule
with respect to privilege applies at all stages of all
actions, cases, and proceedings. Fed.Rules
Evid.Rules 104(a), II0I(c), 28 U.S. CA.
[6] Witnesses 410
410 Witnesses
4101I Competency
4101I(D) Confidential Relations andPriv-
Before district court may engage in in camera re-
view of allegedly privileged attorney-client com-
munications at request of party opposing privilege
to determine applicability of crime-fraud exception
to the privilege, the party opposing privilege must
present evidence sufficient to support reasonable
belief that in camera review may yield evidence es-
tablishing the exception's applicability.
17] Witnesses 410
410 Witnesses
4101I Competency
410k223 k. Determination as to Adm issib-
Once showing is made sufficient to support reason-
able belief that in camera review of allegedly priv-
ileged' attorney-client communications might yield
evidence establishing applicability of crime-fraud
exception to the privilege, decision of whether to
engage in in camera review of allegedly privileged
materials rests in sound discretion of district court.
(8] Witnesses 410
410 Witnesses
4101I Competency
Decision whether to engage in in camera review of
allegedly privileged attorney-client communica-
tions to determine applicability of crime-fraud ex-
ception to the privilege, once threshold showing to
support in camera review has been made, should be
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491 U.S. 554, 109 S.C!. 2619
made in light of facts and circumstances of particu-
lar case, including volume of materials district
court has been 'asked to review, relevant importance
to case of allegedly privileged infonnation, and
likelihood that evidence produced through in cam-
era review, together with other available evidence
then before court, will establish that crime-fraud
exception does applY.
(9) Witnesses 410 <8=223
4!O Witnesses
41011 Competency
District court may defer its in camera review of al-
legedly privileged attorney-client communications
to determine whether crime-fraud exception to the
privilege applies after threshold showing that would
support in camera review has been made if the
court concludes that additional evidence in support
of crime-fraud exception may be available that is
not allegedly privileged and concludes that produc-
iion of the additional evidence will not unduly dis-
rnpt or delay proceedings.
(lOJ Witnesses 410<8=223
410 Witnesses
410Il Competency
Party opposing attorney-client privilege allegedly
applicable to conununications may use any relevant
evidence, lawfully obtained, that had not been adju-
dicated to be privileged to support its request for
court's in camera review of the allegedly privileged
communications to detennine applicability of
crime-fraud exception to the privilege and to show
that crime-fraud exception applies, even if the non-
privileged evidence is not independent of the al-
legedly privileged communications.
(Il) Witnesses 410 <8=222
410 Witnesses
41011 Competency
41011(D) Confidential Relations and Priv-
410k222 k. Evidence as to Nature and
Circumstances of Communication or Other Subject-
Matter. Most Cited Cases
Evidence which is not independent of contents of
allegedly privileged communications may provide
evidentiary basis for ultimate showing that crime-
fraud exception to attorney-client privilege applies.
**2621 Syllabus
FN
'
FN* The syllabus constitutes no part of the
opinion of the Court but has been prepared
by the Reporter of Decisions for the con-
venience of the reader. See United States v.
Detroit Lumber Co . 200 U.S. 321, 337, 26
S.C!. 282, 287,50 L.Ed. 499.
*.554 The Internal Revenue Service (IRS), as part of
its investigation of the tax returns of L. Ron Hub-
bard, founder of the Church of Scientology (the
Church), filed in the Federal District Court a peti-
tion to enforce a summons it had served upon the
Clerk of the Los Angeles County Superior Court
demanding that he produce documents, including
two tapes, in his possession in conjunction with a
pending suit. The Church and Mary Sue Hubbard,
intervenors in the state-court action and respond-
ents here, intervened to oppose production of the
materials. They claimed, inter alia, that the IRS
was not seeking the materials in good faith and that
the attorney-client privilege barred the tapes' dis-
closure. The IRS argued, among other things, that
the tapes fell within the exception to the attorney-cli-
ent privilege for conununications in furtherance of
future illegal conduct-the so-called "crime-fraud"
exception-and urged the District Court to listen to
the tapes in making its privilege detennination. In
addition, the IRS submitted a declaration by a spe-
cial agent which had included partial tape tran-
scripts the IRS lawfully had obtained. The court re-
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491 U.S. 554, 109 S.C!. 2619
jected respondents' bad-faith claim and ordered pro-
duction of five of the requested documents, but it
conditioned its enforcement order by placing re-
strictions upon IRS dissemination of the docu-
ments. The court also ruled that the tapes need not
be produced since they contained privileged attor-
ney-client communications to which, the quoted ex-
cerpts revealed, the crime-fraud exception did not
apply. The court rejected the request that it listen to
the tapes, on the ground that that request had been
abandoned in favor of using the agent's declaration
as the basis for determining the privilege question.
The Court of Appeals affirmed the conditional-en-
forcement order. As to the privilege issue, it agreed
with respondents that the District Court would have
been without power to grant the IRS' demand for in
camera review of the tapes, because the Govern-
ment's evidence of crime or fraud must come from
sources independent of the **2622 attorney-client
communications on the tapes, Reviewing the inde-
pendent evidence (a review that excluded the partial
transcripts), the court affirmed the District Court's
determination as to the inapplicability of the crime-
fraud exception.
*555 Held:
1. Insofar as it upheld the District Court's condi-
tional-enforcement order, the Court of Appeals'
judgment is affirmed by an equally divided Court.
P.2625.
2. In appropriate circumstances, in camera review
of allegedly privileged attorney-client communica-
tions may be used to determine whether the com-
munications fall within the crime-fraud exception.
Pp. 2625-2632.
(a) Federal Rule of Evidence 104(a), which
provides that a court is bound by the rules of evid-
ence with respect to privileges when determining
the existence of a privilege, does not prohibit the
use of in camera review. Pp. 2627-2630.
(b) However, before a district court may engage in
in camera review at the request of the party oppos-
ing the privilege, that party must present evidence
sufficient to support a reasonable belief that such
review may reveal evidence that establishes the ex-
ception's applicability. Once this threshold showing
is made, the decision whether to engage in in cam-
era review rests in the sound discretion of the court.
Pp. 2630-2631.
(c) The party opposing the privilege may use any
relevant nonprivileged evidence, lawfully obtained,
to meet the threshold showing, even if its evidence
is not "independenf' of the contested communica-
tions as the Court of Appeals uses that term. Pp.
2631-2632.
(d) On remand, the Court of Appeals should con-
sider whether the District Court's refusal to listen to
the tapes in toto was justified by the manner in
which the IRS presented and preserved its in cam-
era review request. If its demand was properly pre-
served, that court, or the District Court on remand,
should determine whether the IRS has presented a
sufficient evidentiary basis for in camera review
and whether it is appropriate for the District Court,
in its discretion; to grant the request. P. 2632.
809 F.2d 1411 (CA9 1987),842 F.2d 1135, and 850
F.2d 610 (CA9 1988), affirmed in part, vacated in
part, and remanded.
BLACKMUN, J., delivered the opInIOn of the
Court, in which all other Members joined, except
BRENNAN, J., who took no part in the considera-
tion or decision of the case,
Alan 1. Horowitz argued the cause for the United
States. With him on the briefs were Solicitor Gen-
eral Fried, Acting Solicitor General Bryson, Assist-
ant Attorney General Rose, Deputy Solicitor Gener-
al Wallace, Charles E. Brookhart, and John A. Du-
deck, Jr.
*556 Michael Lee Hertzberg argued the cause for
respondents. With him on the brief were Eric M
Lieberman and David Golove .
* Edward D. Urquhart, Silvia T. Hassell, and
Charles J. Escher filed a brief for Bernard M. Bar-
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491 U.S. 554, 109 S.C!. 2619
rett, Jr., M.D., as amicus curiae.
Justice BLACKMUN delivered the opinion of the
Court.
This case arises out of the efforts of the Criminal
Investigation Division of the Internal Revenue Ser
vice (fRS) to investigate the tax returns of L. Ron
Hubbard, founder of the Church of Scientology (the
Church), for the calendar years 1979 through 1983.
We granted certiorari, 488 U.S. 907, 109 S.Ct. 257,
102 L.Ed.2d 246 (1988), to consider two issues that
have divided the Courts of Appeals. The first is
whether, when a district court enforces an IRS sum-
mons, see 26 U.S.C. 7604, the court may condi-
tion its enforcement order by placing restrictions on
the disclosure of the summoned information
FN
!
The Court of Appeals in this case upheld the re-
strictions. We affum its judgment on that issue by
an equally divided Court.
FN I. Compare United States v. Author
Services, Inc., 804 F.2d 1520, 15251526
(CA9 1986), opinion amended, 811 F.2d
1264 (1987), with United States v. Barrett.
837 F.2d 1341 (CA5 1988) (en banc), cert.
'pending, No. 87-1705.
[I) The second issue concerns the testimonial priv-
ilege for attorney-client communications**2623
and, more particularly, the generally recognized ex
ception to that privilege for cOmniunications in fur-
therance of future illegal conduct-the so-called
"crime-fi'aud" exception. The specific question
presented is whether the applicability of the crime-
fraud exception must be established by
"independent evidence" (i-:'e., without reference to
the content of the contested communications them-
selves), or, alternatively, whether the applicability
of that exception can be resolved by an in camera
inspection of the allegedly privileged materiaL'N'
We reject the "independent evidence" approach and
hold that the district court, under *557 circum-
stances we explore below, and at the behest of the
party opposing the claim of privilege, may conduct
an in camera review of the materials in question.
Because the Court of Appeals considered only
"independent evidence," we vacate its judgment on
this issue and remand the case for further proceed-
ings.
FNJ
FN2. Compare United States v. Shewfelt,
455 F.2d 836 (CA9),cert. denied, 406 U.S.
944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972),
with In re Berkley & Co., 629 F.2d 548
(CA8 1980).
FN3. Respondents suggest that this case is
now moot, because L. Ron Hubbard died
January 24, 1986, thus foreclosing any fur-
ther criminal investigation of him, and be-
cause the IRS civil audit of Mr. Hubbard
for the relevant tax years was terminated as
a 'closed case.' " Brief in Opposition
810. The IRS disagrees, largely because
the civil tax audit has not been terminated,
and its result could affect the liability of
Mr. Hubbard's estate. We are satisfied that
a live controversy remains.
In the course of its investigation, the IRS sought ac-
cess to 51 documents. that had been filed with the
Clerk of the Los Angeles County Superior Court in
connection with a case entitled Church of Sciento
logy of California V. Armstrong, No. C420 153. The
Armstrong litigation involved, among' other things,
a charge by the Church that one of its former mem-
bers; Gerald Armstrong, had obtained by unlawful
means documentary materials relating to Church
activities, including two tapes. Some of the docu:
ments sought by the IRS had been filed under seal.
The IRS, by its Special Agent Steven PeterselI,
served a Summons upon the Clerk on October 24,
1984, pursuant to 26 U.S.c. 7603, demanding that
he produce the 51 documents!"' The tapes were
among those listed. App. 33-38. On November 21,
IRS agents were permitted to inspect and copy
some of the summoned materials, including the tapes.
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491 U.S. 554, 109 S.C!. 2619
FN4. The current Clerk of the Superior
Court, Frank S. Zolin, is a named respond-
ent in this case, but did not participate in
briefing or argument before the Court of
Appeals or before this Court. We use the
term "respondents" to refer to Mary Sue
Hubbard and the Church, the only active
respondents in this Court.
On November 27, the Church and Mary Sue Hub-
bard, who had intervened in Armstrong. secured a
temporary restraining*558 order from the United
States District Court for the Central District of
California. The order required the IRS to file with
the District Court all materials acquired on Novem-
ber 2 I and all reproductions and notes related
thereto, pending disposition of the intervenors' mo-
tion for a preliminary injunction to bar IRS use of
these materials. Exh. 2 to Petition to Enforce 111-
ternal Revenue Summons. By order dated Decem-
ber 10, the District Court returned to the IRS all
materials except the tapes and the IRS' notes re-
flecting their contents. See App. 30.
On January 18, 1985, the IRS filed in the District
Court a petition to enforce its summons. In addition
to the tapes, the IRS sought 12 sealed documents
the Clerk had refused to produce in response to the
IRS summons. The Church and Mary Sue Hubbard
intervened to oppose production of the tapes and
the sealed documents. Respondents claimed that
IRS was not seeking the documents in good faith,
and objected on grounds of lack of relevance and
attorney-client privilege.
**2624 Respondents asserted the privilege as a bar
to disclosure of the tapes. The IRS argued, among
other things, however, that the tapes fen within the
crime-fraud exception to the attorney-client priv-
ilege, and urged the District Court to. listen to the
tapes in the course of making its privilege determ-
ination. In addition, the IRS submitted to the court
two declarations by Agent Petersel!. In the first,
Petersell stated his grounds for believing that the
tapes were relevant to the investigation. See Declar-
ation in No. CY 85-0440-HLH, 11 3 (March 8,
1985). In the second, Petersell offered a description
of the tapes' contents, based on information he re-
ceived during several interviews. Appended to this
declaration-over respondents' objection-were partial
transcripts of the tapes, which the IRS lawfully had
obtained from a confidential source. See March 15,
1985, declaration *559 (filed under seal).'N' In
subsequent briefmg, the IRS reiterated its request
that the District Court listen to the tapes in Camera
before making its privilege ruling.
FN5. The IRS denied that the transcripts
were made using tapes obtained from the
Superior Court or from any other illicit
source. Agent Petersell declared that: "The
partial transcripts were not prepared by the
United States from the tapes in the custody
of the Superior Court for Los Angeles
County, California, nor from copies of the
tape now in the custody of the Clerk of this
Court. The transcripts were obtained from
a confidential source by another Special
Agent prior to the issuance of this sum-
mons. The source was not a party to
Church 0/ Scientology v. Armstrong, No.
410153, nor an attorney for any party in
that proceeding." See Declaration of
Agent Petersell in No. Cy, 85-0440-HLH "
(Tx) (March 21, 1985). As the District
Court made no fmding of illegality, we as-
sume for present purposes that the tran-
scripts were legally obtained.
After oral argument and an evidentiary hearing, the
District Court rejected respondents' claim of bad
faith. App. to Pet. for Cort. 27a. The court ordered
production of 5 of the 12 documents, id, at 28a,
and specified: "The documents delivered hereunder
shall not be delivered to any other government
agency by the IRS unless criminal tax prosecution
is sought or an Order of Court is obtained." ld.. at
29a.
Turning to the tapes, the District Court ruled that
respondents had demonstrated that they contain
confidential attorney-client communications, that
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.I. 0.
0
..... V VA. 1 V >',
" . I '
491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469, 63 A.F.T.R.2d 89-1483, 57 USLW 4781,89-1 USTC P 9380, 27
491 U.S. 554,109 S.C!. 2619
the privilege had not been waived, and that "[t)he
'fraud-crime 1 exception to the attorney-client priv-
ilege does not apply. The quoted excerpts tend to
show or admit past fraud but there is no clear indic-
ation that future fraud or crime is being planned."
[d., at 28a. On this basis, the court held that the
Clerk "need not produce its copy of the tapes pursu-
ant to the summons." Jd., at 29a. The District
Court denied the IRS' motion for reconsideration,
rejecting the IRS' renewed request that the court
listen to the tapes in toto. "While this Was at one
time discussed with counsel, thereafter Mr.
Petersell's declaration was submitted, and no one
suggested that this *560 was an inadequate basis on
which to determine the attorney-client privilege
question." fd., at 25a-26a.
Respondents appealed to the Court of Appeals for
the Ninth Circuit, and the IRS crossappealed on
two relevant grounds. First, the IRS claimed that
the District Court abused its discretion by placing
conditions on the IRS' future use of the subpoenaed
information. The Court. of Appeals disagreed, hold-
ing: "A district court may, when appropriate, condi-
tion enforcement of a summons on the IRS' agree-
ing to abide by disclosure restrictions." 809 F .2d
1411,1417(1987).
Second, the IRS contended that the District Court
erred in rejecting the application of the crime-fraud
exception to the tapes. In particular, the IRS argued
that the District Court incorrectly held that the IRS
had abandoned its request for in camera review of
the tapes, and that the court should have listened to
the tapes before ruling that the crime-fraud excep-
tion was inapplicable. Answering Brief for United
States as Appellee in No. 85-6065, and Opening
Brief for United States as Cross-**2625 Appellant
in No. 85-6105 (CA9), pp. 48-49 (filed under seal).
Respondents contended, in contrast, that the Dis-
trict Court erred in the opposite direction: they ar-
gued that it was error for the court to rely on the
partial transcripts, because "[i]n this Circuit, a party
cannot rely on the communications themselves-wheth-
er by listening to the tapes or reviewing excerpts or
transcripts of them-to bear its burden to invoke the
exception but must bear the burden by independent
evidence. This is the clear and unambiguous hold-
ing of United States v. Shewfeit, 455 F.2d 836 (9th
Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32
L.Ed.2d 331 (1972)." (Emphasis added.) Answer-
ing Brief for Church of Scientology of California
and Mary Sue Hubbard as CroSS-Appellees in No.
85-6065, and Reply Brief as Appellants in No.
85-6105 (CA9), p. 24 (filed under seal).
The panel of the Court of Appeals agreed with re-
spondents that, under Shewfe/t, "the Government's
evidence of crime or *561 fraud must come from
sources independent of the attorney-client commu-
nications recorded on the tapes,"809 F.2d, at 1418,
thereby implicitly holding that even if the IRS had
properly preserved its demand for in camera re-
view, the District Court would have been without
power to grant it. The Court of Appeals then re-
viewed "the Government's independent evidence."
Ed., at 1418-1419. That review appears to have ex-
cluded the partial transcripts, and thus the Court of
Appeals implicitly agreed with respondents that it
was improper for the District Court to have con-
sidered even the partial transcripts. See Brief for
United States 7. On the basis of its review of the
"independent evidence,"the Court of Appeals af-
firmed the District Court's determination that the
IRS had failed to establish the applicability of the
crime-fraud exception. 809 F.2d, at 1419.
The full Court of Appeals vacated the panel opinion
and ordered en banc review, on the basis of a per-
ceiv'ed conflict betWeen Shewfe/I and United Slates
V. Friedman, 445 F.2d 1076 (CA9), cert. denied sub
nom. Jacobs V. United States, 404 U.S. 958, 92 S.Ct.
326, 30 L.Ed.2d 275 (1971). 832 F.2d 127 (1987).
Upon consideration, a majority of the limited en
banc court, see Ninth Circuit Rule 35-3, determined
that the intracircuit conflict was illusory; it agreed
with respondents that Friedman did not address the
independent-evidence rule. 842 F.2d 1135,
I I 36,amended by 850 F.2d 610 (1988). The limited
en banc court vacated the order for rehearing en
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bane as improvidently granted and reinstated the
panel opinion in relevant part. Ibid.
11
[2] This Court is evenly divided with respect to the
issue of the power of a district court to place re-
strictions upon the dissemination by the IRS of in-
formation obtained through a 7604 subpoena-
enforcement action. We therefore affinn the judg-
ment of the Court of Appeals insofar as it upheld
the District Court's conditional-enforcement order.
*562 III
Questions of privilege that arise in the course of the
adjudication of federal rights are "governed by the
principles of the common law as they may be inter-
preted by the courts of the United States in the light
of reason and experience." Fed.Rule Evid. 501. We
have recognized the attorney-client privilege under
federal law, as "the oldest ofthe privileges for con-
fidential communications known to the common
law." Upjohn Co. v. United States, 449 U.S. 383,
3.89, 10IS.Ct. 677, 682, 66 LEd.2d 584 (1981).
Although the. underlying rationale for the privilege
has changed overtime, see 8 J. Wigmore, .Evidence
2290 (McNaughton rev. 1961),'N6 courts long
have viewed its central concern as one "to encour-
age**2626 full and frank communication between
attorneys and their dients and thereby promote
broader public interests in the observance of law
and administration of justice." Upjohn, 449 U.S.,
at 389, 101 S.C!., at 682. That purpose, of course,
requires that clients be free to "make full disclosure
to their attorneys" of past wrongdoings, Fisher v.
United States, 425 U.S. 391, 403, 96 S.Ct. 1569,
1577, 48 L.Ed.2d 39 (1976), in order that the client
may obtain "the aid of persons having knowledge
of the law and skilled in its practice,"Hunt v. Black-
burn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed.
488 (J 888).
FN6. See also Hazard, An Historical Per-
spective on the Attorney-Client Privilege,
66 Calif.L.Rev. 1061 (1978): Develop-
ments in the Law-Privileged Communica-
tions, 98 Harv.L.Rev. 1450, 1455-1458
(1985).
The attorney-client privilege is not without its
costs. Cf. Trammel V. United States, 445 U.S. 40,
50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980).
"[S]ince the privilege has the effect of withholding
relevant information from the factfinder, it applies
only where necessary to achieve its purpose."
Fisher, 425 U.S., at 403, 96 S.Ct., at 1577. The at-
torney-client privilege must necessarily protect the
confidences of wrongdoers, but the reason for that
protection-the centrality of open client and attorney
communication to the proper functioning of our ad-
versary system of justice-"ceas[es] to operate at a
certain point, namely, where the desired advice
refers not to prior wrongdoing, but *563 to future
wrongdoing. " 8 Wigmore, 2298, p. 573
(emphasis in original): see also Clark v. United
States, 289 U.S. I, 15, 53 S.Ct. 465, 469, 77 L.Ed.
993 (1933). It is the purpose of the crime-fraud ex-
ception to the attorney-client privilege to assure
that the "seal of secrecY,"ibid., between lawyer and
client does not extend to communications ('made
for the purpose of getting advice for the 'commis-
sion of a fraud!' or crime. O'Rourke v. Darbishire,
[1920] A.C. 581,604 (P.C.).
The District Court and the Court of Appeals found
that the tapes at issue in this case recorded attomey-
client communications and that the privilege had
not been waived when the tapes were inadvertently
given to Armstrong. 809 F.2d, at 1417 (noting that
Atmstrong had acquired the tapes from L. Ron
Hubbard's personal secretary, who was under the
mistaken impression that the tapes were blank).
TIlese rmdings are not at issue here. Thus, the re-
maining obstacle to respondents' successful asser-
tion of the privilege is the Government's contention
that the recorded attorney-client communications
were made in furtherance of a future crime or fraud.
[3] A variety of questions may arise when a party
raises the crime-fraud exception. The parties to this
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case have not been in complete agreement as to
which of these questions are presented here. In an
effort to clarify the matter, we observe, first, that
we need not decide the quantum of proof necessary
ultimately to establish the applicability of the
crime-fraud exception. Cf. Clark, 289 U.S., at 15,
53 S.Ct., at 469, quoting O'Rourke; S. Stone & R.
Liebman, Testimonial Privileges 1.65, p .. 107
(l983).'N7 Rather, we are concerned here **2627
with *564 the type of evidence that may be used to
make that ultimate showing. Within that general
area of inquiry, the initial question in this case is
whether a district court, at the request of the party
opposing the privilege, may review the allegedly
privileged communications in camera to determine
whether the crime-fraud exception applies!N' If
such in camera review is permitted, the second
question we must consider is whether some
threshold evidentiary showing is needed before the
district court may undertake the requested *565 re-
view. Finally, if a threshold showing is required,
we must consider the type of evidence the opposing
party may Use to meet it: ie., in this case; whether
the partial transcripts the IRS possessed may be
used for that purpose.
FN7. We note, however, that this Court's
use in Clark v. United States, 289 U.S. I,
14,53 S.Ct. 465, 469, 77 L.Ed. 993 (1933),
of the phrase "prima facie case" to de-
scribe the showing needed to defeat the
privilege has caused some confusion. See
Gardner, The Crime or Fraud Exception to
the Attorney-Client Privilege, 47 A.B.AJ.
708, 710-711 (1961); Note, 51 Brooklyn
L.Rev. 913, 918-919 (1985) ("The prima
facie standard is commonly used by courts
in civil litigation to shift the burden of .
proof from one party to the other. In the
context of the fraud exception, however,
the standard is used to dispel the privilege
altogether without affording the client an
opportunity to rebut the prima facie show-
ing" (emphasis in original)). See also In re
Grand Jury Subpoena Duces Tecum Dated
September 15, 1983, 731 F.2d 1032, 1039
(CA2 1984). In using the phrase in Clark,
the Court was aware of scholarly contro-
versy concerning the role of the judge in
the decision of such preliminary questions
of fact. See 289 U.S., at 14, n., 53 S.Ct., at
469, n. The quantum of proof needed to
establish admissibility was then, and re-
mains, subject to question. See, e.g.,
Maguire & Epstein, Preliminary Questions
of Fact in Determining the Admissibility of
Evidence, 40 Harv.L.Rev. 392, 400
(criticizing courts insofar as they "have al-
lowed themselves to be led into holding
that only a superficial, one-sided showing
is allowable on any admissibility contro-
versy"), 414-424 (exploring alternative
rules). (1927); 21 C. Wright & K. Graham,
Federal Practice and Procedure: Evidence
5052, p. 248 (1977) (suggesting, with re-
spect to the process of proving preliminary
questions of fact,that "[plerhaps it is a
task, like riding a bicycle, that is easier to
do if you do not think too much about what
you are doing"). In light of the narrow
question presented here for review, this
case is not the proper occasion to visit
these questions.
FN8. In addition, the facts of this case also
suggest the question whether the partial
transcripts the IRS possessed may be used
by it in meeting its ultimate burden. It is by
no means clear that the Government has
presented that question for this Court's re- -
view. The Government noted in its petition
for certiorari that the Court of Appeals had
not considered the partial transcripts in
making its determination that the IRS had
fuiled to establish the applicability of the
crime-fraud exception. See Pet. for Cert.
7-8. The question presented for review,
however, relates solely to in camera re-
view, as does the relevant discussion in the
petition. See id, at 20-23.
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The question whether the partial tran-
scripts may be used in meeting the IRS'
ultimate burden of demonstrating the ap-
plicability of the crime-fraud exception
is fairly included within the question
presented, however, and we therefore ad-
dress it. See this Court's Rule 21.1(a).
The answer to the question would follow
inexorably from our discussion in any
event.
A
[4) We consider first the question whether a district
court may ever honor the request of the party op-
posing the privilege to conduct an in camera review
of allegedly privileged communications to detenn-
ine whether those communications fall within the
crime-fraud exception. We conclude that no express
provision of the Federal Rules of Evidence bars
such use of in camera review, and that it would be
unwise to prohibit it in all instances as a matter of
federal common law. FN9
FN9. There is some ambiguity as to wheth-
er the Court of Appeals squarely barred all
use of in camera review for these pur-
poses, although that is the fairest reading
of the court's opinion. Respondents at
times appear to advocate that position, see
Brief in Opposition 19-21, but at times
suggest otherwise, see Brief for Respond-
ents 13; see also Reply Brief for United
States 15. The ambiguity in respondents'
-pOSition is perhaps due to the fact that they
accept the premise that in camera review is
pennilted under Circuit precedent in differ-
ent circumstances from those at issue in
this case-i.e., where the proponent of the
privilege seeks in camera review to
demonstrate the applicability of the priv-
ilege in the first instance, see Brief for Re-
spondents 14, or when the proponent re-
quests in camera review to ensure that an
order requiring production of some materi-
als held not to be privileged does not inad-
vertently yield privileged infonnation, see
id., at 20-21.
(I)
[5] At first blush, two provIsions of the Federal
Rules of Evidence would appear to be relevant.
Rule 104(a) provides: "Preliminary questions con-
cerning the qualification of a person to be a wit-
ness, the existence of a privilege, or the admissibil-
ity of evidence shall be detennined by the court ....
In making its detennination it is not bound by the
rules of evidence except those with respect to priv-
ileges." (Emphasis added.) Rule 1I01(e) provides:
"The rule with respect to *566 privileges applies at
all stages of all actions, cases, and proceedings."
Taken together, these Rules might be read to estab-
lish that in a summons-enforcement proceeding, at-
torney-client communications cannot be considered
by the district court in making its crime-fraud rul-
ing: to do otherwise, under this view, **2628
would be to make the crime-fraud detennination
without due regard to the existence of the privilege.
Even those scholars who support this reading of
Rule 104(a) acknowledge that it leads to an absurd
result.
"Because the judge must honor claims of priv-
ilege made during his preliminary fact detennina-
tions, many exceptions to the rules of privilege
will become ' dead leIters,' since the preliminary
facts that give rise to these exceptions can never
be proved. For example, an exception to the at-
torney-client privilege provides that there is no
privilege if the communication was made to en-
able anyone to commit a crime or fraud. There is
virtually no way in which the exception can ever
be proved, save by compelling disclosure of the
contents of the communication; Rule 104(a)
provides that this cannot be done." 21 C. Wright
& K. Graham, Federal Practice & Procedure:
Evidence 5055, p. 276 (1977) (footnote omit-
ted).
We find this Draconian interpretation of Rule
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104(a) inconsistent with the Rule's plain language.
The Ru Ie does not provide by its tenns that all ma-
terials as to which a "clai[mJ of privilege" is made
must be excluded from consideration. In that critic-
al respect, the language of Rule I 04(a) is markedly
different from the comparable California evidence
rule, which provides that "the presiding officer may
not require disclosure of infonnation claimed to be
privileged under this division in order to rule on the
claim of privilege." Cal.Evid.Code Ann. 915(a)
(West Supp.1989) (emphasis *567 added)F"1O
There is no reason to read Rule 1 04(a) as if its text
were identical to that of the California rule.
FNIO. A good example of the effect of the
California rule is provided by the record in
this case. While the disputed matters were
being briefed in Federal District Court, the
State Superior Court held a hearing on a
motion by Government attorneys seeking
access to materials in the Armstrong case
for ongoing litigation in Washington, D.C.
The transcript of the hearing was made
part of the record before the District Court
in this case. Regarding the tapes, the Gov-
ernment argued to the Superior Court that
the attorney-client conversations on the
tapes reflect the planning or commission of
a crime or fraud. Tr. of Hearing of Febru-
ary 11, 1985, in No. C420 153
(Super.CLCal.), p. 52. That claim was sup-
ported by several declarations and other
extrinsic evidence. The Government noted,
however, that "the tape recordings them-
selves would ... be the best evidence of ex-
actly what was going on." Jd., at 53. The
intervenors stressed that, as a matter of
California law, "you can't show the tapes
are not privileged by the contents." Jd., at
58; see also id., at 68. The Superior Court
acknowledged the premise that "you can't
look at the conversation itself to make [the
crime-fraud] determination,"id., at 74, and
concluded that the extrinsic evidence was
not sufficient to make out a prima facie
case that the crime- fraud exception ap-
plies, id., at 75-76.
Nor does it make sense to us to assume
l
as respond-
ents have throughout this litigation, that once the
attorney-client nature of the contested communica-
tions is established, those communications must be
treated as presumptively privileged for evidentiary
purposes until the privilege is "defeated" or
"stripped away" by proof that the communications
took place in the course of planning future crime or
fraud. See Brief for Respondents 15 (asserting that
respondents had "established their entitlement to
the privilege," and that the communications had
been "determined to be privileged," before the
crime-fraud question was resolved). Although some
language in Clark might be read as supporting this
view, see 289 U.S., at 15,53 S.Ct., at 469, respond-
ents acknowledged at oral argument that no prior
holding of this Court requires the imposition of a
strict progression of proof in crime-fraud cases. See
Tr. of Oral Arg. 33-35.
*568 We see no basis for holding that the tapes in
this case must be deemed privileged under Rule
. 104(a) while the question of crime or fraud remains
open. Lndeed, respondents concede that "if the pro-
ponent of the privilege is able to sustain its burden
only by submitting the communications to the
court" for in camera review, Brief for Respondents
14-15 (emphasis in original), the court is not re-
quired to avert its eyes (or close its ears) once it
concludes **2629 that the communication would be
privileged, if the court found the crime-fraud ex-
ception inapplicable. Rather, respondents acknow-
ledge that the court may "then consider the same
communications to detennine if the opponent of the
privilege has established that the crime-fraud ex-
ception applies." Jd., at 15. Were the tapes truly
deemed privileged under Rule 104(a) at the mo-
ment the trial court concludes they contain poten-
tially privileged attorney-client communications,
district courts would be required to draw precisely
the counterintuitive distinction that respondents
wisely reject. We thus shall not adopt a reading of
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491 U.S. 554, 109 S.Ct. 2619
Rule 104(a) that would treat the contested commu-
nications as "privileged" for purposes of the Rule,
and we shall not interpret Rule 104(a) as categoric-
ally prohibiting the party opposing the privilege on
crime-fraud grounds from relying on the results of
an in camera review of the communications.
(2)
Having determined that Rule 104(a) does not pro-
hibit the in camera review sought by the IRS, we
must address the question as a matter of the federal
common law of privileges. See Rule 501. We con-
clude that a complete prohibition against opponents'
use of in camera review to establish the applicabil-
ity of the crime-fraud exception is inconsistent with
the policies underlying the privilege.
We begin our analysis by recognizing that disclos-
ure of allegedly privileged materials to the district
court for purposes of determining the merits of a
claim of privilege does not have .the legaleffec! of
terminating the privilege. Indeed, this *569 Court
has approved the practice of requiring parties who
seek to avoid disclosure of documents to make the
documents available for in ,camera inspection, see
Kerr v. United States District Court. for Northern
District 0/ Cal., 426 U.S. 394, 404-405, 96 S.Ct.
2119, 2124-25, 48 L.Ed.2d 725 (1976), and the
practice is well established in the federal courts.
See, e.g., In re Antitrust Grand Jury. 805 F.2d 155,
168 (CA6 1986); In re Vargas, 723 F.2d 1461,
1467 (CAIO 1983); United States v. Lawless, 709
F.2d 485, 486, 488 (CAT 1983); In re Grand Jury
Witness, 695 F.2d 359, 362 (CA9 1982). Respond-
ents do not dispute this point: they acknowledge
that they would have been free to request in camera
review to establish the fact that the tapes involved
attorney-client communications, had they been un-
able to muster independent evidence to serve that
purpose. Brieffor Respondents 14-15.
Once it is clear that in camera review does not des-
troy the privileged nature of the contested commu-
nications, the question of the propriety of that re-
view turns on whether the policies underlying the
privilege and its exceptions are better fostered by
permitting such review or by prohibiting it. In our
view, the costs of imposing an absolute bar to con-
sideration of the communications in camera for
purpose of establishing the crime-fraud exception
are intolerably high.
"No matter how light the burden of proof which
confronts the party claiming lbe exception, there
are many blatant abuses of privilege which cannot
be substantiated by extrinsic evidence. This is par-
ticularly true ... of ... situations in which an alleged
illegal proposal is made in the context of a relation-
ship which has an apparent legitimate end." Note,
The Future Crime or Tort Exception to Communic-
ations Privileges, 77 Harv.L.Rev. 730, 737 (1964).
A per se rule that the communications in question
may never be considered creates, we feel, too great
an impediment to the proper functioning of the ad-
versary process. See generally 2 D. Louisell & C.
Mueller, Federal Evidence 213, pp. 828-829
(1985); 2 J. Weinstein & M. Berger, Weinstein's
Evidence*570 ~ 503(d)(I)[01], p. 503-71 (1988).
This view is consistent with current trends in the
law. Compare National Conference of Commission-
ers on Uniform State Laws, Uniform Rules of Evid-
ence, Rule 26(2)(a) (1953 ed.) ("Such privileges
shall not extend ... to a communication if the judge
finds that sufficient evidence,**2630 aside from the
communication, has been introduced to warrant a
fmding that the legal service was sought or ob-
tained in order to enable or aid the client to commit
or plan to commit a crime or a tort" (emphasis ad
ded, reprinted in I J. Bailey & O. Trelles, The
Federal Rules of Evidence: Legislative Histories
and Related Documents (1980), with Uniform Rule
of Evidence 502 (adopted 1974), I3A U.LA 256
(1986) (omitting explicit independent evidence reo
quirement).
B
[6] We tum to the question whether in camera re-
view at the behest of the party asserting the crime-
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491 U.S. 554, 109 S.Ct. 2619
fraud exception is always permissible, or, in con-
trast, whether the party seeking in camera review
must make some threshold showing that such re-
view is appropriate. In addressing this question, we
attend to the detrimental effect, if any, of in camera
review on the policies underlying the privilege and
on the orderly administration of justice in our
courts. We conclude that some such showing must
be made.
Our endorsement of the practice of testing pro-
ponents' privilege claims through in camera review
of the allegedly privileged documents has not been
without reservation. This Court noted in United
States V. Reynolds, 345 U.S. I, 73 S.Ct. 528, 97
L.Ed. 727 (1953), a case which presented a delicate
question concerning the disclosure of military
secrets, that "examination of the evidence, even by
the judge alone, in chambers" might in some cases
"jeopardize the security which the privilege is
meant to protect." Id, at 10, 73 S.Ct., at 533. Ana-
logizing to Claims of Fifth Amendment privilege, it
observed more generally: "Too much judicial in-
quiry into the claim of privilege would force dis-
closure of the thing the privilege was meant to pro"
tect, *571 while a complete abandonment of judicial
control would lead to intolerable abuses." Id, at 8;
73 S.Ct., at 532.
The Court in Reynolds recognized that some com-
promise must be reached. See also United States v.
Weisman, III F.2d 260, 261-262 (CA2 1940). In
Reynolds, it declined to "go so far as to say that the
court may automatically require a complete dis-
closure to the judge before the claim of privilege
will be accepted in any case." 345 U.S., at 10, 73
S.C!., at 533 (emphasis added). We think that much
the same result is in order here.
A blanket rule allowing in camera review as a tool
for determining the applicability of the crime-fraud
exception, as Reynolds suggests, would place the
policy of protecting open and legitimate disclosure
between attorneys and clients at undue risk. There
is also reason to be concerned about the possible
due process implications of routine use of in cam-
era proceedings. See, e.g., In re John Doe Corp.,
675 F.2d 482, 489-490 (CA2 1982); In re Special
September 1978 Grand Jury, 640 F.2d 49, 56-58
(CA 7 1980). Finally, we cannot ignore the burdens
in camera review places upon the district courts,
which may well be required to evaluate large evid-
entiary records without open adversarial guidance
by the parties.
There is no reason to permit opponents of the priv-
ilege to engage in groundless fishing expeditions,
with the district courts as their unwitting (and per-
haps unwilling) agents. Courts of Appeals have
suggested that in camera review is available to
evaluate claims of crime or fraud only "when justi-
fied," In re John Doe Corp., 675 F.2d, at 490, or
"[i]n appropriate cases," In re Sealed Case, 219
U.S.App.D.C. 195, 217, 676 F.2d 793, 815 (1982)
(opinion of Wright, J.). Indeed, the Government
conceded at oral argument (albeit reluctantly) that a
district court would be mistaken if it reviewed doc-
uments in camera solely because "the government
beg[ged it]" to do so, "with nO reason .to suspect
crime or fraud." Tr. of Oral Arg. 26; see also id, at
60. We agree.
*572 In fashioning a standard for determining when
in camera review is appropriate, we begin with the
observation that "in **2631 camera inspection .,. is
a smaller intrusion upon the confidentiality of the
attorney-client relationship than is public disclos-
ure." Fried, Too High a Price for Truth: The Ex-
_ ception to the Attorney-Client Privilege for Con-
templated Crimes and Frauds, 64, N.C.L.Rev. 443,
467 (1986). We therefore conclude that a lesser
evidentiary showing is needed to trigger in camera
review than is required ultimately to overcome the
privilege. Ibid. The threshold we set, in other
words, need not be a stringent one.
We think that the following standard strikes the
correct balance. Before engaging in in camera re-
view to determine the applicability of the crime-
fraud exception, "the judge should require a show-
ing of a factual basis adequate to support a good
faith belief by a reasonable person,"CaIdweli v.
1. et
o
'"' I J VI IV
491 U.S. 554, 109 S.C!. 2619, !O5 L.Ed.2d 469,63 A.F.T.R.2d 89-1483, 57 USLW 4781,89-1 USTC P 9380, 27
491 U.S. 554, 109 S.Ct. 2619
District Court, 644 P.2d 26, 33 (Colo. 1982), that in
camera review of the materials may reveal evid-
ence to establish the claim that the crime-fraud ex-
ception applies.
[7][8][9] Once that showing is made, the decision
whether to engage in in camera review rests in the
sound discretion of the district court. The court
should make that decision in light of the facts and
circumstances of the particular case, including,
among other things, the volume of materials the
district court has been asked to review, the relative
importance to the case of the alleged privileged in-
formation, and the likelihood that the evidence pro-
duced through in camera review, together with oth-
er available evidence then before the court, will es-
tablish that the crime-fraud exception does apply.
The district court is also free to defer its in camera
review if it concludes that additional evidence in
support of the crime-fraud exception may be avail-
able that is not allegedly privileged, and that pro-
duction of the additional evidence will not unduly
disrupt or delay the proceedings.
*573 C
[10] The question remains as to what kind of evid-
ence a district court may consider in determining
whether it has the discretion to undertake an in
camera review of an allegedly privileged commu-
nication at the behest of the party opposing the
privilege. Here, the issue is wheiher the partialtran-
scripts may be used by the IRS in support of its re-
quest for in camera review of the tapes.
l11e answer to that question, in the first instance,
must be found in Rule 104(a), which establishes
that materials that have been determined to be priv-
ileged may not be considered in making the prelim-
inary determination of the existence of a priVilege.
Neither the District Court nor the Court of Appeals
made factual findings as to the privileged nature of
the partial transcripts, FNIl so we cannot determ-
ine on this record whether Rule 104(a) would bar
their consideration.
FN II. There are no findings as to whether
respondents themselves would be priv-
ileged to resist a demand that they produce
the partial transcripts. Nor has there been
any legal and factual exploration of wheth-
er respondents may claim privilege as a bar
to the IRS' use of the copy of the tran-
scripts it lawfully obtained from a third
party. See, e.g., Developments in the Law-
Privileged Communications, 98
Harv.L.Rev., at 1648, 1660-1661
(discussing controversy concerning the
legal effect of an inadvertent disclosure
which does not constitute a waiver of the
privilege, and citing cases); 8 Wigmore
2326.
Assuming for the moment, however, that no rule of
privilege bars the IRS' use of the partial transcripts,
we fail to see what purpose would be served by ex-
cluding the transcripts from the District Court's
consideration. There can be little doubt that partial
transcripts) or other evidence directly but incom-
pletely reflecting the. content of the contested com-
munications, generally will be strong evidence of
the subject matter of the communications them-
selves. Permitting district courts to consider this
type of evidence would aid them substantially in
rapidly and reliably determining whether in camera
review is appropriate.
**2632 *574 [II] Respondents suggest only one
serious countervailing consideration. In their view,
a rule that would allow an opponent of the privilege
to rely on such material would encourage litigants
to elicit confidential information from disaffected
employees or others who have access to the inform-
ation. Tr. of Oral Arg. 40-4 J. We think that deter-
ring the aggressive pursuit of relevant information
from third-party sources is not sufficiently central
to the policies of the attorney-client privilege to re-
quire us to adopt the exclusionary rule urged by re-
spondents. We conclude that the party opposing the
privilege may use any non privileged evidence in
support of its request for in camera review, even if
2008 Thomson ReutersfWest. No Claim to Orig. U.S. Gov!. Works.
- "0- - - --
491 U.S. 554, 109 S.Ct. 2619,105 L.Ed2d 469, 63 A.F.T.R2d 89-1483,57 USLW 4781, 89-1 USTC P 9380, 27
491 U.S. 554, 109 S.C!. 2619
its evidence is not "independent" of the contested
communications as the Court of Appeals uses that
term,FNll
FNI2. In addition, we conclude that evid-
ence that is not "independent" of the con-
tents of allegedly privileged communica-
tions-like the partial transcripts in this
case-may be used not only in the pursuit of
in camera review, but also may provide the
evidentiary basis for the ultimate showing
that the crime-fraud exception applies. We
see little to distinguish these two uses: in
both circumstances, if the evidence has not
itself been determined to be privileged, its
exclusion does not serve the pOlicies which
underlie the attorney-client privilege. See
generally Note, The Future Crime or Tort
Exception to Communications Privileges,
77 Harv.L.Rev. 730, 737 (1964).
D
In sum, we conclude that a rigid independent evid-
ence requirement does not comport with "reason
and experience," Fed.Rule Evid. 501, and we de-
cline to adopt it as part of the developing federal
common law of evidentiary privileges. We hold that
in camera review may be used to detennine wheth-
er allegedly privileged attorney-client communica-
tions fall within the crime-fraud exception. We fur-
ther hold, however, that before a district court may
engage in in camera review at the request of the
party opposing. the privilege, that party must
present evidence sufficient to support a reasonable
belief that in camera review may yield evidence
that *575 establishes the exception's applicability.
Finally, we hold that the threshold showing to ob-
tain in camera review may be met by using any rel-
evant evidence, lawfully obtained, that has not been
adjudicated to be privileged.
Because the Court of Appeals employed a rigid in-
dependent-evidence requirement which categoric-
ally excluded the partial transcripts and the tapes
themselves from consideration, we vacate its judg-
ment on this issue and remand the case for further
proceedings consistent with this opinion. On re-
mand, the Court of Appeals should consider wheth-
er the District Court's refusal to listen to the tapes
in /0/0 was justified by the manner in which the
IRS presented and preserved its request for in cam-
era review.'NI3 In the event the Coun of Appeals
holds that the IRS' demand for review was properly
preserved, the Court of Appeals should then de-
termine, or remand the case to the District Court to
determine in the first instance, whether the IRS has
presented a sufficient evidentiary basis for in cam-
era review, and whether, if so, it is appropriate for
the District Court, in its discretion, to grant such re-
view,
FNI3. The Court of Appeals also will have
the opporttUlity to review the partial tran-
scripts, and to determine whether, even
without in camera review of the tapes, the
IRS presented sufficient evidence to estab-
!ish that the tapes are within the crime-
fraud exception.
It is so ordered
Justice BRENNAN took no pan in the considera-
tion or decision of this case,
U.S.Cal.,1989.
U.S .. v. Zolin
491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469, 63
A.F.T.R.2d 89-I483, 57 USLW 4781,89-1 USTC P
9380,27 Fed. R. Evid. Servo 833
END OF DOCUMENT
411 N. W .Let oob Page lotb
189 Mich.App. 334, 471 N.W.2d 666
Samuel OSTOIN, Personal Representative of the Estate of James Ostoin, Deceased, Plaintiff-Appellant,
v.
WATERFORD TOWNSHIP POLICE DEPARTMENT, and Officers J. Humbaugh, Giroux, Lippincott and
Lane. Defendants-Appellees.
Docket No. 119738.
Submitted March 5, 1991, at Detroit.
Decided May 20, 1991, at 9:05 a.m.
Personal representative of estate of robbery victim, who had been struck on head with baseball bat
during robbery, brought 1983 action against township police department and four of its officers for
officers' failure to take victim into protective custody or seek medical treatment for him upon
discovering him wandering and disoriented. The Oakland Circuit Court, Alice L. Gilbert, J., granted in
part personal representative's request for discovery, and personal representative appealed. The Court
of Appeals, J., held that: (1) there was qualified privilege which protected from disclosure
documents reflecting governmental agency's evaluative or deliberative processes; (2) file of internal
affairs investigation of incident beyond factual matters already disclosed came within privilege; but
(3) discovery of personnel files of officers not involved in litigation and arbitration record relating to
suspension of one officer should not have been denied without in camera inspection to determine
whether they contained relevant, nonprivileged material.
Affirmed in part and reversed in part.
'c",307A Pretrial Procedure
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Discovery in General
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discovery of any relevant, non privileged matter.

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I
471 N.W.2d 666 Page 2 of6
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In 1983 action against township police department and police officers, for officers' failure to take
into protective custody or seek medical treatment for robbery victim who had been struck on head
with baseball bat, contents of file of internal affairs investigation of incident beyond witness
statements and department's rules of conduct came with deliberative process privilege, and were not
subject to discovery, despite claim that internal affairs findings and analysis were needed in order to
establish department's ratification or acquiescence in officers' conduct. 42 U.s.CA. 1983.
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with baseball bat, trial court should not have categorically denied discovery of personnel files of
officers not involved in litigation without first conducting in camera inspection to determine whether
files contained relevant, nonprivileged material subject to discovery, in that there was possibility that
471 N.W.2d 666 Page 3 of6
files contained factual material relevant to claim that constitutional violation resulted from
department's failure to train its officers. 42 U.S.CA. 19l1J.
,;':1'
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In 1983 action against township police department and police officers, for officers' failure to take
with baseball bat, trial court should have conducted in camera inspection of records of arbitration
proceeding relating to suspension of one officer involved in inCident, to extract relevant factual data,
before ruling on discovery request; witness statements and testimony regarding officers' contact with
victim would be factual material unprotected by deliberative process privilege which could not be
duplicated by deposing arbitration witnesses.
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relevant to subject matter of suit are freely discoverable upon request, with no required showing of
good cause.
**667 *335 Kelman, Loria, Downing, Schneider & Simpson (by Detroit, for plaintiff-
appellant.
Cummings, McClorey, DaVis & Acho, P.c. (by and LJ.Q,seJ2.ILSewC![d), Livonia, for
defendants-appellees.
Before McDONALD, P.J., and MacKENZIE and WAHLS, JJ.
*336 MacKENZIE, J.
Plaintiff appeals by leave granted from an order denying in part his request for pretrial discovery of
certain of defendant's records and documents. We affirm in part and reverse in part.
Plaintiff's decedent was struck on the head with a baseball bat during a robbery. Four Waterford
471 N.W.2d 666 Page 4 of6
Township police officers, including Officer J. Humbaugh, were summoned and discovered the
decedent wandering and disoriented. Apparently believing that he was intoxicated, the officers did not
take the decedent into protective custody or seek medical treatment for him, but instead returned
him to his apartment, where he died. This action, brought pursuant to 42 U.S.c. 1983, against the
Waterford Township Police Department (hereafter defendant) and the four officers followed.
Shortly after the incident, defendant conducted an internal affairs investigation, and Officer
Humbaugh was suspended. He filed a grievance which, within "a couple of months" of the incident,
proceeded to arbitration and the taking of testimony of an unknown number of witnesses. The
arbitration resulted in a determination in favor of the officer.
Plaintiff sought discovery of a number of documents, including the complete record of the
Humbaugh arbitration; a complete copy of the internal affairs investigation, conclusions, and
recommendations; and copies of those portions of the personnel files of the four officers involved in
the incident, as well as all other officers in the department, dealing with their training or prior
complaints of improper response to medical emergencies.
The trial court initially entered a protective order denying plaintiffs motion for production. Later,
however, the court conducted an in camera *337 examination of the internal affairs investigation file
and the personnel files of the four officers involved in the incident. The court then ordered defendant
to produce certain documents in the four officers' files relating to their **668 training, as well as a
rules-of-conduct document in the internal affairs investigation file. Plaintiff's requests for the
remainder of the internal affairs investigation file and personnel files, along with his request for the
Humbaugh arbitration record, were denied. That denial is the baSis of this interlocutory appeal.
ill Michigan law is strongly committed to open and far-reaching discovery, and generally
provides for discovery of any relevant, nonprivileged matter. See Evde v. Evde. 172 Mich.App. 49,
5.4:5_5, . MCR_2,)_02(i2)Cl). Privilege is governed by the common law, except
where modified by statute or court rule. MRE 501.
en 1:21' The threshold question in this case is whether there is a qualified privilege which protects
from disclosure documents reflecting a governmental agency's evaluative or deliberative processes.
We find federal law on the question persuasive, and hold that such a privilege exists in Michigan.
The deliberative-process privilege is often traced to Kaiser Aluminum & Chemical Corp: v. United
States. 15LLSupD. 939. 944-947. 141 Ct.CI. 38 (1958). Citing both American and English precedent,
Kaiser outlined a privilege for "confidential intraagency advisory opinions," based on a policy of
protecting "open, frank discussion" concerning governmental action. Id. 157 F.supQ. at p. 946. The
privilege does not, however, extend to "objective facts" upon which decisions are based. Id. Although
originally applied to the federal government, the privilege has been applied by federal courts to
discovery requests in litigation involving civil rights claims against state and local officials as well. See
*338 Wood v. Breier. 54 F.R.D. 7. 12 (E.D.Wis.1972). State courts have also adopted the doctrine as
a common-law privilege. See, e.g., tiflmiltQQ..J(,J!.en:i9.I1',.26_LJ'1(L54', . .'114 j\.2g.2J4
ill @ Whether applied to administrative litigation against the federal government or civil rights
litigation against police departments, the central question in the application of the privilege is whether
the material sought is factual or evaluative. See McClelland v. Andrus. 196 lLS..cA..Jl-R.D.c. 371. 379-
381. 606 F.2d 1278 (1979); Wood, supra, p. 12. The purpose of the deliberative-process privilege is
to foster freedom of expression among governmental employees involved in decision making and
policy formulation. Accordingly, factual material falls outside the scope of the privilege; to be
protected, the material must comprise part of the deliberative or evaluative process. Mcclelland.
SJ!.Qra. 196 U.s.App.D.C" Q. 380, 606 F.2d 1278. Moreover, the privilege protecting deliberative and
evaluative data may be overcome by a sufficient showing of need. Liuzza v. United States, 508
F.supp. 923, 938 (E.D.Mich.1981); McClelland, supra. 196 382. 606 F.2d 1278.
ill Applying the deliberative-process privilege to this case, we find no abuse of discretion in
471 N.W.2d 666 Page50f6
the trial court's refusal to order further disclosure of defendant's internal affairs investigation file.
It appears that plaintiff has already received all factual material from the file, including witness
statements and the department's rules of conduct. The remainder of the file seems to consist of the
evaluative findings of the investigators, which are subject to the privilege.
Plaintiff argues that the internal affairs findings and analysis are needed in order to establish the
department's ratification of or acquiescence in the officers' conduct. CiW of Canton v. Harris, 489 U.S.
378, 109 S.Ct. 1197, 103 L.Ed.2d 412(989). *339 However, such evaluative data falls squarely
within the deliberative-process privilege. Even In the cases cited by plaintiff where sufficient need was
shown to obtain discovery of police internal investigation records such evaluative data was either
nonexistent or excised by the court and discovery was granted only for purely factual data in the
records. Wood, supra; Frankenhauser v. Rizzo, 59 F.R.D. 339, 345 (E.D.Pa .. 1973). In this case,
while the trial court denied discovery of the internal affairs findings and analysis, the court permitted
plaintiff to inquire into the area of **669 internal affairs investigation by interrogatory or deposition.
The court properly balanced plaintiffs evidentiary needs with defendant's needs to keep Its self-
critical analyses confidential. We find no abuse of discretion,
[]. @'" However, we conclude that the court's denial of plaintiffs request for production of material
from the personnel files of officers not involved in this litigation may have denied plaintiff access to
relevant, non privileged material. Factual material relevant to plaintiffs claim that a constitutional
violation resulted from defendant's failure to train its officers, see City of Canton, supra, could be
extracted from the files by an in camera inspection similar to the court's in camera review of the
personnel files of the four involved officers. The trial court abused its discretion by categorically
denying discovery of the files without first conducting an in camera inspection to determine whether
they contain relevant, nonprivileged material subject to discovery by plaintiff.
LZlll\1 Finally, the records of the Humbaugh arbitration proceeding should also be subject to an in
camera inspection to extract relevant factual data. It appears that the arbitration record contains
witness statements and testimony regarding defendant's*340 officers' contact with plaintiff's
decedent. This testimony constitutes factual material unprotected by the deliberative-process"
privilege. Moreover, the eyewitness accounts and arbitration record have special evidentiary value
whiCh cannot be duplicated by deposing the arbitration witnesses, because the witnesses'"
recollections of the incident are no longer as fresh as at the time of the arbitration proceeding.
Frankenhauser, supra, p. 345. We therefore conclude that the trial court abused its discretion in
failing to conduct an in camera examination of the Humbaugh arbitration record or to allow disclosure
of the factual elements of the record. -
ill Discovery rules are to be liberally construed, and materials which are not privileged and
which are relevant to the subject matter of the suit are freely discoverable upon request, with no
required showing of good cause. . ..426
(1988); Davis v. O'Brien, 152 Mich.App. 495, 502-5Q;;L393 N.W.2d 914 (986). In this case, the trial
court properly determined that the evaluative materials in defendant's internal affairs investigation
file were privileged and thus not subject to discovery by plaintiff. However, the trial court abused its
discretion in denying discovery of the Humbaugh arbitration record and departmental personnel files
without conducting an in camera examination to determine whether the requested material did or did
not contain unprivileged relevant material.
Affirmed in part and reversed in part.
Mich.App.,1991.
Ostoin v. Waterford Tp. Police Dept.
189 Mich.App. 334, 471 N.W.2d 666
END OF DOCUMENT
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471 NW.2d 666 Page 6 of6
(C) 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
518 N.W.2d 522 Page 1 of6
205 Mich.App. 700, 518 N.W.2d 522
In re SUBPOENA DUCES TECUM TO THE WAYNE COUNTY PROSECUTOR (On Remand).
Laura L. EVINA, individually and as Personal Representative of the Estate of Robert M. Evina,
deceased
v.
CITY OF DETROIT.
Docket No. 169471.
Submitted May 4, 1994, at Detroit.
Decided June 20, 1994, at 9:35 a.m.
Personal representative of decedent's estate brought action against city and county prosecutor to
recover for decedent's death at hands of police. The Circuit Court, Wayne County, Claudia House
Morcom, J., denied prosecutor's motion to quash subpoena duces tecum, and appeal was taken. The
Court of Appeals, 191 Mich.ARQ. 90. 477 N.W.2d 412, affirmed, and appeal was taken. The Supreme
486 N. W c2_d..Z1.2+ remanded to trial court. After remand, the Supreme Court,
444 Mich. 860, 508 N.W.2d 508, remanded to the Court of Appeals. On remand, the Court of Appeals,
Saww, J., held that: (1) investigative report prepared by assistant prosecutor concerning decedent's
death was not protected from disclosure under deliberative-process privilege, and (2) report was not
exempt from disclosure under Freedom of Information Act (FOIA).
Affirmed.
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When work product privilege was inapplicable for purposes of discovery, it certainly did not apply
for purposes of disclosure under Freedom of Information Act (ForA). M,C.L.A. lS,243(1)(i).
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Mere showing that document falls within general category of documents that may be subject to
nondisclosure is not adequate to meet public agency's burden of justifying need for nondisclosure of
specific document under Freedom of Information Act (ForA). M,C.L.A. 15,231 et seq,
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Investigative report prepared by assistant prosecutor concerning death at hands of police did not
come within exemption to Freedom of Information Act (FOIA) with respect to communications within
or between public bodies of advisory nature that are other than purely factual materials and are
preliminary to final agency determination of policy or action, where prosecutor, by making general
point that such reports might come within exemption, failed to show why particular report came
within exemption. M.C.L.A. 15.243(1)(n).
*702 **524 Pros. Atty., lio.dLe.<l.l....5.9J.ilk, Chief, Sp. Operations, and fr<lflJLl .
Bernacki, Asst. Pros. Atty., Detroit, for the Wayne County Prosecutor.
19me;;'.A"_CilrlLIJ, Southfield, for Laura L. Evina, individually and as personal representative of the
estate of Robert M. Evina, deceased.
Before GRIFFIN, P.J., and SAWY_ER and BRENNAN, JJ.
ON REMAND
SAWYER, Judge.
This matter is again before us, now on remand from the Supreme Court. This dispute concerns
whether the Wayne County Prosecutor must honor a subpoena for an investigative report prepared by
an assistant prosecutor concerning the death of plaintiff's decedent at the hands of the police. In our
earlier opinion, In re Subooena Duces Tecum to the Wavne Co. Prosecutor, 191 Mich,ARP. 90, 477
N.W.2d 412 (1991), we rejected the prosecutor's claim of a work-product privilege and affirmed the
trial court's decision to require the prosecutor to turn over the report. The facts underlying this
dispute are adequately set forth in our earlier opinion and need not be repeated here.
*703 After our earlier opinion, the Supreme Court, while retaining jurisdiction, remanded the
matter to the trial court for consideration of an issue never raised by the parties, but commented
upon by the dissent in our earlier opinion, namely, whether disclosure of the report was required
under the Freedom of InformatLon Act, .t'LC"l,. .. 15.,231 et seq,; M.S.A. 4.1801(1) et seq, liLLe.
Subpoena Duces Tecum to the Wayne Co Prosecutor, 440 Mich, 870,486 N.W.2d 742 (1992), On
remand, the trial court determined that the report was, in fact, subject to disclosure under the ForA.
After remand, the Supreme Court, while retaining jurisdiction, again remanded the matter, this time
to this Court, for consideration of the FOIA issue as well as consideration of another issue not
previously raised, namely, whether disclosure was prevented by a commonclaw governmental
privilege in connection with closed investigative files, including a deliberative-process privilege, [IlLe.
Subpoena Du(!>.;; Tecum to the Wavne Co. ProsecutQL 444 Mich, 860, 508 N.W.2d 508 (1993).
ll.l 0[2.1 0 LU 0 We turn first to the issue of privilege. With respect to the deliberative-process
privilege, that question is easily answered inasmuch as there is binding precedent in this Court that
finds that such a privilege does exist. Ostoin v. Waterford Twp Police Dep't, 189 Mich,ARP, 334,471
N, 6JiJJ.9.9J). Under Ostoin, the deliberative-process privilege would protect that portion of a
report that comprises material of a deliberative or evaluative nature, However, the privilege would
not protect a report, or a portion of a report, that was merely factual in nature. Id, at 338,471
!',u'i.2d .. .... Furthermore, the privilege can be overcome by a showing of need. Id,
ill @l' As for the existence of a common-law governmental privilege with respect to closed
investigative*704 files/
N1
the prosecutor has chosen not to address this issue in its brief on remand,
preferring instead to reargue the work-product privilege issue. However, we have already disposed of
the work-product privilege issue and are not authorized by the Supreme Court to readdress it,
Furthermore, * *525 inasmuch as the prosecutor has chosen not to address the issue of a common-
518 N.W.2d 522 Page 5 of6
law governmental privilege with respect to closed investigative files, we can only conclude that the
prosecutor is implicitly confessing that either the privilege does not exist in Michigan or, even if it
exists, it does not apply to this case. In any event, we deem the prosecutor to have waived further
appellate consideration of this issue.
FNl.. See In re Sealed Case, 856 F,2d 268 (1988), for a discussion of this privilege.
ill I:if Thus, we must first resolve whether the report is protected from disclosure under the
deliberative-process privilege. This determination is somewhat hampered by the fact that the
Supreme Court did not direct the trial court to conSider this issue on remand and, therefore, we are
without the benefit of the trial court's insight on this matter. However, the deliberative-process
privilege is significantly similar to one of the exceptions to the FOlA. Specifically, M.C.L. 15.243(1)
tn); M.S.A. 4.1801(13)(1)(n) exempts from disclosure certain communications within a public body
or between public bodies of an advisory nature. This exemption was considered by the trial court, and
the trial court, concluded that it did not preclude disclosure of the report, While the factors to be
considered under the deliberative-process privilege are not entirely the same as those to be
considered under the FOlA exemption above, we are satisfied that the trial court's discussion of the
FOlA issue sufficiently addressed the issue regarding plaintiff's need for *705 the information to
warrant a conclusion that the report was disclosable under the deliberative-process privilege as well.
That is, plaintiff has demonstrated a sufficient need for the information so as to constitute an
exception to the privilege, Ostoin, supra at 338, 471 N.W.2d 666.
1Zl1:0 uul:if rnl'2!!' This then takes us to the issue whether the report is disclosable under the
FOIA. Generally speaking, the FOlA requires the disclosure of all public records, except to the extent
that they fall within a statutorily recognized exemption. !'LCci-",15.2,:r:lLl); M,S.A. 4.1801(3)(1),
At issue here is whether the report comes within the above-mentibn'ed exemption;
(.0); M.S.A. 4.1801(13)(1)(n), with respect to communications within or between public bodies of an
advisory nature that are other than purely factual materials and are preliminary to a final agency
determination of policy or action. This exemption is certainly potentially applicable to a report within
the prosecutor's office that is evaluative in nature and precedes a determination whether to file'
criminal charges against a suspect. However, that statute clearly places the burden on the public
body to show in each particular instance that the public interest in encouraging frank communications
between offiCials and employees of the public body clearly outweighs the public interest in disclosure.
Id,
L!Jlll21 In the prosecutor's brief on remand, however, the prosecutor makes no showing of why
the need for such frank communication in this case outweighs the public interest in disclosure.
Indeed, the prosecutor's brief does little more than cite this section of the statute, make the
conclusory statement that frank communication within a prosecutor's office is in general a good thing,
and then proceed with an irrelevant discussion of the *706 work-product privilege. As discussed
above, with respect to any litigation in this Court, the applicability of the work-product privilege has
been laid to rest.
EtlZ
FN2, We should note that the prosecutor's position that the work-product privilege can
work to prevent disclosure under the ForA is not necessarily incorrect as a general
proposition. M.C.L. 15.243(1)ill; M.s.A. 4,1801(13)(1)(i) does exempt from
disclosure any information or record subject to any privilege recognized by statute or
court rule. However, not only does the prosecutor not refer to this section of the statute
in his argument, it is nevertheless irrelevant inasmuch as we have already determined
that the work-product privilege does not apply to this case, That is, the work-product
privilege did not, as we previously held, apply for purposes of discovery; therefore, it
certainly does not apply for purposes of disclosure under the ForA.
UJJ 1:0 U1J Iil' In its opinion on remand, the trial court held that the prosecutor had failed in his
burden to show that the report was nondisclosable under 15.243(1)(n); M.s.A. 4.1801(13)
518 N.W.2d 522 Page 6 ot6
(l)(n). Certainly it is equally true that on appeal the prosecutor, while making the general point
that such reports may come within that statutory exemption, has failed to show why this report
**526 comes within the exemption. As noted above, the burden always rests on the public agency to
justify with respect to the facts of each specific document the need for nondisclosure under the act.
The mere showing that the document falls within a general category of documents that may be
subject to nondisclosure is, therefore, not adequate. Rather, in each case it remains the obligation of
the public agency to show that the need for nondisclosure outweighs the public interest in disclosure.
M.C.L. 15.243(1)(nl; M.S.A. 4.1801(13)(1)(n). Accordingly, because the prosecutor makes no
showing with respect to this document, we can only conclude that the trial court was correct in
determining that the document is not exempt from disclosure under the FOIA.
For the above reasons, we conclude that the *707 trial court correctly determined that the Wayne
County Prosecutor is obligated to turn the report over to plaintiff.
Affirmed.
Mich.App.,1994.
In re Subpoena Duces Tecum to the Wayne County Prosecutor
205 Mich.App. 700, 518 N.W.2d 522
END OF DOCUMENT
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145 F.3d 1422 Page 1 of5
145 F.3d 1422,330 U.S.App.D.C. 352,41 Fed.R.Serv.3d 306, 32 Bankr.Ct.Dec. 998, 50 Fed. R. Evid.
Servo 1570, 10 Fourth Cir. & D.C. Bankr. 429
Briefs and Other Related Documents
United States Court of Appeals,
District of Columbia Circuit.
In re SUBPOENA DUCES TECUM SERVED ON THE OFFICE OF THE COMPTROLLER OF THE CURRENCY.
Nos. 97-5228, 97-5229.
Argued May 4, 1998.
In fraudulent transfer action against Federal Deposit Insurance Corporation (FDIC), bankruptcy
trustee filed motion to compel production of documents pursuant to subpoenas duces tecum served
on Federal Reserve Board and Office of the Comptroller of Currency. The United States District Court
for the District of Columbia, Thomas F. Hogan, J., denied motion and trustee appealed. The Court of
Appeals, Silberman, Circuit Judge, held that deliberative process privilege could not be asserted, since
case turned on government's intent.
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Common law deliberative process privilege could not be asserted by Federal Reserve Board and
Office of the Comptroller of Currency with regard to documents requested by bankruptcy trustee in
action to void transfers of failed bank's assets as fraudulent conveyances, since privilege could not be
asserted when cause of action turned on government's intent. Bankr.Code, 11 U.s.C.A. 548L<ll,
550(al<1).
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Page 1. ot J
Court of Appeals would, as matter of judicial comity, defer to district court's ruling in underlying
case that Federal Deposit Insurance Corporation (FDIC) was subject to Bankruptcy Code's fraudulent
transfer provisions, in determining that Federal Reserve Board and Office of the Comptroller of
Currency could not assert deliberative process privilege with regard to documents requested by
bankruptcy trustee in FDIC action, on ground that fraUdulent transfer action turned on issue of
government's intent. Bankr.Code, 11 U.s.CA. 548, 550.
*1422 **352 Appeals from the United States District Court for the District of Columbia (Nos.
94ms00329,9Sms00006).
Thomas R. Kline argued the cause for appellant, with whom Thomas E. Starnes and Scott A. Richie
were on the briefs.
Larry J. Stein, Attorney, United States Department of Treasury, argued the cause for appellee
Comptroller of the Currency, with whom L. Robert Griffin, Director, and Rosa M. Koppel, Attorney,
were on the brief. Robert B. SerinQ, Deputy Chief Counsel, entered an appearance.
Stephen H. Meyer, Senior Attorney, argued the cause for appellee Board of Governors of the Federal
Reserve System, with whom James V. Mattingly, Jr., General Counsel, Richard M. Ashton, ASSOciate
General Counsel, Katherine H. Wheatley, Assistant General Counsel, and Karen A. Appelbaum, Senior
Attorney, were on the brief.
Before: Chief Judge, SJIJ:tf;EMAN and SENTJOJ,bJ;, Circuit Judges.
SU .. BERMAN, Circuit Judge:
The Trustee in Bankruptcy for the Bank of New England Corporation appeals from the district
court's refusal to enforce subpoenas duces tecum against the Federal Reserve Board and the
Comptroller of the Currency. We reverse, holding that the deliberative process privilege does not
protect these documents, and remand to the district court.
I.
The Bank of New England Corporation and its subsidiary, the Bank of New England, N.A.,
experienced serious financial trouble in the late eighties and came under the heightened supervision
of the Federal Reserve Board, whiCh regulates bank holding companies, and the Office of the
Comptroller of the Currency, which oversees the national *1423 **353 banking system. The
Comptroller began to monitor the day .. to .. day operations of the Bank, and new management teams,
approved by the regulators, assumed leaderShip of the Bank and Corporation. Between 1989 and
January of 1991, the Corporation transferred millions of dollars in assets to the Bank in an effort to
shore it up. But the financial condition of both institutions continued to deteriorate, and on January 6,
1991, the Comptroller declared the Bank insolvent and named the FDIC as receiver. The next day,
145 FJd 1422 Page 3 01'5
the Corporation filed for bankruptcy.
The Trustee in Bankruptcy sued the FDIC in Massachusetts federal district court to void the
Corporation's transfers to the Bank as fraudulent conveyances. He claimed that the FDIC, acting in
concert with the Board and the Comptroller, realized that the Corporation and the Bank were already
insolvent and pressured the Corporation's management to downstream assets to the Bank to reduce
the losses that the FDIC would incur as receiver. To support his allegations, he offered evidence like
the following statement that the Comptroller of the Currency gave to Congress in defense of his
deCision not to close the Bank sooner:
[TJhe loss to the FDIC did not increase, and may well have been reduced, due to the efforts of the
new management team. These efforts included the sale of Corporation assets and the downstreaming
of the sale proceeds to the Bank. Had the Bank been closed earlier, these assets would have been left
behind in the holding company and would not have been available to reduce the FDIC's ultimate cost.
The Failure of the Bank of New England: Hearings Before the Senate Comm. on Banking, Hous.,
and Urban Affairs, 102d Congo 11 (1991) (statement of Robert L. Clarke, Comptroller, Office of the
Comptroller of the Currency). The Trustee's theory required him to show either that the transfers
were made "with actual intent to hinder, delay, or defraud" the Corporation's creditors or that the
Corporation was insolvent when the transfers were made and did not receive fair consideration in
return for them. 11 U.s.c. 548(a) (1994). If the transfers were voidable under 348, the Trustee
could recover them from the entity for whose benefit they were made. 1.1 U.S.W_550(g)LtLU994)..
The FDIC moved to dismiss the suit on the ground that it was not an "entity" under the Code because
of its role as regulator and insurer of banks and that, in any event, a reduction in its handling costs
was not the sort of "benefit" contemplated by....5_5_Q. The district court, finding the FDIC subject to
suit under 350, denied the motion. Branch V. FDIC, 825 401-02 (D.Mass.199d).
The Trustee sent discovery requests to the FDIC and served the Board and the Comptroller with
subpoenas duces tecum. All three turned over some documents, but asserted the deliberative process
privilege with respect to others. The Trustee filed a motion to compel against the FDIC in
Massachusetts and separate subpoena enforcement actions against the Board and Comptroller in
District of Columbia district court. The Massachusetts court refused to apply the privilege to the FDIC
documents. It said that, unless the FDIC could show a greater need for secrecy than the generalized
"chilling effect" of disclosure, the privilege must give way in a case that turned on the government's
intent.
Our district court, ruling subsequently, thought that the privilege could be overcome only if the
Trustee introduced eVidence of government "misconduct" or if he satisfied a five factor balancing test
showing a superior interest in the documents. The court said that the misconduct exception only
applied when a plaintiff alleged that the agency's decisionmaking process had been tainted by
misconduct. Since the Trustee "attacks the goals of the regulators' policies, to downstream assets,
and not the deliberative system from which these goals arose," it held the misconduct bar
inapplicable. As to the five factor balancing test, the court relied on the analYSis we articulated in
S!.:.hreiQgr V. There, we said that the bank
examination privilege, a close cousin of the deliberative process privilege, could be overcome on a
showing of good cause, as determined by the following considerations:
* 1424 **354 (i) the relevance of the evidence sought to be protected; (ii) the availability of
other evidence; (iii) the 'seriousness' of the litigation and the issues involved; (iv) the role of the
government in the litigation; and (v) the possibility of future timidity by government employees who
will be forced to recognize that their secrets are Violable.
Schreiber, 11 F.3d at 220-21 (citations omitted). The district court appeared to apply only the
second, third, and fourth factors. It said that the underlying litigation was not "serious" because there
was no evidence showing that either the Board or the Comptroller had engaged in "misconduct." And
since neither were named defendants in the underlying suit, the court thought their role minimal.
Finally, it emphasized that the Trustee would not suffer much harm if he could not reach these
documents, because all three agencies had already supplied him with a multitude of materials.
145 F.3d 1422 Page 4 of 5
II.
rc'!],
ill!&J Appellant's primary argument is that the common law deliberative process privilege is not
appropriately asserted-as the district court in Massachusetts appeared to recognize-when a plaintiffs
cause of action turns on the government's intent. We agree. The privilege was fashioned in cases
where the governmental decisionmaking process is collateral to the plaintiff's suit. See, e.g., In re
$ld12/H2ftfliLSftIYJ?JLJ1[iQiLWfiCQillg(rQ!1f;LQUflfLCldrn;;Il0',_.2QZ. (sha rehol de rs
sought Comptroller's bank examination reports to prove fraud charges against corporation); Singfir
Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir.1964) (petitioner wanted deliberative materials to
establish a defense to an unfair labor practice charge). If the plaintiff's cause of action is directed at
the government's intent, however, it makes no sense to permit the government to use the privilege
as a shield, For instance, it seems rather obvious to us that the privilege has no place in a Title VII
action FNl or in a constitutional claim for discrimination, See (;rawfo[d-Ei v, Britto[],.-:::.=
S.Ct. 1584, 140 L.Ed,2d 759 (1998); Webster v, Doe, 486 U.S. 592, 108S,Ct, 2047, 100 L.Ed.2d 632
(1988). The Supreme Court struggled inCrawford-EI and Webster with governmental claims that
discovery in such a proceeding should be limited, but no one in any of these cases ever had the
temerity to suggest that the privilege applied. The argument is absent in these cases because if either
the Constitution or a statute makes the nature of governmental officials' deliberations the issue, the
privilege is a nonsequitur. The central purpose of the privilege is to foster government decisionmaking
by protecting it from the chill of potential disclosure. See NLRB v, Sears, Roebuck & Co" 421 J).s.
132. 150. 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). If Congress creates a cause of action that
deliberatively exposes government decisionmaking to the light, the privilege's raison d'etre
evaporates.
FNl. On one occasion, we speculated that the privilege would apply to a Title VII suit.
American Fed'n of Gov't Emplovees, Local 2782 v. Department of Commerce, 907 F.2d
203. 207 (D.C.Cir.1990). In that case, however, our primary concern was the scope of
Exemption 5 of the Freedom of Information Act. The appellants had argued that because
the documents they sought would be "available by law" to a litigant in a Title VII suit, the
government could not claim the deliberative process privilege under Exemption 5. Part of
our response was that the privilege may well protect documents in Title VII litigation.
But, as we recognized even in that case, this assumption is not necessary to preserving
the vitality of the FOJA exemption. A litigant may not overcome Exemption 5 by reference
to hypothetical litigation. See id. at 207; see also &.,(;2., 421
U.s. 132, 149 n. 16,95 S.Ct. 1504.44 L.Ed.2d 29 (1975}; In re Sealed Case, 121 F.3d
729, 737 n. 5 (D.C.Cir.19m.
ill Q\1 The government, to be sure, disputes that appellant has such a cause of action. It argues
that however the Bankruptcy Act treats private parties, bank regulatory agencies are removed from
its reach. The Federal Deposit Insurance Act requires the FDIC and presumably its fellow government
regulators to resolve failing banks with the least possible cost to the bank insurance fund-and thus to
the American taxpayer. Therefore, the argument goes, even if the Board and Comptroller had
pressured the Corporation to downstream assets, they were only doing "the Lord's work." There may
well be a question as to the relationship between these two federal statutes, but the
Massachusetts*1425 **355 district court has, at least preliminarily, ruled on that issue by rejecting
the government's motion to dismiss the underlying litigation. We will defer to its ruling. Strictly
speaking, it might not be the law of the case, because a subpoena enforcement action is technically a
different "case" and the Board and the Comptroller are not named defendants in Massachusetts. The
suit before us, however, is tied closely to the underlying litigation, and the Board and the Comptroller
are but different government arms accused of acting in concert. As a matter of judicial comity, we
leave it to the Massachusetts court to resolve the merits of the Trustee's suit.
When it rejected the misconduct exception, our district court intuitively recognized that the
analysis normally governing the applicability of the deliberative process privilege does not fit this
145 F.3d 1422 Page 5 ot5
situation. It pointed out that the plaintiff was attacking the actual goals of the regulators, rather
than asserting that the agency's decisionmaking process was tainted with misconduct. We think that
is another way of expressing our understanding that the deliberative process privilege protects
against collateral attack. But the appropriate conclusion is not that the misconduct exception does not
apply, but rather that the privilege does not enter the picture at alI.
EN2
FN2. The word "misconduct" does not even really fit this situation, because the
government could have violated the Bankruptcy Code without the nefarious motives that
the word "misconduct" implies. Section 548 of the Bankruptcy Code requires a showing of
the government's intent, but it does not require a showing that the government acted in
bad faith. See
(Bankr.E.D.N.Y.1981) ("A plan to appropriate the assets of an insolvent debtor, while
holding the debtor's creditors at bay, is in fraud of creditors .... even if done in the
greatest good faith. ").
We therefore see no need to engage in the balancing test applied in deliberative process privilege
cases. The appellant is entitled to have his subpoena enforced.
C.A.D.C.,1998.
In re Subpoena Duces Tecum Served on Office of Comptroller of Currency
145 F.3d 1422,330 U.S.App.D.C. 352,41 Fed.R.Serv.3d 306, 32 Bankr.Ct.Dec. 998, 50 Fed. R. Evid.
Servo 1570, 10 Fourth Or. & D.C. Bankr. 429
Briefs and other Related Documents (Back to topj
1998 WL 35241307 (Appellate Brief) Reply Brief for Appellant Dr. Ben S. Branch Trustee of the Bank
of New England Corporation (Mar. 20, 1998) . .
.. ;!5241;!Q.s (Appellate Brief) Brief for Appellee Office of the Comptroller of the Currency
(Mar. 18, 1998) ..
975228 (Docket) (Sep. 12, 1997)
(Docket) (Sep. 12, 1997)
END OF DOCUMENT
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...
1 Ll r .jd IL.':.I
121 F.3d 729, 326 U.S.App.D.C. 276
United States Court of Appeals,
District of Columbia Circuit.
In re SEALED CASE.
No. 96-3124.
Argued Feb. 20, 1997.,
Ordered Published in Un redacted Form Aug. 29, 1997.
rage 1 or j'j
In course of grand jury investigation of former Secretary of Agriculture, grand jury issued
subpoena duces tecum seeking documents pertaining to White House Counsel's investigation of same
official. White House produced certain documents but withheld others under deliberative process
privilege and presidential communications privilege. Office of Independent Counsel (OlC) moved to
compel production. After reviewing documents in camera, the United States District Court for the
District of Columbia, John Garrett Penn, Chief Judge, upheld White House's claims of privilege. OlC
appealed. The Court of Appeals, Wald, Circuit Judge, held that: (1) Court of Appeals would give no
deference to district court's holding that presidential communications privilege permitted White House
to withhold certain documents; (2) White House did not waive its right to assert privileges; (3)
communications made by presidential advisers in course of preparing advice for President come under
preSidential communications privilege, even when these communications are not made directly to
President; (4) presidential communications privilege applied to all withheld documents; and (5)
although OlC's first asserted reason was insufficient to demonstrate need for those documents, OlC's
second asserted reason was sufficient to obtain in camera review.
Vacated and remanded.
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Judicially-recognized executive privileges include right to withhold documents that might reveal
military or state secrets, right to withhold identity of government informers in some circumstances,
qualified right to withhold information related to pending investigations, and grant of absolute
immunity to President from civil liability for official acts and from judicial compulsion to perform
discretionary act.
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recommendations, and deliberations comprising part of process by which governmental decisions and
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""'4JQk2J.UJ. k.In General; Official or Governmental Privilege. !"lost
Although deliberative process privilege is most commonly encountered in Freedom of Information
Act (FOIA) litigation, it originated as common law, privilege. 5 .. 552 et seq.
ill lIi KeyCjte Citing References for this Headnote
("'"'i1Q Witnesses
(",,4lOII Competency
Confidential Relations and Privileged Communications
,;o,410k216 Communications to or Information Acquired by Public Officers
'''''410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
Two requirements essential to "deliberative process privilege" are that material must be
predecisional and it must be deliberative; both requirements stem from privilege's ultimate purpose,
which is to prevent injury to quality of agency deciSions by allowing government officials freedom to
debate alternative approaches in private.
''''''''i1Q Witnesses
(,""'!:JOIl Competency
;;=4101I(Q} Confidential Relations and Privileged Communications
{"Al0k216 Communications to or Information Acquired by Public Officers
-f.,"7410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
"Deliberative process privilege" does not shield documents that simply state or explain decision
governrnent has already made or protect material that is purely factual, unless material is so
'nextricably intertwined with deliberative sections of documents that its disclosure would inevitably
reveal government's deliberations.
http://web2.westlaw.com/resultJdocumenttext.aspx?service= Find&rs= WL W8. 06&cnt=DO ... , 7118/2008
121 F.3d 729
[Ql i2T KeyCite Citing References for this Headnote
,"'A10 Witnesses
(;,,,410II Competency
c"Al0IHD) Confidential Relations and Privileged Communications
Page jot j'J
V-"4JQ_k21 Communications to or Information Acquired by Public Officers
(C"41Jl!5;2JiOl k. In General; Official or Governmental Privilege. Most Cited Case!;
"Deliberative process privilege" is qualified privilege and can be overcome by sufficient showing of
need, which is to be made flexibly on case-by-case, ad hoc basis.
ill 12l KeyCite Citing References for this Headnote
-","410 Witnesses
{7-AlOII Competency
{),Al0k216 Communications to or Information Acquired by Public Officers
<)'410k216(11 k. In General; Official or Governmental Privilege. Most Cited Cases
When "deliberative process privilege" is asserted, district court must undertake fresh balancing of
competing interests, taking into account factors such as relevance of evidence, availability of other
evidence, seriousness of litigation, role of government, and possibility of future timidity by
government employees.
-(;0',410 Witnesses
t=11Q1J Competency
Confidential Relations.and Privileged Communications
-t=410k216 Communications to or Information Acquired by Public Officers
-1>,410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
Where there is reason to believe documents sought may shed light on government misconduct,
deliberative process privilege is routinely denied, on grounds that shielding internal government
deliberations in this context does not serve public's interest in honest, effective government.
[2J I:iH KeyCite Citing References for this Headnote
{,,'326 Records
{,--326II Public Access
";,"326II(B) General Statutory Disclosure Requirements
k. Persons Entitled to Disclosure; Interest or Purpose. Most Cited Cases
Particular purpose for which Freedom of Information Act (FOIA) plaintiff seeks information is not
relevant in determining whether FOIA requires disclosure. 5 U.s.CA. 552 et seq.
um i2T KeyCite illin9 References for: this Headnote
{cc170B Federal Courts
Courts of Appeals
{,-, 170BVIII(!5J Scope, Standards, and Extent
{)"170BVIII(K)4 Discretion of Lower Court
{'.170Bk820 k. Depositions and Discovery. Most Cited Cases
ILl t.JQ Ii':! rage"t V1 :1'7
Ordinarily, Court of Appeals will review district court's ruling on subpoena for production of
documentary evidence only for arbitrariness or abuse of discretion; no deference is given, however, if
ruling rests upon misapprehension of relevant legal standard or is unsupported by record.

LVJ ..
,,'.-'170B Federal Courts
(=JZQBVJII Courts of Appeals
''"''''POBVI!ILKl Scope, Standards, and Extent
o>170BVIII(K)1 In General
(",,'170Bk758 k, Review Dependent on Mode of Trial in Lower Court, Most Cited Cases
If Court of Appeals is to defer to district court's ruling on subpoena for production of documentary
evidence, there must be some articulation of district court's reasons for its ruling.
u.211i Citing Referen<;es for this Headnote
{= 170B Federal Courts
(:=,170BVIII Courts of Appeals
",""170BVIII(K) Scope, Standards, and Extent
In General
k. Review Dependent on Mode of Trial in Lower Court. MosJ;"PteQ Ca.es
'<>'''12J Grand Jury Ii KeyCite Citing References for this Headnote
""'J2JI<:2. Witnesses and Evidence
"'''12.;lK3..,2 Objections and Determination Thereof
(;=193k36,9(1) k, In General. Most Cited Cases
Court of Appeals would give no deference to district court's holding that presidential
communications privilege permitted White House to withhold certain documents that grand jury
sought by subpoena duces tecum in connection with its investigation of former Secretary of
Agriculture; district court not only failed to make factual findings but also failed to provide any
explanation of its legal reasoning.
I',')'
U..:D t& KeyCite Citing References for this Headnote
,(:.-.-,193 Grand Jury
r;,.,193k36 Witnesses and Evidence
'c=193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
c",'193k36.3(2) k, Privilege. Most Cited Cases
White House press statement indicating that White House would comply with grand jury subpoena
duces tecum served on Counsel to President (White House Counsel) did not result in waiver of White
House's right to invoke presidential communications privilege with respect to certain of those
documents; press statement did not explicitly declare that White House would forego any and all
claims of privilege that might apply to documents, and it was clear from record that Office of
Independent Counsel (OIC) was well aware that White House would be asserting privileges as to
certain documents.
'C',' 1.2.3. Grand Jury
t:>121K3.. Witnesses and Evidence
121 F.3d 729 l:'age ) or 5':/
193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
::"193k36.3(2) k. Privilege. Most Cited Cases
Prior to Office of Independent Counsel's (OIC) motion to compel, White House had no obligation to
formally invoke its claim of executive privilege with respect to certain documents that grand jury
sought by subpoena duces tecum in connection with its investigation of former Secretary of
Agriculture, and thus, failure to invoke that privilege prior to Ole's motion did not result in waiver of
privilege; motion to compel was first event which could have forced disclosure of documents, and,
because OIC was aware in advance of motion to compel that White House likely would be asserting
privilege, OIC was not prejudiced by any alleged delay in White House's formally invoking its
privileges.
U2 Citing References for this Headnote.
t""12.3. Grand Jury
Witnesses and Evidence
'c",,193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
k. Privilege. Most Cited Cases
Although White House's release, to former White House official's counsel, of White House Counsel's
final report concerning White House Counsel's investigation of that official resulted in waiver of White
House's claim of executive privilege with respect to that document, thus requiring White House to
supply that document to grand jury in accordance with grand jury subpoena duces tecum seeking
that document and others, such release did not result in waiver of privilege with respect to documents
that White House generated in producing ultimate version, including copy of final report which
contained handwritten notations that White House claimed were not on report sent to official's
counsel.
r''1I'
UJil .KeyCite Citing References for this Headnote
,:p,"lLQ Witnesses
'(:"A10!] Competency
,.>410II(D) Confidential Relations and Privileged Communications
c.::A10k2l6 Communications to or Information Acquired by Public Officers
(',:A10k2l6(1) k. In General; Official or Governmental Privilege. Most Cited Cases
':':''!1Q KeyCite Citing References for this Headnote
Competency
".A10II(D) Confidential Relations and Privileged Communications
'>4l0k222 k. Evidence as to Nature and Circumstances of Communication or Other Subject-
Matter.
{,,"A10 Witnesses llB' .KeyCite Citing References for this Headnote
'''"'OI10lI Competency
<,,'410k223 k. Determination as to Admissibility. Most Cited Cases
President can invoke "presidential communications privilege" when asked to produce documents or
other materials that reflect presidential decisionmaking and deliberations and that President believes
should remain confidential, and if President does invoke that privilege, documents become
presumptively privileged; however, if court believes that adequate showing of need has been
demonstrated, it should then proceed to review documents in camera to excise non-relevant material
and to release remaining relevant material; President, however, should be given opportunity to raise
-nore particularized claims of privilege if court rules that presidential communications privilege alone
is not sufficient basis on which to withhold document.
7/1 RI?()()R
121 F.3d 729
l1Zl iS8' KeyCite Citing References for this HeadnotE;
<,,,410 Witnesses
1)',,,4101I Competency
f;,"410II(D) Confidential Relations and Privileged Communications
l:'age () or j':J
'>"lOk.2.1t!J. k. In General; Official or Governmental Privilege.
While "presidential communications privilege" and "deliberative process privilege" are closely
affiliated, they are distinct and have different scopes; both are executive privileges designed to
protect executive branch decisionmaking, but one applies to decisionmaking of executive officials
generally, other specifically to decisionmaking of President.
uru KeyCite Citing References for this Headnote
c,,"410 Witnesses
{M
o
4101I Competency
"p,,410!I(D) Confidential Relations and Privileged Communications
c',,410k216 Communications to or Information Acquired by Public Officers
"",,410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
"Presidential communications privilege" is rooted in constitutional separation of powers principles
and President's unique constitutional role, while "deliberative process privilege" is primarily common
law privilege; thUS, congreSSional or judicial negation of presidential communications privilege is
subject to greater scrutiny than denial of deliberative privilege. seq.
ll.'ti llilr KeyCite Citing References for this Headnote
" >',
'V.'!
.. __ ----___
',>o410II Competency
v,,410II(D) Confidential Relations and Privileged Communications
.;:,.,,410k216 Communications to orInformation Acquired by Public Officers
k. In General; Official or Governmental
Unlike "deliberative process privilege", "presidential communications privilege" applies to
documents in their entirety, and covers final and post-deciSional materials as well as pre-deliberative
ones.
J2.Ql12r KeyCite Citing References for this Headnote
,0'410 Witnesses
{',,410Il Competency
{;'o410!I(Q.2 Confidential Relations and Privileged Communications
i"":110KfJ6 Communications to or Information Acquired by PubliC Officers
-C='lIQk4)6t!J k. In General; Official or Governmental Privilege. !':lost.Q.t<';.c;LCases
Although White House's ex parte contacts with outside agencies may be subject to disclosure by
statute, court will refuse to require disclosure of conversations between agency and President or
White House staff, at least where proceeding was not adjudicatory and statute did not specifically
require disclosure, because of President's need to oversee executive agencies.
'21J Iiif KeyCite Citing References for this Headnote
121 F.3d 729
',>A10 Witnesses
<'''A1OI! Competency
,p410II(D) Confidential Relations and Privileged Communications
Page 7 of39
,"'410k216 Communications to or Information Acquired by Public Officers
k. In General; Official or Governmental Privilege. M9.;;U::ltg\!.C.f\?e.?
While both deliberative process privilege and presidential communications privilege are qualified
privileges, presidential communications privilege is more difficult to surmount: in regard to both,
courts must balance public interests at stake in determining whether privilege should yield in
particular case, and must specifically consider need of party seeking privileged evidence, but this
balancing is more ad hoc in context of the deliberative process privilege, and includes consideration of
additional factors such as whether government is party to litigation.
un Li ..Ks:yClte Citing References for this Headnote
{""410 Witnesses
{""410I! Competency
''''''4.lOk216(11 k. In General; Official or Governmental Privilege. MostiJ;gd
Although "deliberative process privilege" disappears altogether when there is any reason to believe
government misconduct occurred, party seeking to overcome "presidential communications privilege"
seemingly m,ust always provide focused demonstration of need, even when there are allegations of
misconductby high-level officials.
J2:l.l Li Key Cite Citing References for this Headnote
'''',41Q Witnesses
________ :....--' ___ _
{"A10I!(D) Confidential Relations and Privileged Communications
C-"41Ok216 Communications to or Information Acquired by Public Officers
",.?410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
Communications made by preSidential advisers in course of preparing advice for PreSident come
under "presidential communications privilege", even when these communications are not made
directly to President; privilege must apply both to communications which these advisers soliCited and
received from others as well as those they authored themselves, and privilege must also extend to
communications authored or received in response to solicitation by members of presidential adviser's
staff.
f2.'!l12f KeyCite Citing References for this He.iJ.dnote
,,"41 Q Witnesses
Competency
,"'410II(D) Confidential Relations and Privileged Communications
<fco41Ok216 Communications to or Information Acquired by Public Officers
'","41Ok216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
"Presidential communications privilege" should be construed as narrowly as is consistent with
ensuring that confidentiality of President's decisionmaking process is adequately protected.
(22J IS1 KeyCite Citing References for this Headnote
"",,410 Witnesses
121 F.3d 729 Page 8 of 39
'."A10I! Competency
,,".'410II(D) Confidential Relations and Privileged Communications
{;'410k216 Communications to or Information Acquired by Public Officers
,p410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
Not every person who plays role in development of presidential advice, no matter how remote and
removed from PreSident, can qualify for "presidential communications privilege"; in particular,
privilege should not extend to staff outside White House in executive branch agencies, but instead,
privilege should apply only to communications authored or solicited and received by those members
of immediate White House advisor's staff who have broad and significant responsibility for
investigating and formulating advice to be given President on particular matter to which
communications relate.
illJ I2f KeyCite Citing References for this Headnote
Records
-<,"326II PubliC Access
{>';,326Il{ B1 General Statutory Disclosure Requirements
<"';326k53 Matters Subject to Disclosure; Exemptions
k. Internal Memoranda or Letters; Executive Privilege. t)ost Cited (;ases
Witnesses r J<.JOYCite Citing References for this Headnote
{"",,lOll Competency
{>""lQIW;:>l Confidential Relations and Privileged Communications
;;,>410k2:l.6'Coinmunications to or Information Acquired by Public Officers
''''''410k216(1l k. In General; Official or Governmental Privilege. Most Cited Cases
Although "presidential communications privilege" applies to communications made by preSidential
advisers in course of preparing advice for PreSident, privilege only applies to communications that
these advise, s arid their staff a 'clt and receive In course of performing their function of
adVising President on official government matters; this restriction \s pa 'c .; rd
to those offiCials who exercise substantial independent authority or perform other functions ih
addition to advising President, and thus are subject to Freedom of Information Act (ForA) and other
open government statutes. 5 U.s.CA. 552 et seq.
I2Zl!I8.' KeyCite Citing References for this Headnote
<>,410 Witnesses
"',410II Competency
,,"'410k216 Communications to or Information Acquired by Public Officers
Cc,,410k21..i11 k. In General; Official or Governmental Privilege. Most Cited Cases
"Presidential communications privilege" should never serve as means of shielding information
regarding governmental operations that do not call ultimately for direct decisionmaking by President.
l2llJ Jr KeyCite Citing References for this Headnote
'(;-',410 Witnesses
(',,410II Competency
,>"410II(D) Confidential Relations and Privileged Communications
,>410k222 k. Evidence as to Nature and Circumstances of Communication or Other Subject-
"latter. Most Cited Cases
If government seeks to assert presidential communications privilege in regard to particular
121 F.3d 729 Page Y ot 3Y
communications of "dual hat" presidential advisers, i.e., those who exercise substantial
independent authority or perform other functions in addition to advising President, government bears
burden of proving that communications occurred in conjunction with process of advising President.
.
U2l m KeyCite Citing References for this Headnote
,>00393 United States
'ip.o3931 Government in General
,'."393k2. k. President. Most Cited Cases
United States Iri:l KeyCite Citing References for this
'<:=3931 Government in General
",,,393k35 k. Appointment, Qualification, and Tenure of Officers. Most Cited Cases
Constitution does not explicitly grant President power to remove executive branch officials, but it is
well established that this power, at least in regard to some officials, can be inferred from PreSident's
other enumerated powers and responsibilities.
UQl Citing References for this Headnote
',;"";393 United States
{''3931 Government in General
k. President. Most Cited Cases
'"",393 United States KeyCite Citing References.for this 'Headnote
<", .. 3931 G()vernment in General
{p'393k35 k. Appointment, Qualification, and Tenure of Officers. Most Cited Cases
'.' .... t's remove.! power over some .executive branch officials is limited, Presiden-t has
unquqlifjed p.oY'(er t.o appoint and remove cabinet officers. .' .
.
Llli 00 KeyCite Citing References for this Headnote
Grand Jury
i;.'"19_:LkJ. Witnesses and Evidence
'> .. 193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
'>"193k36.3(2), k. Privilege. Most Cited Cases
"Presidential communications privilege" applied to materials used in investigation and formulation
of preliminary drafts of White House Counsel's report on Investigation of former White House official,
notes of meetings among White House advisers, and draft press briefings, which documents were
sought by grand jury subpoena duces tecum in connection with investigation of that official; even
though President did not actually view documents, they were generated in course of advising
President in exercise of his appointment and removal power, thus assuring that documents were
intimately connected to presidential decisionmaking.
f321 KeyCite Citing References for this Headnote
(,,"92 Constitutional Law
j).',,92XX Separation of Powers
ljo,,92XX(B) Legislative Powers and Functions
-c"92XXCB13 Encroachment on Executive
k. In General. Most Cited Cases
(Formerly 92k58)
121 FJd 729 Page 10 of39
President's ability to withhold information from Congress implicates different constitutional
considerations than President's ability to withhold evidence in judicial proceedings.
m'
Ull Citing References for this Headnote
Witnesses
Competency
{:"AlOII(D) Confidential Relations and Privileged Communications
'''''41Ok216 Communications to or Information Acquired by Public Officers
""":4lOk216(1) k. In General; Official or Governmental Privilege. Most Cited Cases
Party seeking to overcome claim of presidential privilege with respect to subpoenaed documents
must demonstrate (1) that each discrete group of subpoenaed materials likely contains important
evidence, and (2) that this eVidence is not available with due diligence elsewhere; first component
means that evidence sought must be directly relevant to issues that are expected to be central to
trial, and second component requires that privileged presidential communications should not be
treated as just another source of information.
1!'11
LHl KeyCite Citing References for this Headnote
Grand Jury
"y"'193k36 Witnesses and Evidence
{.'''l93k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
k. Privilege.

Witnesses IiJ KeyCite Citing References for this Headnote
{)"410Il Competency
Confidential Relati,ons and Privileged Communications
communlcatlqns to byPublic Ciffic(lr.
k. In General; Official or Governmental Privilege: Most Cited Cases
Showing of need that party must make to overcome assertion of presidential privilege with respect
to grand jury subpoenas is no different than showing required for trial subpoenas;-in both Situations,
it is necessary to demonstrate with specificity why it is likely that subpoenaed materials contain
important evidence and why this evidence, or equivalent evidence, is not practically available from
a nother source.
D21 iiB' KeyCite Citing References for this Headnote
'{"").93. Grand Jury
Witnesses and Evidence
Grounds for Refusal to Appear, Testify, or Produce Evidence
(=193k36.3(2) k. Privilege. Most Cited Cases
Fact that subpoenaed eVidence covered by presidential communications privilege may be
inadmissible should not affect court's determination of grand jUry's need for that material.
iiB' KeyCite Citing References for this Headnote
{,,' 12.J, Grand Jury
:>.193k36 Witnesses and Evidence
{i. 193k36.3 Grounds for Refusal to Appear, Testify, or Produce EVidence
',',','193k36.3(2) k. Privilege. Most Cited Cases
121 F.3d 729 l'age 1 1 01 j')
"Presidential communications privilege" applied to documents authored by White House Counsel,
Deputy White House Counsel, Chief of Staff and Press Secretary, relating to White House Counsel's
investigation of former White House official, as well as to notes taken of meetings on investigation at
which these advisers were present, which documents were all sought by grand jury subpoena; such
documents were communications connected to offiCial matter on which those advisers were directly
advising President.
Grand Jury
(P""193k36 Witnesses and Evidence
1.'t3k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
k. Privilege. Most Cited Cases
"Presidential communications privilege" applied to documents that associate White House Counsels
authored or solicited and received from others in connection with White House Counsel's investigation
of former White House official, which documents were all sought by grand jury subpoena; associate
White House Counsels exercised broad and significant responsibility for gathering information on
investigated official's actions and authoring initial drafts of White House Counsel's report.
illJ II KeyCite Citing Referen<;es for this HeadnQ]g
("'193 Grand Jury
<?"193k36 Witnesses and Evidence
<C',,193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
""193k36.3(2) k. Privilege. Most Cited Cases
"Presidential communications privilege" applied to documents authored by legal extern in White
House Counsel'soffice pertaining to White' House Counsel's investigation offormerWhite House
official, which dOCOll'ellt .... ". . .. . .... .. . '. '. . ven thou h Ie. al extern did not
exercise broad and significant responsibilityfcir inilestigation, sothat documents authored y.ex ern
did not, on their own, qualify for presidential privilege, all such documents were created at request of
two associate White House Counsels with broad and significant responsibility for investigation and
were received by them .
. (C",.1;U Grand Jury
-e"",193k36 Witnesses and Evidence
Grounds for Refusal to Appear, Testify, or Produce Evidence
;p 12.:2kJ.,3J21 k. Privilege. lVlost.Cited Casej;
Documents pertaining to operational details of White House Counsel's investigation of former
White House official, for which documents no author was listed, were protected from grand jury
subpoena by "presidential communications privilege", as review of documents showed that they were
solicited by Deputy White House Counsel and associate White House Counsel, even though documents
did not so specify.
[1.0J IRr ..KeyCite Citing References for this Headnote
-r;',,193 Grand Jury
{;",193k36 Witnesses and Evidence
{,,193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
"", 193k36. 3(2) k. Privilege. Most Cited Cases
121 FJd 729 rage
Standard applied to determine if sufficient showing of need has been made to obtain in camera
review of documents allegedly protected from grand jury subpoena by presidential communications
privilege, is much more difficult to satisfy than standard applied during in camera review to determine
exactly what evidence should be released.
GUlIll KeyCite Citing References for this Headnote
<""J1Q!2 Federal Courts
",o170BVIII Courts of Appeals
t"'170BV!IICC) Decisions Reviewable
Finality of Determination
,;=170Bk585 Particular Judgments, Decrees or Orders, Finality
{/o170Bk594 k. Discovery and Production of Documents; Depositions. Most Cited Cases
Although President is allowed to immediately appeal order requiring production of subpoena'ed
materials for in camera reView, general rule is that order requiring production of evidence for in
camera review is not final and hence not appealable.
liM KeyCite Citing References for this Headnote
Grand Jury
,,,,193k36 Witnesses and Evidence
"'''193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
{,,193k36.3(21 k. Privilege. Most Cited Cases
Fact that documents that White House Counsel withheld from grand jury subpoena under
presidential communications privilege were generated by White House Counsel's office in preparing its
report on same allegations regarding former White House official that grand jury was investigating
as insllfficientshowing of need to overcome assertion bf privilege, as Office of Independent Counsel
(OICYdidnotma e SUi." ". ... ...... . ,.., . to obtain that information from alternative
sources or explain why it particurarly needed to know what evidence was In I e, .
WJ [l[ KeyCite Citing References for this Headnote
,,"'193 Grand Jury
{',193k36 Witnesses and Evidence
f"'193k36.3 Grounds for Refusal to Appear, Testify, or Produce Evidence
,ij,193k36.3(2) k. Privilege. Most Cited Cases
Office of Independent Counsel (OIC) made sufficient showing that grand jury investigating former
Secretary of Agriculture needed notes from meetings and conversations with Secretary's counsel,
which were prepared in course of White House Counsel's investigation of Secretary, and thus, OIC
overcame White House Counsel's assertion of presidential communications privilege with respect to
those documents; it was likely that documents contained statements by Secretary's counsel to White
House, such eVidence could be critical to grand jUry's determination of whether Secretary made false
statements, and that eVidence was not available elsewhere.
*734 **281 BEFORE: \fi.ALQ, and ROGI;BS, Circuit Judges.
ORDER
August 29, 1997
7/1 R/l008
121 FJd 729 Page 13 ol3Y
Per Curiam.
In light of the recent indictment of former Secretary of Agriculture, Mike Espy, it is no longer
necessary to maintain under seal any portion of the Court's opinion issued on June 17,1997. It is,
therefore, ORDERED, on the Court's own motion, that the opinion be amended as follows:
The previously sealed portions are hereby unsealed. The Clerk is directed to file and issue the
unredacted opinion.
Footnote 24 of the opinion issued on June 17, 1997, shall be deleted. (Editor's Note: A different
footnote 24 is included as part of this published opinion.]
Appeal from the United States District Court for the District of Columbia (No. 95ms00192).
Theodore S. Greenberg, Deputy Independent Counsel, Alexandria, VA, and !:=harles M. Kagay, Chief
Appellate Counsel, San Francisco, CA, argued the cause for appellant, with whom Donald C. Smaltz,
Independent Counsel, Los Angeles, CA, was on the briefs.
W . .J'!eil E;ggleston, Washington, DC, argued the cause for appellee, with whom Mark 1. Levy and
Demitri J. Nionakis, Washington, DC, were on the brief.
Before: WALD, GINSBURG and ROGERS, Circuit Judges.
WALD, Circuit Judge:
This case involves an effort by the Office of the Iridependent Counsel ("OK") to compel
performance of a subpoena duces tecum issued by the grand jury investigating former Secretary of
Agriculture Alphonso Michael (Mike) Espy ("Espy") and served on the Counsel to the President ("White
House Counsel:'). The White House provided severalfolders of documents to the orc in response to
the ,subpoena but withheld 84 documents as privileged. After ordering that the withheld. documents be
... '."" ..... review the district court the White House's claims of privilege iofull.
We 'now va'catethe district court's opinion an re' '. '. court tQ coodllet a more'detailedrevfew
of the documents consistent with the principles set out in this opiriiOrY.
I. BACKGROUND
A. Factual Background
Allegations that Espy may have improperly accepted gifts from individuals and organizations with
business before the U.5. Department of Agriculture ("USDA") first surfaced publicly in March of 1994.
These allegations led to the appointment of an Independent Counsel, on September 9, 1994, to
investigate whether Espy had unlawfully accepted gifts and related matters and to prosecute any
related violations of federal law that the Independent Counsel reasonably believed had occurred. See
In reAlphonso (Mike) Espy, No. 94-2 CD.C.Cir. Spec. Div.1994); see also In re Espv, 80 [3d 501
(per curiam). This investigation into Espy's actions is still ongoing.
*735 **282 The same allegations also led the President of the United States to direct the White
House Counsel to investigate Espy's conduct in order to advise the President on whether he should
take executive action against Espy. On October 3, 1994, Espy announced his resignation, effective
December 31, 1994. A little over a week later, on October 11, 1994, the White' House publicly
released a report on Espy produced by the White House Counsel. The report stated that the President
had asked the White House Counsel to address two issues: "(1) whether the President should direct
that any further action be taken with respect to Secretary Espy's conduct; and (2) what actions
should be taken to ensure that similar incidents are avoided by other Members of the Cabinet." After
detailing several areas in which questions had been raised regarding Espy's conduct, the report
concluded that no further executive action need be taken against Espy since he had announced his
7/1 RI?OOR
ILl r.JQ 11.'1
lac;,vl"TVlJ/ ":'!',
resignation, reimbursed the cost of questionable transactions, recused himself from matters
involving meat and poultry inspection and undertaken screening measures for his travel. The report
also recommended that efforts be undertaken to ensure that all cabinet members and other executive
branch officers be given ethics training and be familiarized with applicable ethical standards for
executive branch officers.
On October 14, 1994, the grand jury issued the subpoena duces tecum at issue in this case. The
subpoena seeks all documents on Espy and other subjects of the OlC's investigation that were
"accumulated for, relating in any way to, or conSidered in any fashion, by those persons who were
consulted and/or contributed directly or indirectly to all drafts and/or versions" of the White House
Counsel's report. Within this broad category of documents relating to the White House Counsel's
report, the subpoena specifically requests notes of any meetings in the White House concerning Espy
and of any conversations between Espy or his counsel and White House employees. On October 20,
1994, the White House issued a press statement stating that it had received a subpoena for
documents relating to the White House Counsel's report and would comply with the subpoena. On
November 17, 1994, the White House produced several folders of documents for the OlC, which the
White House maintained represented all responsive documents except those withheld on the basis of
privilege. On December 12, 1994, at the OlC's request, the White House produced a privilege log
identifying the date, author, and recipient of each document withheld as well as a general statement
of the nature of each document and the basis for the privilege on which the document was withheld.
This privilege log indicated that 84 documents were withheld on grounds of the deliberative process
privilege, with one document additionally withheld on grounds of attorney-client privilege.
FNl
In a
later draft of the privilege log, the White House lists the privilege basis of all 84 documents as being
"executive/deliberative privilege." fJif
JJ:il.,:.Anotherdocument was initiallywithheld on grounds of attorney work product
privilege, but has since been released.
fN2" It is clear from the briefs and. oral argument in this case, as well as the district
c.oUTt's opinion,tt)at by "executive privilege" the White House iSJeferring to the .
that attaches to confidential presidential communications; . However, as we discuss below,.,
. . '," e utive rivilege" is generally us'ed to refer toa wide variety of .. '.,;.>
evidentiary and substantive privileges. that cou
Consequently, we refer to the privileges asserted by the Whl1:e!1oUsernbre specifically as
the presidential communications privilege, or presidential privilege, and the deliberative
jJ<'ocess privilege.
The OlC negotiated with the White House for access to the Withheld documents for several
months, finally filing a motion to compel production on June 7, 1995. The White House resisted the
motion, arguing that the withheld documents came within both the privilege for presidential
communications, recognized in United States v. Nixon. 418 U.S. 683.94 S.Ct. 3090.41 L.Ed.2d 1039
(1974) (Nixon), and the deliberative process privilege that protects the deliberations and
decisionmaking process of executive officials generally. After a hearing on the motion to compel, the
district court ordered the White House to produce the withheld documents for in camera review and
the White House complied. Each document produced was accompanied by an ex parte cover *736
**283 sheet that explained the purpose of the document. The OlC also made an ex parte submiSSion
justifying the grand jury's need for the documents. On September 30, 1996, the court denied the
motion to compel. The memorandum opinion accompanying the denial quoted from Nixon to the
effect that the "generalized assertion of privilege [for presidential communications] must yield to the
demonstrated, specific need for evidence in a pending Criminal trial," 4 Hlj,tcS.,...ftLl.13, 9'lS.CLat
3110, but then concluded that the White House had properly asserted the claimed privileges in this
case. In reaching this conclUSion, the court stated that it had carefully reviewed the documents, but
did not discuss the documents in any further detail and provided no analysiS of the grand jury's
asserted need for the documents.
The OlC appeals from the district court's decision. The orc argues that, at a minimum, the district
court's order should be vacated and the matter remanded because the district court failed to provide
,. _., .... W8.06&cnt=DO... 7118/2008
,oW'
121 FJd729 Page is oU'!
any account of its reasoning in denying the OIC's motion to enforce the subpoena. On the merits,
the orc maintains that the district court erred in denying the motion to compel because the White
House had waived its claims of privilege by releasing the final White House Counsel's report, stating it
would comply with the subpoena, and unduly delaying in invoking privilege. The OlC further argues
that the presidential communications privilege does not apply to the withheld documents because
none of the documents was sent to or received from the President; the only document that the
President received regarding the Espy investigation was the White House Counsel's final report, which
was publicly released. Alternatively, the OlC claims that even if the withheld documents do enjoy the
presidential privilege, the district court should have applied a less restrictive need standard than that
articulated in Nixon, because this case involves a grand jury subpoena instead of a criminal trial
subpoena, and the grand jury's need for the documents is sufficient to overcome the claims of
executive privilege raised in this case. Although the OlC does not separately discuss the applicability
of the deliberative process privilege in any detail, it maintains in passing that the need to obtain
evidence that may shed light on governmental misconduct outweighs the deliberative process
privilege.
The White House challenges each of these arguments. It insists that it has not waived its claims of
privilege and that the withheld documents come under the presidential communications privilege
because they were generated in response to the President's request for adVice on whether to retain a
cabinet officer, one of the President's core functions under Article II of the Constitution. The White
House also notes that the deliberative privilege would apply to the documents in their entirety
because the factual material in the documents is inseparable from the documents' deliberative
portions. The White House contends that the same standard of need applies when the presidential
privilege is raised in response to a grand jury subpoena as when a criminal trial subpoena is involved,
and the OlC has failed to demonstrate a suffiCient need to .jUstify release under either the presidential
privilege or the deliberative process privilege. F,inally, the White House maintains that, sit)ce the
district court reviewed the documents in carner!'", it provided sufficient explanation for its deCision to
deny the motion to compel even though it did not discuss the documents individually.
8. Legal Background: On Executive Privilege Genetallyand the Deference Due'to the District Court
of OUI , ialshavetlaimed a variety of privilegestQ
resist disclosure of iriforination the confidentiality of which they felt was crucia 0 u
unique role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. See United
States v. Revnolds, 345 U.S. 1, 6'8, 73 S.Ct. 528, 531'32, 97 L.Ed. 727(1953); Chicago & Southern
Air Lines, lne. v. Waterman U.S. lQ1., 111, 68 S.Ct. 43'1,436,92 L.Ed. 568
(1948); Totten v. United States, 92 U.S. 105, 106-07,23 L.Ed. 605 (1875l. The courts have also
granted the executive a right to withhold the *737 **284 identity of government informers in some
circumstances, see Roviaro v. United States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d
. .l<;t5Zl., and a qualified right to withhold information related to pending investigations. See
Friedman v. Bache Halsey Stuart Shields, Inc .. 738 F.2d 1336, 1341-43 (D.C.Cir.1984). Other
privileges sanctioned by the Supreme Court include the grant of absolute immunity to the President
from civil liability for official acts, see Nixon v. 749, 102 S.ct. 2690, 2701"
73 L.Ed.2d 349 (1982) ( Fitzgerald), and from judicial compulsion to perform a discretionary act. See
Franklin y. Mag;achusetts, 505 U.S. 788, 802-03, 112 S.Ct. 2767, 2776-77, 120 L.Ed.2d 636 (1992)
(plurality opinion); Swan v. 100 F.3,JLV3.,Jl77-711.J.Q,C.Cir.1996).OO
fN3" For a listing of the different forms of executive privilege sanctioned by courts, see
Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege,
65 IND. U. 845, 845 n.3 (1990); see generally MURL A. LARKIN, FEDERAL
TESTIMONIAL PRIVILEGES 5 to 7 (1996); 3 WEINSTEIN'S FEDERAL EVIDENCE
509-10 (Joseph M. McLaughlin, ed., 2d ed.1997).
ill Ga'LU IYf wl'iif ill The most frequent form of executive privilege raised in the judicial arena
oS the deliberative process privilege; it allows the government to withhold documents and other
7/1 W008
ILl t.jQ tL.':J
materials that would reveal "advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v.
__ Cl.? .. 4 .. aff'd, .. U;U;;cC:i.L1967); accord
NLRB v. Sears, Roebuck & Co .. 421 U.S. 132, 151-53,95 S.Ct. 1504,1516-18,44 L.Ed.2d 29 (1975);
fPA v. Mink, 410 U.s, 73, 86-93, 93 S,Ct. 35 L.Ed.2d 119 (1973), Although this
privilege is most commonly encountered in Freedom of Information Act ("FOlA") litigation, it
originated as a common law privilege, See Wolfe v, Department of Health and Human Services, 839
F,2d 768, 773 (D,C,Cir,1988) (en banc); Jordan v. Department of Justice, 591 F,2d 753, 772
(en banc),FN4 Two requirements are essential to the deliberative process privilege: the
material must be predecisional and it must be deliberative, See Armv Times Publ'g CO, Y, Department
of the Air Force, 998 F,2d 1067, 1070 (D,C.Cir,1993); Wolfe, 839 F,2d at 774, Both requirements
stem from the privilege's "ultimate purpose[, which] , is to prevent injury to the quality of agency
decisions" by allowing government officials freedom to debate alternative approaches in private,
Sears, 421 U.S, at 151. 95 S.Ct, at 1516-17, The deliberative process privilege does not shield
documents that simply state or explain a decision the government has already made or protect
material that is purely factual, unless the material is so inextricably intertWined with the delibeiative
sections of documents that its disclosure would inevitably reveal the government's deliberations, See
id, at 150-54, 95 S,Ct. at 1516-18: Mink, 410 U.s, at 87-91, 93 S,Ct. at 836-38:. Wolfe, 839 F.2d at
see generally Russell L Weaver & James T,R, Jones, Tll,UI .. e/ibe111..tivUJQ.t;esJiPLivii/ill.e, 54 MO,
279,290-98 (1.2ll9.),
FN4, Some aspects of the privilege, for example the protection accorded the mental
processes of agency officials, see United States v, Morgan. 313 U.s, 409, 421-22, 61
.. JOQ4-_Q2 ... 85..hEd, 142.til9...'!.U, have roots in the constitutional separation of
powers, See 3 WEINSTEIN'S FEDERAL EVIDENCE 509,21[3] at 509-16,
[11i!1 WOOliH 1R1'L2] ilia' The deliberative process privilege is a qualified privilege arid can be
overcome by a sufficient showing of need
FNs
This need determination is to be made flexibly on a
case-by-case, ad hoc basis, "[E]ach time [the deliberative process privilege) is asserted the district
. t must undertake afresh balancing of the competing interests," taking into account factors such
qS "the relevance of t e . ". . ,"" '. bilit of other eVidence," "the seriousness
of the litigation," "the role of the g()Vernment," and the "possibility of future Iml I y .
employees," In re Subooena Served Upon the Comptroller of the Currencv, 967 F,2d 630,634
(D,CCir, 199.). (internal quotations omitted) (quoting In re Franklin Nat'l Bank Securities Litig .. 478
see also . ..2.&..UrLlA.n, .... .
(describing need in the context of the law enforcement investigatory privilege, which involves
balancing Similar factors, as "an elastiC concept"); Develooments in the Law-privile,ged
Cgm .. cJ12Q.,_.:tJi.21 .. ("courts simply engage in an ad hoc balancing
of the evidentiary need against the harm that may result from disclosure"); LARKIN, supra, 5,03 at
5-89 to 5-92 ("need for [privileged materials] may vary conSiderably, depending on the
Circumstances"), For example, where there is reason to believe the documents sought may shed light
on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal
government deliberations in this context does not serve "the public's interest in honest, effective
government." LexacQ..Euerto Rico, Inc. v, Depill'tJD .. ent oL{;.Qnsul11J'!Lflffairs, 6ll F,3d 86L .... 88!? .. D.2t
Cir.1995); see also l.Jl..J:J'!..Comptrolierof the Currency, 967 F,2d at 634 ("the privilege may be
overridden where necessary '" to 'shed light on alleged government malfeasance' ") (quoting Frankli!]
l':!.i!.t'UJank, 478...5..llillLQ.t582).;. Wetlaufer, supra, at 852 n, 25, 855 (listing cases),
This characteristic of the deliberative process privilege is not an issue in FOIA cases
because the courts have held that the particular purpose for which a FOIA plaintiff seeks
information is not relevant in determining whether FOIA requires disclosure, See Sears,
42 LlJ...-.S , aU49 n, 16,95 S,Ct. at 1516 nJ;. Mink, 410 U,S, at 86,..2.l..S,Ct. at 83.5.;. see
also l2J'!Qartment of Justice v, Reporters Committee for Freedom of the Press, 489 U,S,
749,771-72,1095,0, 1468, 1480-81, 103 LEd,2d 774 (1989) (determination of
whether disclosure of information constitutes an unwarranted invasion of privacy under
FOIA's exemption 7(c) turns on nature of document and what document reveals about
- '. "',,",Af"\fl
121 F.3d 729 Page 17 of39
operation of government and not on identity or purpose of requestor).
Although executive privilege in general is no stranger to the courtroom, one form of the executive
privilege is invoked only rarely and that is the privilege to preserve the confidentiality of preSidential
communications. Hints of a presidential communications privilege made an early appearance in
Marbury v. Madison where Chief Justice MarshaJl suggested that for a court to intrude "into the
secrets of the cabinet" would give the appearance of "intermeddl[ing] with the prerogatives of the
executive." 2J,.1 .. ;; . ..6J)LHtQ;J.}. Four years later, in 1807, MarshaJl again
addressed the presidential privilege during the trial of Aaron Burr on charges of treason. President
Jefferson asserted the privilege in an effort to avoid producing a letter that he had received from
General Wilkinson, one of Burr's main accusers. MarshaJl, sitting on circuit, issued a subpoena for the
letter, ruling that "[i]f [the letter] does contain any matter which it would be imprudent to disclose,
which it is not the wish of the executive to disclose, such matter, if it be not immediately and
essentially applicable to the point, will, of course, be suppressed." United States v.,Burr, 25 F, Cas .
.:l.Q...37 (C.C.Va, 1807) (No. 14,692d). Although Burr was acquitted in his treason trial before there
were further proceedings on his subpoena, he was immediately put on trial again on misdemeanor
charges and as a result sought production of another letter Wilkinson had sent to Jefferson, See Paul
A, Freund, Tl1e.SJl.p.rems;.(:.Qurt:JW On P..re;;ldentiiJl Privi@e, 88 HARV, L, REV" 13",
22-31 (1974 ),
In neither instance, however, was Marshall forced to definitively decide whether such a presidential
privilege existed and if so, in what form, In Marbury, Marshall found that the question of whether a
commission as justice of the peace had been issued was a matter of legal and public record, not a
confidential cabinet matter, setting the stage for the Court's pronouncement there that "[i]t is,
emphatically, the province and duty of the judicial department, to say what the law is," 5 U.s. ,(1
Cranch) at 177,EN In the Burr misdemeanor trial, Jefferson responded to the subpoena by sending
Wilkinson's letter to George Hay, the u.s, Attorney prosecuting Burr, with instructions thattheU.S,
Attorney should determine what portions should *739 **286 be withheld, This delegation induced
, Marshall to order that the letter be provided to Burr in its entirety, because "[t]he propriety of
withholding [the letter] must be decided by [the President} hirllself," .
187, ((,C,Va.WIll.) (No 14,694), FN7 ' " ,
El'lQ.. MarshaJl's conclusion was presaged by the argument before the Court, where then-
Attorney General and former Secretary of State Levi Lincoln had resisted testifying about
the whereabouts-of Marbury's commission on the grounds that such information was an
offiCial secret he had learned in his position as Secretary of State, The Court had
responded that "[t]here was nothing confidential to be disclosed, If there had been he
was not obliged to answer it ". but that the fact whether such commissions had been in
the office or not, could not be a confidential fact," Marbury, 5 U.s, (1 Cranch) at 144,
FN7, Jefferson then proceeded to transmit a copy of the letter identifying portions he
believed should be deleted to Hay, But since Burr was again acquitted, he did not seek
production of the letter until a third set of proceedings, these on the issue of whether he
should be committed to custody for trial in Ohio on other charges, Ruling from the bench,
Marshall denied Burr's request for the letter, stating "[a]fter such a certificate from the
president of the United States as has been received, I cannot direct the production of
those parts of the letter, without sufficient evidence of their being relevant to the present
prosecution." Freund, supra, at 29, Marshall instead held that the deleted portions could
be inferred to support Burr. Id" 25 F.Cas. 30. Although Marshall never definitively ruled
on the President's claims of privilege, his decision to issue the subpoena against President
Jefferson has had lasting significance in establishing that "the President is subject to
judicial process in appropriate circumstances," Clinton v, Jones, 520U.s, 681, ---- & n.
38, 117 .s. CL.lHE1JSi1lin,_':llLUn . .J:.Q..'zQ..9_4.S..C1997.),
The presidential communications privilege did not resurface in court for over a hundred and fifty
years,EWl Presidential claims of a right to preserve the confidentiality of information and documents
" :.1' .
... ..... 0 ...... u v ... oJ"" ,W."
figured more prominently in executive-congressional relations, but these claims too were most
often essentially assertions of the deliberative process Moreover, given the restrictions
on congressional standing and the courts' reluctance to interfere in political battles, few executive-
congressional disputes over access to information have ended up in the courts
FNlO
As a result, it was
not until the 1970s and Watergate-related lawsuits seeking access to President Nixon's tapes as well
as other materials that the existence of the presidential privilege was definitively established as a
necessary derivation from the President's *740 **287 constitutional status in a separation of powers
regime.
FN8. Two cases, Mink and Soucie v. David. 448 F.2d 1067 (D.C.Cir.1971), involved
reports that were prepared pursuant to a presidential request and reviewed by the
President, but in both cases the courts viewed the privilege claim at issue as being simply
an assertion of the general deliberative process privilege, embodied in exemption five of
the Freedom of Information Act, rather than a distinct privilege for presidential
communications. See Mink. 410 U.s. at 91-93,93 S.Ct. at 837-39; Soucie, 448 F.2d at
l.QZl.::12J 075-78.
Er:l2..,. See, e.g., Robert Kramer & Herman Marcuse, Executive Privi/ege-A Study of the
Period 1953-1960: Part I, 29 GEO. WASH. L. REV. ,682-87,692-93 (1961) (describing
President Eisenhower's refusal to allow any executive branch officers to reveal to
Congress internal deliberations on official matters). Although scholars dispute how often
Presidents have actually refused to provide Congress with information on grounds of
executive privilege, debate over the President's ability to withhold confidential
information from Congress has occurred since the early years of our nation, when
President George Washington discussed with his cabinet in 179:? how to respond to a
congressional inquiry into the military misfortune,s that beset General St. Clair's
expeditibn. See Archibald Cox, Executive Privilege. 122 U.PA. L. REV, 1383. 1395-1405
(1974); see generally RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL
MYTH (i974); ADAM c. BRECKENRIDGE,THE EXECUTIVE PRIVILEGE: PRESIDENTIAL
CONTROL OVER INFORMATION (1974);QANIEL N. HOFFMAN, GOVERNMENTAL SECRECY
AND tHE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS (1981); 'MARK'
'},ROZELL, EXECUrrVEPRIVILEGf:. TliEDILEP1t1A OFgECg"CYAND DEMOCRATIC '
ACCOUNTABILITY (1994). Interesting'fy,"itappears thatCcingress has at times accepted
executive officers' refusal to testify about conversations they had with the PreSident,
even as it was insisting on access to other executive branch documents and materials.
See, e,g., ROZELL, supra, at 44; Robert Kramer & Herman Marcuse, Executive Privilege-A
Study ofthe Period 1953-1960: Part II, 29 GEO. WASH. L. REV .. 827, 872-73 (1961). A
very early instance of such a refusal by an executive officer came in the course of the
House's investigation into why Alexander Hamilton had deposited into the Bank of the
United States certain funds intended to payoff foreign debt. The House sought to know
Hamilton's authority for this act, to which Hamilton replied that he would not provide any
instructions President Washington had given him, because "[t]hat question must, then,
be a matter purely between the President and the agent, not examinable by the
Legislature." HOFFMAN, supra, at 122. However, the House rejected the claim of
privilege, and Hamilton eventually provided the material sought. Id. at 118-24.
FN10. It appears that the courts have been drawn into executive-congressional disputes
over access to information on only three recent occasions. These were: United States v.
AT&T, 551 F.2d 384 (D.C.Cir.1976), appeal after remand, :;67 F.2d 121 (D.c.Cir.1977);
Senate_Seler;t Comm'ee on Presidential Ci'llD]2i'ijgn Activities v. Nixon ( Senatg
Committee ), 498 F.2d 725 (D.C.Cir.1974); United States v. House of
556 f.5upp. 150 (D.D.C.1983).
In this case, the White House is asserting both the deliberative process privilege and the
presidential communications privilege.
FNll
Our review of the withheld documents indicates that
;everal documents are either wholly factual or contain segregatable factual sections that would not
'7/1 Q /'1(\nQ
121 FJd 729
rage 1" or j"
come under the deliberative process privilege. Consequently, we must decide whether the White
House properly asserted the presidential communications privilege over the documents.
FNll. See supra note 2.
l1.Ql1Rf U1J 121 As a preliminary matter we must first explain the standard under which we should
review the district court's ruling that the presidential privilege applied to the withheld documents.
Ordinarily, this court will review a district court's ruling on a subpoena for the production of
documentary eVidence only for arbitrariness or abuse of discretion. See In re Comotroller of the
at In re Ss;Qled Case,_877 __ (D.C,Cir.19Jl2). No deference is
given, however, if the ruling "rests upon a misapprehension of the relevant legal standard or is
unsupported by the record." In re Subpoena on Comptroller of Currency. 967 F.2d at 633. In order to
defer we also need to have some articulation of the district court's reasons for its ruling. See ID..m
Sealed Case (Government Records), 950 F.2d 736, 738 (D.C.Cir.19912 (appeals court cannot apply
deferential standard when district court did not provide reasons for denying subpoena or did not
review documents in camera).
Ll2-1 Here, the district court provided no explanation of its denial of the motion to compel. The
denial took the form of a blanket ruling, with no individualized discussion of the documents. Since the
district court reviewed the withheld documents in camera before denying the OIC's motion to compel,
the absence of detailed findings would not, on its own, preclude us from according our usual
deference to the district court's opinion. However, the court also failed to provide any explanation of
its legal reasoning. It did not address the OIC'sclaim that the White House had waived its privileges
or analyze whether the presidential communications privilege applies to documents not seen by the
President. Moreover,while the court quoted Nixon's statement to the effect that the presidential
privilege must yield toa specific demonstration of need, it never discussed why Nixon appliesto
grand jury subpoenas as well as trial subpoenas nor indicated why the OlC'sdemonstrationof need
was deficient: Because the district court not only failed to make factual findin'gs but also failed to
provide any explanation of its legal reasoning, we believe that no deference to the district court's
denial of the Olt's m'otion to compel is apPropriate. -
II. WAIVER
We turn first to the OIC's contention that the White House has waived its privilege claims; if we
find that waiver has occurred, we need not proceed further. In support of its waiver argument, the
orc notes that the White House publicly released the White House Counsel's report, issued a press
statement indicating it would comply with the OIC's subpoena, and did not formally invoke privilege
until after the orc filed a motion to compel. Only after the briefs in this appeal were submitted did the
White House inform us that it had provided Espy's counsel with a document nearly identical to one of
the withheld documents, document 63, the only difference being that document 63 contained certain
handwritten notations that the released version lacked. The OlC argues that the release of document
63 is further evidence of a privilege waiver.
UJ.l We do not credit the OIC's arguments for waiver. The White House press statement did
not explicitly declare that the White House would forego any and all claims of privilege that might
apply to the documents. Instead, it described the documents sought in the subpoena and noted "[tJhe
subpoena requires that documents be produced on November 10, 1994. The White House will
comply."The OIC agreed to extend the return date ofthe subpoena to November 17, and on that
date the White House did in fact produce several folders of documents. *741 **288 "Since executive
privilege exists to aid the governmental decisionmaking process, a waiver should not be lightly
inferred." SCM Coro. v. United States. 82 Cust.Ct. 351. 473 F.Supp. 791. 796 (1979); see also l::Ilissm
y. Sirica ( 197il (explicit statement by President Nixon that "[ e]
xecutive privilege will not be invoked" conSidered one factor in assessing need to preserve
:onfidentiality of subpoenaed materials, but not held to constitute a waiver). The press statement was
not an official response to the subpoena, and it is clear from the record that the OIC was well aware
ILl r.jU IL'j
.l at:;c L.V Vl J"7
LD.C.Cir.1982) (although not addressingdwaiver directly, holding that deliberative process privilege
applies to early drafts of Air Force report on use of herbicides in Vietnam despite public release of the
final report). This limited approach to waiver in the executive privilege context is designed to ensure
that agencies do not forego voluntarily disclosing some privileged material out of the fear that by
doing so they are exposing other, more sensitive documents. See tbJ;...$liIte...9LC.!JJIfw;:lliiI
v. United of Commerce, 968 F.2d 916, 922 n. 5 (9th Cir.1992}; Mobil OU Corp.,
879 F.2d at 70..1;. Mehl. 797 F.5upg. at 47-48.
On that basis, we find that the White House's release of the final report does not waive the
privilege in regard to the documents the White House generated in producing the ultimate version.
However, the White House has waived its claims of privilege in regard to the specific documents that
*742 **289 it voluntarily revealed to third parties outside the White House, namely the final report
itself and the typewritten text of document 63, which was sent to Espy's Counsel. Our review reveals
that none of the withheld documents is identica I to the final White House Counsel report, that no
other withheld document is identical to document 63 and that document 63 has handwritten notations
that the White House claims were not on the document sent to Espy's counsel. Thus, although the
White House has waived its privileges regarding the typed text of document 63, the handwritten
notations remain subject to our privilege analysis, and if found privileged can be redacted from
document 63 before it is released to the grand jUry.
In sum, with the exception of document 63 we find that the White House has not waived its
privileges as to the withheld documents. We therefore proceed to determine the merits of the White
House's claims of privilege.
...... 1 n
7/1 RI?()()R
ILl t.JO ILY
Ill. THE PRESIDENTIAL COMMUNICATIONS PRIVILEGE
Judicial discussion of the presidential communications privilege exploded in the early to mid-1970s
when the investigation into the Watergate break-in uncovered the fact that President Nixon had
made, and still had in his possession, tape recordings of his conversations in the Oval Office and other
locales. This revelation led the Watergate Special Prosecutor to subpoena the tapes for use in the
criminal investigation of the break-in. President Nixon asserted the presidential communications
privilege in response, and also in several subsequent lawsuits that sought access to the tapes and
other presidential materials generated by his administration. These laWSUits, referred to generically as
the Nixon cases, remain a quarter century later the leading-if not the only-decisions on the scope of
the presidential communications privilege. We begin our analysis of the White House's assertion of
the presidential privilege in this case by examining in detail the precedent in the Nixon cases. We will
then address two specific issues regarding the scope and operation of the privilege presented by this
case that are not expressly answered by the earlier decisions: how far down the line of command
from the President does the presidential privilege extend, and what kind of demonstration of need
must be shown to justify release to a grand jury of materials that qualify for such a privilege.
A. The Nixon Cases and the General Contours of the Presidential Communications Privilege
We first addressed President Nixon's assertion of the presidential privilege over the Watergate
tapes in Sirica. Sirica involved a subpoena for nine tapes issued by the grand Jury investigating the
Watergate break-in. The district court had ordered President Nixon to produce the tapes for in camera
review, and on appeal we affirmed that decision, stating that "application of Executive privilege
depends on a weighing of the public interest protected by the privilege against the public interests
that would be served by disclosure in a particular case." :HIZ-L2d aL"l.1. We Initially recognized a
"great public interest"in preserving "the confidentiality of conversations that take place in the
President's performance orhis official duties"because such confide'ntiality is neededto.protect "the
effectiveness of the executive decision-making process," as a result, we said, presidential'
conversations"are presumptively. privileged." Jd. at 717. But we further held that this privilege could
be overcome by.a sufficient showing of need by a grand jury, and ruled that President Nixon's
assertion of privilege "must fail in the face of the uniquelypOwerful showing made by theSpecial
ProseCiJtor ("lI lis case." 1<1; We ordered that the tapes be turned- Over to the court for in camera
review,however, rather than given to the grand jury directly,toenStJre tllat Dilly material rele\!ant to
the Watergate inquiry was released. rd. at 719-22.
President Nixon did not appeal our deciSion in Sirica, and thus it was not until a year later, in
Nixon, that the question of whether an executive privilege of confidentiality for presidential
communications existed reached the Supreme Court. Nixon concerned a subpoena issued by the
Watergate Special Prosecutor for additional tapes, this *743 **290 time for use in the pending trial
of seven individuals indicted by the Watergate grand jury. In a unanimous opinion, the Court agreed
that there was "a presumptive privilege for PreSidential communications," 1-llLl,LS",.il!J08,
at 3107, founded on "a President's generalized interest in confidentiality." rd. at 711, 94 S.Ct. at
3109. It found such a privilege necessary to guarantee the candor of presidential advisers and to
provide "[aJ President and those who assist him ... [with] free[dom] to explore alternatives in the
process of shaping poliCies and making decisions and to do so in a way many would be unwilling to
express except privately." 418 U.S, at 708, 94 S.Ct. at 31Q7. Although not expressly provided for In
the Constitution, the privilege nonetheless has constitutional origins; it is "Inextricably rooted in the
separation of powers under the Constitution," id., and also "flow[s] from the nature of enumerated
powers" of the President. rd. at 705 & n. 16, 94 S,Ct. at 3106 & n. 16. But, the Court inSisted,
"neither the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified PreSidential privilege of immunity
from judicial process under al\ circumstances." rd. at 706, 94 S.Ct. at 3106. Turning to the precise
issue at hand, the Court held that an assertion of executive privilege "based only on the generalized
interest in confidentiality .... must yield to the demonstrated, specific need for evidence In a pending
criminal tria\. " rd. at 713, 94 S.Ct. at 311Q. FN12 The Court remanded for the district court to perform
an in camera review in which relevant and admissible evidence in the tapes would be isolated for
release to the Special Prosecutor; the confidentiality of non-relevant material on the tapes was to be
preserved. On remand, the President was also to be given an opportunity to raise more particularized
"i 11 O/')/I{\Q
claims of privilege. rd. at 714-15 & n. 21, 94 S.ct. at 3110-11 & n. 21.
EN12. The Court implied, however, that particularized claims of privilege for military and
state secrets would be close to absolute, and expressly held only that the presidential
communications privilege, which is based only on a generalized interest in confidentiality,
can be overcome by an adequate showing of need. See Nixon. 418 U.s. at 710-11, 713,
94 S.Ct. at 3108-09,3110.
The Nixon Court explicitly limited its ruling to demands for presidential materials relevant to a
criminal trial, stating "[w]e are not here concerned with the balance between the President's
generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with
that between the confidentiality interest and congressional demands for information." [d. at 712 n.
19, 3109 n. 19. It fell to the remaining Nixon cases to address the scope of the
presidential communications privilege in other contexts.
FND
In Senate Committee, a decision*744
**291 that pre-dated Nixon, this court refused to enforce a subpoena for tapes issued by the Senate
Committee investigating illegal activities connected to the 1972 election, on the grounds that the
Senate Committee had not demonstrated that the tapes were "demonstrably critical to the
responsible fulfilment of the Committee's functions." 498 F.2d at 731. Subsequently, the Court of
Claims held that the presidential communications privilege could be overcome by the evidentiary
demands of a civil trial, see Sun 011 Co. v. United States. 206 Ct.CI. 742. 514 F.2d 1020, 1024
(Ct.CI.1975), and in Del/urns v. Powell this court agreed, holding that an adequate showing of need in
a civil trial would also defeat the privilege "at least where, as here, the action is tantamount to a
charge of civil conspiracy among high officers of government to deny a class of citizens their
constitutional rights and where there has been sufficient evidentiary substantiation to avoid the
inference that the demand reflects mere harassment." 561 F.2d 242. 247 (D.C.Cir.1977); see also
(remanding to give President Nixon further
opportunity to assert more particularized claims of privilege).
FN13. Tile operation of the presidential communications privilege was addresseq in.a few
other criminal cases . .Jn United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), and ...
/ted _Stgtes y. f/1.DiCl!l[1ilL!, .. S56 .. Ehrlichman, an assistant
to' .. President Nixon, .c a... .... . .. .... .. ... .. from the Watergate investigation
on the grounds that the district courtfiad improperly denied requests for In orma
White House files. However, in neither case is there any significant discussion of the
privilege, because Ehrlichman had faiied "to argue with specificity the materiality and
reasonableness of his discovery request" and thus would have not been entitled to access
to this evidence under even if it
were not presumptively privileged. Ehrlichman, 546 F.2d at 931-32: see also Haldeman.
559 F.2d at 76-77. In United States v. Poindexter, 727 F,Supp. 1501 (D.D.C.1989) and
United States v. North, 713 F.Supp. 1448 (D.D.C.1989), two prosecutions arising out of
the Iran-Contra investigation, former National Security Advisor John Poindexter and
Lieutenant Colonel Oliver North subpoenaed President Reagan to testify about
conversations; Poindexter also subpoenaed President Reagan's diaries. Although in both
cases the courts noted that the subpoenas implicated the presidential communications
privilege, they only addressed the question of whether the subpoenas satisfied Rule 17
U;l. Poindexter's initial conviction was reversed by this court on other grounds, United
States v. Poindexter, 951 F.2d 369 .(Qb,QL12.21), and President Bush subsequently
pardoned POindexter, thus forestalling further appellate review of the district court's
order in his case. This court held that any error in the district court's refusal to subpoena
President Reagan to testify at North's trial was harmless because there was no indication
he would have provided evidence that was material or favorable to North. As a result, the
issue of presidential privilege was only addressed by Judge Silberman in dissent. United
Slates v. North,_910 ,2.dJl.1l,_.1l8il-9:f.,& n. vacated in part, 920 F.2d 940
(D.C.Cir.1990); id. at 932,950-54 (Silberman, J., concurring in part and dissenting in
part).
The Supreme Court had its next encounter with the presidential communications privilege in Nixon
v. Administrator of General Services ( GSA), which concerned the operation of the privilege in the
context of congressionallegislation.IT:U Congress enacted the Presidential Recordings and Materials
Preservation Act ("PRMPA"), which transferred custody of the Nixon tapes along with a vast number of
other presidential documents from the Nixon administration to the custody of the General Services
Administrator. President Nixon challenged PRMPA as unconstitutional, in part because it infringed on
the presidential privilege. The Court first held that a former President could assert the privilege on his
own, but his claim would be given less weight than that of an incumbent President. 433 U.S. 425,
ill, 97 s.n. 2777, 2793, 53 L.Ed.2d 867 (1977). Moreover, it said the privilege was "limited to
communications 'in performance of [a President's] responsibilities,' 'of his office,' and made 'in the
process of shaping policies and making decisions.''' Id, at 449, 97 S.Ct. at 2793 (quoting Nixon)
(citations omitted). The Court then noted that the only intrusion into the confidentiality of presidential
communications in the case was the screening of the materials by archivists, since the statute
provided that the Administrator would promulgate regulations which allowed claims of privilege to be
raised before public access occurred. This screening by government archivists who had performed the
same task for past Presidents without any apparent interference with presidential confidentiality was
viewed by the Court as "a very limited Intrusion," and also as justified in light of the substantial public
interests served by the Act. Id. at 450-55, 97 s.n. at 2793.
FN15
FN14. The presidential communications privilege also surfaced in the district court's
opinion in Wayte v. United States, which later was appealed to the Supreme Court.
Wayte alleged that the government's enforcement policy on military draft registration
requirements was unconstitutional, and sought discovery of presidential documents and
testimony regarding the policy from the White House Counsel. The Court, however,
decided the case on other grounds, and the only discussion of the presidential privilege is
found in Justice Marshall's dissent. 470 U.s. 598, 614,615-23, 10:;; S.Ct. 1524, 1534-39,
84 L.Ed.2d 547 (1985). .
FN15. This cou.rt subsequently upheld the regulations promulgated by GSA to govern
access to the Nixon materials. See Ni1s:QD __ see
also Nixonv.United States, 97fl.L.2d 1269 (D.C.Cir.1992) (holding that PRMPA acted as
. ataking'ofPresident Nixon's materials so as to require just compensation):
LUill2l' The Nixon cases establishlnecontours of the presidential communlca Ion
President can invoke the privilege when asked to produce documents or other materials that refleCt:
presidential decisionmaking and deliberations and that the President believes should remain
confidential. If the President does so, the documents become_presumptively privileged
FN16
*745
**292 However, the privilege is qualified, not absolute, and can be overcome by an adequate
showing of need. If a court believes that an adequate showing of need has been demonstrated, it
should then proceed to review the documents in camera to excise non-relevant material. The
remaining relevant material should be released. Further, the President should be given an opportunity
to raise more particularized claims of privilege if a court rules that the presidential communications
privilege alone is not a sufficient basis on which to withhold the document.
FN16. In Nixon, Sirica and GSA, PreSident Nixon personally asserted the preSidential
communications privilege, and thus these cases do not establish whether the privilege
must be invoked by the President as opposed to a member of his staff. In discussing the
military and state secrets privilege in Reynolds the Supreme Court stated that "[tlhere
must be a formal claim of privilege, lodged by the head of the department which has
control over the matter," 345 U.s. at 7-8., 73 S.Ct. at which might suggest that the
President must assert the presidential communications privilege personally. See Center
Inc. v. Shult"". 368 L.S.!dQ.12c-863.,_lllZ: (White
House Counsel's affidavit indicating that he is authorized to say that the White House was
invoking executive privilege over tapes and documents in White House files is insufficient
to invoke the privilege); see also {2urr, 2S_LCas. at..l92 (rUling that President Jefferson
had to personally identify the passages he deemed confidential and could not leave this
determination to the U.S. Attorney). We need not decide whether the privilege must be
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1 LI t .jd IL') r (1g,e L.'-t Vi :;-.1
invoked by the President personally, since the record indicates that President Clinton has
done so here; in his affidavit former White House Counsel Abner J. Mikva stated "the
President ... has specifically directed me to invoke formally the applicable privileges over
those documents." Moreover, although the OlC challenged the adequacy of the White
House's invocation of privilege before the district court, the OlC did not pursue this issue
on appeal.
LlZl @B'LHlJ @1 While the presidential communications privilege and the deliberative process
privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are
executive privileges designed to protect executive branch decisionmaking, but one applies to
decisionmaking of executive officials generally, the other specifically to decisionmaking of the
PreSident. The presidential privilege is rooted in constitutional separation of powers principles and the
President's unique constitutional role; the deliberative process privilege is primarily a common law
privilege. See Fitzgerald, 457 U,S, ilt 753 & n, S,Ct. at 2703 &. n, 35, Consequently,
congressional or judicial negation of the presidential communications privilege is subject to greater
scrutiny than denial of the deliberative privilege, See 26A CHARLES ALAN WRIGHT & KENNETH W,
P\SOCEDURU 5673,Jl.l;37; contra Freund, supra, at 20
(commenting that question of whether presidential privilege is rooted in the common law or the
Constitution is not "very meaningful," but not discussing effect different derivation has on
congressional power).
Ll.2l1Sia'J2Q] 1Sia, In addition, unlike the deliberative process privilege, the presidential
communications privilege <lpplies to documents in their entirety, and covers final and post-deciSional
materials as well as predeliberative ones, Even though the presidential privilege is based on the need
to preserve the PreSident's access to candid advice, none of the cases suggest that it encompasses
only the deliberative or advice portions of documents:. Indeed, Nixon argued that the presidential
privilege must be qualified to ensure full access to facts in judicial proceedings, thereby assuming that
factual material comes under the privilege, 418 U.s, at709, 94S;Ct, at 3108; but see LARKIN, supra,
6.01 at 6-1 (asserting, without explanation, that the presidential privilege does not "protect purely
material ").There is no indication either that thepresidenti1i1 privilege is restricted to pre'
deCiSional materials. GSA cautioned that the privilege only applies to communications made inthe '.'
process ofarnvmg ;Jt pi esidenl'iaklGi . this we believe the Court meantthatthe privilege
was limited to materials connected t6 presidential decisionmaking,asopp lie
branch decisionmaking, and not that only pre' deCisional materials were covered, 433 U.s. at449, 97
S.Ct. at 2793. Nor would exclusion of final or post-decisional materials make sense, given the Nixon
cases' concern that the President be given sufficient room to operate effectively. These materials
often will be revelatory of the President's deliberations-as, for example, when the President deCides to
pursue a particular course of action, but asks his advisers to submit follow-up reports so that he can
monitor whether this course of action is likely to *746 **293 be successful. The release of final and
post-decisional materials would also limit the President's ability to communicate his deciSions
privately, thereby interfering with his ability to exercise control over the executive branch,EN.lZ
FN17. In some cases, the White House's ex parte contacts with outside agencies may be
subject to disclosure by statute, see, e.g" Portland Audubon End;;wgeredSoecies
Committee, 984 F.2d 1534, 1543-48 (9th Cir.1993), but this court has refused to require
disclosure of conversations between an agency and the President or White House staff, at
least where the proceeding was not adjudicatory and the statute did not specifically
require disclosure, because of the President's need to oversee executive agencies. See
Sierra Club v. Cos tie, 657 F.2<U.28, 404-08 (D,C.Cir.198.1J..
lliJlSia'Ull @B' Finally, while both the deliberative process privilege and the presidential privilege
are qualified privileges, the Nixon cases suggest that the presidential communications privilege is
more difficult to surmount. In regard to both, courts must balance the public interests at stake in
determining whether the privilege should yield in a particular case, and must specifically consider the
need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the
deliberative process privilege, and includes consideration of additional factors such as whether the
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121 F.3d "l"lY rage L.J 01 j';l
government is a party to the litigation. Moreover, the privilege disappears altogether when there is
any reason to believe government misconduct occurred. On the other hand, a party seeking to
overcome the presidential privilege seemingly must always provide a focused demonstration of need,
even when there are allegations of misconduct by high-level officials
FN18
In holding that the
Watergate Special Prosecutor had provided a sufficient showing of evidentiary need to obtain tapes of
President Nixon's conversations, the Supreme Court made no mention of the fact that the tapes were
sought for use in a trial of former presidential assistants charged with engaging in a criminal
conspiracy while in office. Accord Senate Committee, 498 F.2d at 731 (noting that presidential
privilege is not intended to shield governmental misconduct but arguing that showing of need turns
on extent to which subpoenaed evidence is necessary for government institution to fulfill its
responsibilities, not on type of conduct eVidence may reveal); contra 26A WRIGHT & GRAHAM. supra,
--.5.673,...g153-54 (quoting Senate Committee's not-a-shield language and arguing that allegations of
misconduct qualify the privilege, but not addressing Senate Committee's comment that need showing
turns on function for which evidence is sought and not on conduct revealed by evidence).
FN18. The elements of this showing of need are discussed in greater detail infra in Part
m.c. .
These differences between the presidential communications privilege and the deliberative privilege
demonstrate that the presidential privilege affords greater protection against disclosure.
Consequently, should we conclude as to any document that the presidential privilege applies but that
the orc has demonstrated a sufficient showing of need, there is no reason to examine whether the
documents also come under the deliberative process privilege. A fortiori, if release is required under
the presidential privilege, it will certainly be required under the deliberative process privilege. Hence,
we would need to address application of the deliberative process privilege as to any document only if
we determine that the withheld document is notsybject to the presidential privilege, .
B". How Far Down the Line Does the Presidential Communications Privilege Go?
liffThe withheld documents in this case include materials used in the investigation and
formulation . .ofseveraLear ler ra ". .. ...... . ". I's re ort, notes of meetings among
White House advisers, and draft press briefings. It is undisputed that none of t ese ocu as
actually viewed by the President. As a result, the key issue in this case is whether any, an,:i"iFso
which, of these documents come under the presidential communications privilege. Does the privilege
only extend to direct communications with the PreSident, or does it extend further to include
communications that involve *747 **294 his chief adVisers? And if the privilege does extend past the
President, how far down into his circle of advisers does it extend?
Most of the Nixon cases involved subpoenas for tapes of conversations in which President Nixon
was a participant, and did not call upon the courts to determine whether the presidential privilege
also covered communications in which the President did not directly participate
FN19
The language
used to describe the scope of the priVilege in the opinions vacillates between broad and narrow
depictions of the privilege. In Nixon the Court referred to "[a] President's acknowledged need for
confidentiality in the communications of his office," 418 U.S. at 712-1.:1 94 S.Ct. !:!UllO (emphasis
added) and elaborated that "[aJ president and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions," id. at 708, 94 S.Ct. at 3107
(emphasis added), suggesting that actual presidential involvement in the communication is not a
prerequisite to privilege. See also id. at 705, 94 s.n. at 31Q.Q (privilege grounded in the need to
protect "communications between high Government offiCials and those who advise and assist them in
the performance of their manifold duties"). But Nixon also uses language that appears to tie the
privilege to the PreSident; the opinion repeatedly refers to the privilege as a "privilege of
confidentiality of Presidential communications," id. at 705, 2-.S.Ct. at 3106 (emphasis added), and as
rooted in "[tJhe expectation of a PreSident to the confidentiality of his conversations and
correspondence." ld. at 708, 94 S.Ct. at 3107 (emphasis added). Similar variation can be found in
Sirica, which describes the privilege interchangeably as designed to "protect the effectiveness of the
executive decision-making process" and as intended to "maintain[ J the confidentiality of
conversations that take place in the President's performance of his official duties." 4f,t7.E2_'Lflt?11
..... I. n ''"' ""'0
(emphasis added); see also Del/ums, 561 F.2d at 246, 247 (describing the privilege at one point as
covering "confidential communications with the President" and at another as "attach[ing] to the
communications, submissions and deliberations essential to the conduct of the office of the [P]
reSident"),
FN1'1c Commentators have noted that the Nixon opinion did not address this question of
who qualifies for the privilege. See Raoul Berger, The Incarnation of Executive Privilege,
22 UCLA L.REV. 4, 22-26 (1974) (hereinafter Berger, Incarnation),
The scope of the presidential communications privilege did arise in GSA and in Sun Oi/,but was
not deCided in either opinion. Many of the documents which PRMPA gave over to GSA custody had
never been seen by the President. After remarking that President Nixon could "legitimately assert the
Presidential privilege, of course, only as to those materials whose contents fall within the scope of the
privilege," the Court noted that "[o]f the estimated 42 million pages of documents and 880 tape
recordings whose custody is at stake, the District Court concluded that the appellant's claim of
Presidential privilege could apply at most to the 200,000 items with which the appellant was
personal/y familiar." 433 U.s. at 449,97 S.Ct. at 2793 (emphasis added); see also id, at 4S4, 97
S,Ct, at 2795-96 (only a "small fraction of the materials ... implicate Presidential confidentiality").
Since, however, the Court found that the public interests served by PRMPA were sufficient to
overcome the presidential communications privilege, it never had to decide which materials came
under the privilege. The three-member district court that upheld the statute had explicitly commented
that it need not consider "whether the privilege that attaches to preSidential communications extends
to communications never directly received by the President but rather channelled in a variety of ways
to him or his advisers," because it believed the statute would be constitutional "even if a large
proportion of the materials falling within the Act were thought protected." Nixon v, Administrator of
.fi!.gogEi-lLS,I;!L'2u_ The s"me situation occurred il1_,S(in Oi/,
which involved a claim of presidential commUnications privilege over memoranda that circulated
between two preSidential aides. The CoLirt of Claims discussed I<'!hether the memoranda actually
came under the privilege,but rather assumed the privilege applied and *748 **295 held that even
so the memoranda"should be released because the plair)tiffshad made out a sufficient showing of
- heed. 514' F.2datt022, '1024, - - ,- - ,-- - '",
.... ... .......... c, '. .
a 'et:haEdiddired:lytouch on the question of how far down the line the presidential
communications privilege extends was ssocla lolLa '
(AAPS).AAPS involved an effort to enjoin President Clinton'sTask'Force onNatibhaTHealthcare
Reform and its subgroups from meeting unless they complied with the Federal Advisory Committee
Act (FACA). In holding that FACA's exemption for advisory groups composed solely of officers or
employees of the government applied to the Task Force even though it was chaired by the President's
wife, Hillary Rodham Clinton, this court commented that an interpretation of FACA as covering a Task
Force that reports directly to the President might well represent an unconstitutional intrusion on the
presidential communications priVilege. This privilege, we argued, "attaches not only to direct
communications with the President, but also to discussions between his senior advisers[, who] ...
must be able to hold confidential meetings to discuss advice they secretly will render to the
President." 997 F.2d 898, 909 (D.C.Cir.1993). But in AAPS this court did not actually rule on the
scope of the privilege, or determine whether the public interests underlying FACA justified
interference with the privilege, since it found that "a strong argument" could be made for exempting
the Task Force based on the statutory text. Id. at 905, FN2Q
FN20, In Wolfe v. HHS, 815 F.2d 1527 (D.C.Cir.1.2llZ), a panel of this court held that the
privilege did not protect communications of the Office of Management and Budget that
did not involve the President, stating that such an "extension of the presidential
privilege ... is unprecedented and unwarranted .... [a nd] would create an unnecessary
sequestering of massive quantities of information from the public eye." Id, at 1533.
However, the opinion was later vacated by the court en banc, and the government
abandoned its presidential privilege claims before the full court. See Wolfe, 839 F,2d at
?7d,D_2,
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121 F.3d 729 rage LI 01 j'j
There are acknowledgedly strong arguments in favor of holding that the presidential
communications privilege applies to only those communications that directly involve the President.
This approach comports with the principle that "the President's unique status under the Constitution
distinguishes him from other executive officials," Fitzgerald, 457 U.S. at 750, 102 S.Ct. at 2701,
particularly in separation of powers analysis. See Wetlaufer, supra, at 901-02. The Constitution after
all vests the executive power not in the executive branch, but in the President; it is the President
who, as "the chief constitutional officer of the Executive branch, [is] entrusted with supervisory and
policy responsibilities of the utmost discretion and sensitivity." Fitzgerald, 457 U.S. at 750, 102 S.Ct.
at 2701. Nixon identified the President's Article II powers and responsibilities as the constitutional
basis of the presidential communications privilege. 418 U.S. at 705 & n. 16.94 S.Ct. at 3106 & n. 16.
Since the Constitution assigns these responsibilities to the President alone, arguably the privilege of
confidentiality that derives from them also should be the President's alone. The uniqueness of the
President has frequently led courts to recognize that the President enjoys more extensive privileges
than other executive branch officers. For example, the President is absolutely immune from damages
liability for official acts, but presidential aides receive only qualified immunity. Compare Fitzgerald,
457 U.S. at 749-54, 102 S.q. at 2701-03, with Harlow v, Atzgerald, 457 U.s,.JlQQ. 808-13, 102 S.C"
2727.2732-36,73 L.Ed.2d 396 (1982); see also Mitchell v. Forsvth, 472 U.s. 511. 520-24, 105 S.Ct.
2806,2812-14,86 L.Ed.2d 411 (1985) (holding whether an executive official receive absolute
immunity depends on the function the official was performing when she engaged in the actions being
challenged). In Franklin the Court emphasized that the separation of powers concerns that arise when
the President is personally subjected to judicial process are not implicated when a court exercises
jurisdiction over other executive branch officials. 505 S.ct. at 2775-76. And in In
re Kessler, this court recently rejected the claim that because the President is allowed to appeal a
discovery order without being held in contemptthe Commissioner of the Food and Drug
Administration*749 **296 should be able to do so as well, noting that" for purposes of separation
of powers, th.o preSident stands in an entirely different positionthan other members of the executive
branch." 100F;3d 1015,1017 (D.C.Cir.1996). .
An to restrict the presidential communications privilege to direct communications
with the Presid.ont is the general rule, underscored by the Supreme Court in Nixon, that privileges
e narrowly construed: "exceptions to t\;)e demand for-every man's eVidence are.hot lightly',
creatednorexpimsivelycons rue ,.... .. search for truth.!' u.s. at
710.94 S.ct. at3108:accord Iaffee v. Redmond, 518U:S. 1."""".,----. 116 S.Ct ... 1923,19JZ, 1933,
135 L.Ed.2d 337 (1996) (Scalia, J., dissenting); Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct.
9'p_6.,J211, __ 63_k.J;.(L2.!1.11l.6Jl2tlllJ; TeULD"_112.3J;L91 0 "_9JJL(.8.th
Cir.1997). The argument for a narrow construction is particularly strong in cases like this one where
the public's ability to know how its government is being conducted is at stake. In performing his
constitutional duties the President may obtain advice and assistance from a broad array of executive
offiCials-cabinet officers, employees in the Executive Office of the President, and agency staff with
special expertise, as wel1 as individuals whose sole function in the White House is to provide the
President with advice and assistance. See, e. g.,
(D.C.Cir.19'U) (holding Presidents Task Force on Regulatory Relief was intended only to advise and
assist the President and was not subject to ForA, even though the Task Force included cabinet
officers as members). Indeed, it has been publicly noted that the parts of the executive branch which
"directly report[ ]to the President halve] grown dramatically in the past few decades," Peter M.
Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privi/ege
Claims Against Congress,J1 MINJ'h_L. REV. 46l,.463.D..2JiZl; see also THOMAS E. CRONIN, THE
STATE OF THE PRESIDENCY 243-47 (2d ed.1980) (discussing growth of White House staff and its
effects) .
Extending presidential privilege to the communications of presidential advisers not directly
involving the President inevitably creates the risk that a broad array of materials in many areas of the
executive branch will become "sequester[ed)" from public view. Wolfe, 815 F.2d at 1533. President
Nixon's attempt to invoke presidential privilege to prevent release of evidence indicating that high
level executive officers engaged in illegal acts is perhaps the starkest example of potential for abuse
of the privilege. And openness in government has always been thought crucial to ensuring that the
people remain in control of their government. According to James Madison,
121 F.3d 729 rage LO VI :)'.1
[a] popular Government, without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a
people who mean to be their own Governors, must arm themselves with the power which
knowledge gives.
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON 103
(Gaillard Hunt, ed.1910); see also Soucie, 448 F.2d at 1080 (In enacting FOIA, "Congress recognized
that the public cannot make intelligent decisions without [adequate] information, and that
governmental institutions become unresponsive to public needs if knowledge of their activities is
denied to the people and their representatives"). The very reason that presidential communications
deserve special protection, namely the President's unique powers and profound responsibilities, is
simultaneously the very reason why securing as much public knowledge of presidential actions as is
consistent with the needs of governing is of paramount importance.
But a very powerful case can also be made for extending the presidential communications privilege
beyond those materials with which the President is "personally familiar," and at the end of the day we
find the arguments for a limited extension of the privilege beyond the President to his immediate
advisers more convincing. Nixon does not specifically establish how far down the chain of *750
**297 command the presidential communication privilege extends, but it does rnake absolutely clear
that the privilege itself is rooted in the need for confidentiality to ensure that presidential
decisionmaking is of the highest caliber, informed by honest advice and full knowledge. Confidentiality
is what ensures the expression of "candid, objective, and even blunt or harsh opinions" and the
comprehensive exploration of all policy alternatives before a presidential course of action is selected.
See Nixon, 418 U.S. at 708, 94 S.ct. at 3107-08: see also GSA 433 U.s. at 449, 97 S.Ct. at 2793.
Several commentators. have argued that presidential advisers may notbe as likely to "temper candor
with a concern for appearances and for their own interests to the detriment of the decisionmaking
process," Nixon. 418 U ~ S . at 705. 94 S.Ct. at 3106. as the Supreme court feared. See, e.g.; .
Wetlaufer, supra, at 886-90; 26A. WRIc:;HIT & MILLER,.supra, 5673 at 38-39. But"even if we were
. :free to ignore Nixon,which we are not-we are not sosang.uine that presidential advisers will never be""
dissuaded from expressing unpopular but correct opinions out of a fear of disclosure, or that able
.individuals will not shrink from.assuming a position as,presidential adviser in the first place if. by doing .
so they step unprotected into the limelight, And the critical role thatc6nfidentiality plays in ensuring
.. an adequate exploration of qlt@llativescarm residential advisers must assume they
will be held to account publicly for all approaches that wereadvanced,considere u U .. lm
rejected, they will almost inevitably be inclined to avoid serious consideration of novel or controversial
approaches to presidential problems.
Presidential adVisers do not explore alternatives only in conversations with the President or pull
their final advice to him out of thin air-if they do, their advice is not likely to be worth much. Rather,
the most valuable advisers will investigate the factual context of a problem in detail, obtain input
from all others with significant expertise in the area, and perform detailed analyses of several
different policy options before coming to closure on a recommendation for the Chief Executive. The
President himself must make decisions relying substantially, if not entirely, on the information and
analysis supplied by advisers. "Even the most sensitive issues of national security must be brought to
the point of presidential decision by staff, who assemble data and views, and then winnow and shape
them for the President." Peter L. Strauss, The Place of Agencies in Government: Separation of Powers
and the Fourth Branch, 84 COLUM. L. REV. 573, 661 (1984). In the vast majority of cases, few if any
of the documents advisers generate In the course of their own preparation for rendering advice to the
PreSident, other than documents embodying their final recommendations, will ever enter the Oval
Office. Yet these pre-decisional documents are usually highly revealing as to the evolution of advisers'
pOSitions and as to the different policy options considered along the way. If these materials are not
protected by the presidential privilege, the President's access to candid and informed advice could
well be significantly circumscribed.
The protection offered by the more general deliberative process privilege will often be inadequate
to ensure that presidential advisers provide knowledgeable and candid advice, primarily because the
deliberative process privilege does not extend to purely factual material. As we remarked in AAPS,
preservation of the President's confidentiality requires that a "[g]roup directly reporting and advising
1'::"1 1'.J\.! 11-..1
- -0 -- . - - .
the President must have confidentiality at each stage in the formulation of advice to him." 997
F.2d at 910. In many instances, potential exposure of the information in the possession of an adviser
can be as inhibiting as exposure of the actual advice she gave to the President. Without protection for
her sources of information, an adviser may be tempted to forego obtaining comprehensive briefings
or initiating deep and intense probing for fear of losing deniability. Exposure of the factual portions of
presidential advisers' communications also represents a substantial threat to the confidentiality of the
President's own deliberations. Knowledge of factual information gathered by presidential advisers can
quickly reveal the nature and substance of the issues before the President, since "[iJf you know what
information*751 **298 people seek, you can usually determine why they seek it." Id.
The greater ease with which the deliberative process privilege can be overcome is another reason
to doubt its efficacy in ensuring candid presidential advice. In Nixon the Supreme Court recognized
that some possibility of disclosure is unlikely to affect the advice the President receives, stating "we
cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent
occasions of disclosure (that might occur if their) ". conversations will be called for in the context of a
criminal prosecution." 418 712, 94 3109. The risk of a chill increases, however, as the
possibility of disclosure rises, especially if there are situations in which the privilege may virtually
disappear, such as when government misconduct is alleged. Nor does it suffice to respond that the
public interest in honest and accountable government is stymied if presidential advisers are allowed
even a qualified privilege when government misconduct is charged. The President's supervisory
control over executive branch officials is an important means of ensuring that abuse of office is
uncovered and swiftly addressed, and the President needs access to candid and informed advice if he
is to exercise this control effectively. In this regard it is worth emphasizing that the presidential
communications privilege is, at all times, a qualified one, so that an expansion to, cover ;
communications of presidential advisers which do not directly, involve the President does not mean
that these ,communications will become permanently shielded; they will remain available upon a
sufficient showing of need.
Of'course, the risk that release of factual information may reveal a policymaking official's"areaof
focus is true at all levels of government. But the President. does not represent simply one level of
,executive branch,but rather the ultimate level of decisionmaking in the executive branch,,cand
intrusion into presidential deliberations istherefore more serious. In ruling on whether,General
. 'nson's letter should be released Chief Justice Marsh<illremarked that "[i)n no case'nfthis kind
would a court be require 0 as a ainst an ordinary individual." Burr"
25fgcLJ;Qs,+,gL192. Neither should a court beTequired to proceed against t e, .Ie I, "
any other executive branch official. See Clinton v. Jones, 520 U.S. at ---- n. 39,117 2.Ct.<1('1649 n,
39 (quoting Burr and noting "[s]pecial caution is appropriate if the materials or testimony sought by
the court relate to a President's official activities"). Indeed, if the President's immediate advisers were
only covered by the deliberative process privilege, courts might feel compelled to extend the -
deliberative privilege to cover factual material in order to ensure that the President had suffiCient
freedom from public review to operate effectively. This result might make the deliberative process
privilege better able to meet the particular needs of presidential decisionmaking, but it would hardly
advance the goal of open government since it would mean that more factual information was shielded
at all levels of the executive branch.
The ultimate question is whether restricting the presidential communications privilege to
communications that directly involve the President will "impede the President's ability to perform his
constitutional dUty." Morrison v. Olson, 487 US. 654, 691, 108 S.Ct. 2597, 2619. 101 L.Ed.2d 569
U988); see a/so Loving v. United States, 517 US. 748, ----, 116 2,Ct. 1737,1743.135 L.Ed.2d 3Q
(1996) ("[e]ven when a branch does not arrogate power to itself, ". the separation-of-powers
doctrine requires that a branch not impair another in the pefformance of its constitutional duties"). If
it does, the constitutional separation of powers will be violated. In Nixon the Court recognized that
the President's access to honest and informed advice and his ability to explore possible policy options
privately are critical elements in presidential decisionmaking. Given the President's dependence on
preSidential advisers and the inability of the deliberative process privilege to provide advisers with
adequate freedom from the public spotlight, we conclude that limiting the privilege in this fashion
would indeed impede effective functioning of the presidency.
http://web2.westiaw.com/resultidocumenttextaspx?service=F ind&rs= WL WS. 06&cnt= DO,., 711812008
ill t .50 I L':J
i2f fXil G1 We believe therefore that the public interest is best served by holding that *752
**299 communications made by presidential advisers in the course of preparing advice for the
President come under the presidential communications privilege, even when these communications
are not made directly to the President. Given the need to provide sufficient elbow room for advisers to
obtain information from all knowledgeable sources, the privilege must apply both to communications
Which these advisers solicited and received from others as well as those they authored themselves.
The privilege must also extend to communications authored or received in response to a solicitation
by members of a presidential adviser's staff, since in many instances advisers must rely on their staff
to investigate an issue and formulate the advice to be given to the President. We are aware that such
an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a
significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a
recognition of the unique role of the President. FN21 In order to limit this risk, the presidential
communications privilege should be construed as narrowly as is consistent with ensuring that the
confidentiality of the President's decisionmaking process is adequately protected. Not every person
who plays a role in the development of presidential advice, no matter how remote and removed from
the President, can qualify for the privilege. In particular, the privilege should not extend to staff
outside the White House in executive branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members of an immediate White House
adviser's staff who have broad and significant responsibility for investigating and formulating the
adVice to be given the President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of his deliberations or
to pose a risk to the candor of his adVisers. See AAPS, 997 F.2d at 910 (it is "operational proximity"
to the President that matters in determining whether "[tlhe President's confidentiality interest" is
implicated) (emphasis omitted). .
FN2LFor example, Professor Berger cOmmented on the Nixon decision: "The real
problem is not posed by confidentiality between the President and his immediate
advisers, members, of his cabinet'and the like;it arises from:thefact that ,the claim for.
executive privilege has sprawled far beyond presidential precincts. Berger, Incarnation,
'" .. supra,:at23.
oillyapplies to . .... s
and their staff author or solicit and receive in the course of performing their function ofildvislng the
President on official government matters. This restriction is particularly important in regard to those
offfcials who exercise substantial independent authority or perform other functions In addition to
advising the President, and thus are subject to FOIA and other open government statutes. See
Armstrong v. Executive Office of the President. 90 F.3d 553, 558 cert. denied, 520
U.s. 1239, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (19m. The presidential communications privilege
should never serve as a means of shielding information regarding governmental operations that do
not call ultimately for direct decision making by the President. If the government seeks to assert the
presidential communications privilege in regard to particular communications of these "dual hat"
presidential advisers, the government bears the burden of proving that the communications occurred
in conjunction with the process of advising the President. .
l2ill Q.QllRl' au [@' In this case the documents in question were generated In the course of
advising the President in the exercise of his appointment and removal power, a qUintessential and
nondelegable Presidential power
FN22
In many instances, presidential powers *753 **300 and
responsibilities, for example the duty to take care that the laws are faithfully executed, can be
exercised or performed without the President's direct involvement, pursuant to a presidential
delegation of power or statutory framework. Cf, Morrison, 487 U.s. at 691-92, 108 S.Ct, at 2619-20
(requirement that Independent Counsel can be removed only for good cause is not an
unconstitutional restriction on the President's powers). But the PreSident himself must directly
exercise the presidential power of appointment or removal. As a result, in this case there is assurance
that even if the President were not a party to the communications over which the government is
asserting presidential privilege, these communications nonetheless are intimately connected to his
presidential decisionmaking. In addition, confidentiality is particularly critical in the appOintment and
7/18/2008
removal context; without it, accurate assessments of candidates and information on official
misconduct may not be forthcoming. See, e.g., Wash. Legal Foundation v. Department of Justice, 691
. aff'd sub nom. PuPJickit.i?:!;./].v. DeP-'lrtmJlt9I)Yii.tiC.e, .. 4.9Ll,L;;; .. MO,
109 S.ct. 2558,105 L.Ed.2d 377 (1989) (underscoring the "unique need for confidentiality" in the
President's appointment of federal judges).
The Constitution does not explicitly grant the President the power to remove
executive branch officials, but it is well established that this power, at least in regard to
some officials, can be inferred from the President's other enumerated powers and
responsibilities. See [iQrrison, 487 U.s. at 68990, 108 S.Ct. at 2618-19: Mvers v. United
States, 272 U.s. 5b-117. 163-64.47 S.Ct. 21, 45.41, 71 L.Ed. 160 (1926). While the
President's removal power over some executive branch officials is limited, the PreSident
has unqualified power to appoint and remove cabinet officers. See Myers, 272 U.s. at
134,47 S.ct. at 31 ("[The President'S] cabinet officers must do his will. ... The moment
he loses confidence in the intelligence, ability, judgment, or loyalty of anyone of them,
he must have the power to remove him without delay. ").
lUllliZ Finally, we underscore our opinion should not be read as in any way affecting the scope of
the privilege in the congressional-executive context, the arena where conflict over the privilege of
confidentiality arises most frequently. The President's ability to withhold information from Congress
implicates different constitutional considerations than the President'sability to withhold evidence in
judicial proceedings. See, e.g., ROZELL, supra, at 142-57; Norman Dorsen & John H.F. Shattuck,
Executive Privilege, the Congress and the Courts, 35 OHIO ST. LJ. 1, 16-22,2433 (1974). Our
determination of how far down into the executive branch the presidential communications privilege
goes is. limited to the context before us, namely where information generated by close presidential
advis"ers is sought for use in a judicial proceeding,and we take no pOSition on how the institutional
needs of Congress and the President should be balanced.
C. Standard of Ne.ed
The q"Ps . of whether the to communications that
do not involve the President is. on y e Ie. ... ." ...." . in to an a plication of .
the privilege here. We must also determine what type of showing of need theOIC must make in
defense of the grand jury subpoena in order to overcome the privilege.
Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing
whether, and in what Circumstances, the presidential communications privilege can be overcome.
Under this methodology, these opinions balanced the public interests served by protecting the
President's confidentiality in a particular context with those fUrthered by requiring disclosure. Since
Nixon and Sirica ciearly establish that the presidential communications privilege can be overcome by
a sufficient showing that subpoenaed eVidence is needed for a criminal judicial proceeding, our task is
not to weigh anew the public interest in preserving confidentiality against the public interest in
assuring fair trials and enforcing the law. Rather, our task is to determine precisely what guidance
these cases provide on what counts as a sufficient showing of need in our situation, and more
specifically to clarify whether there is any difference between the need standard this court established
in Sirica in regard to a grand jury subpoena and the standard articulated by the Supreme Court one
year later in Nixon for a criminal trial subpoena.
At the end of its discussion of the presidential communications privilege in Nixon, the Supreme
Court stated that the privilege "must yield to the demonstrated, specific need for evidence in a
pending criminal trial." at 713,94 S.Ct. at 31;1.0. What the Court meant by a "demonstrated,
specific need" is debatable. Compare Cox, supra, at 1414-15 ("[tJhe critical test [under Nixon] is
*754 **301 probably relevance and admissibility") with Freund, supra, at 31 ( Nixon appears to
require "a stronger showing of need" than just relevancy). After setting forth this need standard, the
Court tersely commented that "[o]n the basis of our examination of the record we are unable to
'onc1ude that the District Court erred" in finding that the Watergate Special Prosecutor had made a
iufficient showing of need to overcome the presidential privilege; it never explained what parts of the
7/111l7nnR
I a!:Jc,..);;. VI..).7
record led it to this conclusion. Id. at 714, 94 S.Ct. at 3110-11. The only occasion where the Court
discusses in any detail the showing of need that the Special Prosecutor actually made comes in its
analysis of whether the subpoena satisfied FeQ-,"L<J1B.ulQU;rimLmL..f'rogQllie 1IC(;)., which governs
all subpoenas for documents and materials made in criminal proceedings. The Court concluded that
the subpoena met Rule 17(c)'s tripartite requirement of relevancy, admissibility and specificity; the
Special Prosecutor's supporting materials, which listed the date, time and participants in the
conversations sought and provided testimony regarding the content of some conversations,
established "a sufficient likelihood that each of the tapes contains conversations relevant to the
offenses charged in the indictment" and that these conversations would be admissible. Id. at 700, 94
S.Ct. at 3103. The Nixon Court's failure to elaborate on the demonstrated, specific need standard or
provide any further analysis of the Special Prosecutor's showing led one judge to comment that to
overcome presidential privilege "the Court does not appear to have meant anything more than the
showing that satisfied Rule 17(c)." North, 910 F.2d at 952 (Silberman, J., concurring in part and
dissenting in part). Further, the Court offered varying characterizations of when the preSidential
communications privilege would be overcome, at one juncture suggesting the privileged material
must be "'essential to the justice of the [pending criminal] case,''' Nixon, 41.fUL.S. at 712,._2.4 S.Ct"
at 3110 (quoting Burr, 25 Fed. Cas. at 192), and at others simply that the material must be
"preliminarily shown to have some bearing on the pending criminal cases." Nixon. 418 U.s. at 713, 94
S.Ct. at 3109; see also id. at 712 n. 19, 94 S.Ct . .iJt 3109_0.".12 (referring to the "constitutional need
for relevant evidence") (emphasis added).
It would be strange indeed if Nixon required nothing more to overcome presidential privilege than
the initial showing of relevancy, admissibility and specificity necessary to satisfy Rule 17(c) in all
cases, even in cases where no claim of privilege is raised. If this were true, the privilege would have
no practical benefit. That the Nixon Court believed overcoming the presidential privilege required
something more than the ordinary Rule 17(c) showing is apparent from its statement, made atthe
outset of the ,discussion of presidentia I priVilege; that "[h]aving determined that the requirements of
B"J.'Ll.1.(".} were satisfied, we turn tothe claim that the subpoena should be quashed because it
. demands confidential conversations between a President and his close advisers.'.' 41BUS. at 703,94
S.Ct. at..llQ.5. (internal quotations omitted); see also id. at 713-14, 94 S.Ct. at3110-11
. (distinguishing ,between,inquiry into whether a subpoena was. properly issued and review of cla,imof
. n of a roperly issued subpoenal. However, the opinion also cannot be read
as' demaridin'g that the information soug m .. . ieal to an accurate judicial
determination; such a view simply is incompatible withthe Court's repeated emphasis on the.
importance of access to relevant evidence in a criminal proceeding.
Q . 1 l ~ ' We conclude that Nixon's demonstrated, specific need standard has two components. A
party seeking to overcome a claim of presidential privilege must demonstrate: first, that each discrete
group of the subpoenaed materials likely contains important evidence; and second, that this evidence
is not available with due diligence elsewhere. The first component, likelihood of containing important
evidence, means that the evidence sought must be directly relevant to issues that are expected to be
central to the trial. In practice, this component can be expected to have limited impact, since Rule 17
ill precludes use of a trial subpoena to obtain evidence that is not relevant to the charges being
prosecuted or where the claim that subpoenaed materials will contain such evidence * 755 * * 302
represents mere speculation. See, e.g., Nixon, 418 U.S. at 699-700,94 S.Ct. at 3103-04: United
States v. Ardin;, 255 F.2d 331, 345A6 (5th Cir,1992); EhrJichman, 559 F.2d at 75-76. But to the
extent that Rule 171-<;) allows a defendant to subpoena evidence that would be only tangentially
relevant or would relate to side issues, the first component of the need standard would come into
play. See, e.g., Nixon, 418 U.s. at 701, 94 S.Ct. at 3104 ("Generally, the need for evidence to
impeach witnesses is insufficient to require its production in advance of trial."); /?owman Da[aJ;;9.,...J0.
United States, 341 U.s. 214, 219, 71 S.Ct. 675, 678, 95 L.Ed. 879 (1951) (materials can be reached
under &lIe 17(c) "as long as they are evidentiary"); In re MJ1rtin Marietta Corp., 856 F.2d 619, 622
(4th Cir.1988) (upholding subpoena on grounds that materials were "clearly of evidentiary value").
The second component, unavailability, reflects Nixon's inSistence that privileged presidential
communications should not be treated as just another source of information. See North, 910 F.2d at
15l.Jl..2.2 (Silberman, J., concurring in part and dissenting in part) (acknowledging that one possible
difference between the showing necessary to satisfy Rule 17(c) and Nixon's need standard is that the
'. I.
lLlt.JaIL,;!
latter "would also require a showing that the evidence is unavailable from any source other than
the President"). Efforts should first be made to determine whether sufficient evidence can be obtained
elsewhere, and the subpoena's proponent should be prepared to detail these efforts and explain why
eVidence covered by the presidential privilege is still needed. Of course, there will be instances where
such privileged evidence will be particularly useful, as when, unlike the situation here, an immediate
White House advisor is being investigated for criminal behavior. In such situations, the subpoena
proponent will be able easily to explain why there is no equivalent to eVidence likely contained in the
subpoenaed materials. Finally, while our view of the Nixon need standard is derived from the
opinion's language and a common-sense understanding of "need," it is worth noting that the factors
of importance and unavailability are also used by courts in determining whether a sufficient showing
of need has been demonstrated to overcome other qualified executive privileges, such as the
deliberative process privilege or the law-enforcement investigatory privilege. See lilLe Comptroller of
the Currencv, 967 F.2d at 634; Friedman. 738 F.2d at 1342.
Nixon, however, involved a trial subpoena; what we have here Is a grand jury subpoena. In a
post- Nixon decision, United States v, R, Enterprises, Inc., the Court emphasized that the unique
function of the grand jury fundamentally differentiates its subpoenas from trial subpoenas. "The
function of the grand jury is to inquire into all information that might possibly bear on its
investigation, ... [and aJs a necessary consequence of its investigatory function, the grand jury paints
with a broad brush." 498 U.S. 2 ~ 7 . 111 S.Ct. 722,726,112 I...Ed.2d 795 (1991); accord
Branzburg v. Haves, 408 U.s, 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972). Requiring
grand jury subpoenas to comply with the same requirements of relevancy, admissibility, and
specificity under Rule 17(c) as applies to trial subpoenas would impose an impossible burden on the
grand jury, create untoward delays, and threaten the secrecy of grand jury proceedings. B.J;.nters"
12JL\L..S, .. ,gL2.22<_UJ.;;'.J::J ... at 7i,L As a result, the Court concluded that a grand jury subpoena is
presumed to be reasonable and the burden is on the subpoena's opponentto disprove,this
presumption; Where )'a.subpoena is challenged on relevancy grqunds, the motion to quash must be'
denied unless the district court determines that there is no reasonable possibility that the category of
materials the Government seeks will produce information relevant to the general subjectoHhe grand'
jury's investigation." Id. at 301, 111 S.Ct. at 72a.
'But then again,R.EntlpJise len eta a grand jury subpoena only.on grounds of
relevance; itdoes not govern a case, suthas this,where thegranJu .... d
on grounds of privilege, Instead, the case most directly on point in this respect is Sirica,Where this
court was specifically confronted with a claim of presidential communications privilege raised against
a grand jury subposna. The OlC does not appear to dispute that Sirica is the governing case here;
instead, the OIC *756 **303 reads Sirica as establishing a significantly less demanding need
standard than Nixon, and argues that this differential is justified in light of R. Enterprises' insistence
that a grand jury subpoena is not held to the same standards as a trial subpoena. According to the
OlC, Sirlca merely requires that the grand jury demonstrate the eVidence it seeks is directly relevant
to its investigation in order to overcome the President's claim of privilege.
The OlC's position represents too selective a reading of Sirica. To be sure, at times in that opinion
we used language suggesting the required demonstration was only that the materials sought were
"directly relevant" to the g rand jury's inquiry. For example, we commented that "[tJhe exception that
we have delineated to the President's confidentiality privilege depends entirely on the grand jury's
showing that the evidence is directly relevant to its decisions," 1a7 F.2d at 719 (emphasis added);
see also id. at 705-06, But admittedly we also used language on other occasions indicating that a far
more substantial showing was required. We stated that the President's claim of privilege "must fail in
face of the uniquely powerful showing made by the Special Prosecutor ... that the subpoenaed tapes
contain eVidence peculiarly necessary to the carrying out of [the grand jury's] vital function-eVidence
for which no effective substitute is available," 487 F.2d at 717 (emphasis added), and at another
point characterized the Special Prosecutor's showing as being that "the subpoenaed recordings
contain evidence critical to the grand jury's decisions." Id. at 706 (emphasis added). We echoed this
latter characterization in Senate Committee, where we described Sirica as requiring a demonstration
that "the subpoenaed eVidence is demonstrably critical to the responsible fulfillment of the [grand
Jury's] functions." 498J.,i,..Qll.t1.J1 (emphasis added).
""11 n ',",('lAO
1LI l'.JU IL:?
LW In this instance, we agree with the White House that the Sirica need standard which
governs grand jury subpoenas is no more lenient than the need standard enunciated for trial
subpoenas in Nixon. In both situations, to overcome the presidential privilege it is necessary to
demonstrate with specificity why it is likely that the subpoenaed materials contain important evidence
and why this evidence, or equivalent evidence, is not practically available from another source. See In
(Kopf, J., dissenting) (arguing that Nixon standard
applies to grand jury subpoenas as well as trial subpoenas). On the one hand, to the extent that
some of this court's comments in Sirica suggest that a more substantial showing of need must be
made when presidential privilege is raised against a grand jury subpoena than the Supreme Court
required in regard to a criminal trial subpoena, we do conclude that these comments have been
effectively overruled by R. Enterprises. But R. Enterprises' emphasis on the special leeway given to
grand jury subpoenas as opposed to criminal trial subpoenas absent a claim of privilege does not
preclude us from finding that the same need standard applies when the presidential communications
privilege is asserted. The necessary breadth of the grand jury's inquiries in fact supports applying a
strict standard of need to overcome presidential privilege, because it means that grand jury
subpoenas may well represent a much more frequent threat to presidential confidentiality. The
Supreme Court has recognized that "the longstanding principle that the public has a right to every
man's evidence" is limited by valid claims of privilege in grand jury proceedings as elsewhere, even as
it held that this Principle "is particularly applicable to grand jury proceedings." Branzburg, 408 U.s. at
688,92 S.Ct. at 2660 (ellipsis omitted); see also United States v. Calandra, 414 338, 344, 346,
94 S.ct. 613,618,619,38 L.Ed.2d 561 (1974) (while grand jury is "accorded Wide latitude," "the
grand jury's subpoena power is not unlimited" and "[jJudicial supervision is properly exercised" to
protect claims of privilege).
Nor do we believe the Nixon/Sirica need standard imposes too heavy a burden on grand jury
.illyestiQi3t.ion .. tile primary effect of thi.s stardarti.will be to require a grand jury to delay
subpoeQaingevidE'!t1ce covered by presidential privilege until it has assured itself that the eyid,mce
sought frpm.the President or his advisers is bothirrportant to its investigation and practically*757
. * * 304 uhavailable elsewhere. As was true in SiridJ; a grand jury will often be able to specify its need
for withheld evidence in reasonable detail based on information obtained from other sources. And if it
. . ..... ' . obtaining eVidence from other sources, this fact in and or itsejfwill gofar toward
satisfying tilneedreq\jirement. . au .' ... '.. .' ......... ......... ' ................ eOtentiai ofllndercutting the
secrecy cifgrimd jury proceedings, a dri ensurelhatstic:h secrecy isprotece ...... .'
provisions for sealed, or when necessary ex parte, filings.
Q.2l1'2r We agree with the OlC in one regard, however. R. Enterprises mai<es clear that a grand
jury subpoena is not subject to the same __ 1Zir;) requirements of "relevancy, admissibility and
specificity" as a criminal trial subpoena. Since to meet the need standard the grand jury will have to
make a specific showing of the importance of the evidence it seeks, its exemption from the relevancy
and specificity constraints of Rule .12.(0 will not be Significant. But the same is not true of the grand
jury's freedom from the requirement of admissibility, and in R, Enterprises the Court underscored that
a grand jury is often allowed to consider evidence that would be deemed inadmissible in a criminal
trial. 29UU S. Ct. at 72l>.::.27.. As a result, the fact that evidence covered by the
presidential communications privilege may be inadmissible should not affect a court's determination
of the grand jury's need for the material.
* * *
Based on our review of the Nixon cases and the purpose of the presidential communications
privilege, we conclude that this privilege extends to cover communications which do not themselves
directly engage the PreSident, provided the communications are either authored or received in
response to a solicitation by presidential advisers in the course of gathering information and preparing
recommendations on official matters for presentation to the President. The privilege also extends to
communications authored or solicited and received by those members of an immediate White House
advisor's staff who have broad and significant responsibility for investigating and formulating the
advice to be given to the President on a particular matter. We also hold that in order to overcome a
'"1/10/')(\{)O
- - - - - - - ,
claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically
demonstrate why it is likely that evidence contained in presidential communications is important to
the ongoing grand jury investigation and why this evidence is not available from another source.
IV. EXAMINATION OF THE WHITE HOUSE'S CLAIMS OF PRIVILEGE
Our final task is to apply the principles we have heretofore laid out to the documents withheld in
this case. We have concluded that although all of the documents come under the presidential
communications privilege, the OlC has demonstrated a sufficient showing of need to obtain certain
information in some of the documents. Because we believe that the determination of exactly what
evidence should be released is one that the district court should make in the first instance, we do not
identify any specific portions of the documents to be released. However, we are supplementing our
opinion with a sealed appendix to assist the district court with its in camera review of each document
on remand.
A. The Presidential Privilege Applies
The withheld documents consist primarily of outlines of issues and questions that needed to be
investigated and drafts of the White House Counsel's report on the Espy investigation. There are also
notes of meetings and phone conversations, lists of information on Espy, and press briefings on Espy.
Most of the documents were authored by two associate White House Counsel, a few were authored by
top presidential advisers, specifically the White House Counsel, Deputy White House Counsel, Chief of
Staff and Press Secretary. A few documents were authored by a legal extern in the White House
Counsel's office, and there are also three documents for which no author is listed. According to the
White House privilege log, as wel.1 as the headings of the documents themselves, it appears that most
.of the docume.nts Circulated only within the White *758 **305 Hou.seCounsel's office\Many ofthe
documents to the White House Counselor Deputy White House Counsel, or represent notes
taken from meetings at which these top advis<2rs and others were pres@t. A sizeable number,
how<2ver, were either authored by the two associate White House Counsel and not disseminatedor
sent only to themby others. All of the docun'tents relate to the investigation of Espy that the
President asked the White House Counsel to undertake.
D6)13ff[;??J The documents ti1dtl"l.;le.auEMered 13/ thl white HOlise Counsel, Deputy White
House Counsel, Chief of Staff and Press Secretary were communications connected toan official
matter on which they were directly advising the President, and thus under the principles laid out in
this opinion these documents are clearly covered by the privilege. The same is true of notes taken of
meetings on the Espy investigation at which these advisers were present, Since these notes reflect
these advisers' communications, and of documents that they solicited and received. As established
above, the presidential privilege applies to communications made by a member of an immediate
White House adviser's staff when the staff member has broad and significant responsibility for
investigating and formulating the advice to be given the President on the particular matter to which
the communications relate. It is clear from a review of the documents that the two associate White
House Counsel exercised broad and significant responsibility for gathering information on Espy's
actions and authoring initial drafts of the White House Counsel's report. Consequently, documents
they authored or they solicited and received from others also come under the privilege.
Lilll Ll2l The only question regarding application of the presidential communications
privilege here concerns the remaining withheld documents, which consist of those documents
authored by the leg a I extern in the White House Counsel's office and three documents for which no
author is listed. It is apparent that the legal extern did not exercise broad and significant
responsibility for the Espy investigation, and therefore the documents authored by the legal extern do
not, on their own, qualify for the presidential privilege. However, all of the withheld documents
authored by the extern were clearly created at the request of the two associate White House Counsel
with broad and significant responsibility for the Espy investigation and were received by them.
Therefore, the privilege also applies to these documents. The status of the three no-author
documents is more difficult to resolve. Two of these documents were received by the Deputy White
http://web2.westlaw.comlresultidocumenttext.aspx?service=Find&rs= WL W8.06&cnt= DO... 7/J 8/2008
House Counsel, and the other by one of the associate White House Counsel with broad and
significant responsibility for the Espy investigation. These documents relate to operational details of
the Espy investigation. Clearly, if these documents were solicited by the Deputy White House Counsel
and the associate White House Counsel, they would be also covered by the privilege. The current
description of these documents provided by the White House, however, does not specifically indicate
whether these documents were in fact solicited. Ordinarily, the White House would be expected to
demonstrate that they had been, but we do not believe a remand for that showing is necessary here
because our review of the documents themselves demonstrates that from the nature of their contents
and the persons to whom they were directed there can be little question that they had been solicited.
As we are setting forth for the first time the principles by which we will determine whether the
privilege applies to communications of presidential advisers that do not directly involve the President,
we believe it would be unrealistic to expect the White House to have foreseen the need to specifically
demonstrate that the documents had been solicited.
In sum, we conclude that all of the documents withheld by the White House here are subject to
the presidential communications privilege. As a result, we need not determine whether the documents
would qualify for the deliberative process privilege. FN23
FN23. The White House has also claimed attorney-client privilege in regard to Document
19. We do not need to examine this claim because it is clear, based on our review of this
document, that it should not be released. The document comes under the presidential
communications privilege as it was authored by the President's Chief of Staff and was
sent to the indiVidual acting as White House Counsel, and contains no information or
eVidence that could be relevant to the grand jury's inquiry.
*759 **306 B. TheOIC's Demonstration' of Need
A preliminary question that must be addressed before we turn to an examination of the Ole's
demonstration of need is whether we should be reviewing this demonstration at all. The procedure
envisioned by.the Nixon cases,as outlined.e,arlier, is.that upon a sufficient of need, the
Presi.dent mustturn over privileged material.s for in camera review, whereupon the court revie,wsthe
matenals aniLt:1etel I !lilies what should be rlIl3spd Tl:lls...case conies to us in. a sigQificantlydifferent
posture than Nixon and Sirica. iiiD6th of those cases, President Nixon was chalienglng.dlstrg:C(;Qolt
orders that instructed him to submit the subpoenaed tapes for in camera review. In this case, the-
White House has already turned over the subpoenaed materials for in camera review pursuant to the
district court's order, and did not appea, from that order. Instead, we have before us the Ole's appeal
of the district court's denial of the Ole's motion to compel. Thus, we are presented with the question
of whether we should forego determining whether or not the OIC made a sufficient showing of need
to obtain in camera reView, and instead simply instruct the district court to review the withheld
documents and determine what evidence should be released.
(40J ig) How we resolve this question could have a significant Impact on what materials are
disclosed to the grand jury, because the standard applied to determine if the orc has made a
suffiCient showing of need to obtain in camera review is much more difficult to satisfy than the
standard applied during in camera review to determine exactly what evidence should be released. As
we explained in the preceding section, the showing required to obtain in camera review is governed
by the NixonjSirica need standard and entails demonstrating with specificity that the subpoenaed
materials likely contain important evidence and that this eVidence, or equivalent eVidence, is not
practically available from another source. The purpose of this initial showing is to protect the
confidentiality of presidential communications; it operates on the presumption that these
communications are privileged and requires the subpoena proponent to meet a certain threshold of
need before a court will consider releasing any of the communications sought.
The district court's in camera review also aims to ensure that presidential confidentiality is not
'm necessarily breached, but it operates on the presumption that some privileged materials will
robably be released. The court's task during its in camera review is simply to ensure that privileged
materials that would not be of use to the subpoena proponent are not released. NiXQD, 418
'"
'7/1 Q n()()R
714, 94 S.Ct. at2ilQ;. Sirica, 487 F.2d at 719-21. Nixon makes clear that the court determined
what evidence could be of use to the subpoena proponent by isolating all eVidence that satisfies the
applicable Rule_1ZLc) requirements of admissibility and relevance. This eVidence is then released,
while the remaining materials are returned to the President. 118 U.s. at 714-15, 94 S.ct. at 3110-1l.
As mentioned above, Rule 17(c) does not impose an admissibility requirement on grand jury
subpoenas, and requires release of evidence unless there Is no reasonable posSibility that subpoenaed
eVidence will be relevant to grand jury proceedings. See R, Entemrises, 498 U.S. at 298,301. 111
S.Ct. at 726-27,728. Thus, once a grand jury has provided an adequate demonstration of need to
obtain in camera review of materials covered by the presidential privilege, the court should review the
subpoenaed material and release any evidence that might reasonably be relevant to the grand jury's
investigation. The question of what evidence might reasonably be relevant to the grand jury's
investigation should be answered by reference to the reasons the grand jury gave in explaining its
need for the subpoenaed materials.
fAll lilT We believe that the appropriate course for us is to determine whether the OlC made out a
sufficient showing of need to *760 **307 obtain in camera review of the documents, Although Nixon
established that a President is allowed to immediately appeal an order requiring production of
subpoenaed materials for in camera review, the general rule is that an order requiring production of
evidence for in camera review "is not final and hence not appealable," Nixon, 418 U.s. at 691. 94
S.Ct. at 3099: accord Church of Scientologv v. United States, 506 U.S. 9, 18 n. 11. 113 S.Ct. 447,
452 n. 11. 121 L.Ed.2d 313 (1992); Kessler, 100 F.3d at 1016-17. Since the provision for immediate
appeal by a President is an exception created because "[t]o require a President of the United States
to place himself in the posture of disobeying an order of a court merely to trigger the procedural
mechanism for review of the ruling would be unseemly," Nixon, 418 U.s. at 691-92, 94 S.Ct. at 3099,
we believe that the White House should not be penalized because it waited until the district court
issued its final ruling on the Ole's motion to compel. To nile.otherwise would foster a proliferation of
piecemeal ?ppeals in cases implicating the cornmunications privilege. both the
. OIC and the White House have directed their arguments to the question of whetherthe OlC made a
sufficient demonstration of need for the withhefd documents, and neither party-nor, it appears, the
district court-differentiated between the standar(J that applies to the OIC's showing'ofneedlo obtain
in camera review and the standard the district court subsequently applies during in' camera review to
(jetermlne.W/l,,(uwtel ial sllOuld be Feleased ..
The OlC provides two arguments as to why the grand jury needs the documents. One is the
general claim that as the White House investigated the same subject matter as the grand jury,
namely whether {:spy accepted improper gifts or otherwise abused his position, the White House
documents will clearly be relevant to the grand jury's Investigation. The other is that the grand jury is
investigating Whether Espy made false statements to the White House during its investigation, and
evidence of statements made by Espy or his lawyers to the White House are key in determining
whether false statements were in fact made. The Ole has submitted an ex parte affidavit and other
materials in support of these arguments.
l4l1 We find the OlC's first justification of the grand jury's need for the documents, that the
withheld documents were generated by the White House Counsel's office in preparing its report on the
same allegations regarding Espy that the grand jury is investigating, insufficient, at this stage, to
constitute an adequate showing of need under the Nixon/ Sirica standard. It is true, as the OlC
contends, that the withheld documents likely will contain evidence that is directly relevant to the
grand jury's investigation of Espy. But the OlC has not yet made a sufficient demonstration of its
inability to obtain this information from alternative sources or an explanation of why it particularly
needs to know what eVidence is in the White House files. Here, unlike in the Nixon cases, the actions
of White House officers do not appear to be under investigation.
We recognize the difficulty that the OIC faces in demonstrating that it has not been able to obtain
the information contained in the White House Counsel's documents when it does not know what this
information is. This difficulty has been worsened by the extremely sketchy descriptions of the
withheld documents that the White House provided in its privilege log. We also realize that in order to
preserve the secrecy of the grand jury's investigation, the arc is understandably reluctant to detail
,,/1 o 1'1 f\() Q
the witnesses it has interviewed so far or the areas on which the investigation is focusing. But the
OlC has not even attempted this task. For example, during their negotiations over the withheld
documents, the White House Counsel's office informed the OlC that the documents contained notes
from interviews with two USDA attorneys. Yet the orc has not indicated whether it interviewed
attorneys at USDA and if so whether anyone of them admitted to having conversations with the
White House Counsel's office. Again, while the OIC notes in its brief that the withheld documents
could contain statements from witnesses who are no longer cooperating with the grand jury's
investigation, it provides no basis on which we could conclude that this is in fact the case. We also
note that the *761 **308 subpoena for the documents generated in compiling the White House
Counsel's report was issued just three days after the report was released and five weeks after the OlC
was appointed. In the face of this timing, it is hard to conclude that the OlC issued its subpoena to
the White House as a last resort.
Nonetheless, it is possible that the OlC might be able to provide a sufficient justification for
obtaining factual information in the White House files that it might not already possess. The White
House has conceded that there is some factual information in the withheld documents that is not also
contained in the documents that the White House released, and our own review of the documents has
identified a sizeable number of such items of information, though many of them appear to be of
minimal consequence. Moreover, the grand jury investigation into Espy's actions has now lasted over
two years, so that if and when the OlC provides some account of the information the grand jury has
been unable to obtain, it will be fair to conclude that this information is not obtainable elsewhere. The
orc may also be able to demonstrate a need for information that it currently possesses, but which it
has been unable to confirm or disprove.
Consequently, on remand the OlC should be given an opportunity to supplement its showing of
need for the information contained in the withheld documents. If the district court determines that the
Ole's demonstration of need satisfies the Nixon/ Sirica.standard, the court should reviewtl"re
docume.nts in camera and release any information that might reasonably be relevant in light of this
demon.stratton of need. Two caveats should be noted. First, since. the grand jury is investigating
Espy's actions, not those of the White House Counsel's office, the purely deliberative portions of the
documents should not be released. Second, only information that is.not contained in thedocumet:lts
that the WhiteHouse earlier released should be provided to the grand jury, since any newrelease of
reviously disclosed information would be purely cumulative. See Senate Committee. 498 F.2dat .
Hw-732.
The Ole's second, more narrow argument as to why the grand jury needs the withheld documents
is much more powerful. The OIC argues that these documents may contain evidence of statements
m"ade by Espy or his lawyers to the White House, and that the grand jury needs this evidence in order
to determine whether Espy made false statements to the White House. FN24 The White House released
copies of all the letters that Espy's counsel sent to the White House. But among the withheld
documents are notes from meetings and conversations with ESpy's counsel, and other evidence
indicating statements that Espy's counsel made. It is likely that these documents contain evidence of
statements by Espy's counsel, and evidence of what Espy or his counsel actually said to the White
House may be critical to the grand jury as it seeks to determine Whether in fact Espy made any false
statements. FN25 As we commented in Senate Committee, if one of the crimes that the grand jury is
investigating relates to "the content of certain conversations, the grand jury's need for the most
precise evidence, the exact text of oral statements ... is undeniable." F.2d at 732. Obviously, this
evidence is not available elsewhere; even if Espy's counsel offered to provide the grand jury with
every statement that was made to the White House, the grand jury would need to review the
eVidence in the White House files to confirm that no statements were omitted.
fN24.,. The White House has not suggested that an investigation into whether Espy made
false statements is outside the Ole's mandate, and thus we consider any such argument
to be waived.
EJI!25,. We express no opinion as to whether Espy's counsel's statements are attributable
to Espy. See .United United
F WL W8. DO... 711 8/2008
lL.1 r . .)u IL.';I
V. Fairchild, 990 F.2d 1139, 1141 (9th Cir.1993); United States v. Blazewicz, 459 F.2d
442,443 16th Cir.1972).
L41l @j The Ole's second argument of need for eVidence in the subpoenaed documents is
sufficient to obtain in camera review; the OIC has demonstrated that it is likely the subpoenaed
documents contain important eVidence that is not available elsewhere. On in camera review, the
district court should isolate and release all evidence that might reasonably*762 **309 be relevant to
the question of whether Espy made false statements to the White House. Based on our review, we
believe there are additional statements made by Espy's counsel in the withheld documents-although
again, several of these statements appear to be of little evidentiary value.
We therefore hold that the OIC has demonstrated sufficient need in order to overcome the
presidential communications privilege in regard to evidence of statements made by Espy or his
counsel and contained in the withheld documents, and that the OIC should be given an opportunity to
make out a sufficient showing of need in regard to other evidence more generally. On remand, the
district court should Identify and release specific items of evidence that might reasonably be relevant
to the grand jury's investigation into the potential false statements charge. If the court deems any
additional showing of need presented by the OIC to be sufficient, it should also identify any new items
of information that merit release. We are submitting a sealed appendix to assist the district court with
its review.
V. CONCLUSION
This case forces us to engage in the difficult business of delineating the scope and operation of the
presidential co,[nmunications privilege. In holding that the privilege extends to communications
authored by or solicited and received by presidential advisers andlhat a specified demonstration of
need must bE; made even in regard to a grand jury subpoena, we are ever mindfulofthe dangers
involved in cloaking governmental operations in secrecy and in' placing obstacles in the path of the
grand jury in its investigatory mission. There is cl powerful counterweight to these concerns, however,
----f1R;;,mE'I)' the "ubhe and constitutional interestiD. preserving the efficacy and quality of presidential"
decisionmaking, We believe have Gqtlined io this opinion achieve a, delicate ..and
appropriate balance between openness and inform'edpresidential deliberation.
The decision of the district court is vacated and the case is remanded for further proceedings
consistent with this opinion.
So ordered.
121 F.3d 729, 326 U.s.App.D.C. 276
END OF DOCUMENT
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.... /.O"..,,'f\O
560
442 MICH 560
[June
PEOPLE v FISHER
Docket No. 92897. Argued December 8, 1992 (Calendar No.4). De-
cided June 29, 1993. Dissenting opinion by LEVIN, J., fi1ed
June 30, 1993. .
Richard E. Fisher was convicted by a jury in the Eaton Circuit
Court, Richard M. Shuster, J., of second-degree murder and was
sentenced to forty to sixty years in prison. The Court of
Appeals, MrCHAEL J. KELLY, P.J., and DOCTOROFF and J. T.
CORDEN, JJ., affirmed, but remanded for resentencing with
instructions to provide a more adequate articulation on the
record for the departure from the guidelines (Docket No.
91816). On remand, the court sentenced the defendant to the
same term, reasoning that ,because persons sixty years old
seldom -commit violent crimes, society would be given some
degree of assurance that the defendant would not commit a
similar crime. remand, the Court of Appeals, MICHAEL J.
KELLY. P.J., and DocroRoFF and CYNAR, JJ., again remanded
and ordered resentencing by a different judge, finding the
rationale totally inappropriate (Docket No. 111583). Thereafter,
visiting judge' Patrick McCauley, J., sentenced the defendant to
twenty-five to fifty years in accordance with the second edition
of the sentencing guidelines. After second remand, the Court of
Appeals, SHEPHERD, P.J., and WAHLS and R. B. BURNS. JJ.,
reversed in an opinion per curiam, finding that the lower Court
erred in considering for sentencing purposes certain statements
in the presentence investigation report that were made by the
defendant's ex-wife and by using the second edition of the
sentencing guidelines, and again. remanded for resentencing by
yet another judge (Docket No. 119148). The people appeal.
In an opinion by Justice GRIFFIN, joined by Justices BRICKLEY,
BOYLE, RILEY, and MALLTr, the Supreme Court beld:
REFERENCES
Am JUr 2d, Criminal Law 590; Witnesses 296, 301, 302.
Marital privilege under Rule 501 of Federal Rules -of Evidence. 46
ALR Fed 735.
1993) PEOPLE V FISHER 561
The hearsay statements in
this -case that were written into the presentenoe re-port were
not made during an examination in a court proceeding and
were properly considered by the sentencing court. The circuit
court did not err in applying the provisions of the second
edition of the sentencing guidelines.
L MeL 600.2162; MSA 27 A. 2162 provides that neither
spouse may -be examined with respect to any communication
made during the marriage, a narrow testimonial .privilege
precluding a spouse being'questioned as a sworn witness about
such
___ ..-.'-t ","','",-","".
,0

the
_.;'lot
..
2. Administrative Order No. 19884 requires the circuit court
to apply the second edition of the ,sentencing guide-lines when
sentencing a defendant after October 1, 1988. _ Use of the reo
vised edition is tied to the date that sentences are imposed
rather than the date that the offenses were committed. Because
the sentencing guidelines do not e&tablish a presumplive sen
range, constitutional ex post facto requirements are not
_v:iolated. The . revised guidelines convey no substantive rights,
and their application to a defendant who appeals a sentence
neither chills the right to a-ppeal nor infringes upon the right
to due process. Nor do the revisions limit the discretion af
forded the sentencing judge. Because the twenty-five year mini
mum sentence in this case is within the revised guidelines, it is
presumptively valid.
Reversed.
Chief Justice CAVANAGH, concurring in part and dissenting
in part, stated that the marital communication privilege bars
at trial regarding confidential marital communica-
tions regardless of whether a spouse testifies; because the
privilege applies at sentencing, the same testimony should be
barred at sentencing. Once the communication falls within the
marital communication privilege, it remains privileged and
may not be admitted through a- third party. Thus, disclo-
sure by the defendant's spouse to a police officer of a confiden-
tial marital communication made by the defendant should be
barred at sentt;!ncing.
The marital communication privilege precludes more than
just a spouse's testimony. The focus of the privilege is on
prohibiting disclosure of confidential marital communications
562 442 MICH 560 [June
in court, absent consent. If confidential marital communica-
tions were to be admissible because neither spouse testifies, but
one spol.lse discloses the statements to a poliee officer who then
testifies regarding the statements, the' consent requirement
would be pointless. The marital communication privilege prO-
tects the statement itself; thus, a third party to whom a
statement later is disclosed also should be prohibited from
disclosing the statement in court.
Justice LEVIN, dissenting, stated that it is violative of the
marital communications privilege to place before the trier of
fact a wife's statements, orally or in writing, concerning state-
ments made to her by her husband. The privilege bars evidence
.of marital communications without regard to whether the
-evidence of the marital communication is -sought to be
duced through the testimony of a spouse as a sworn witness in
court or by some other means such as the testimony of a person
who spoke with a spouse or a writing containing statements
from one spouse .to the other.
There is no reason to distinguish between a deliberate oral
communication by a spouse to a third person of a confidential
communication, and the deliberate delivery by a to a
third person of a written communication. A spouse cannot be
examined in court con-cerning an oral confidential
tion simply because one of the spouses deliberately revealed the
communication to third persons. Thus, there is no
to hold that the privilege does not bar the testimony of -a
witness who spoke to a spouse who reported a. confidential
marital communication or the admissibility of a document
containing statements from one spouse to the"other.
190 Mich App 598; 476 NW2d 762 (1991) reversed.
1. WITNESSES - HUSBANDS AND WIVES - COMMUNICATION PRIVILEGE
- TES1'IMONY.
The marital communication privilege is limited to those situa
tions in which a spouse is examined in Court proceedings with
regard to communications made during the marriage; for the
privilege to apply, a spouse must testify; introduction of marital
communications by other means is not precluded (MeL
600.2162; MSA 27 A.2162).
2. SENTENCES - SENTENCING GUIDELINES - REVISED EDITION.
The circuit court is required to apply the second edition of the ..
sentencing guidelines when sentencing a defendant after :.'
October 1, 1988; use of the revised edition is tied to the
that sentences are imposed, rather than the date that
offenses were committed.
1993] PEOPLE V FISHER
OPINION OF THE COURT
563
Frank J. Kelley, Attorney General, Thomas L.
Casey, Solicitor General, Jeffrey L. Sauter, Pros-
ecuting Attorney, and William M. Worden, Assis-
tant Prosecuting Attorney, for the people.
Donald L. Correll for the defendant.
GRIFFIN, J. In this criminal appeal, we must
decide whether the marital communications privi-
lege proVided by MCL 600.2162; MSA 27 A.2162
may be invoked in a sentencing proceeding to
preclude consideration by the sentencing court of
certain extrajudicial statements made by defen-
dant's estranged wife and set forth in the presen-
tence report. .. not,

We are required also to determine whether the
circuit court properly applied the second edition of
the sentencing guidelines when this defendant was
last resentenced in light of the fact that he earlier
had been sentenced and resentenced for the same
crime while the first edition was still in effect. We
find no error in the application of the guidelines.
During an altercation with defendant Richard
Fisher, William Tappert was stabbed with a hunt-
ing knife at the home of Mary Fisher, defendant's
estranged wife. Tappert died the next day, and
defendant was charged with first-degree murder.
MCL 750.316; MSA 28.548.
The prosecutor maintained that the killing was
premeditated and motivated by jealousy. Altho.ugh
defendant and his wife were separated, he visited
the home almost daily to. see his children. The
pro.secution co.ntended that defendant was dis-

564 442 MICH560
[June
turbed because Tappert,. who was Mary Fisher's
boyfriend, had been staying at the house during
several of the nights which preceded the alterca-
tion.
In testimony at his trial before an Eaton County
jury, defendant claimed that Tappert was physi-
cally abusing Mary Fisher, and that he was com-
ing to her aid when Tappert was stabbed. Accord-
ing to defendant, the two men engaged in a scuffle,
he took out a small hunting knife merely to scare
Tappert, and the stabbing was accidental.
The jury rejected defendant's version of the
events, and convicted him of second-degree mur-
der, MCL 7"50.317; MSA28.549. Thereafter,he was
sentenced by Circuit Judge Richard M. Shuster to
forty to sixty years in prison. On appeal in the
Court of Appeals, defendant's conviction was af-
firmed .. However, because the sentence exceeded
the then-recommended minimum sentencing
guideline range of seven to sixteen years, the case
was remanded to the circuit court for resentencing
with instructions to provide a more adequate artic-
ulation on the record of reasons for departure
from the guidelines. 166 Mich App 699; 420 NW2d
858 (1988).
On remand, the circuit judge reread parts of the
original sentencing transcript and again sentenced
defendant to forty to sixty years. The judge rea-
soned that when individuals reach the age of sixty
they seldom commit violent acts; therefore, by.
sentencing the twenty-seven-year-old defendant to
a minimum of forty years,. society would be given
some degree of assurance that he would not com-
mit a similar crime. Defendant again appealed .
the Court of Appeals, which found the rationale,
given for the sentence to be "totally .
ate" and ordered that the defendant be resen-
1993J PEOPLE V FISHER
OPINION OF THE CoURT
565
tenced by a different judge. 176 Mich App 316,
318; 439 NW2d 343 (1989).
Upon return to the circuit court for further
proceedings, the matter was assigned to visiting
Judge Patrick McCauley, who sentenced defendant
to a prison term of twenty-five to fifty years. Judge
McCauley made clear that he had considered the
recommended minimum of ten to twenty-five years
set forth in the revised, or second, edition of the
sentencing guidelines, which had not been in effect
when defendant was earlier sentenced.'
Defendant appealed for a third time, and the
Court of Appeals once again reversed. This time
the panel ruled that the lower court erred in two
respects: first, in considering for sentencing pur-
poses certain statements in the presentence inves-
tigation r.aport that were attributed to Mary
Fisher, and, second, by utilizing the revised, or
second, edition of the sentencing guidelines. Once
again, the case was remanded for resentencing by
yet another judge. 190 Mich App598; 476 NW2d
762 (1991). After the prosecutor unsuccessfully
sought rehearing in the Court of Appeals, this
Court granted leave to appeal.'
II
At the sentencing proceeding conducted by
Judge McCauley, defendant challenged the truth-
fulness of certain statements in the presentence
report attributed to Mary Fisher, and he objected
on the ground of marital privilege to use of the
statements for sentencing purposes. Brief excerpts
from the report that include the emphasized chal-
. lenged statements are:
1 The_ second edition of the sentencing guidelines became effective
October 1, 1988. Administrative Order No. 1988.4. 430 Mich ci (1988),
'439 Mich 995 (1992).
566 442 MICH 560
[June
.[11 While there Rick [defendantllooked into the
bedroom area and said to Mary [Fisher 1, "Is your
fuckin boyfriend here? Tell him to come in here so
I can stick him a couple of times. "
[2) Bill Tappert fell to the ground and Mary -saw
that he was bleeding. She started to cry and asked
Rick, "Did you stab him ?", to which he replied,
"Fuck yes I stuck him."
[3) Mary followed Rick outside of the house and
Rick told her to tell the police that Tappert had
faIlen in to the knife.
Addressing the issue of marital privilege, the
visiting circuit judge noted that defendant and
Mary Fisher were no longer married, having di-
vorced during the period between the first and
third sentencing proceedings. The -court found that
the challenged statements implicated only the
spousal privilege, and that it was inapplicable
because the spousal privilege "terminated at the
divorce."
After holding an evidentiary hearing at which
defendant and the police investigator testified, the
court concluded that the statements as reported
were truthful. 3 Thereafter, in explaining its rea-
SonS for imposition of the twenty-five to fifty-year
sentence, the court left no doubt that each of the
challenged statements was taken into account.
Responding to defendant's third appeal, the
Court of Appeals disagreed with the trial court's
disposition of defendant's claim of statutory
3 At the hearing, defendant testified and contested the -truthfulness
of the three statements, While he admitted using p-rofanity in telling ;
Tappert to leave, be denied making the second statement. With.
regard to the third statement, defendant testified that he was explain
ing to Mary Fisher how Tappert was wounded, not asking her to lie
for him. .
On the other hand, a police detective, who in'terviewed Mary Fisher
at the crime -scene and obtained her statements, testified for the.
prosecution regarding the accuracy of the statements contained in the .:
report.
567
spousal privilege. While acknowledging that the
spousal privilege (precluding one spouse from testi-
fying against the other) does not survive divorce,
the panel emphasized that the communications
privilege encompassed within the same statute
precludes testimony by one who is, or was, a
spouse "with regard to any confidential communi-
cation that occuned during the marriage irrespec-
tive of a subsequent divorce." 190 Mich App 603.
The panel concluded that at least "the third state-
ment at issue, which was a request by defendant
to his estranged wife asking her to lie to the
police, was barred by the confidential communica-
tions privilege. '" Id.
For reasons other than those articulated by
either the trial court or the Court of Appeals, we
conclude that the three statements at issue were
not precluded from consideration as part of the
presentence report by the privilege statute, MeL
600.2162; MSA 27A.2162.
Privileges are governed by the common law,
e x ~ e p t as modiiied by statute or court rule. MRE
501. Because there is no court rule governing
marital privileges, the statute controls. People v
Love, 425 Mich 691, 699; 391 NW2d 738 (1986)
{opinion of CAVANAGH, J.).
4 The Court of Appeals did not consider the applicability of the
marital privilege statute to the second sta-tement, having found that
defendant conceded it was made in the presence of a third party, the
son of Mary Fisher. 190 Mich 601.
Further, the appeals panel did not consider the statute's applicabil
ity to the first statement, Instead, it stated that "l:dluring the sentenc
ing procedures, the sentencing court ruled that it would not
consider the first statement," 190 Mich App 603, and then found
sentencing error in light of the "failure to -strike from the presentence
report (the] challenged information ." Id, at 604, Although we
agree that the mandate of MeR 6.425(D)(3)(a) should be observed, any
error in this regard w?-s harmless in light of an express statement on
the record by the trial judge that the information was not considered
in passing sentence. Under the circumstances, this Court elects to
consider the statute's applicability to all three of the challenged
statements.
568 442 MICH 560
OPINION -OF THE COURT
[June
MeL 600.2162; MSA 27 A.2162 provides, in perti- .
nent part:
A husband shall not be examined as a witness
for or against his wife without her consent; nOr a
wife for or against her husband without his
consent ... nor shall either, during the marriage
or afterwards, without the consent of both, be
examined as to any communication made by one
to the other during the marriage . . . .
In People v Hamacher, 432 Mich 157, 161-162;
438' NW2d 43 (1989), this Court distinguished be-
tween the spousal privilege and the marital com-
munication privilege:
Section 2162 of the RJA j:>rovides two distinct
privileges. The first, the spousal privilege, is only
applicable when the witness and the spouse are
married at the time of trial. This privilege bars
one spouse from testifying for or against the other
without the other's consent except in (1) actions
for divorce, (2) prosecutions for bigamy or for a
crime committed against the children of either or
both, (3) actions growing out of a j:>8rs6nal wrong
or injury done by one to the other or the refusal or
neglect to furnish the spouse or children with
suitable support, (4) cases of desertion Or abandon-
ment, and (5) certain cases relating to marriage
and title to property.
The second privilege. the communication privi-
lege, bars one spouse from testifying "as to any
communications made by one to the other during
the marriage" without the consent of the other.
The communication privilege applies whether the
testimony is sought "during the marriage or after-
wards," as long as the communication occurred
during the marriage. Section 2162 of the RJA
states no exceptions with respect to the communi-
cation privilege.(5
J
S In People v Vermeulen, 432 Mich 32, 3738; 438 NW2d 36 (1989),
this Court further explained:
569
Because the spousal privilege is not available
-except during the marriage, and defendant and
Mary Fisher were divorced when Judge McCauley
conducte<i the sentencing proceeding, it is clear
that only the applicability of the communications
privilege could be at
The prosecution further argues that the state-
ments, albeit hearsay,' were nonetheless admissi-
ble under MRE 1l01(b), which provides:
The rules [of evidence] other than those with
respect to privileges do not apply in the following
situations and proceedings:

(3) . . . Proceedings for extradition or rendition;
-or granting or revoking probation; is-
suance of warrants for arrest, criminal sum-
monses, and search warrants; and proceedings
with respect to mlease on bail or otherwise. [Em-
phasis added.]
On the other hand, defendant contends that
even though MRE 1l01(b)(3) allows the admission
Unless -and until the statute is amended or a court rule
superseding the statute is adopted, the trial courts may not
inquire into -the viability of the marriage. The communication
is barr.ed if it was made during the marriage. We thus adhere
to this Court's statement in PeopJe v Hamacher, 428
Mich 884; 402.NW2d 484 (1987), where this Court observed that
the statute -"contains no exception to the privilege regarding
communi-cations between a husband and wife where the hus
-band and wife are separated or. are in the process of obtaining
a divorce."
'See MRE 801(e), 802.
570 442 MWH 560
[June
of hearsay evidence at sentencing, the same rule
expressly excepts privileged communications from
the expansive scope of sentencing information. He
argues that the prosecutor should not be able to
indirectly introduce privileged evidence that he
would be prohibited from educing directly.
The Michigan marital privilege statute d{)es not
specifically address situations in which a confiden-
tial communication inadvertently {)r purposefully
comes into the hands of a third party. While the
scope of the privilege has been interpreted by this
Court on numerous prior occasions, the applicabil-
ity of the statute in this precise context has not
been tested before. Indeed, it has been over eighty
years since this Court last encountered a questi{)n
involving the admissibility, through a thir'dper-
son, of a privileged marital communicati{)n.
O'Toole v Ohio German Fire Ins Co, 159 Mich
187; 123 NW 795 (1909), was a civil suit involving
a claim that the plaintiff wife intentionally burned
her barn with the purpose of defrauding thedefen-
dant insurance company. The particular issue rele-
vant to the instant case was the admissibility of
two incriminating letters made by the wife to, and
received by, the husband. The letters inadvertently
came into the possession of a third party, who in
turn indirectly passed the letters on to the defen-
dant insurance company. The trial court allowed
the . letters to be received into evidence despite
plaintiff's claim that they constituted privileged
communications. Relying more upon common-law
doctrine from other jurisdictions than the lan-
guage of the statute itself,' the Supreme Court
affirmed the trial court, holding:
7 The statute then applicable in OToole provided, "nor shall either,
during the marriage or afterwards, without the consent of. both, be
examined as to any communication made by one to the other during
the marriage ." 1897 CL 10213.
1993) PEoPLE V FISHER
571
And so it has been held, and, we think, cor-
r:ect1y, that where the communication, oral or
written, has, without collusion or voluntary disclo-
sure,escaped the custody and control of the par-
ties communicating or the custody or control of
their agents or representatives, it is not privileged.
(O'Toole, supra, p 193.][8' .
In reviewing other authorities, the O'Toole
Court noted that H(tJhe cases are not numerous;
the rulings are not harmonious." Id. Thisobserva-
tion still holds true today. Two annotations on the
general topic of the interception by third parties of
privileged marital communications reflect a wide
disparity in the case law in other jurisdicti{)ns. See
Applicability of marital privilege to written com-
munications between spouses inadvertently ob-
tained by third person, 32 ALR4th 1177, and
Spouse's betrayal or connivance.as extending mari-
tal communications privilege to testimony of third
person, 3 ALR4th 1104. To some courts, the mere
fact that a marital communication came within
the possession or knowledge of a third person is
sufficient to render it admissible in evidence.
Other courts have held that the admissibility of a
third person's testimony concerning a confidential
marital communication depends on whether access
to the communication was gained with or without
the connivance of the spouse. Yet other courts
have held that confidential marital communica-
tions are absolutely privileged and never admissi-
8 See also People v Dunnigan, 163 Mich 349; 128 NW 180 (1910); cf.,
People v Salisbury, 218 Mich 529; 188 NW 340 (1922) (in a prosecu
tion for attempted rape, the action of the prosecutor in -calling the
deferidan-t'-s attention to a paper containing a statement made by his
Wife and asking him if he did not make the admissions contained in it
to -her was error under the privilege statute. because the prosecutor's
action' was .an -attempt to get before the jury in an indirect way
testimony made incompetent. by the statute); People v Bowen, 165
Mich 231; 130 NW 706 (1911).
~ . ; : .
572 442 MrcH 560
OPINION OF THE COUR'!'
[June
ble, no matter how obtained. See annotations, id.,
and cases cited therein.
Two cases from other jurisdictions have ad-
dressed the unusual situation presented in the
instant case. In United States " Burton, 631 F2d
280 (CA 4, 1980), the defendant con.tended on
appeal that it was improper for the court, in
determining the appropriate sentence, to consider
a presentence report containing alleged incrimi-
nating privileged marital communications. The
appellate court found the defendant's contentions
to be without merit:
No marital privilege the government.
from enlisting one spouse to give information con-
cerning th'l." . .Qtb'1r,"or to aid in

v United
''States [445 US 40, 52, n 12; 100 S Ct 906;63 L Ed
2d 186 (1980)].
The purpose of a probation report, which is not
made available to the court until after conviction,
is. to give the sentencing judge the fullest possible
information concerning the defendant's life and
characteristics so that he may be able to impose
an appropriate sentence. See Williams v New York
[337 US 241, 250; 69 S Ct 1079; 93 L Ed 1337; 18
USC 3577 (1949)]. There was nothing unusual or
improper in the probation officer interviewing de-
fendant's wife, and in obtaining from her perti-'
nent information concerning the defendant's back-
ground, character 1 and conduct, and in including
in the probation report the information supplied
by defendant's wife to the government agents. In
so doing, there was no violation of any privileged
marital communication. The court waq clearly
entitled to consider the presentence report, includ-
ing such information, in its determination of an
appropriate sentence. [Burton, supra, pp 281-282.]
In State v Minor, 188 Neb 23; 195 NW2d
573
(1972), the court held that a judge at the time of
sentencing could consider hearsay statements of
the defendant's wife that were in the
report. Noting that the modern trend is to restrict
or abolish the marital privilege, the court stated:
We constr-q.e a wife's incompetency in criminal
proceedings against her husband to be limited to
testimonial utterances. She' is competent to supply
information for a presentence report.
In State v Rose, 183 Neb 809 [811], 164 NW2d
646 {1969], we said: "It is a long accepted practice
in this state that before sentencing a defendant
after conviction a trial judge has a broad discre-
tion in the source and type of evidence he may USe
to assist him in determining the kind and extent
of punishment to be imposed within the limits
fixed by statute .... A presentence investigation
has nothing to do with the issue of guilt. The rules
governing due process with respect to the admissi-
bility of evidence are not the same in a presen-
tence hearing as in a trial in which guilt or
innocence is the issue. The latitude allowing a
sentencing judge at a presentence' hearing to de-
termine the nature and length of punishment,
. other than in recidivist cases, is almost without
limitation as long as it is relevant to the issue."
[Minor, supra, p 27.J
Our determination in the instant case, however,
ultimately turns upon an interpretation of Michi-
gan law. While the statutory language governing
the marital communications privilege has not un-
dergone significant substantive changes in the
eighty years since O'Toole was decided, SOCiety
certainly has, accompanied by an increasing recog-
nition that the broad cloak of the marital privilege
, is no longer justified under certain circumstances.
,-__ __ . t dt . d' '. . t .
:', . -.',.jI&,.,. '-0WH-r' a res rle-'
-.... f h
o t e
- - - --. .- _. -,-.
574 442 MrcH560
OPIN-lON OF THE COURT
[June
'e;pr,ivilege:'As Justice BOYLE noted in her dissenting
opinion in People v Hamacher, supra, pp 18B-187,
The confidential communkations' privilege is
said to inspire marital confidences. McCormkk,
Evidence (3d ed), 86, p 201. Over time, case law
has blurred the justifications, and it is 'sometimes
observed that the validity of both privileges rests
on. the utilitarian ground of promoting marital
harmony ....
Criticism of both marital privileges centers on
the fact that they conflict with the jurisprudential
objective of advancing the truth-finding function.
As Professor McCormick observes, "while the dan-
ger of injustice from suppression of relevant proof
is clear and certain, the probable benefits of the
rule of privilege in encouraging marital confi-
dences and wedded harmony is at best doubtful
and marginal." McCormick, supra, 86, p202.
The principle that privileges should be narrowly
defined and the exceptions to them broadly con-
strued is not new. The O'Toole Court qualified its
holding with the admonition:
The privilege is in derogation of the general rule
that all persons may be compelled to testify con-
cerning facts inquired about in courts of justice. It .
should be made effective, but ought not to be
extended by the courts to cases where there has
been no injury to the relation of the parties by the
betrayal of the confidence reposed. [Id., p 193.]
More recently, in People v Love, supra, pp 700';'
701 (opinion of CAVANAGH, J.J, this Court reiter':
ated the fundamental rule:
"Testimonial exclusionary rules and
contravene the fundamental principle that
public .. has a right to every man's
575
As such, they must be strictly construed and ac-
cepted 'only to the very limited extent that permit-
ting a refnsal to testify or excluding relevant
evidence has a public good transcending the nor-
mally predominant principle of utilizing all ra-
tional means for ascertaining truth.''' [Quoting
from Trammel v United States, 445 US 40, 50; 100
S Ct 906;63 L Ed 2d 186 (1980) (citations omitted).
See also People v Hamacher, supra, p 188 (dissent-
ing opinion of BOYLE, J .).1
.and'oar' primary
Mfuhigan stat-'
ULe, we 'tbar--Mct BbO:21132; MSA
-not . applyi>n the circumstances
statute provides that neither
spouse may "be examined" with respect to any
communication made by one to the other during
the marriage. COn-'
.pvfvi:leg.e ,': only-a
as a
'eoltlmu-niea-

mttl<),;:a.t!7eWt
na
unkatlon through other means :is
rwt''Pfiiduded.
In the instant case, the marital communications
privilege is inapplicable because Mary Fisher was
not called to testify either at trial or at the eviden-
tiary hearing conducted by Judge McCauley.' The
three contested statements made by her to the
police detective were set forth in an affidavit to
obtain a search warrant. Later, the same state-
ments were included in the presentence report.
.: Although the detective testified concerning the
made to him. which became part of the
\I We are not called upon in this case to decide whether the statu-
privilege applies when a spouse testifies at a sentencing hearing.
576 442 MrCH560
[June
presentence report, at no time was Mary Fisher
examined as a witness against her husband."
Because we hold that the marital communica-
tions privilege is a testimonial privilege that is
limited to those situations in which a spouse is
being "examined" in court proceedings with re-
gard to the communications, the three hearsay
statements that in this case were written into the
presentence report were properly considered by
the sentencing court. MRE 1l01(b)(3), which pro-
vides that the Rules of Evidence do not apply to
sentencing proceedings, certainly contemplates
that hearsay that does not fall within the protec-
10 Our interpretation of the statute as creating only a testimonial
privilege is supported by the separate opinion of Justice LEY-IN in
People v Hamacher, supra, p 177, who in the context of a different
aspect of the marital privilege, stated:
Section 2162 of the Revised JudicatUre Act does not _purport
to bar a spouse from disclosing a confidential .comlllunication.
Hamacher's wife. without violating 2162. related the.
ment she attributed to her husband to social service workers,
police officers; the prosecutor, and could have done so to news-
paper and other reporters. -She could indeed have gone on the
nightly news and made a full statement of the conndential
communication without violating - 2162. The "secret" would
then no longer have been secret and "never again a wholly
private matter." Nevertheless, there can be no doubt that
despite the wide communication to the world at large of the
"secret," Hamacher's wife could not, consistent with 216'2, "be
examined" in cou-rt with regard to the communication.
Justice LEVIN concluded that the marital privilege statute precludes
only testimony of the spouse;
The courts have no basis for declaring that the statutory
purpose in 1861 was to protect the secrecy of the
tion when the statute itself clearly does not purport to do so.
There is no basis for concluding in 1989--over one hundFed
years after enactmen-t-that the legislative purpose
in 1861 was other than the literally stated purpose of
ing the spouse from "be(ing] examined" In court. (Id., pp 179-
180.J
Justice LEVIN, in his dissenting opinion in the case at bar,
withdraws from his own obiter dictum; we nonetheless find
observations to be cogent under the present circumstances.
577
tion of an established privilege, may be included in
presentence reports. n Indeed, it is recognized by
Michigan courts that the evidentiary rules govern-
ing trial procedure and sentencing are different:
Historically, separate evidentiary rules have
been fashioned for the trial and sentencing proce-
dures. Evidence admitted at trial to determine
whether the defendant i1' guilty of a specific crimi-
nal -conduct is largely limited by evidentiary rules
to first-hand or verifiable testimony directly re-
lated to the offense charged. But under Michigan's
indeterminate sentencing law, MeL 769.8; MSA
28.1080; the responsibility for setting the limits of
sentence between the statutory minimum and
maximum rests squarely on the sentencing judge.
At the sentencing hearing, after the issue of guilt
has been decided, full information regarding the
defendant's character, background, and criminal
record have generally been deemed admissible
under coru:epts of individualizing punishment. The
presentence report, mandatory for felony cases in
Michigan since 1931, allows the court to make an
informed judgment as to possibilities for rehabili-
tation, and to effectively utilize sentencing alterna-
tives. [People v Lee, 391 Mich 618, 634-635; 218
NW2d 655 (l974). See also Williams v New York,
supra; People v Potraika, 140 Mich App 749, 751;
366 NW2d 35 (1985); People v Burton, 44 Mich
App 732; 205 NW2d 873 (1973), Iv den 389 Mich
795 (1973).]
We realize that our holding today effectively
11 (Tlhere are no formal limitations on the contents of the
presentence repQrtj but there are limitations dictated by due
process.
We do not believe it wquld be a wise policy to restrict the
sentencing judge to the information admissible in open court
alone. (People v Lee, supra, pp 636, 639. See also People v
Books, 95 Mich App 500, 503504; 291 NW2d 94 (1980).]
578 442 MrcH 560
OPINION OF THE CoURT
[June
overrules OToole and other cited cases to the
extent that they can be read as recognizing a
broader privilege. However, our ruling by no
means represents an abrogation of the marital
communication privilege. The dissent of the Chief
Justice asserts that our holding would eliminate
the statute's consent requirement, and he refers
for an example to a spouse's divulgence of confi-
dential marital communications in the -course of
intense police interrogation. According to the dis-
sent, H[eJven if the spouse refuses to testify in
court regarding the communications, the police
can testify because the majority holds that if the
spouse does not testify, the privilege does not
apply." (CAVANAGH, C.J., post, p 589.) Of course,
the flaw in this reasoning is that use of such third-
party testimony in a nonsentencing setting would_
be governed by the rule against hearsay set forth
in MRE 802. See, e.g., People v Williams, 181 Michi
App 551; 450 NW2d 85 (1989); People v Burton, '
177 Mich App 358, 362; 441 NW2d 87 (1989);
People v DeWitt, 173 Mich App 261; 433 NW2d
325(1988).
Moreover, as Professor McCormick has posited,
The argument traditionally advanced in support
of the marital communications privilege is that
the privilege is needed to encourage marital Mnfi-
dences, which confidences in turn promote har-
mony between husband and wife. This
argument ... rests upon -certain assumptions
concerning the knowledge and psychology of mar-
ried persons. Thus it must be assumed -that
spouses will know of the privilege and take its
protection into account in determining to make
marital confidences, or at least, which is not the
same thing, that they would come to know of the
absence of the privilege if it were withdrawn and
be, as a result, less confiding than at present.
In the absence of any empirical validation, these
1993J
PEOPLE V FrSHER
579
propositions have appeared highly suspect to
many, though not all, commentators. Thus the
most convincing answer to the argument of policy
appears to be that the contingency of courtroom
disclosure would almost never (even if the privi-
lege did not exist) be in the minds of the parties in
considering how far they should go in their secret
conversations. What encourages them to fullest
frankness is not the assurance of courtroom privi-
lege, but the trust they place in the loyalty and
of each other., If the secrets are not told
outside the courtroom there will be little danger of
their being elicited in Court. In the lives of most
people appearance in court as a party or a witness
is an exceedingly rare and unupual event, and the
anticipation of it is not one of those factors which
materially influence in daily life the degree of
fullness of marital disclosures. [1 McCormick, Evi-
dence (4th ed), 86, pp 309-3lO.]
Of course, it is the prerogative of the Legisla-
ture, if it chooses, to expand marital communi-
cations privilege beyond its testimonial nature.
However, in the absence of such direction, we
follow the mandate of strict construction, particu-
larly where, as here, ascertainment of the truth
transcends the need to exclude relevant evidence.
Accordingly, we conclude that the decision of the
Court of Appeals on this issue must be reversed.
We now consider whether Judge McCauley used
the appropriate guidelines when he sentenced de-
fendant.
III
Administrative Order No. 1988-4 requires the
circuit courts to apply the second edition of the
sentencing -guidelines when sentencing a defen-
dant after October 1, 1988:
The Sentencing Guidelines Advisory Committee
""""<
f : > L ~ 442 MICH 560
[June
is authorized to issue the second edition of the
sentencing guidelines, to be effective October 1,
1988. Until further order of the Court, every judge
of the circuit court and of the Recorder's Court for
the City of Detroit must thereafter use the second
edition of the sentencing guidelines when imposing
a sentence for an offense that is included in the'
guidelines.
Defendant contends that the retroactive applica-
tion of the revised sentencing guidelines under the
present circumstances was a violation of the pro-
scription against ex post facto laws in the state
and federal constitutions," his constitutional right
to due process," and his right to appeal." Defen-
dant reasons that since he was resentenced twice
12 Canst 1963, art 1, 10, provides:
No bill of attainder, ex post facto law or law impairing the
obligation of contract,!)hal1 be enacted.
US Canst, art 1, 9, cl 3 provides:
No Bill of Attainder or ex post facto La:w shaH be passed;
US Canst, art If 10, cl 1 provides:
No State shall pass any Bill of Attainder, ex Po.st 'facto
Law, or Law impairing the Obligation of Contracts, or grant
any Tide of Nobility.
lS Canst 1963, art 1, 17, provides, in pertinent part:
No person shall be compelled in any criminal case to be a
witness against himself, nor be deprive'd of Hfe, liberty or
property, without due process of law.
14 Const 1963, art 1, 20 provides, in pertinent part:
In every criminal prosecution, the accused shall have the
right to have an appeal as a matter of rig-ht; and as.
provided by law, when the trial court so orders, to have such
reasonable assistance as may be necessa:r.y to perfect and
prosecute an appeaL
PEOPLE V FISHER
OPINION OF- THE COURT
581
of court error, it is unfair to subject him
harsher recommended sentence. He explains
the revised guidelines were not applicable
he was first sentenced. Under the original
guidelines, the recommended minimum sentence
range was seven to sixteen years; however, under
the new guidelines, the recommended minimum
sentence range is ten to twenty-five years.
Defendant concedes that our decision in People v
Potts, 436 Mich 295; 461 NW2d 647 (1990), which
was decided during the course of defendant's ap-
peals, obviates the ex post facto issue. In Potts, the
defendant challenged application of the revised
sentencing guidelines to her May 1988 offense.
Noting that use of the revised edition is tied to the
date that sentences are imposed (rather than the
date that offenses are committed) and that the
Michigan sentencing guidelines do not establish a
presumptive sentencing range," this Court held
that constitutional ex post facto requirements
were not violated:
Sentencing judges in this state are required by
this Court's administrative orders to consider the
minimum range recommended by the guidelines,
but are not bound by it. As the Court of. Appeals
observed, the guidelines are but "a tool to assist
the sentencing judge in the exercise of discretion."
181 Mich App ,}13[448 NW2d 820 (1989)].
It cannot be said, therefore, that the Michigan
guidelines convey substantive rights. Since there
are no presum.ptive sentences, the guidelines as
revised did not increase the punishment for the
defendant's crime. Neither before nor after the
revisions did the gUidelines limit the discretion
15. Judges are permitted to depart from the sentencing guide-
lines, and are required merely to explain their -reasons for
doing so. Further, all sentences are subject to appellate review.
[Id., p 302. Emphasis added.]
582 442 MICH560 [June
OPlNION OF THE COURT
afforded the sentencing judge in this case by the
indeterminate sentencing act. MeL 769.8; MSA
28.lO80. There is no violation of the ex post facto
provision where the enactment at isstie alters
modes of procedure rather than substantial per-
sonal rights. [Potts, supra, p 303.]
Given our conclusion in Potts, that the revised
guidelines convey no substantive rights, it logically
follows that application of the revised nonbinding
sentencing guidelines to a defendant who has ap-
pealed his sentence neither chills his right to
appeal nor infringes upon his right to due process. '
The revised guidelines did not increase defendant's
punishment in this case; the only change was in
what was deemed appropriate punishment pursu-,
ant to the guidelines. Moreover, the revisions did
not limit the discretion afforded the sentencing
judge. Id., p 303.
Practically speaking, this defendant has no
cause to complain. His first two sentences, being
forty to sixty years, exceeded the original guide-
lines recommendation. The twenty-frve-year mini-
mum imposed when he was sentenced a third time
under the revised guidelines is actually fifteen
years less than the forty-year minimum sentence
originally imposed." Furthermore, the twenty-five-
year minimum sentence is within the revised
guidelines and is therefore presumptively valid.'
People v Broden, 428 Mieh 343, 354-355; 408
NW2d 789 (1987). We find no basis in the record to.
conclude that the defendant should be resentenced
another time."
16 At the final resentencing, the trial court stated on the
if an appellate court later determined that the first edition
guidelines was appIicable, he nevertheless found the seven to
year recommendation inadequate in light of the ,aggravating
stances of the case and, accordingly, he would depart from
recommendation in any event.
11 We likewise find without merit defendant's claim that thtl
OPINION BY CAVANAGH, CJ.
IV
583
For the reasons set forth, we reverse the deci-
sion of the Court of Appeals.
BRICKLEY, BOYLE, RILEY, and MALLETT, JJ., con-
curred with GRIFFIN, J.
CAVANAGH, C.J. (concurring in part and dissent-
ing in part). I concur with the majority disposition
of the sentencing guideline issue; this Court did
not confer a substantive right upon a defendant to
receive a sentence under a particular guideline. I
write separately, however, because I cannot agree
with .the majority's result-oriented disposition of
the marital communication privilege
l
issue.
In my view, if the police officer's written testi-
mony at sentencing concerned confidential marital
communications, then the privilege applies
whether or not Ms. Fisher testified. If the marital
communication privilege applies, the police offi-
cer's testimony also should be barred. See People v
Salisbury, 218 Mich 529, 535; 188 NW 340 (1922)
("cross-examination is restricted as to other wit-
nesses when the anSwers would reveal confidential
communications, the divulgence of which is prohib-
ited by statute"). It is irrelevant that hearsay is ad-
missible at sentencing pursuant to MRE Il01(b)(3)
because only "hearsay that does not fall within
the protection of an established privilege, may be
sentencing judge, in referring to defendant's first statement to Mary
Fisher" CTt]ell him to Come in here so I can stick him a couple of
"-. times," see ante, p -566) as premeditated talk," erroneously
':, sentenced him on a char.ge for which he was
The court also described the crime as "intentional," "gross,"
an accidental matter." All these descriptions fall within the
definition of second degree murder, PeopJe v Dykhouse, 418
508-509; 345 NW2d 150 (1984), and by no means indicate
ourt improperly considered the offense for which he was
'Jl,tencing the defendant to be first-degree murder.
i MeL 600.2162; MSA 27 A.2162.
584 442 MICH 560
OPINION BY CAVANAGH, C.J.
[June
included in presentence reports.'" GRIFFIN, J.,
ante, pp 576-577.
J
This Court has interpreted the privilege statute
to encompass two distinct privileges. The first, the
spousal privilege, prevents a defendant's spouse
from testifying in court without the defendant's
consent. The second, the marital communication
privilege, prevents a defendant and the defen-
dant's spouse' from disclosing confidential marital
communications at judicial proceedings, unless
both spouses consent. People v HamaCher, 432
Mich 157, 161; 438 NW2d 43 (1989). This case
involves the marital communication privilege.
The marital communication privilege is "a rule
of public policy; the privilege being the privilege of
the spouse making the communication, the lips of
both being sealed, unless both, otherwise, person-
ally consent." Sweikhart v Hanrahan, 184 Mich
201, 207; 150 NW 833 (1915). (Emphasis added.) It
has been said that" '[t]he exclusion of such com-
munications when made in confidence between
persons occupying the intimate relation of hus-
band and wife is predicated on the necessity of
fostering such relation and the greater injury
2 I agree with the principle that evidence not admissible at trial
generally is admissible during sentencing; however, MRE llOl(b)(3)
bars privileged information during sentencing. Consistent application
of the privilege rule indicates that if the privilege bars the
cation at trial. then it also bars the communication at sentencing.
3 The defendant was married- during the trial, but divorced at the'
time of sentencing. Nonetheless, we- reject the prosecutor's argument.
that the communication is admissible because the marriage could
be saved. The marital communication privilege" 'cQntains no
tion to the privilege regarding communications between a
and wife where the husband and wife are, separated or are in
process of obtaining a divorce.''' People v Hamacher, 432 Mich
163; 438 NW2d 43 (1989). Testimony regarding the communication
not admissible in court "if-it was made during the maniage." ...
v Vermeulen, 432 Mich 32, 37-38; 438 NW2d 36 (1989).
1993]
PEOPLE V FISHER
OPINION BY CAVANAGH, c.J.
585
likely to result from permitting their disclosure
than the benefit to be gained th-ereby.' " People v
Ignofo, 315 Mich 626, 638; 24 NW2d 514 (1946)
(quoting Salisbury at 532).
The marital communication privilege also ap-
plies at sentence proceedings. Although the statute
itself neither limits nor expressly provides for
application of the privilege rule to sentencing,
MRE 1101(bX3) certainly dpes:
(b) Rules Inapplicable. The rules other than
thos.e with respect to privileges do not apply in the
following situations and proceedings;
, * *
(3) Miscellaneous Proceedings. Proceedings
for ... sentencing .... [Emphasis added.]
II
The problem raised here is that Ms. Fisher
disclosed to a police officer confidential marital
communications made by her husband, the defen-
dant. The police officer then included the state-
ments in Mr. Fisher's presentence report, which
was considered at sentencing. The prosecutor ar-
gues that such use was appropriate because hear-
say is admissible at sentencing. MRE llOl(b)(3). If
the statements are barred by the marital commu-
nication privilege, however, the police officer's tes-
timony also should be inadmissible.'
The majority dismisses this problem by holding,
4 It is obvious that neither the Legislature nor the court can
:,.01> .. tevant either spouse from breaching confidentiality. Nonetheless, the
idl..-egialature and the courts have developed the marital communication
. ,d must have had a reason, such as, preventing the
from being disclosed in court. The statute would be
if the wife coul-d disclose the communication to a third
then the third party testifies at judicial proceedings
the communication.
586 [June 442 MICH560
QpINtoN BY CAVANAGH, C.J.
"[b lecause ... the marital communications pnVl-
lege is a testimonial privilege that is limited to
those situations in which a spouse is being 'exam-
ined' in court proceedings with regard to the com-
munications, the three hearsay statements that in
this case were written[51 into the presentence re-
port were properly considered by the sentencing
court." GRIFFIN, J., ante, p 576. In effect, the
majority allows circumvention of the ro.arital com-
munication privilege and MRE llOl(b)(3),' by al-
lowing evidence indirectly that is prohibited di-
rectly, a ploy this Court long has forbidden.'
Aside from erroneously concluding that the
spouse must testify for the privilege to apply, the
majority does recognize that MRE l101(b)(3) "cer-
tainly contemplates that hearsay that does not fall
within the protection of an established privilege,
may be included in presentence reports." GRIFFIN,
J., ante, pp 576-577. Logically, the inverse should
5 The majority states that the statements were written into the
presentence report. There is no distinction, in this Case, between the
police verbally testifYing and the police writing the statements in the
report.
S This Court promulgated MRE 1101(b)(3) in the order of January 5,
1978. This Court still has "not undertaken a review of the statutory
privileges . since the promulgation of the Michigan Rules of
denee." Vermeulen, n 3 supra at 37. MRE llOl(b)(3) demonstrates
that when the Court adopted the rule, it had in mind ensuring that
third parties, who did not witness the making of statements were not
able to testify regarding. confidential marital communications. Despite
the fact that this Court promulgated MRE 1101(b)(3), the majority
looks to other jurisdictions to support ignoring the rule's clear man
4
date that privilege rules apply at sentencing. See GRIFFIN, J., ante, pp
572573.
1 The prosecutor may not attempt to admit evidence that otherwise
is inadmissible. See, e.g., People v Ignofo. supra at 638641; People v
Salisbury, supra, In Salisbury, this Court stated that the "course
pursued by the prosecuting attorney to which objection was made
brought clearly before the. jury the fact that defendant's wife had
made a statement in writing to him, in which she had said that
defendant made the admissions which he as a witness denied. Counsel
could not and did not seek to call the wife as a witness. In this
indirect way he placed before the jury the fact, unsworn to, that such.
damaging admissions had been made by the defendant to her. That
prejudice resulted therefrom cannot be doubted." Id. at 533,
OPINION BY CAVANAGH, c.J.
587
also be true ... Hearsay that falls within the protec-
tion of an established privilege may not be in-
cluded in presentence reports.
The hearsay statements here are the confiden-
tial marital communications defendant made to
his wife. If the statements are protected by the
marital communication privilege then both
are barred from testifYing regarding the
statements. To give mea\lingful effect to that re-
quirement, it must follow that "cross-examination
is restricted as to other witnesses when the an-
swers would reveal confidential communications,
the divulgence of which is prohibited by statute."
Salisbury at 535.' Consequently, the police officer's
testimony here would be inadmissible. The major-
ity attempts to elude this prohibition by holding
that the privilege does not apply because the
spouse was not called to the stand or examined
about confidential marital communications.
!II
I suggest there is no rational Or legal basis for
the majority's conclusion that the defendant's
spouse must be called to testify for the marital
communication privilege to apply.' First, putting
8 The Salisbury Court held that a defendant cannot be compelled to
testify about confidential communications without the spouse's con4
sent even though the defendant volunteered to testify regarding other
matters. The Court explained that the confidential nature of the
communication ban-ed use of the communication during judicial
proceedings.
9 The majority states,
In other words, the spouse must testify for the privilege to
apply. The introduction of the marital communication through
other means- is not precluded.
In the instant case, the marital communications privilege is
inapplicable because Mary Fisher was not called to testify
either at trial or at the evidentiary hearing conducted by Judge
McCauley.TAnte, p 575.J
<'5'",:
588 442 MICH560
[June
the spouse on the stand is not a requirement for a
communication to fall within the protection of the
marital communication privilege." Second, and
more importantly, under the spousal privilege the
defendant's spouse cannot take the stand unless
the defendant first consents. Under the marital
communication privilege, both spouses may testify,
but both must ,consent before either can be exam-
ined regarding confidential marital communica-
tions, Therefore, the prosecutor "could not call
defendant's" spouse to the stand because he was
prohibited by statute. IgnoEo at 640. Consequently,
the majority's analysis is seriously flawed.
ll
Even if the defendant consented to his spOUS
taking the stand, "[ t ]here is no question but that
the wife of defendant could not be asked to dis-
close such communications," unless the marital
communication privilege also is waived. fd, at 639
(quoting, Salisbury at 535). The distinction be.'
tween the consent required to waive each privilege
further demonstrates that the focus of the marital
communication privilege is on prohibiting disclo-
sure of confidential marital communications in
court, absent consenL
12
Furthermore, the majority stresses that "at no time was Mary
Fisher-examined as a witness against her husbimd." Ante at 576.
10 To invoke the marital communication privilege, the communica-
tion must be made during the marriage, Hamacher at 162, be in-
tended to be confidential, and not be made in the presence of a third
party, People v Rosa, 268 Mich 462, 464; 256 NW 483 (1934),
I t The spouse would not need to testify at sentencing because the
majority allows the police to take her testimony out of court and use
it at sentencing.
12 For example, under the spousal privilege an can testify
without defendant's consent and a spouse can testify with defendant's
consent. Nonetheless, the marital communication privilege in both
situations allows the defendant to bar testimony regarding confiden-
tial marital communications. Similarly, the spouse can refuse to
testify even if the defendant wants the spouse to disclose the confiden.
Hal marital communications in court. The spouse also can prevent the
defendant from disclosing confidential marital communications by
refusing to consent. Salisbury at 536-537.
1993]
PEOPLE V FISHER
589
The majority's conclusion eliminates the right of
both spouses to consent before either may disclose
confidential marital communications. If confiden-
tial marital communications are admissible be-
cause neither spouse testifies, but one spouse dis-
closes the statements to a police officer, who then
testifies regarding those statements, then the con-
sent requirement would be pointless. That result is
contrary to this Court's responsibility to interpret
statutes'to avoid rendenng any provision meaning-
less. See Girard v Wagenmaker, 437 Mich 231,
238; 470 NW2d 372. (1991) (-the Court "must still
give the statute a valid and reasonable construc-
tion that will reconcile any inconsistencies and
give effect to all its parts"). 13
Consider the implications of the majority's rule.
The police interrogate a defendant's spouse, who,
under the heat of the lights and the pressure of
the officers, discloses otherwise confidential mari-
tal communications. Even if tUe spouse refuses to
testify in court regarding the communications, the
police can testify because the majority holds that
if the spouse does not testify, the privilege does not
apply.
Besides eroding the consent requirement, the
majority rule renders the marital
privilege virtually nonexistent at sentencing, thus
overruling MRE 1l01(b)(3). If the privilege does
not apply because the spouse does not take the
stand, then confidential marital communications
could be disclosed to third persons who may testify
at sentencing despite the otherwise applicability of
the privilege. In order for the privilege to apply
after today, the defendant would have to call the
13 The majority decision also renders MRE llOl(b)(3) meaningless.
Consistent with principles of statutory construction, this Court should
interpret the Michigan Rules of Evidence, which it adopted, to avoid
rendering any provision meaningless.
590 442 MrcH 560
(June
spouse to the stand, since it is doubtful the pros-
ecutor will. In effect, defendant is forced to consent
to his spouse taking the stand and being examined
regarding confidential marital communications. It
seems odd that the defendant would have to con-
sent, and then moments later object to the same
questions being asked in order to invoke the privi-
lege. Such a rule is imprudBnt because it renders
the marital communication privilege unworkable,
and it impedes the privilege's purpose. Although
some of mycolleaguBs have advocated eliminating
the marital communication privilege altogBthBr,
until it is eliminated, this Court must continue to
interpret and apply the privilegB in a meaningful
manner as it is written. This is to say, testimony
rBgarding confidential marital communications is
not to be admitted in court, absent consent or an
applicable exception.
IV
The cases on which the majority reliBs really do
not bear close scrutiny. The marital communica-
tion privilege was not an issue in People v Wil-
liams, 181 Mich App 551; 450 NW2d 85 (1989),
which only involved the spousal privilBge. Simi-
larly, People v Burton, 177 Mich App 358; 441
NW2d 87 (1989), does not involve the marital
communication privilege, and the statements at
issue in People v DeWitt, 173 Mich App 261; 433
NW2d 325 (1988), were not confidential marital
communications. "
Williams, nonetheless, warrants. further explica-
14 It should be pointed out that State v Minor, 188 Neb 23;
NW2d 155 (1972), does not involve the marital communication
lege, and, apparently, Nebraska did not have a rule similar to
llOl(b)(3) at the time the case was decided. For the same reason,
majority's reliance on Trammel v United States, 445 US 40.; 100 S
90.6; 63 LEd 2d 186 (1980), is mistaken. .
OPIN.lON BY CAVANAGH, CJ.
591
tion. In Williams, the defendant allegedly shot her
tenant. The defendant's husband immediately
called for emergency assistance and reported that
a " 'woman just shot her tenant.' " The defendant's
husband was prohibited from testifying in court
against" thB defendant without the defendant's
consent. The Williams Court concluded, however,
that the statement to the 911 operator itself is not
protected by the s p o u s ~ l privilege; therefore, the
911 operator could testify regarding the statement
"if indeed the court determined that a hBarsay
exception applied .... " Id. at 554. I agree with
that holding because the spousal privilege bars the
spouse from testifying, but does not purport to
preclude any specific category of testimony. If the
defendant had consented to her husband taking
the stand, he could have testified about his state-
ment to the 911 operator, if such testimony other-
wise is admissible. _
If the husband's statement was a confidential
marital -communication, however, the outcome in
Williams would be different. For example, assume
that the defendant consented to her husband tak-
ing the stand, and, while testifying, the prosecutor
attempted to question the husband regarding confi-
dential marital communications. Because both par-
ties must consent to either spouse being examined
in court regarding confidential marital communi-
cations, either the husband could refuse to answer
the question, or the defendant could prevent him
from answering, by invoking the marital communi-
C'. cation privilege. Thus, the marital communication
privHege does not prevent the spouse from taking
but does specificallv prohibit certain
111 ltlterestingly. the statute does not differentiate' between admitting
Or unfavorable testimony. Even if the testimony was favora..
spouses must consent before either can be examined regard
fl, oonfidential marital communication or "communications."
592 442 MICH560
[June
testimony from being disclosed without both
spouses' consent. Therefore, the marital communi-
cation privilege protects the statement itself. Con-
sequently, the third party to whom the statement
later is disclosed also should be prohibited from
disclosing the statement in court. Holding other-
wise thwarts the purpose of the priviiege.
In holding that the marital communication priv-
ilege is testimonial onlY, the majority also relies
On Justice LEVIN'S separate opinion in Hamacher,
in which he explained:
Hamacher's wife, without violating 21,,2, re-
lated the statement she attributed to her husband
to social service workers, .police officers, the pros-
ecutor, and could have done so to newspaper and
other reporters. She could indeed have gone on the
nightly news and made a fun statement of the
confidential communication without violating
2162. The "secret" would then no longer have
been secret and "never again a wholly private
matter." Nevertheless, there Can be no doubt that
despite the wide communication to the world at
large of the 'secret," Hamacher-'s wife cou.ld not,
consistent with 2162, <tbe examined71 in court
with regard to the communication. [432 Mich 177.
Emphasis added.]
The majority claims that Justice LEVIN concluded
that the marital privilege statute only precludes
testimony of the spouse. Although Justice LEVIN
did say the purpose of the statute was to preclude
"the spouse from 'bering] examined' in court," I do
not read my colleague's opinion so narrowly. rd. at
180.
Justice LEVIN merely was offering support for
this Court's decision in Breisenmeister v Knights
of Pythias, 81 Mich 525; 45 NW 977' (1890), which
involved the patient-physician communication
593
privilege." In Breisenmeister, this Court inter-
preted the patient-physician privilege to "include[ ]
both the security against pUblication, and the
right to control the introduction in evidence, of
such information or knowledg.e communicated to
or possessed by the physician." rd. at 535. The
Court stressed that the "latter right exists al-
though the former has ceased to be of any benefit."
rd. Thus, Justice LEVIN merely was reiterating the
principle that even if t'he secret no longer exists,
the privilege does. H
I think it is clear that the marital communica-
tion privilege, precludes more than just the
spouse's testimony. Inherent in Justice LEVIN'S
conclusion is that any third party to whom the
spouse discloses the confidential marital communi-
cation is prohibited from testifying in court re-
garding the communication. If others could testify
it would have been unnecessary to ar:gue that the
privilege still exists, because the party could have
brought in the communication through another
witness. The majority ignores that this Court al-
ready has explained this principle:
The public may know; but shall the jury be
16 MeL 600.2157; MSA 27 A.2157. The privilege statute provides:
[Al person duly authorized to practice medicine or surgery
shall not disclose any information that the person has acquired
in attending a patient in a professional character
In Scripps v Foster, 41 lvHch 742, 748; 3 NW 216 (1879), this Court
held that the "object of the statute . is to prevent the abuse of the
confidential relation existing between the physician and his patient
and is for. the protection of the latter."
17 Justice LEVIN was contrasting McKinney v Grand Street P P &
F R Co, 104. NY 352; 10 NE 544 (1887), which held that once the
information was communicated at trial and no objection was raised,
there was no reason to enforce the privilege statute, because the
. information was no longer a secret. Justice LEVIN stated that the
. .9.tive intent was not to protect the secret, however. The legisla-
;ent was to invoke the protection even if the communication no
was secret.
594 442 MICH 560
OPiNWN BY CAVANAGH, C.J.
[June
permitted to receive and weigh testimony derived
from a source which the law has put the seal of
silence upon, unless released by the party who
'alone has the right to say whether that particular
witness shaH be the medium of conveying such
knowledge to the jury? For instance, the party
may have disc:losed to a third person all that he
has to his physician. NDw, while his admissions
may be proved in a proper manner by o;uch third
person, they cannot be proved by the physician
against the objection of the party, The privilege
conferred is that the physician shall not disclose or
testify to those matters which the statute inhibits
without the consent of the party to whom the
privilege is extended ,,[Id. at 535-536. Empha-
sis added.]
Significantly, this Court used the terms "disclose"
and "testify." A logical interpretation is that the
Courl said the physician may not "testify'" ot
"disclose" the communication to ensure that the
communication is not used in court by anyone to
whom the physician discloses the communication.
Justice BOYLE's dissent in Hamacher also
ports not allowing disclosure of confidential mari-
tal communications in court. Although Justice
BOYLE disagreed with the privilege altogether, she
stated that with "the pasSage of 1861 P A l25,
Michigan codified the rule of conditional compe-
tency or spousal bar and enacted a separate privi-
lege protecting from disclosure at a judiCial pro-
ceeding all confidential communications between
spouses made during the marriage." Hamacher at
185, (Emphasis added.)
Justice BOYLE explained that the two privileges
involved "the right to bar the spouse from testify-
ing and the right to prevent the spouse from
revealing confidential communications." ld. at 185-
186. Recognizing that the spouse may testify under
the marital privilege but still not
DISSENTING OPINION BY LEVIN, J.
595
"reveal" the communication indicates that the
marital communication privilege invoivessome-
thing more than prohibiting spouses from testify-
ing. Dbviously, the court cannot prevent a spouse
from telling the whole world, but the court can
prevent the communication from being revealed at
any time during judicial proceedings.
'v
I would hold that because the privilege bars
testimony regarding confidential marital communi-
cations at trial, whether or not the spouse testifies,
and because privilege rules apply at sentencing,
the Barne 'testimony is barred at sentencing. Once
the communication falls within the marital com-
munication ,privilege, it remains privileged and
may not be admitted through a third party." I,
therefore, agree with the Court of Appeals that
the marital ,communication privilege bars the dis-
-closure by the police officer at sentencing.
Finally, I concur with the majority's decision to
vacate the Court of Appeals order for resentencing
1Jnder the first edition of the sentencing guidelines.
The _ following opinion was filed with the Clerk of the Supreme
Court on June 30, 1993, after the release of the opinion of the Court
on June 29,1993-REPoRTER.
LEVIN, J. (dissenting). Richard Erick Fisher was
convicted of second-degree murder on evidence
tending to show that he stabbed William Tappert
with a hunting knife at the home of Mary Fisher,
'estranged wife. At a sentencing hearing, a
who interviewed Marv Fisher at
is not an expansion of the current privilege, but merely a
interpretation that salvages some meaning for having the
.-:;-<
596 442 MICH '560
[June
the crime scene, testified that she told the detec-
tive that Fisher had asked her "to tell the police
that Tappert had fallen into the knife." That
statement is also recited in the presentence report.
The Court of Appeals concluded that the detec-
tive's testimony and the recital in the presentence
report were ,evidence that Fisher had asked his
estranged wife to lie to the police, and was barred
by the marital communications privilege.'
The majority concludes that the marital commu-
nications privilege does not bar the introduction in
evidence of the testimony of the detective or of a
document, the presentence report, reporting what
Fisher is said to have said to his wife because the
privilege is limited to sworn testimony by a spouse
in court. No decision of this Court supports this
construction of this statutory privilege. What little
authority there is in this jurisdiction indicates
that the privilege is not limited to spousal testi-
mony in court. The authorities in other jurisdic-
tions overwhelmingly support the view that the
privilege bars the introduction in evidence of mari-
tal communications through the testimony of a
person who spoke to one of the spouses or in the'
form of a writing containing statements from' one
spouse to the other obtained through connivance
or betrayal by the spouse from whom the writing
was obtained.
Fisher was sentenced to serve a term of forty to
sixty years in prison. On remand from the Court
of Appeals, he was sentenced to serve a term of
twenty-five to fifty years. Before resentencing, the
, 190 Mich App 598; 476 NW2d 762 (1991), See n 4 for the text of
this statutory privilege.
597
judge conducted a sentencing hearing during the
course of which three statements were admitted in
evidence, over objection, through the testimony of
the police detective. These statements were also
recited in the presentence report.
The Court of Appeals did not find it necessary to
consider whether the first of the three statements'
was privileged because the sentencing judge said
he would not 'consider the first statement. Nor was
it necessary for the Court of Appeals to consider
the second statement because it was made in the
presence of a third person, and thus was not a
confidential communication protected by the privi-
lege.
In imposing sentence on Fisher, the judge said
that he considered the third statement, wherein
Mary Fisher reported that Fisher had asked her to
tell the police that Tappert had fallen into the
knife.
The Court of Appeals conduded that the third
statement, "which was a request by defendant to
his estranged wife asking her to lie to the police,
was barred by the confidential communications
privilege. An element of confidentiality is implicit
in a request to tell a lie. '"
2 The challenged statements made by defendant's estranged
wife, as reported in the presentence report, are as follows:
"[11 [Defendant): 'Is your fuckin[g] boyfriend here? Tell him
to come in here so I -can stick him a couple of times.'
"[21 She started to cry and asked [defendant}, 'Did you stab
him?' to which he replied, 'Fuck yes I stuck him.'
"(3) Mary -roHowed (defendant] outside of the house and
[defendant] told her to tellthe police that Tappert had fallen
into the knife."
We' note initially that defendant concedes that the second
statement was not a privileged communication because of the
presence of a third party (Ms. Fisher's son) when the communi
cation was made. (Id., p 601.]
'la" p 603.
598 442 MICH 560
DISSENTING OPINION BY LEVIN. J.
{June
II
The marital communication privilege is statu-
tory. It bars either spouse, during or after the
marriage, from being "examined," without the
consent of both, concerning any communication
made by one to the other during the marriage.'
In People v Bowen, 165 Mich 231,237; 130 NW
706 (1911), this Court said that "it was not error to
refuse to permit [the defendant in a criminal case]
to testify to the con tents of letters sent by (his
wife] to him, or given or shown to him by her,
whether written by her or others."
Earlier, this Court had approved the admission
in evidence of letters from one spouse to the other
that apparently had been misplaced and obtained
by the defendant insurance company "without
collusion or voluntary disclosure" by the spouse.
O'Toole v Ohio German Fire Ins Co, 159 Mich 187,
193; 123 NW 795 (1909).' The clear meaning, con-
sistent with substantial authority in other jurisdic-
tions' cited by this Court in O'Toole, is that the
letters would not ha.ve been admissible if the
spouse had colluded in their transmittal to the
insurance company.
In People v Dunnigan, 163 Mich 349; 128 NW
180 (1910), the accused delivered a letter addressed
to his wife to an acquaintance who promised to
deliver it to the wife, but who delivered it to the
sheriff. In holding that the letter was admissible,
4 The statute provides:
(Njor shall either, during the marriage or afterwards, with-
out the consent of both, be examined as to any communication
made by one to the other during the marriage. (MeL
600.2162; MSA 27 A.2162.]
5 This is the first Michigan case in point we found since enactment
of the marital communications privilege, 1861 PA 125.
6 See 1 McCormick, Evidence (4th ed), 82, p 303.
599
this Court quoted with approval the following
statement from O'Toole:
"And so it has been held, and, we think, COr-
rectly, that where the communication, oral or
written, has, without collusion Or voluntary disclo-
sure, escaped the custody and control of the par-
ties communicating, or the custody and control of
their agents or representatives, it is not privileged."
[Id. at 351. Emphasis added.]
Twelve years later, in People v Salisbury, 218
Mich529,533; 188 NW 340 (1922), the defendant
had been convicted of assault with intent to com-
mit rape. He was cross-examined at length con-
cerning his denials of "admissions" claimed to
have been made by him to his wife. He was asked
to read "a statement in writing [from his wife] to
him, in which she had said that defendant made
the admissions which he as a witness denied." The
Court said that the prosecutor "could not and did
not seek to call the wife as a witness," and that it
was error requiring reversal to place before the
jury indirectly "that such damaging admissions
had been made by the defendant to her."
Salisbury thus stands for the proposition that it
is violative of the marital communications privi-
lege to place before the trier of fact, a wife's
statements concerning statements made to her,
orally or in writing, by her husband. The wife in
Salisbury was not called or sworn as a witness.
Nevertheless, this Court said that what was done
was violative of the marital communications privi-
lege, and concluded that "[flor the error thus
committed, the verdict must be set aside and a
new trial gran ted."
The Legislature has not spoken in the seventy
since Salisbury was decided. It is not appro-
at this late date, over eighty years after
BOO 442 MICH 560
(June
O'Toole and Bowen were decided, to revise the
construdiDn, ,consistently placed by this Court on
this privilege, to the effect that it bars evidence of
marital communications without' r.egard to
whether it is sought to introduce evidence of the
marital communication through the testimony of a
spouse as a sworn witness in court, or by some
other means such as a writing containing state-
ments from one spouse to the other.'
III
Absent an authoritative decision of this Court,
the majority adverts to statements I made in a
concurring opinion in People v Hamacher, 432
Mich 157; 438 NW2d 43 (1989), in response to
statements in a dissenting opinion in that case.'
7 Or through the testimony of a person who spoke with a spouse.
8 In Hamacher, the defendant was convicted of -second-degree crimi-
nal sexual conduct. The Court of Appeals, on remand, held that the
circuit court should not have admitted testimony by his -wife concern-
ing statements he allegedly made regarding his conduct with his
stepdaughter. This Court held that the statutory exceptions applicable
to the spousal privilege, including the exception for a crim.e commit-
ted against the children of either, did not apply to the communica-
tions privilege. This Court further held that it would not consider the
prosecutor's contention that Hamacher's failure to object to his wi-fe's
testimony at the preliminary examination precluded objection at
triaL
One of the justices dissented, asserting that the statutory excep-
tions to the spousal privilege should be applicable to the communica-
tions privilege, and that, in all events, Hamacher had waived the
privilege when he failed to object to his wife's testimony at his
preliminary examination.
I filed a separate opinion, responding to the statement in the
dissenting opinion that there was waiver, and also responding to the
following statement in the dissenting opinion:
The confidential communication privilege acts to hold invio-
late the privacy of the marital relationship. When facts whicH
might otherwise be privileged are disclosed for all to inspect,
the purpose of the privilege is destroyed. Just as one -cannot
unTing a bell, a secret once disclosed in open court -is riever
again a wholly private matter. [Id., p 194 (BOYLE, J., dissent
ing)1
1993]
PEDPLE V FISHER
601
The dissenting justice sought to limit the privilege
so that it could not be invoked where the privacy
of the communication/marital relationship had
alr.eady been violated by disclosure of the state-
ments:
When facts which II1ight otherwise be privileged
are disclosed for all to inspect, the purpose of the
privilege is destroyed. Just as one cannot unring a
bell, a secret once disclosed in open court is never
again a Wholly private matter.[9]
Responding to that statement, I wrote that the
communications privilege did not bar a spouse
from disclosing a confidential communication to a
prosecutor, newspaper reporter or sQmeone else.
Nevertheless, although the "secret" would then no
I wrote:
Section 2162 of the Revised JudicatUre Act does not purport
to bar a spouse from disclosing a confidential communication.
Hamacher's wife, without violating 2162, related the state-
ment she attributed to her husband to social service workers,
police officers, the prosecutor, and could have done so to news-
paper and other reporters. She could indeed have gone on the
nightly news and made a fun statement of the confidential
communication without violating 2162. The "secret" would
then no longer have been secret and "never again a wholly
private matter," Nevertheless, there can be no doubt that
despite the wide communication to the world at large of the
"secret," Hamacher'-s wife could not, consistent with 2162, "be
examined" in coUrt with regard to the communication. [Id., p
177 (LEVIN, J" -concurring).)
I also wrote:
The courts have no basis for declaring that the statutory
pu.rpcise in 1861 was to protect the secrecy of the
tion when the statute itself clearly does not purport to do so.
There is no basis for concluding in 1989-<>ver One hundred
years after enactment-that the legislative purpose
in 1861 was other than the literally stated purpose of
ing the spouse from "be(ing] examined" in court. [Id., pp
180.J
Id., p 194 (BOYLE, J., dissenting).
602
442 MICH560
DISSENTING OPINION BY LEVIN, J_
[June
longer be secret, "Hamacher's wife could not, con-
sistent with 2162, 'be examined' in court with
regard to the communication." I take it that if I
had stopped there, the majority would not regard
my concurring opinion as support for overruling
O'Toole and other decisions.
But then I went through the fence, adding that,
it would be inappropriate, one hundred twenty-five
years after enactment of the privilege, to restate,
as would the dissent, the purpose of the communi-
cations privilege as designed "to protect the se-
crecy of. the communication" or "that the legisla-
tive purpose in 1861 was other than the literally
stated purpose of precluding the spouse from 'be-
(ing] examined' in court." (Emphasis added.)
A
On more careful study, it is clear that the words
nexamine" or Hexamined" are not limited to
ination of a witness in court. Neither
Law Dictionary, 3d ed, nor Black's Law Dictionary,
4th ed, define either word. Corpus Juris Secundum
defines "examine" without reference to the exami,
nation of witnesses in court in much the same way
as that word is defined in standard English lan-
guage dictionaries:
EXAMINE. To inspect or survey carefully; look
into the state of; scrutinize and compare the parts
of; view or observe in all aspects and relations,
with the purpose of forming a correct opinion or
judgment; to test by an appropriate method; to
inspect carefully; to investigate; scrutinize. ,The
term necessarily implies the power of allowance or
rejection, and, in a particular connection, it is only
a disputed fact that can be the subject' of the
examination. [32A CJS, p 855.]
603
The Random House Dictionary of the English
Language defines "examine" as follows:
examine . . . 1. to inspect or scrutinize care-
funy: to examine a prospective purchase.. . 3. to
inquire into or investigate: to examine one's mo-
tives. 4. to test the knowledge, reactions, or qualifi-
cations of (a pupil,candidate, etc.), as by questions
or assigning tasks. 5. to subject to legal inquisition;
put to, question in regal'd to conduct or to knowl-
edge of -facts; interrogate; to examine 8 witness; to
examine a suspect. [Second Edition, Unabridged,
p 74.]
Similarly, see Webster's Third New International
Dictionary, p 790. It thus clearly appears that
means to inspect or scrutinize, to in-
quire into or investigate, to test, to interrogate,
and also to examine a witness. The inquiry or
interrogation of a witness may thus be in court or
out of couri--the inquiry or interrogation need not
be under oatiL
That the inquiry or interrogation of a spouse
might not be in court was recognized by the Legis-
lature in 1861, when it enacted the marital privi-
leges, and has been carried forward to this day.
The spousal 'privilegB-'-the privilege against
spousal testimonylO-is stated as a privilege
against examination as a witness:
A husband shall not be examined as a witness
for or against his wife without her consent; nor a
wife for or against her husband without his con-
sent, <lxcept .... [MCL 600.2162; MSA 27 A.2162.
Emphasis added.]
the marital communications privilege is not
to examination "as a witness."
P 563.
""'--<
604 442 MICH 560
DrSSENTING OPINION BY LEVIN, J.
[June
lege is stated, rather, without the "as a witness"
qualification:
(Nlor shall either, during the marriage or after-
wards, without the consent of both, be examined
as to any communication made by one to the other
during the marriage .... \MeL 600.2162; MSA
27 A.216Z. Emphasis added.]
The Legislature thus carefully drew a distinction
between "examined as a witness;" the privilege
against spousal testimony, and "examined," the
privilege against use of a marital communication.
Clearly, without regard to whether the inquiry -or
interrogation is in or out of court, a spouse may
not be "examined" concerning a marital communi-
cation without the consent of both spouses.
The majority claims that its pronouncement
today follows "the mandate of strict construc-,
tion."" Adherence to strict construction WOUld,
however, require recognition of the distinction
between ((examined as a witness" and tlexamined"
so clearly drawn by the Legislature over one hun-
dred thirty years ago.
B
I acknowledge my error in stating that the
legislative purpose in 1861 was confined to the
"literally stated" purpose of precluding a spouse
from "be[ing] examined" in court. It is clear from
the dictionary definitions that "examine" or "ex-
amined" are not literally limited to either exami-
nation in court or to examination as a witness.
It is also clear, on the authority of the four
earlier statements of this Court in Bowen, O'Toole,
Dunnigan, and Salisbury, on principle, and on the
basis of the overwhelming weight of authority in _
11 Ante, p 579.
1993]
PEOPLE V FISHER
605
other jUrisdictions, that the privilege extends to
writings from one spouse to another, and .generally
bars intrOduction in evidence in court of a marital
communication either through the testimony of a
witness who spoke with a spouse or in the form of
a document containing statements from one spouse
to the other.
I must, ther.efore, dissent from the -obiter dictum
in my concurringopinioil in Hamacher, and from
the Court's reliance on such a weak reed. Because
no other justice signed my concurring opinion, it
does not constitute a decision of this Court. My
statement in Hamacher does not support or justify
overruling O'Toole and other decisions;
IV
Ordinarily, as in two of the three Court of
Appeals decisions relied on by -the majority, the
hearsay rule will bar the testimony of a person
who spoke to a spouse who revealed a confidential
marital communication, and will also bar admit-
ting in evidence a writing containing statements
from one spouse to the other. In People v De Witt,
173 Mich App 261, 266; 433 NW2d 325 (1988), and
People v Burton, 177 Mich App 358, 362; 441
NW2d 87 (1989), the Court held that statements
daimed to have been made by a spouse and a
writing prepared by a spouse were barred by the
hearsay rule.
In DeWitt, however, before holding that the
rule barred evidence concerning a wife's
;tatements, the Court said that because her state-
were introduced through. a third person and
wife did not testify, the marital communica-
privilege was inapplicable. The Court made
statement without reference to Bowen,
Dunnigan, or Salisbury, or any other
606 442 MrcH560
[June
authority in this or any other jurisdiction, on the.
basis of implication: "The statute clearly states
that neither spouse may be 'examined as a wit-
ness' against the other spouse, implying that ei-
ther spouse must testify." (Emphasis added,) Impli-
cation is not a substitute for research of law
concerning how the privileg.e has been appUed in
this and other jurisdictions. .
The obiter dictum in DeWitt was the only au-
thority cited in Burton, supra, p 362," and People
v Williams, 181 Mich App 551, 554; 450 NW2d 85
(1989)."
While the hearsay rule would ordinarily bar a
witness from testifying, as did the detective con-
cerning what Fisher said to his estranged wife,
and would ordinarilY also bar admitting in evi-
dence a writing reciting her statements, the Rules
of Evidence provide that the rules do not apply to
sentencing proceedings. The rules also provide,
12 The Court said:
The privilege is inapplicable because defendant's wife is not
being called to testify, nor is defendant being questioned with
regard to the statement.
13 The Court said that the "marital privilege is a testimonia-l p r i v i ~
lege which is inapplicable here because defendant's husband was not
required to testify."
The Court considered a ruling by the circuit court suppressing
evidence that the defendant's husband had made a statement_to a 911
operator to the effect that a "woman just shot her tenant." ld.
The Court held that the 911 operator could testify if -the circuit
court determined that "a hearsay exception applied" and that the
tape could be played "if it were otherwise properly introduced." ld.
The question whether the privilege should be "limited to
sions intended by one spouse to convey a meani-ng or Ules5S
other" (emphasis in original), or whether it should extend
facts, conditions, and transactions not amounting to communicati<:
at all," is not presented, 1 McCormick, Evidence (4th ed), 79, ~
297, would limit the privilege to "expressions," but reports
large number of courts have construed their statutes as exteri
acts, facts, conditions, and transactions not amounting to. _expre
DISSENTING OPINION BY LEVIN, J,
607
however, that the privileges do apply to sentencing
proceedings. H
The Court today, in a criminal prosecution, lim-
its the 'Scope of the communications privilege. But
the limitation announced today will apply in civil
cases as well" The question is therefore broader,
and the decision of this Court more far reaching
than whether the communications privilege "may
be invoked in a sentencing proceeding to preclude
consideration by the sentencing court of certain
extrajudicial statements made by defendant's es-
tranged wife and set forth in the presentence
l'eport."" (Emphasis added.>
v
Courts generally have had some difficultydecid-
ing whether the communications privilege bars the
introduction in evidence of letters from one spouse
to another-which, like the presentence report
here at issue, are writings. containing statements
from one spouse to the other. Letters can be
mislaid and find their way into the hands of third
persons. Many courts have analogized letters that
inadvertently come into the hands of a third per-
14 Rule 1101 Applicability
(b) Ru!es inapplicable. The rules other tban tbose with re-
spect to privileges do not apply in the following situations and
proceedings:
(3) Miscellaneous .:proceedings. Proceedings for
In" .
sentenc-
example, Wigmore states that the rules concerning loss of the
. respecting documents coming into the possession of a third
much the same for the attorney-client privilege and the
munications privilege. 8 Wigmore, Evidence (McNaughton
p ~ 2 ; 2339, p 668.
t6, p -563.
608 442 MWH 560
[June
son to statemfmts overheard by a third person"
which, because they are not then confidential, me
not protected by the communications privilege."
But courts generally have also concluded that the
privilege bars the introduction of letters deliber-
ately transferred by the addressee spouse to a
third person.
A
McCormick reports that many if not most of the
cases state that the privilege will not be lost if
"the delivery or disclosure of the letter be due to
the betrayal or connivance of the spouse to whom
the message is directed." (Emphasis added.! Mc-
Cormick appears to agree with that approach,
stating: "Just as that spouse would not be permit-
ted, against the will of the communicating spouse,
to betray the confidence by testifying in court to
the message, so he or she may not effectively
destroy the privilege by out-of-court betrayal. "I>
(Emphasis added.)
Wigmore similarly states:
(3) For documents of communication coming
into the possession of a third person, a distinction
should obtain, analogous to that already indicated
for a 'client's communications ( 2325 and 2326
supra). That is, if they were obtained from the
" 1 McCormick, n 6 supra, 82, p 303.
18 One of the three statements in the instant case was overheard.
See n 2.
19 1 McCormick. n 6 supra, 82, p 303. McCormick also states ,.
the weight of decision seems to support the view thai. the privi
does not protect against the testimony of third persons wh
secured possession or learned the contents of a letter from one
to another by interception, or through loss or misdelivery
custodian. The treatise states that if the communicating
"sends a messenger with a letter, he should ordinarily assume'
risk that a chosen emissary may lose or misdeliver the message,"
p 304.
DISSENTING- OPINION BY LEVIN, J.
609
addressee. spouse by voluntary delivery, they
should still be privileged (for otherwise the privi-
lege could by collusion be practically n ulJified for
written communications); but if they were ob-
tained surreptitiously or otherwise without the
addressee's consent, the privilege should cease.
The rulings here are not harmonious. [Emphasis
added.]
Decisions in other jurigdictions support McCor-
mick's and Wigmore's statements that the spouse
to whom the communication is made may not
"destroy the privilege by out-of-court betrayal" or
"collusion." Dalton v People, 68 Colo 44; 189 P 37
(1920) (husband could not testify concerning letter
written by wife); Selden v State, 74 Wis271; 42
NW218 (1889) Qetters from the defendant to his
wife subpoenaed by the prosecutor were inadmissi-
ble); Wilkerson v State, 91 Ga 729; 17 SE 990
(1893) (a letter from the defendant to his wife
delivered by her to the prosecutor was inadmissi-
ble); Scott v Commonwealth, 94 Ky 511; 23 SW 219
(1893) (letter from defendant to his wife, which
appears to have been delivered by her to the
prosecutor was inadmissible); Mahner v Linck, 70
Mo App 380, 388 (1897) (letters from a husband to
his wife are not admissible "whenever they have
come to the possession of a third party by the
agency of the husband or the wife"); State v St
John, 94 Mo App 229; 68 SW 374 (1902) (a commu-
nication from a husband to his wife delivered by
her to a third person was inadmissible); Cole v
Texas, 48 Tex Crim 439; 88 SW 341 (1905) (evi-
dence that the defendant husband learned the
.oontents of a letter from his wife's father to his
wife was inadmissible as a confidential marital
ication); McCoy v JUstice, 199 NC 602; 155
452 (1930) (letters between a husband and his
turned. over by her to a third party were
610
442 MICH "560
[JUIlB
inadmissible); Martin v State, 203 Miss 187; 33 So
2d 825 (1948) (the admission of a letter from a wife
of a witness to the witness was erroneous).
In Commonwealth v Fisher, 221 Pa '538, '544; 70
A 865 (1908), the Supreme Court of Pennsylvania
ruled that letters from the defendant to his wife,
delivered by her to the district attorney, were
inadmissible. The court said that the letters "could
not be produced by the wife and offered in evi-
dence as coming from her because this in effect
was permitting the wife to testify against ber
husband ... , which cannot be done under our
statute." (Emphasis added.)
Nor is third-party testimony admissible concern-
ing a marital communication that has been di-
vulged. Brown v Wood, 121 Mass 137 (1876) (the
testimony of third parties to whom a husband and
wife repeated details of a transaction was inadmis-
sible), See also Gross v State, 61 Tex Crim 176; 13"5
SW 373 (1911) (a third party who casually read a
letter from a husband to his wife cannot testify
concerning its contents).
B
Modern cases make the same distinction be-
tween inadvertent and deliberate disclosure of
letters by a spouse. In State v Myers, 230 Kan 6.97,
702; 640 P2d 1245 (1982), the defendant sought to
prevent the admission of letters he had written to
his wife that were found by her former landlord
and delivered to the police. The 'Supreme Court of
Kansas affirmed the trial court's admission of the
letters, stating:
Under the statute, a defendant charged with a
crime has a right to prevent the other from violat-
ing the confidentiality of the marital relationship
DISSENTING OPINiON BY LEVIN, J.
611
by disclosing a confidential communication.
Where, however, the confidential communication
inadvertently and unintentionally falls into the
hands of a third person, the admission of testi-
mony about the confidential communication would
not constitute a violation of the marital privilege.
In an earlier decision of the Kansas Supreme
Court, State v Holt, 223 Kan 34;574 P2d 152
(1977), the court held that it was error, albeit
harmless error, to have admitted a note" from the
defendant to his wife, left by him in the kitchen of
their home and delivered by her to the authorities.
These Kansas cases, Myers and Holt, are note-
worthy because the thin line of authority relied on
by the majority all trace back to the Kansas case
of State v Buffington, 20 Kan 599 (1878), which, as
appears from Myers and Holt, is no longer fol-
lowed in Kansas. See part C.
In McCravey v State,2 Tenn Grim App 473; 455
SW2d 174 (1970), the Tennessee Court of Criminal
Appeals held that a defendant's letter to his wife,
delivered by her to the authorities, was improperly
admitted in light of the privilege, but the error
was harmless.
The Illinois Court of Appeals, in People v Gard-
ner, 105 III App 3d 103, 116; 60 III Dec 951; 433
NE2d 1318 (1982), affirmed the trial court's exclu-
sion of a letter written by a codefendant to his
wife on the basis of the privilege:"
20 The note read:
Jo, I had to kill a person tonight. I will be back soon,
tomorrow night at your mother's place. Please understand.
Garry. lId., p 38.J
21 Nitz wrote a letter to his wife, indicating in the body of the letter
he believed jail authorities were reading his mail. Mrs. Nitz
the letter to Mrs. Gardner,' Nitz' codefendant's wife and the
daughter. who told her husband about the letter and its
"'!'";-:"
612 442 MICH 560
DISSENTING OPINlON BY LEVIN, J.
[June
.(T]he privilege is not lost even if "the delivery of
the letter be due to the betrayal or connivance of
the spouse to whom the message is directed."
[Quoting People v Simpson,68 III 2d 276; 12 III
Dec 234; 369 NE2d 1248 (1977).]['"
The Court of Appeals of Georgia held that a
note left by a husband for his wife shortly before
he died as a result of a gunshot,claimed to have
been selfinflicted, was inadmissible because it was
a confidential marital communication. Georgia
Int'] Life Ins Co v Boney, 139 Ga App 575;228
SE2d 731 (1976).
A New York court held that letters written by a
wife to her husband were inadmissible, and dis-
missed an indictment because otherwise there was
insufficient evidence. People v Harris, 39 Mise 2d
193;240 NYS2d 503 (1963).
The Supreme Court of Wisconsin held that the
rules of privilege, including the marital communi-
cations privilege, apply to proceedings before a
magistrate for the issuance of a seal'ch warrant:
. Marital confidences would not be meaningful if a
spouse could decide to reveal the confidence to a
third person and thereby destroy the protection of
the privilege. We conclude that a communication
contents. In the meantime. Mrs. Nitz delivered the letter to her
husband's attorney, Reed, who also represented Gardner. Gardner
then requested a copy of the letter, and, after receiving permission
from Mrs. Nitz, Reed delivered a copy to Gardner. Mrs. Nitz then
reclaimed the original letter from Reed. Gardner sought to impeach
Nitz at trial with the photocopy. After an in camera hearing, the
judge determined that use of the letter would violate -both the marital
and attorneyclient privileges. Id., pp 11411-5.
22The Illinois Court of Appeals has also held that- police officers
who eavesdrop on a marital conversation with the cooperation of one
spouse, assumed by the other spouse to be confidential, are prohibited
from testifying about the contents of the conversation by the marital
communications privilege. People v Dubanowski, 75 III App 3d 809; 31
III Dec 403; 394 NE2d 605 (1979). Similarly, see Hunter v Hunter, 169
Pa Super 498; 83 A2d 401 (1951); Hicks v Hicks, 271 NC 204; 155
SE2d 799 (1967).
1993] PEOPLE v FISHER
DISSENTING OPINION BY LEVIN, J .
613
which is privileged when made remains so, regard-
less of an miauthorized out-of-court disclosure. The
status of the particular marital relationship has
no bearing Dn whether a privilege exists for mari-
tal communications. The fact that the defendant
was served with a divorce summonS shortly after
his wife's disclosures is therefore irrelevant to the
issue here. Sec. 885.18, Stats. 1971, prevents disclo-
sure during the marriage or "afterwards." [Muetze
v State, 73 Wis 2d 117, 129-130; 243 NW2d 393
(1976).J
C
The majority adverts to two ALR annotations"
and concludes that there is "wide disparity in the
case law in other jurisdictions."" Both McCormick
and Wigmore report, however, that the majority of
jurisdictions follow the approach of this Court in
O'Toole, holding that the communications privi-
lege bars the admission in evidence of a letter
obtained through the betrayal or connivance of a
spouse, but not a letter obtained through intercep-
tion, loss Dr misdelivery."
A few courts have, indeed, held that letters from
one' spouse to another are not protected by the
privilege even where a spouse deliberately delivers
the letters to a third person. But on examination,
these cases all appear to trace back to State v
Buffington, supra, in which the Kansas Supreme
Court analogized to the situation where a third
person inadvertently overhears a conversation be-
tween spouses. As this Court indicated in O'Toole,
23 Applicability of marital privilege to w r i t t ~ n communications
between spouses inadvertently obtained by third person, 32 ALR4th
1177; Spouse's betrayal or connivance as extending marital communi
cations privilege to testimony of third person. 3 ALR4th 1104.
24. An-te, p 571-
25 See n 18 and accompanying text.
614 442 MICH 560 [June
DISSENTING OPINION' BY LEVIN, J.
that analogy does not justify holding that the
privilege does not bar introduction in evidence of a
confidential marital communkation deliberately
delivered by a spouse to a third person."
On principle, there is no reason to distinguish
between a deliberate oral statement by a spouse to
a third person of a confidential communication,
and a deliberate delivery by a spouse to a third
person of a written communication. Manifestly.,-
we all agree--a spouse could not be examined in
court concerning an oral confidential communica-
tion simply because that spouse had deliberately
revealed the substance of the communication to
third persons. That being the undoubted rule of
law, there is no basis in reason for holding that
the privilege does not bar the testimony . of a
witness who spoke to a spouse who reported to the
witness a confidential marital communication, or
that the privilege does not bar the admissibility of
a document containing communications from one
26 In State v BufIington, supra, the wife deliberately betrayed the
confidence of the communication by causing the letter to be. turned
over to the prosecutor.
In Sta.te v Hoyt, 47 Conn 518, 540 (1880), however, it is unclear how
the letters came into the possession of the prosecutor. The court said
that how the letters were obtained "or whether they were ever in the
wife's possession did not appear "
In People v Hayes, 140 NY 484, 495; 35 NE 951 (1894), the letters
were to the defendant from his wife. He had delivered his wife's
letters to his mistress, which prompted the court to state: "Comment:
upon the baseness of this act of the defendant is unnecessary." It was
the defendant, the addressee spouse, who had delivered the letters to
his mistress, who sought to exclude .them on the basis of privilege. In
ruling against him, the court relied on Buflington and Hoyt, and
of the defendant that "he, delibe-rately violating every princi
honor and decency, gives the letters to his mistress, -by whom ,.
were delivered to the district attorney. A rule which would
preserve the confidential character of these letters as against
husband would be founded upon more sentiment than sense."
496. (Emphasis added,)
Similarly, see State v Sysinger, 125 NW 879 (SD.
Morgan, 147 La 205; 84 So 589 (1920), and Hammons v
Ark 495; 84 SW 718 (1905), also relying on Buffington, --
Hoyt.
.DISSENTING OPINION "BY LEVIN, J.
615
spouse to the other. As stated by Justice of
the United States Circuit Court in Bowman v
Patrick, 32 F 368, 369 (EDMo, 1887):
I am quite clear that the wife has no right to
pubiish these communications; that she would not
be permitted to produce the letter if she were a
witness on the stand; .that she could be enjoined
from producing the letter if she were supposed to
be hostile to her husband ' ....
The ALR article relied on by the majority cites a
handful. of cases, beginning with Buffington, de-
cided in 1878, and concluding with a Louisiana
case decided in 1920 for the view it adopts today.
A number of the.cases cited are not in point." The
ALR article, puhlished in 1981, cites no case later
than 1920, the pocket part cites no later case, and
the majority cites no later case that supports the
extreme view, adopted by the majority, that "the
mere fact that [written] a marital communication
came within the possession or knowledge of a third
person is sufficient to render it admissible in evi-
dence."28
VI
The majority states that the "undisputed mod-
ern trend is toward a restrictive, rather than
expansive, interpretation of the privilege."" But
the majority does not cite a single modern case
that, in keeping with that "trend," supports the
-Wl'l'he Louisiana case decided in 1920, State v Morgan, n 26 supra,
'tot in point because the Louisiana statute in terms speaks of
tiversations" rather than "communications," and has been consis-
construed to apply only to oral communications. State v Fuller,
) 2d 119 (La, 1984).
41'0 n 26.
p 571.
Ante, pp 573574.
616 442 MICH 560
{June
specific limitation it imposes today,connning the
communications privilege to testimony by the
spouse as a witness in court.
United States Courts of Appeal, which may
expound on the "privileges from the principles of
the common law 'in the light of reason and experi-
ence' Fed R Evid 501," have recently ruled that an
FBI agent who spoke to the defendant's wife should
not have been permitted to testify concerning
what the defendant was claimed to have said to
her," and that a letter turned over to the govern-
ment by the wife, who had entered into a plea
bargain, was inadmissible.
31
Despite the "trend," the Uniform Rules of Evi-
dence, 1974 Ad," and the ModelCode of Evidence
30 Although the government in the instant case adduced no
evidence that dispelled the assumption of confidentiality, the
Court permitted Agent Thomas to testify about statements the
defendant made in confidence to his wire. The Court conse
quen-tly commi-tted error in allowing Thomas to t'stify about
the defendant's comment that -his wife was to blame for his
predicament. (United States v Thompson, 716 F2d 248, 250 (CA
4, 1983).J
The error was found to be harmless.
31 Recent cases assume the -continuing vitality of the communi
cations privilege. See (United States v Picciandra, 788 F2d 39,
43 (CA 1, 1986)J; United States v Ammar, 714 F2d 238, 258 (CA
3, 1983). In addition, we question the -government's theory that
the letter fell outside the marital privilege because it "per
tained to ongoing or futUre criminal activity involving both
spouses," Ammar, 714 F2d at 257. The letter was written after
both spouses' arrests and, consequently, after the conclusion of
the alleged conspiracy between them. [United States v Wood, .
924 F2d 399, 402 (CA 1, 1991).J
The ,error was found to be harmless.
32 (a) Definition. A communication is confidential if it is made
privately by, any person to his or her spouse and is not in
tended for disclosure -to any other person.
(b) General rule of priviiege. An accused in a criminal pro
ceeding has a privilege to prevent his spouse from testifying as
to any confidential communication between the accused and. the
sp0use.
DISS-ENTJNG OPINION BY LEViN. J.
617
(1942)," do not limit the scope of the communica-
tions privilege to repetition by the spouse of the
marital communication in cou-rt,
There have, indeed, been recent changes in the
scope of the communications privilege, especially
by the federal courts where the privileges are not
'statutory" but the change imposed today finds no
support in any recent a,uthority,
(c) Who. may claim the privilege. The privilege may be
claimed 'by the accused or by the spouse on behalf of the
accused. The authQrity of the spouse to do so is presumed.
{d) Exceptions. There is no privilege undeI' this rule in a
proceeding in which one spouse is char-ged with a crime against
the person or property of (1) the other, (2) a child of either, (3) a
person residing in the household of either, or (4) a third person
committed in the course of committing -a crime against any of
them.JUniform Rules of Evidence. 1974 Act, Rule 504, pp 301
302.]
33 Rule 215. Marital Privilege; Confidential Communication
Betw-een Spouses. Subject to Rules 216, 217> 218 and 231, a
person, whether or not a party> has a privilege to refuse to
disclose, and to prevent a witness from disclosing, a
cation, if he the privilege and the judge finds that
(a) the communication was a confidential communication
between spouses.
Rule 214. Marital Privilege; Definitions.
Cd) "confidential communication between spouses" means
formation transmitted by a voluntary act of disclosure by one
spouse to the other without .the intention that i-t be disclosed to
a third person and by a means which, so far as the communi
eating spouse is aware, does not disclose it to a third person.
[Model Code of Evidence, Rules 214 and 215, pp 151-152.J
34 See n 30 and accompanying text.
In United States v Parker, 834 F2d 408, 411 (CA 4, 1987), former
Justice Pow-.ell, sitting by designation, speaking for the court, r.e
affirmed the privilege for "[i1nformation that is privately disclosed
husband and wife in the confidence of the marital relation
adding that in the Fourth and at least one other circuit
l!marital 'Communications hav[ing] to do with the commission of a
Crime in which both spouses are participants" are outside the privi
.,: iege. Similarly, see United-States v Sims, 755 F2d 1239 (CA 6, 1985).
also note, The future crime or tort exception to communications
77 Harv L R 730 (1964).
618 442 MrcH 560
DISSENTING OPINION BY LEvIN, J.
[June
VII
The majority states that the "unusual situation
presented in the instant case" is addressed in
United States v Burton, 031 F2d 280 (GA 4, 1980)
and. State v Minor, 188 Neb 23; 195 NW2d 155
(1972).
Both courts did indeed hold that it was not
violative of a defendant's rights to include in a
pr.esentence report hearsay stactements made by
his wife to a probation officer. As set forth in the
quotation from Burton in the majority opinion,"
the wife provided "'information concerning the
defendant's background, character, and conduct.' "
In providing such information, said the court,
"there was no violation of any privileged marital
communication." Clearly there is a substantial
The federal courts have also modified the common law
Hons privilege wher.e the communication was made after the parties
had long been separated and reconciliation appeared to he unlikely_
In re Witness Before the Grand Jury, 791 F2d 234 (-CA 2, 1986).
Similarly, see United States v Jackson, 939 F2d 625 (CA 8, 1991);
United States v Roberson, 859 F2d 137"6 (CA 9, 1988) ..
The Missouri Supreme Court stated a -crime fraud exception where
the defendant asked his wife to provide a false alibi; additionally. the
court said that because the defendant intended that his wife commu
4
nicate what he said to her, what was said was not said in confidence.
State v Heistand, 708 SW2d 125 (Mo, 1986).
In the instant case, similarly, Fisher's statement to his wife could
be viewed as a request to testify and hence not to have been a
confidential communication. The Fishe.rs were estranged. But this
Court in PeopJe v Hamacher, 428 Mich 884 (1987), ruled that the
statute "contains no exception to the privilege regarding communiqa
tlens between a husband and wife where the husband and wife are
separated or are in the process of obtaining a divorce." See aifl,d
People v Love, 425 Mich 691; 391 738.(1986); PeopJe v VermClU"
Jen, 432 Mich 32; 438 NW2d 36 (1989); PeopJe v Hamacher, 432 Mith
157; 438 NW2d 43 (1989).
35 Ante, p 572. The majority also includes quoted material ,referrinl',
to Trammel v United States, 445 US 40, 52, n 12; 100 S Ct 906; i3 - "
Ed 2d 186 (1980), pertaining to the spousal privilege. which is
here in issue.
1993) PEOPLE V FISHER
619
difference between providing information concern-
ing a defendant's background, character, and con-
duct, which need not include the substance of any
marital communication, and repetition of a mari-
tal communication.
In Minor, the Nebraska Supreme Com:tsimi-
lady held that it was not violative of the defen-
dant's rights to include, in a presentence report,
hearsay -statements of hi's wife. The court said, as
set forth in the majority opinion, that it construed
"a wife's incompetency in criminal proceedings
against her husband to be limited to testimonial
uttel'ances." (Emphasis added.) The substance of
the hearsay statements made by the wife con-
tained in the presentence report is not set forth in
the opinion of .the court. There is no basis for
inferring that her statements concerned confiden-
tial marital communications. The court referred to
an earli<,:r decision of the Nebraska Supreme
Court, but there is no indication that the informa-
tion there provided was other than background
information.
We have found two cases concerning the applica-
bility of a privilege to presentence reports. In
Southern Blue Grass Mental Health v Angelucci,
609 SW2d 931 (Ky App, 1980), and Idaho v Brown-
ing, 121 Idaho 239; 824 P2d 170 (Idaho App, 1992),
the intermediate appellate courts of Kentucky and
Idaho held that the physician-patient privilege was
applicable to presentence reports, and therefore
confidential information covered by the privilege
could n{)t be considered in sentencing.
I would affirm the judgment of the Court of
Appeals on this issue.

358 177 MICH App 358 [June
PEOPLE v BURTON
Docket No. 108715. Submitted March 15, 1989, at Detroit. Decided
June 5, 1989. Leave to appeal applied for.
Johnnie Burton, Jr., charged in Detroit Recorder's Court with
second-degree murder, possession of a firearm in the commis-
sion of a felony, and mutilation of a body, filed a motion in
limine to prevent the
1. The spousal privilege, MCL 600.2162; MSA 27 A.2162,
precludes examination of one spouse as a witness against the
other without the permission of the nonwitness spouse.

.' .. "".i"",b",,,"e.""

..winappli'Gable-,'4I
2. The rationale for the hea,rsay exception for statements in
documents affecting an interest in property, MRE 803(15), is
that the circumstances under which dispositive documents are
executed and the requirement that -the recital be germane to
the purpose of the document are adequate guarantees of trpst-
worthiness. In this case, whether the disputed writing purports
to establish or affect an interest in property, the lengthy
description of the crime is not a matter germane to the purpose
REFERENCES
Am Jur 2d, Evidence 675677,732,733; Witnesses 14Bet seq.
See the Index to Annotations under Hearsay; Husband and Wife.
1989]
PEOPLE V BURTON
of the document. The narrative is ther.
under MRE 803(15).
Reversed.
1. WITNESSES - SPOUSAL PRIVILEGE.
The spousal privilege precludes examinatiol
witness against the other without the pern
ness spouse (MCL 600.2162; MBA 27 A.2162
2. EvIDENCE - HEARSAY - STATEMENTS IN Docu
INTEREST IN PROPERTY.
A statement contained in a document purp<
affect an interest in property if,the matte1
to the purpose of the document, unIes:
property since the document was made
with the truth of the statement or the purl
is not ex.cluded by the hearsay rule; the
which a dispositive document is executed
that the recital be germane to the purppse
adequate guaran tees of trustworthiness (M
"''''''--3;'' EVlDENCE'--HEARSAY'- STATEMENTS IN Doeu
INTEREaT IN PROPERTY.
Statements contained in a document not )
ments for a valid holographic will, where
not relate to the qispasition of property'
implicate a criminal defendant in the cr
him. are inadmissible as evidence against
the hearsay exception for statemen ts in do
interest in property (MRE 803[15J).
Frank J. Kelley, Attorney Ger
Caruso, Solicitor General, John D.
cuting Attorney, Timothy A. Baug.
the Criminal Division, Research,
Appeals, and Jeffrey Caminsky, A
cuting Attorney, for the people.
Mpnsey G. Wilson, for defendant,
Before: HOLBROOK, JR., P.J., ar
KELLY and CAVANAGH, JJ.
CAVANAGH, J. Defendant Johnnie
77 MICH App 358
[June
PEOPLE v BURTON
lmitted March 15, 1989, at Detroit. Decided
'Ie to appeal applied for.
.'., charged in Detroit Recorder's Court with
Irder, possession of a firearm in the coromis-
and mutilation of a body, filed a motion in
t the prosecution from introducing evidence
unsigned. undated, handwritten document
wife. The document is a narrative
efendant in the charged homicide. The narra
,Haws: "I, Jearleane Burton, being of sound
(and1 soul, do request this letter to be valid
11 and testament." It concludes as follows;
that would [sic] please go to roy mother and
al court, Edward M. Thomas, J.
t
denied the
hat the spousal privilege is inapplicable and
nt, as a holographic will, is admissible under
ption for statements in affecting an
rty. Defendant appealed by leave'granted.
.ppeals held:
tI privilege, MCL 600.2162; MSA 27 A.2162,
nahon of one spouse as a witness against the
\e permission of the nonwitness spouse. Here
's spouse not be called upon to testify,
not ill determining the privilege to be
1e .; hearsay exception for statements in
,tances under which are
e requirement that the recital be germane to
document are adequate guarantees of
Its case, whether the disputed writing purports
interest in property I the lengthy
" CrIme IS not a matter germane to the purpose
REFERENCES
732, 733; Witnesses 148 ei seq.
,otatlOns under Heatqay; Husband and Wife.
19891
PEOPLE V BURTON
359
of the document. The narrative is therefore not admissible
under MRE 803(15,
Reversed.
1. WITNESSES - SPOUSAL PRIVILEGE.
The spousal privilege precludes examination of one spouse as a
witness against the other without the pemlissioo of the nonwit-
ness spouse (MCL 600.2162; MSA 27 A.2162).
2. EVIDENCE _ HEARSAY - STATEMENTS IN DOCUMENTS AFFEOl'ING AN
MEREST IN PROPERTY .
A statement cont?ined in a document purporting to establish or
affect an interest in property if the matter stated was relevant
to the purpose of the document, unless dealings with the
property since the document was made have been inconsistent
with the truth of the statement or the purport of the document,
is not excluded by the hearsay rule; the circumstances under
which a dispositive document is executed and the requirement
that the recital be germane to the purpose of the document are'
adequate guarantees of trustworthiness (MRE 803(151).
3, EvIDENCE _ REARSA Y - STATEMENTS IN DOCUMENTS AFFECTtNG AN
INTEREST IN PROPERTY'.
Statements contained in a document not meeting the require-
ments for a valid holographic win, where su<;h statements do
not relate to the qi.sposition of property but instead serve to
implicate a criminal defendant in the crime charged against
him, are inadmissible as evidence against the defendant under
the hearsay exception for statements in documents affecting an
interest in property (MRE 803[15J).
Frank J. KeliiJY, Attorney General, Louis J.
Caruso, Solicitor General, John D, O'Hair, Prose-
cuting Attorney, Timothy A. Baughman, Chief of
the Criminal Division, Research, Training and
and Jeffrey Caminsky, Assistant Prose-
Monsey G. Wilson, for defendant on appeal.
Before: HOLBROOK, JR., P,J., and MICHAEL J.
KELLY and CAVANAGH, JJ.
CAVANAGH, J. Defendant Johnnie Burton, Jr., is
.
.
charged with second-degree murder, MCL 750.317;
MBA 28.549, possession of a firearm during the
commission of a felony, MCL 750.227b; MBA
28.424(2), and mutilation of a body, MCL 750.160;
MBA 28.357. On March 10, 1988, defendant filed a
motion in limine to suppress introduction of an
unsigned, undated, handwritten statement by his
wife, JearJeane Burton, pUrporting to be her will.
The writing implicated defendant in the October
15, 1987, homicide of William O. Ross. On March
15, 1988, the prosecutor moved for an evidentiary
ruling that the purported will was admissible un-
der MRE 803(15). By order dated March 18, 1988,
Court ruled the evidence
Under the circumstances, in looking at [MRE]
803(15], ... this Court is of the opinion that the
document itself is in fact a will, and that it is in
fact a will that was prepared by Jearleane Burton,
which indicates that she leaves any property that
she has to her parents. Further, it indicates why
she is doing that. And in reading that will, it is
1989] PEOPLE V BURTON
clear that she does not wish for al
her husband, Johnnie Burton.
Under these circumstances the
opinion that that document does
interest in property and affect
property, that being any marital
leane Burton may have, any per
Qlay have, and that in terms of t
has absolutely no intention of lea
her rightful heir, Mr. Burton, a
why.
I believe tbe prosecution is co,
the assessment of the marital I
meM that the wife cannot be
does not mean that other relev,
might be admissible under anc
admissible, regardless of who mal
That the situation, the
will is in fact al
This Court reviews a trial c
motion to SUppress under the
standard. People v Fisher, 166 :
420 NW2d 858 (1988). Upon re
where this Court does not pos
firm conviction that the trial
take, we must affirm. Id., citin
417 Mich 439, 449; 339 NW2d
appeal, defendant argues tha
failure to suppress the writing
ous. We agree.
At issue is a less than 2!
statement, on 8\6 X 11 in,
. prepared by defendant's wife
The statement is not signed nc
follows: "To Whom it May C '
Burton, being of sound mind [,
do [rJequest this letter to be v: '
and testamen t." Immediately
177 MICH App 358 [June
:orv'--'\Tee murder, MCL 750.317;
SS\ .' of a firearm during the
a t,nony, MCL 750.227b; MSA
utilation of a body, MCL 750.160;
March 10, 1988, defendant filed a
e to suppress introduction of an
ld, handwritten statement by his
3urton, purporting to be her will.
.licated defendant in the October
:Ie of William O. Ross. On March
lSecutor moved for an evidentiary
mrported will was admissible un-
. By order dated March 18, 1988,
)rder's Court ruled the evidence
,dant's trial has been stayed pend-
f leave granted. We reverse.
lSion hearing, the prosecutor ar-
rported will was admissible under
an exception to the hearsay rule.
I that MRE 803(15) was inapplica-
3ition of property was not at issue
writing was not a valid holo-
; was not dated or signed. Defen-
that introduction of the writing
spoJ'Q'l1 privilege, MCL 600.2162;
.secutor replied that the
because the
ruled:
cumstances, in looking at [MRE)
. Court is of the opinion that the
is in fact a will, and that it is in
tas prepared by Jearleane Burton,
:hat she leaves any property that
,arents. Further, it indicates why
l And in reading that will, it is
1989] PEOPLE V BURTON 361
clear that she does not wish for anything to go to
her husband, Johnnie Burton.
Under these circumstances, the Court is of the
opinion that that document does in fact have an
interest in property and affect the interest in
property, that being any marital assets that Jear-
leane Burton may have, any personal assets she
may have, and that in terms of that property she
has 8?,,0lutely no intention of leaving anything to
her rightful heir, Mr. Burton, and she specified
Why.

'

.. !e,"is"''n!l["

That belngthe Situation, the Court is of the
opinion that the will is in fact admissible evidence
and it will be allowed in the tr1al of this CaBe.
This Court reviews a trial court's ruling on a
motion to suppress under the clearly erroneous
standard. People v Fisher, 166 Mich App 699, 703;
420 NW2d 858 (1988). Upon review of the record,
where this Court does not possess a definite and
firm conviction that the trial court made a mis-
take, we must affirm. ld., citing People v Burrell,
417 Mich 439, 449; 339 NW2d403 (1983). In this
appeal, defendant argues that the trial court's
ous.Weagree.
At issue is a less than 2\4-page handwritten
statement, on 8Y2 X 11 inch paper, allegedly
prepared by dHendant's. wife, Jearleane Burton .
The statement is not signed nor dated. It begins as
follows: "To Whom it May Concern: I, Jearleane
Burton, being of sound mind [and1 body, [and1 soul,
do [r]equest this letter to be valid, and my last will
and testament." Immediately following is a two-
page narrative explaining that Burton was in fear
for her life and detailing the events surrounding
the killing and mutilation of the victim by defen-
dant. The writing concludes, "Anything I own that
would [sic] please go to my mother and family."

MeL 600.2162; MSA
27 A.2162, inapplicable .

... i,,"nnli",; h 11> ... hac" Lllle .. ,1 of en-

with regard to the
qtatement. See People v DeWitt, 173 Mieh App
:61, 266; 433 NW2d 325 (1988). We nevertheless
find the writing to be inadmissible hearsay, not
Hearsay evidence is inaclmissibleunless it is
shown to fall within a recognized exception. MRE
802; De supra.' Hearsay is an out-of-court
statement offered to prove the truth of the matter
asserted. MRE 801(c). Hearsay is generally not
admissible because the essential right of cross-ex-
amination. is absent and, therefore, the jury is not
afforded the opportunity to test the credibility of
the person making the statement. People v Rea, 38
Mich App 141, 142; 195 NW2d 809 (1972). Here,
the prosecutor seeks to introduce the statement of
Jearleane Burton under MRE 803(15):
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness:

(15) Statements in documents affecting an inter-
est in property. A statement contained ina docu-
ment purporting to establish Or affect an interest
1989]
PEOPLE V BURTo,
in property if the matter .stated
the purpose of the document, unl
the property since the document
been inconsistent with the truth
or the purport of the document.
MRE 803 is identical with
Federal Rules of Evidence. See
have found no prior Michigan or
discussing the admissibility of a ,
ing to be a will under exc
this is a case of first 1m press
Evidence, 803-306, p 307,
other things, would come Wlthl
"document" under this hearsa
rationale for the exception ha
follows:
that the circi
which
requirement that the recital be
purpose of the document, are ad,
of trustworthiness, particularly 11
applicability of the rule :-vhere ,
property subsequent to its exe,
inconsistent with the document.
Evidence, Rule 803, Advisory 0
Exception (15), 56 F.R.D. 183, 31
ham Investment Corp, 549 P2d
1976).]
In this case we find that, vi
writing purports to establish .or
in property, the lengthy descnpt
not a matter germane to the pI
ment. The narrative is theref(
under MRE 803(15). We reject t
narrative is admissible as Mrs.
tion for excluding her h usban
ported" will. While, at first g\m
MICH App 358 [June
aining that Burton was in fear
tlj'-.. the events surrounding
; of the victim by defen-
mCiudes, "Anything I own that
I to my mother and family."
mecessary to address the confi-
the writing as we find the
tatute, MeL 600.2162; MSA
.ble. The statute provides that
be "examined as a witness" for
lr without his or her consent.
is inapplica.ble because defen-
being called to testify, nor is
uestioned with regard to the
Iple v DeWitt, 173 Mich App
:II 325 (1988). We nevertheless
I be inadmissible hearsay, not
,xception.
e is inadmissible unless it is
n a recognized exception. MRE
!l. Hearsay is an out-of-court
) prove the truth of the matter
l(c). Hearsay is generally not
the essential right of cross-ex-
; and, therefore, the jury is not
.unit" to test the credibility of
th( People v Rea, 38
:; L . .JW2d 809 (1972). Here,
Ilder MRE 803(15):
.., not excluded by the hearsay
the declarant is available as a

n documents affecting an inter-
statement contained in a docu-
) establish or affect an interest
1989J PEOPLE V BURTON 363
in property if the matter stated was relevant to
the purpose of the document, unless dealings with
the property since the document was made have
been inconsistent with the truth of the statement
or the purport of the document.
MRE 803 is identical with Rule 803 of the
Federal Rules of Evidence. See FRE 803(15). We
have f01,lnd no prior Michigan or federal authority
discussing the admissibility of a document purport-
ing to be a will under this exception. Therefore,
this is a case of first impression. 4 Weinstein,
Evidence, 803-306, p 307, states that wills, among
other things, would come within the meaning of
"document" under this hearsay exception .. The
rationale for the exception has been stated as
follows:
It is believed that the circumstances under
which dispositive documents are executed and the
requirement that the recital be germane to the
purpose of the document, are adequate guarantees
of trustworthiness, particularly in view of the non-
applicability of the rule where dealings with the
property subsequent to its execution have been
inconsistent with the document. Federal Rules of
Evidence, Rule 803, Advisory Committee's Notes,
Exception (15), 56 F.R.D. 183, 315. [Apo v Dilling-
bam Investment Corp, 549 P2d 740, 743 (Hawaii,
1976).)
writing purports to or an iriterest
in property, the lengthy description of the crime is
not a matter germane to the purpose of the docu-
ment. The narrative is therefore not admissible
under MRE 803(15). We reject the notion that the
narrative is admissible as Mrs. Burton's explana-
tion for excluding her husband from the "pur-
ported" will. While, at first glance, this argument
364 177 MicH App 358 [June
has appeal, Mrs. Burton's intent is not the control-
ling factor for admissibility. Mrs. Burton's state-
ment must be sufficiently related to a disposition
of property to guarantee its trustworthiness under
the exception. In this case, we find it is not.
First, the only elements of the writing that are
testamentary in nature are the first and last sen-
tences of the 2\4-page document. The writing, as a
whole, is riot testamentary but more akin to a
journal entry or confession. Second, no specific
disposition of property is mentioned. The only
dispositional sentence contained in the writing is
obscure and, in context, reads like an after-
thought. Had Mrs. Burton's narrative described a
or a particular property its
brought it within the exception. The narrative,
however, only the details of the crime
with which defendant is charged.
Additionally, the manner of execution of the
writing detracts from its trustworthiness. The
"purported" will is not dated, signed or witnessed.
We therefore find the writing to be an unrelia-
ble, untested out-of.court assertion. As such, its
introduction into defendant's criminal proceeding
to establish the truth of the matters asserted is
directly offensive to the hearsay rule. The trial
court committed clear error in admitting the evi-
dence.
Reversed.
1989) PEOPLE V HIMME
PEOPLE v HIMMEL
Docket No. 88918. Submitted April 9, 1987,
June 6, 1989. to appeal appUee
Defendant. Scott W. Himmelein. was 31
Police Department on December. 2]
driving while under the influence
substance which appeared to be ro
defendant and sent for laboratory 81
normal operating procedures, no COl
warrant was sought for a charge of p
issuance of a warrant to be deferr,
For reasons that remain it
same offense ... to secure his n"
analysis confirmed the substance se
marijuana, a warrant was sought
office for possession of marijuana.
executed the warrant and defendan t
18, 1985. The officers participating
the warrant and in the rearrest we1
had previously posted bond for
fingerprint card obtained in the c,
thereafter forwarded to a detective
investigating a December 19, 1984,
thumbprint was found to match a tl
yardstick used by the attacker. 11
linking defendant to the crime. DefE
by a jury in Allegan Circuit Court, I
was convicted of first-degree
robbery, and the unlawful taking at
vehicle. Defendant appealed, alleginl
The Court of Appeals beld:
L The trial court properly den
REFERENCES
Am. Jur 2d, Arrest 4 et seq; Criminal
1144; Rape 68.5, 88 et seq; Robber:
Fingerprints, palm prints, or bare footpr
1115.
550 181 MICH App 538 [Dec
be sold in individual parcels by public sale. Prior
to the entry of this judgment, Johnson Carpet had
filed objections wherein both marshalling issues
and issues concerning the validity and superiority
of Union Bank's mortgages in the 2741 and 2749
Rum Creek properties were raised.
Although the court agreed to except the two
Rum Creek properties from the foreclosure judg-
ment pending a future hearing addressing the
specific arguments relating to these properties, it
declined to order the marshalling of assets. At the
future hearing, the issue of marshalling was nei-
ther briefed nor argued by either of the parties.
Any decision relating to Johnson Carpet's mar-
shalling' and application of proceeds arguments
would necessarily affect each of the other forty
individual lots. The partial foreclosure judgment
served as a final order resolving all issues pertain-
ing to the other forty lots. No appeal was filed
from this judgment. Under these circumstances,
we are precluded from addressing the issue in this
appeal. In any case, we note that marshalling may
be invoked only where the interest of the senior
mortgagee would not be harmed, Southworth, su-
pra at 200, a fact we are not convinced has been
established.
Affirmed in part, reversed in part and remanded
for proceedings consistent with this opinion. We do
not retain jurisdiction.
1989] PEOPLE V WILLIAMS 551
PEOPLE v WILLIAMS
Docket Nos. 110466, 110481. Submitted November 9, 1989, at Detroit.
Decided December 19, 1989.
Ida Bernice -Williams was charged with second-degree murder
and Possession of a firearm during the commission of a felony.
Following preliminary examination in 36th District Court,
magistrate Ricardo J. Lubienski. J.
t
dismissed the charges,
finding that the evidence presented did not establish probable
cause to believe Williams committed the offenses charged. The
people appealed to the Recorder's Court for the City of Detroit
by leave granted. The court. Evelyn K. Cooper, J., sitting as an
appellate judge, -remanded the matter to Judge Lubienski for
further -examination with specific regard to the admission of a
statement made by Williams' husband during the investigation.
Judge, Lubienski had ruled the statement was inadmissible on
. the basis- of marital privilege. By the tUne the matter made its
way back to the district court. Judge Lubienski had resigned,
and the matter was assigned to Judge Thomas RoumelL Followv
ing a hearing, Judge Roumell conclUded that- Judge Lubienski
had misconstrued the facts and was in error when he denied
the people's request that Williams be bound over for trial.
Judge Roumell ordered that Williams be bound over for trial in
Recorder's Court. Defendant filed motions in Recorder's Court
to quash and dismiss the information and to suppress the
admission of evidence of the oistol retrieved from defendant's
-\oc.<
The .court, Prentis Edwards, ,J., granted defendant's
motions to suppress evidence of the statement made by defen
husband and evidence of defendant's conduct following
the. gunpowder residue test on her husband, but denied the
motions to quash and dismiss the charges and to suppress
REFERENCES
Am Jur 2d, Criminal Law 418, 419, 947, 948; Witnesses 148,
149, 155, 156.
Admissibility, in criminal case, of results of residue detection test to
determine whether accused or victim handled or fired gun. 1
ALR4th 1072.

,
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t:
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552 181 MICH App 551 [Dec.
evidence of the pistoL The people appealed by leave granted!
from the -trial -court's orders granting defendant's moti<!ns to;
suppress evidence of the statement and -defendant's behavior.)
Defendant appealed by leave granted from the denial of her;
motions to quash and dismiss and to suppress -evidence of the'
pistol. The appeals have been consolidated.
The Court of Appeals held:

trial court erred in suppressing evidence of the statement.
2. The trial court abused its .discretion in ruling that
. dence of defendant's behavior following the .gunpowder -residue
test on" her husband was substantially more prejudicial than)
probative. The evidence was relevant -because it could be
ferred that defendant had taken .evasive action following ad-;-
ministration of the test to her: husband, and defendant re-
free to testify as to her version of .wha-t occttrred or to
argue that a different inference should be drawn. The at
tempted administration of a gunpowder residue test to defen*
dant did not violate her right against self-incrimination.
3. Judge Roumell did not err in relying on - the original
preliminary examination transcript in makin.g his decision to
bind defendant over for trial.
4. Judge Roumell did not exceed the scope of the Recorder's
Court's remand order by reevaluating Judge L\lbienski's con-;
elusions. The court properly denied defendant's motion to dis-'
miss.
5. The court correctly denied defendant's motion to suppress
evidence of the search warrant which was obtained i..ri part on
the basis of information conveyed to the police by defendant's
husband. The marital privilege does not bar information from
being given by one's spouse to the police.
The orders defendant's motions to quash and dismiss
and to suppress evidence of the pistol are affirmed. The orders
granting defendant's motions to suppress evidence of her hus-
band's statement to the 911 operator and her behavior follow-i
ing the gunpowder residue test on her husband are reversed. .
L WITNESSES - MARITAL PRIVILEGE.

600.2162; MSA:
27A.2162).
1989]
PEOPLE V WILLIAMS
553
2. CRIMINAL LAW - EVIDENCE - GUNPOWDER RESIDUE TEST - SELF
INCRIMINATION.
The_ administration of a gunpowder residue test to a person
suspected of murder does not -violate the person's right against
self-incrimination.
3. CRIMINAL LAW _ -PREUMINARY EXAMINATIONS - ApPEAL - RE
MaND _ SUCCESSOR JUDGES - USE OF TRANSCRIPT.
The transcript of the original preliminary examination could
properly be examined by a 'succeSsor judge where the judge who
conducted the original preliminary examination -resigned before
the matter was returned to the court for further examination
and a determination of whether the defendant should be bound
over for trial on the basis of all the evidence adduced (MeR
2.630).
Frank J. Kelley, Attorney General, Louis J.
Caruso, Solicitor General, John D. O'Hair, Prose-
cuting Attorney, Timothy A. Baughman, Chief of
the Criminal Division, Research, Training and
Appeals, and Larry L. Roberts,. Assistant Prosecut-
ing Attorney, for the people.
Lawrence W. Rattner, for defendant.
Before: GILLIS, P.J., and MICHAEL J. KELLY and
R. B. BURNS,' JJ.
PER CURIAM. In Docket No. 110466, the prose-
cutor appeals by interlocutory leave granted from
the trial court's orders granting defendant's mo-
tions to suppress evidence of her husband's state-
ment to a 911 operator on the basis of marital
privilege, MCL600.2162; MSA 27 A.2162, and evi-
dence of her conduct after she observed the police
administering a gunpowder residue test to her
husband. We reverse. In Docket No. 110481, defen-
dant appeals by interlocutory leave granted from
the court's orders denying her motions to dismiss
,. Former Court of Appeals judge, sitting on the Court of Appeals by
assignment.
and to suppress evidence of the murder weapon on
the basis that it was seized pursuant to a search
warrant which included defendant;s husband's
statements. We affirm.
The prosecutor first claims that the trial court
erred when it suppressed evidence of defendant's
husband's statement to a 911 operator to the effect
that "[a] woman just shot her tenant." The prose- .
cutor claimed that the statement was an excited
utterance and, therefore, the 911 operator could
testify as to the statement made. MRE 803(2) . .The
cd?urt
lS&gree. '. ";. :'05 e"',,!::; .... -g - e'Sl,l1:1..lonl'fff.'}':-:i!

....1 __ ' L., b .. .... '''".,"'''',''''_''''''''''" . k<.'

v DeWitt, 173 Mich App 261, 265-266; 433 NW2d

Id.
The prosecutor also claims that the court im-
properly suppressed evidence of the defendant's
actions after she observed the police performing a
g\mpowder residue test upon her husband. Defen-
dant subsequently went into the bathroom and
allegedly soiled her hands with fecal matter. She
washed her hands and, therefore, no gunpowder
residue test could be performed. The prosecutor
claimed that defendant's actions could be consid-
ered as having been done to avoid the test and,
thereby, were indicative of guilt. Defense counsel
argued that the evidence was inadmissible because
defendant did not have an obligation to take the
test and that her refusal to take the test should
not be considered an admission of guilt given her
right against self-incrimination. The prosecutor
argued that the right against self-incrimination
1989] PEOPLE V WILLIAMS 555
did notappiy, citing Schmerber v California, 384
US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966).
Moreover, the prosecutor noted that defendant had
not refused to take the test, but made it impossible
for the police to take the test by soiling and
washing her hands. When the court noted that the
soiling. may have been unintentional, the prose-
cutor argued that that vras for the jury to decide.
While the court was initially inclined to rule in
the prosecutor's favor, it reconsidered and held
that the evidence was substantially more prejudi-
cial than probative and that defendant's right
against self-incrimination would be implicated be-
cause she had a right to refuse to take the test.
We hold that the court abused its discretion
when it ruled that this evidence was substantially
more prejudicial than probative, MRE 403. Cer-
tainly, the evidence was relevant because it could
be inferred that defendant had' taken evasive ac-
tion upon observing the test being administered to
her husband. MRE 401. Defendant remained free
to testify as to her version of what occurred or to
argue that a different inference should be drawn,
Moreover, the attempted administration of a
gunpowder residue test did not violate defendant's
right against self-incrimination. See, e.g., State v
Ulrich, 187 Mont 347; 609 P2d 1218 (1980), and
State v Chesney, 166 Conn 630; 353 A2d 783
(1974), cert den 419 US 1004; 95 S Ct 324; 42 LEd
2d 280 {1974).
We now turn to the issues raised in Docket No,
110481. Defendant claims that the court improp-
erly denied her motion to dismiss because of two
errors which 'She claims were committed by the
examining magistrate who heard the matter fol-
lowing' a remand. Defendant first claims that the
successor examining magistrate abused his discre-
tion in binding her over because he relied on the
original preliminary examination transcri.pt
which, at that time, was hearsay because there
was no proof that the witnesses who originally
testified were unavailable. MRE 804(b)(1). Here,
the original examining magistrate dismissed the.
charges against defendant. The prosecution ap-
pealed and the trial court remanded the matter
"for further examination and for a determination
of whether the defendant should be bound over for
trial on the basis of all evidence adduced." In the
interim, the original examining magistrate left the
bench. Another judge was assigned to hear the
matter. We believe that this situation is analogous
to the. situation described in MCR 2.630 and, there-
fore, hold that, given the circumstances of this
case, the successor magistrate could properly rely
on the original preliminary examination transcript
in making his ruling. Cf. 3 Martin, Dean & Web-
ster, Michigan Court Rules Practice (3d ed), Rul"
2.630, comment, pp 763-764.
Defendant also claimed that the successor exam-
ining magistrate abused his discretion when he
bound defendant over because he exceeded the
scope of the trial court's remand order by reevalu-
ating the original examining magistrate's conclu-
sions. Having reviewed the trial court's remand
order, including the language quoted in 'the previ-
ous paragraph, we hold that the successor examin-
ing magistrate's actions were proper. Hence, the
trial court properly denied defendant's motion to
dismiss.
Finally, defendant claims that the trial court
improperly denied her motion to suppress evidence
of the search warrant which was based in part on
information her husband conveyed to the police.
Defendant claimed that such information violated
the marital privilege because she would have to
1989]
PEOPLE V WILLIAMS
557
waive the privilege in order to challenge the
search warrant. We agr.ee with the trial court that
the marital privilege is a privilege,
MCL 600.21B2; MBA 27 A.2162, ana does not bar
information from being given by one's spouse to
the police. De Witt, supra.
In Docket No. 110466, the trial court's orders
are reversed. In Docket No. 110481, the trial
court's orders ar.e affirmed..
Page 2 of 5
weSlaw.
Not Reported in N.W.2d FOR EDUCATIONAL USE ONLY Page I
Not Reported in N.W.2d, 2007 WL 3015242 (Mich\App.)
I',
2007 WL 3015242 (Mich.App.) j'
People v. Morgan
Mich.App.,2007.
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT
RULES BEFORE ClTING.
UNPUBLISHED
pellee,
v.
Johnnie L. MORGAN, Defendant-Appellant.
Docket No. 272143.
Oct. 16,2007.
Macomb Circuit Court; LC No.2005-005129-FH.
Before: WILDER, PJ., and BORRELLO and
BECKERlNG, JJ.
PER CURIAM.
* 1 Defendant appeals as of right his conviction for
intentional discharge of a firearm at a dwelling,
MCL 750.234b. He was convicted following a jury
trial and sentenced to 12 months' probation. We af-
firm.
1.

that, in making
his argument, defendant does not dispute that his
wife's statements were "excited utterances." De-
fendant's wife, Karen Morgan, told a 911 dispatcher
that she argued with her husband, he threatened to
harm himself, she heard him fire a shot in their
home, and she was concerned for his well-being.
Whether to admit evidence is within the discretion
of the trial court, and we reverse a decision only
when there is a clear abuse of that discretion.People
v. Starr, 457 Mich. 490, 494;577 NW2d 673
(1998). We review preliminary questions of law re-
garding the admissibility of evidence de
novo. People v. Lukity, 460 Mich. 484, 488;596
NW2d 607 (1999). If the trial court admits evidence
that is inadmissible as a matter of law, it is an abuse
of discretion.ld.
The marital communications privilege IS found in
MCL 600.2162(7), which provides:
Except as otherwise provided in subsection (3), a
married person or a person who has been married
previously shall not be examined in a criminal
prosecution as to any communication made
between that person and his or her spouse or
former spouse during the marriage without the
consent of the person to be examined.
442 Mich. 560,
In a case almost directly on point, we reversed the
trial court's decision to suppress the defendant's
husband's statement to a 911 operator on the basis
of the marital communications privilege. People v.
Williams, 181 Mich.App 551, 554;450 NW2d 85
,... ,,...,, 1"'("\f\O
"':'1'.

Page 3 of 5
Not Reported in N.W.2d FOR EDUCA TlONAL USE ONLY Page 2
Not Reported in N.W.2d, 2007 WL 3015242 CMich.App.)
2007 WL 3015242 (Mich.App.)
(19 89). thai"the
shot her
tenant-l' admissIble as' '''an excIted utterance
as to
the state)Jlellt made" be,ause the husoaild dta- not
..'ffi'\i .. ".''1;t . trial,.ld ...... ,.(.i ...f1 .. . !;!J. ,ill .. ... e .. d.). We
.that .the marl!l1t commUUlcatl1fus.
P
J;,tV-
ilege . "is a is. inapplic-
was riorIe-
to . .te,tify."
';1"""" testlillony nor the plaYlf!goftlle audIOtape Itself Im-
p
*2 In this case, Karen did not testify at trial, thus,
the marital communications privilege did not apply.
The trial court did not abuse its discretion by allow-
ing her statements to the 911 operator to be played
for the jury as evidence. They were properly au-
thenticated and it is not disputed that they were ex-
cited utterances, admissible under the hearsay ex-
ception of MRE 803(2). The excited utterance
hearsay exception did not, as defendant states,
'!trump" the privilege; rather, the privilege simply
did not apply.
n.
Defendant also argues that the trial court violated
his Confrontation Clause rights as articulated by the'
Sixth Amendment and by the United States Su-
preme Court in Crawford v. Washing/an, 541. U.S.
36;124 S Ct 1354;158 L.Ed.2d 177 (2004), and
Davis v. Washington, --- U.S. ----; 126 S Ct
2266;165 L.Ed.2d 224 (2006), when it allowed Of-
ficer Daniel Allen and Sergeant Sandra Laufle to
testify regarding "testimonial" statements that Kar-
en made to them at the scene. Defendant did not ob-
ject to the admission of the challenged testimony on
this ground at trial; thus, this issue is
unpreserved.People v. Kimble, 470 Mich. 305,
309;684 NW2d 669 (2004). We review an unpre-
served claim of constitutional error for plain error
affecting defendant's substantial rights. People v.
Carines, 460 Mich. 750, 763-764;597 NW2d 130
(J 999). Reversal is warranted only if plain error
seriously affects the fairness, integrity, or public
reputation of the judicial proceedings or resu Its in
the conviction of an actually innocent defendant.
ld. at 763.
The United States Supreme Court ruled that the
Confrontation Clause of the Sixth Amendment for-
bids the admission of "testimonial" hearsay state-
ments made in response to interrogation unless the
statements were made by a witness who is
able and the defendant had an earlier opportunity to
cross-examine the witness. Crawford, supra at 68.Jf
the statements are nontestimonial, the Confronta-
tion Clause is not implicated, and state hearsay
rules govern the admission of the evidence. Id. The
Supreme Court provided guidance regarding wheth-
er a statement was testimonial in Davis, supra at
2273-2274, where it stated:
Statements are nontestimonial when made in the
course of police interrogation under circum-
stances objectively indicating that the primary
purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They
are testimonial w,hen the circumstances object-
ively indicate that there is no such ongoing emer-
gency, and that the primary purpose of the inter-
rogation is to establish or prove past events po-
tentially relevant to later criminal prosecution.
In Davis, the Court concluded that the beginning of
a 911 telephone call between a domestic abuse vic-
tim and the operator where the victim explained
why she needed assistance was not testimonial be-
cause the operator's questions were designed to eli-
cit information to resolve an emergency. Id at
2270-2271, 2276-2277.In the companion case,
Hamman v. Indiana, however, the Court found that
statements made to police officers after the parties
involved in a domestic abuse situation were separ-
ated and the emergency was over, were testimonial,
Id. at 2272-2273, 2278.The questions after-the-fact
in Hammon were designed to establish past facts to
discover whether a crime was committed and to de-
velop evidence against the suspect, and the ques-
tioning took plaee some time after the incident was
Page 4 of 5
Not Reported in N.W.2d FOR EDUCATIONAL USE ONLY Page 3
Not Reported in N.W.2d, 2007 WL 3015242 (Mich.App.)
2007 WL 3015242 (Mich.App.)
over. ld. at 2278-2279.
*3 Not all police inquiri,s at a scene will yield
testimonial answers. A distinction should be made
between questions" 'necessary to secure [police]
safety or the safety of the public and questions de-
signed SOlely to elicit testimonial evidence from a
suspect.' " DavIS, supra at 2277, quoting New York
v. Quarles, 467 U.S. 649, 658-659;104 S Ct
2626;81 L.Ed.2d 550 (1984). "We have already ob-
served of domestic disputes that' [0 ]fficers called to
investigate '" need to know whom they are dealing
with in order to assess the situation, the threat to
their own safety, and possible danger to the poten-
tial victim.' " Davis, supra at 2279, quoting Hiibel
v. Sixth Judicial Dist. Court of Nevada, Humboldt
Co., 542 U.S. 177, 186;124 S Ct 2451;159 L.Ed.2d
292 (2004). "Such exigencies may often mean that
<initial inquiries' produce nontestimonial state-
ments." Davis, supra at 2279. Where the statements
are in essence, a "cry for help" or intended to
provide information that enables an officer to im-
mediately \'end a threatening situation," they are
not testimonial. Id Once the "information needed
to address the exigency of the moment" is obtained,
however, statements in response to police question-
ing become testimoniaL Id. at 2277.Thus, this Court
has held that statements relayed to a 911 operator
by the neighbor of a victim immediately after the
victim escaped from her apartment and live-in boy-
friend were not testimonial because their primary
purpose was to obtain help, People v. Walker (On
Remand), 273 Mich.App 56, 59-60, 63-64;728
NW2d 902 (2006). While the operator attempted to
obtain detailed information about the location of
the home, the circumstances of the beating, the
name of the perpetrator/defendant and his location,
the location of the victim's son, and if her son was
still inside the home with the defendant, the
primary purpose of the questions was to enable po-
lice to properly respond to the ongoing emergency,
assist the victim, and ensure that others potentially
at risk were protected. ld. at 64.The statements
were, therefore, nontestimonial and were properly
admitted at trial. ld
In contrast, the victim's later statements to police
and to her neighbor were testimonial because they
were made after the emergency was addressed and
in response to inquiries that were "investigatory in
nature." ld at 64-65.Even though some of the in-
formation provided in the statements was necessary
to enable the police to respond to the emergency,
under the circumstances, they were Hgeneral1y testi-
monial" and inadmissible.ld. at 65.
Here, Officer Allen arrived only a few minutes after
Karen's 911 telephone call and was the fITSt to
speak with Karen. He was aware that a gunshot had
been fIred and was told that the "gunman" was still
in the home. Officer Allen needed to know whom
he was dealing with in order to assess the situation,
the threat to the officers' safety, and of any possible
danger to potential victims. Hiibel, supra at 186.His
questions regarding what happened, who shot the
weapon, whether others were inside the house, and
how many weapons defendant o w n e d ~ were relev-
ant, not primarily to build a case against defendant
in the future, but to obtain sufficient inforntation to .
allow police to "address the exigency of the. mo-
ment."Davis, supra at 2277; Walker, supra at
64.Thus, Officer Allen's testimony was properly ad-
mitted and did not offend defendant's constitutional
rights.
* 4 Conversations that begin as non testimonial,
however, may progress into testimonial statements,
Davis, supra at 2277, and we conclude that Karen's
later statements to Sergeant Laufle were mOre testi-
monial in nature. By the time Sergeant Laufle ar-
rived on the scene, Officer Allen had already
spoken with Karen and officers were securing the
perimeter of the home. There was arguably no need
for more information to address the "volatile" situ-
ation; Karen had already answered those pressing
questions. Thus, we conclude that Karen's state-
ments to Sergeant Laufle were testimonial and their
admission violated defendant's confrontation clause
rights.
Nevertheless, we affum defendant's convIctIOn be-
cause he has failed to show that Sergeant Laufle's
Not Reported in N.W.2d FOR EDUCATIONAL USE ONL Y
Not Reported in N.W.2d, 2007 WL 3015242 (Mich.App.)
2007 WL 3015242 (Mich.App.)
testimony regarding Karen's statements seriously
affected the fairness, integrity, or public reputation
of the judicial proceedings or resulted in the con-
viction of an actually innocent defendant.Carines,
supra at 763.Sergeant Laufle's testimony was
merely cumulative to the information on the 911
telephone call, Omcer Allen's testimony, and the
physical evidence found at the scene, specifically a
bullet casing and evidence of a "fresh" bullet hole
in the home. The admissible evidence Was suffi-
cient for a jury to believe beyond a reasonable
doubt that defendant intentionally frred his weapon
inside his home. See MCL 750.234b. Thus, any er-
ror did not affect defendant's substantial rights.
AffIrmed.
Mich.App.,2007.
People v. Morgan
Not Reported in N.W.2d, 2007 WL 3015242
(Mich.App.)
END OF DOCUMENT
Page 5 of5
Page 4
Exhibit 5 from People's Answer to Defendants
. privilege log
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People's Response to Defendant latrick's List of Challenged Messages

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ll'rlvllege I
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\ Text.Message 34 l.2f9i2003 l(wamc Kllpatnck
35-36 .
,,"t[ .,VV.J . ,,-W1!IIl" NljR!l,Q<1I 14114(b}
. .. - .........
J7 412.5/2003
Kwame Kilpatrlllk
141J4(b)
cc = Comm1llliDIItioIlI OJ> -U.UhO!lltiv 4ll4{b) " 4o.t(b) 8pQuilll1 w Spo",.i Privil.gt .
,\" .
..--,: .. .... .. ...... ----:c .. .... -- .... ,.. .... - ..
People's Response to Defendant
)atrick's List of Challenged Messages
D'ilte
512003
39
Sl2312002
39 511912003
4042
42
Christine Beatty IV.
KWllme)
K warne KIlpatrick &
Christine Beetty
Rum Carter, Kwame
Kilpatrick & lamaine
Dickens
Kwame
Kwame
Kwame Kilpatrick
Beatty &
K w..me Kilpatrick
K warne Kilpatrick &
Jamaine Dickens
Christine
, Christine
General Nature
of Document
Text Messages
Messages
Text Messages
Text Messages
, Text Messages
Text Me$suges

JOaim
404(b)
CC,DP
PEOl"LE'S MOTION EXHIBIT Z - DIsk of Seven Comps1:t Dlw provided by SkyTe! to WaynliCounty ProBecntor's
,
ALL
ALL ALL ALL Text Messages
CC = Counsel D]> PJi>Oa\slEx<lcnliY. 4tlb) c MRF; ;04(1)) Sl"l" .. l* SpOU!aI Ptivlteg,
..
....
"'-. _._ .. ,,'---.-... -.-. -.-.. __ ... _---_._-_._---
Privilege
Inapplicable
Inga Dyer-Counts 4 & 6.
rule.
. Jatrick's List of Challenged Messages
Genel'al Nlotnre Privilege
Privilege
Palle(5) Date Author Reclplent of Document IClalm
Inapplicable
PEOPLE'S MOTIONEXHIBlT S-P.LN. NUM11ERS ASSIGNED TO CITY OF DETROIT PAGERS
FOOl\l JANUARY, 2602 TO JANUARY, 2008
,
'.,-
- '--
I I PIN Numbere and Subs crib;'" Mich,&
,
ALL ALL ALL llnfonnatlon for City of
U,S,
ALL
Detroit
I Const.,
,
First
Search warrant;
I
I
Am.,
No Standing:
,
No reasonable expectation of privacy.
I
I'owth
\
I
Am.,
I
Fourteen
thAm.,
-" .....
--.
1121/2003 Kwame Kilpatrick &. C1u:1i1a Kilpatrick & Text Messages Spousal
People v. FisheI. 442 Mich, 560 +- case
Carlim Kilpatrick Kwame Kilpatrick
law and brier. MeL 600.2162.
PEOPLE'S MOTION XliIBIT 13
--- -
-_.
2:33:57 - 9115102 Kwame Kilpatrick & Christine Beatty & K wame Text Message
Goes to elements of charged offenses.

,
Christine Beatty Kilpatrick 404(b)
!
-.... -..
8:42:00- 9115/02 Christine Beatty 8 Kwanle Kilpatrick-;;:- Text Message 404(b}
8:49:28 Kwame Kilpatrick Christine
.
CC = COIIn,,\ C<>mmUllltution., DP n Dclib,,_ PJo<ess'll, ... uY< o\(}o1(b) MRE <I()t.(b) SIlO'l$;llu SpO\l .. l Privileg.

i
I
j
I
People's Response to Defendant latrick's List of Challenged Messages .
Page,s) I
I
General Noture
Date Author Recipient of Document
PEOPLE'S MOTIONEXllmIT 15
4/1812003, I J(wame Kilpatrick, K Wlll!tll Kilpatrick, Text Messages
4128!20!J3,
! lamaine Dickens & Jamame Dickens &
5/112003

Christine Beatty
.
---
1'I.o1>1,E'S MOTION EXHIBIT 17
1I11l/04 K watne Kilpatrick &. Kwame Kilpatrick & Text Messages
Derek Mllter
PEOPLE'S MOTION EXHlllT 20
14:41 5f15/03
MOTION
1219103@
2Q:21:21
Rufucarter
Christine Beatty
I'EOPLE'S MOTIONEXHmrr 26
Derek Miller
.... --......1....
t--".., .... .......- .........- ..
I K warne Kilpatrick Text Message
__ L
--
Christine Beatty
CC - COil' .. '" Communio"ioos UP o.liOO .. l"" Pro<e"I5x_Iv< Privileg' 404(b). MR.S 41l4{b) w Spousal Prlvlltge
".,'
...... -.... ..,------- " .. -:-.----.-.. ---.... -;-
Privilego
Privilege
IClaim
Inapplicable
lDP
Relating factual matters. No decision
making process Involved.
I
,
I
DP
RelatIng factUal matters. No decision
making process involved.
CODP
DPNo deciSions being made.
CCNot legal advice.
-0-,';"
People's Response to Defendant )atrick's List of Challenged Messages
j_ .._------------
l PEOPLE'S :MOTION EXHlB1T 33
, l'EUPLE'S EXHIBrf 34
Beally &
Kwame Kilpatrick
Christine Beatty
& T e;xt Messages
Kilpatl"ick & I Text Messages
Christme Beatty
& Kwame I Te}'1 Messages
Kilp!\tl'illk
cc Cotmsol C"",",unimmn. DP DeI"' ..... lv. 'l'too,wllx"",Hv. Pri"i!"l\' 4e4(l = MAA spo",," = Spou .. l MvUeg.
".' .. -
"
404(b)
DP
Privilege
Inapplicable
1422; In re Sealed Case, 121 F ,3d 129.
to elements of charged offenses.
,.--......
atrick's List of Challenged Messages
Privilege
Inapplicable

,
l'EOl'Lt'S EXHIBIT 3S
f57i9/03' '. Ruth Qu1er, Jamaitle
Dickens & Kwame
Kilpatrick
Kwame KilpatJ:ick &
Jamaine Dickens
Text MC&1llfies DP
Relating factual matters. No dedsion

I
11/22103 C;Jlristine Beatty & -Kwame Kilpatrick & Text Message;- 404(b) This Is in exhibit 36 and Is addressed
I-- \ K W1lme Kilpatrick Chl'L<;tine Beatty __ __--il-be_IO_W. _______ -l
PF,oP'LE'S EXHBIT 36
I ALL I ALl -1 ALL - 1,,,,-:"';- J
l
404(h}
I I - - - I ___ 1---+---------1
PEOPLE'S EXIIDIT37
Goes to elements of chargedoffenses.
f-- I \. I ".--.-.----.- I . . I Goes to elements of charged offenses.
I ALL T Me.!sagc 404(b)
1
L_L_._- I ____ J_
PEOPLE'S EXtImlT 39- KWAME'S MESSAGES EXCLUDING ANY MES,"lAGES TOIFROM CHRt.'1lTNE
ALL ALL AI..L
. .
I I
1 _ --I_KW1lIlleKilpalrick. ___ ,-- _ IDP l
I ) Ruth Kwame KilDauick ,, __ . Text Message I CClDl' INo deciSion making; No legal advice.
1 1 VI 1 Vl l{wam.e Kiloatrick Text MessllJre CCIDP No decision making; No legal advice.
I l,"H"". I __ "_ .. Text M$lsaJl:e CCJl)P No dedslon making; No legal advice.
i I Kwwn
e
__ ._.. . . I Texl . CC NO legal advice. I
I I Kitpatriclc . Cllrlllr _ Text Messa e __ ..S; No legal advice. l
cc COII",.l Commnnicotlons DP Oolibtrativo Prorn.'P,,",,,,,,;v'!'dvUoge W) MRl! 4!l4(b) Sp!iu .. 1 SpOll$A! Pr;vjlego
, ..
--.. ;_ .... _---_:._._._--------
People's Response to Defendant .Iatrick's List of Challenged Messages
J!e ..
cc . Co .. ,,\ D1' = o.;lib<:rltive PI....,JE.e<utive 401\(ll). MRll404(bj SjJousal. Spoosal PllvI1cg
.. . .. ..... .
_._ .. __ ._-;-. .-'!i:'-.----7-----':-- , .. -..
Privilege
Inapplicable
4 & 6.
factual matters. No decision
process inVolved.

People's Response to Defendant . )atrick's List of Challenged Messages
Kilpatrick &. Text Me.sage
/It.. Text MesSllgl' 404{b)
DF
DP
KWlUne
Cc <06 Counsel OP , .. Pr-oet.sslExecutiw PrivUeg.o 404to)'" MJU5 4{}4(b) Spnusal ... Spousal Priviloge-
.... c.------.... -.. ____ ,--__ .
Privilege
Inapplicable
process Involved.
4& 6.
4&6.
case
1422; In re Sealed Case, 121 F.3d 729.
'-, -----.--. -------------------
.-.-." People's Response to Defendant iatrick's List of Challenged Messages
Privilege
Inapplicable
7:16:28 - 5113103 Jrunaine Dickells & Kwame KJ1patrick &
--
--....... ......
Text Messase OP
. Relating fact\.lal matters. No decision

K\vame Kilpatrick J<IiIlaine Dickens
8:24:59 51l4103 Kwllltte Ki1e!!.1fick Derek Miller Ten Mess31!.e DP
In re Subpoena Duces Tecum, 145 F .3d
"-
i Ten Message
1422; In re Sealed Case, 121 F,3d 729.
11:56:04 . 5/14103 Jamaine Dickens & Kwame Kilpatrick & D1'
11:59:39
--
K wame Kil!>atrick JamBiIw Dickens
Kwame Kilpatrick

No legal advice.
12:01:12 . Ruth Carter Text MesS)ll!:e CC
I 12:03:19- 5/14103 Kwamc Kilpattick &. June Dickens &. Kwamc Text Message DF
In re Subpoena Duces Tec:um,145 F,3d 1
12:44:01 I Jalllaine Dickens !9Jpattick
I
1422; In re Sealed Case. 121 F.3d 729. !
..
Relating factual matters; No decision !
IS:SO:49 - 5/14/03 ! KwameKilpatrick Dedan Millon & Derek
I Text Me.sage
OF
18:50:50
I Ullknown
Miller
!
1(1:24:42 5114103 Kwe!9lpatrick Text Messa"", 01'

5/14/03 JamalJ.e Ou:kens KWI!llle KitE "trick Tc:<t Mess!!1\!:. DP
14:4.1:00 5/15/03 KW1Ime Kill!atrick CC
No \8gat advice.
J 1:35:39 5/16/03 Unknown Kwame Kilpatrick TeXl Mossaqe
--
-BL-
10:27:11- 5/17/"03 iamain. Dicktm.&. I Kwomo Kilpatrick &. Text MOISSage DI'
10:)2:19 K waUle __ .. __ ' 111lJll1ine Dicl=s
14:28:01} iSlll103 K '\Vame K...!!e!!.tikk I Andrea CaroU
____
DP __
1.5:12:39 5/18J03 Unknown I KwameKUmrtrick
DI'
making process involved: .
5:49:39 5119103 Jl>llIaine Dickens J Kwarne Kilpatrick Text OF
6:52:06
5119/&3- K warne Kilpatrick I Jamaine Dickens OF
6:59:47 - 5119103 K watne Kilpatrick &. DerckMiIl';&Kwl>llIe Text Message DI'
.
7:05:1> Derek Miller Kilpatrick
7:41:45 - 5119103 .RlJ!h Carter &. K warne Kwame Kilpaltick &. Rutb Text Message CCiDP
No legal advice; In re .. Cases,
8;19:15 Kilnattick Cllrter
11:1&:41
" .. -5i19/03
Jamaine i .. Kilpatrick ToK!
___
..,--,_.-,
,.. factual: No decision making process.
DP
I:b07:47 5119/03 RuthCartcr Kwame Kib>atrick
T oxt
CCiPp
No !egal advice; In re Subpoena Duces
12:lO;$1 5119103 Kwame Kilpatrick Unknown Text Message CCIDP
Tecum,145 F.3d 1422; fn ra Sealed
12:il:58 5/19/03 KwtUllo Killlll1riCK Ruth CIlIW Text Messege CCIDP
Case. 121 F.3Q 729.
-
-"
K'WiiiieKilpatrick &. 12:12:52- 5119/03 Jamaine Dickens &. Text MeSsage DP
In re Subpoena Duces Tacum,145 F.3d
:12,17:26 Kwame __ <_. . }""",inl} Dlcken.
1422: In re Sealed Case, 121 F.3d 729.
-
cc .. COmmunicatiOn! DP De1ibern.tive ProccsstExecul1v Privilczr; 404(b) c MR 404(h) Spoulial ... Spousal
/.
People's Response to Defendant atrick's List of Challenged Messages
TeX! Message
Texx Message
,5123/03 Jllll\iline Dickens Kwame
& I Kv.'ll1l11l
Text
cc = c.""",! C ..... unlcati... OP n.JIbotati .. Proo"sl8leutive Prlvlleg' 41l4(b) = MRE 404(0) Spousal = Sjlou>lll Privil"e
404(b)
DP
Privilege
Inapplicable
process Involved:
il"",,,,,tc: A & 6.
... -----.----...... --............ -:-.------... - - - . - ' - . - - ~ - . ----.--. --.-r-.-.-.-.. --... - _ - - - -
. 'atrick's List of Challenged Messages
Privilege
Inapplicable
I
13:43:46- ' 6112103 Ruth Carter & KWam<; 'Kwame KI1panlck & Rum
- No Legal Advice; Relating factual
Texl Message eClDr
)6:53:03 ! Killllltrick Carter
matters, No decision making process
Involved;
14:M:IO- 6!l3/03 Ruth Carter &. Kwame K waDle Kilpatrick. &. Ruth 1tXt Message CCiDP
21:55:27 QlI3f03 Kwame
Tex(
Dr
In re Subpoena Duces Tecum,145. F.3d
12:31:14 - 6118/03 RllIh CarlCr 1 Kwame Kilpatrick Text Message
m--
1422; In re Sealed Case, 121 F.3d 729
14:49:59
I .
--
-
15:30:1& 6!.!8f03 !ris C\jcda __ I Kwami! KIlEalrlck Text MeSliage DP
Kelaung TOClual maners. NO oeelSlon
16:24:57 - 6119/03 RmhCarter I K WBmo Kilpatrick
I Text Message
CC/DP
making process involVed;
16:34:32 I
.. ... --..
-
Ul143:13 I I Kilpatr[,k \ C!IJ1er __ -.1... I iRelallng facltJal matters. No decision
! 13:17:58 - 6124103 Ruth Carter & Kwame Kwame Kllpatrlck& Ruth! Text Messllgf> CC/DI' making proce .. Involved;
Text
cc Co"",,! COl"IOom"'tions DP = 0..1>_ """,,,,,1><_ P,Ml<p - MRE 41)4(0) Spousal = Spo ... 1 Pr'lvil,ge
_._---_._------.. _ .. _-_ .......... _-.----_._._--------.-------------.
People's Response to Defendani
Ruth Carter TextMcssage
Text Message
Text Message
cc COU""'! CQmmllllier.ti"'" D;>a De!lbera1ivo Proce,sIllxeOll1l 4lNjb) = MlU! 404[1;1) < Spousal = Spou,.l Privilege
e_> ._ _ ""._._---* . ..,
Privilege
Inapplicable
<---------------

People's Response to Defendant atrick's List of Challenged Messages
Privilege
Inapplicable
19:2g:00-- 5120/04 Unknown &. Kwame I Kwmne
p'
i 404{b)
Text Messaae
Counts 4 & 6.
i 21:21:30
I Unknown
!
10;46:18- 5i21/04 Ruth C.arter &. K warne KwameKilpatrick &. R!Iln Text Message iCCIDP
No legal advice; Relating
I
matters. No decIsion making]process;
11 :59:55 Kilpatrick Carter

......
--
21:\7:21 5123J()4- Unknown &. Kwame K Wljme Kilpalrick & Text Message
\ 404(b)
Counts 4 & 6.
20:15:24 5126/04 Kilpatrid: Unknown
i
9:29:57 - 612/04- Ruth Carter & Kwame !<.watne Kilpatrick &. R!Ilh Text M\\'lSage
"rCOOp
No legal advice; Factual; No

1 til 0104 Ki!pa!tiek Carter
i
making process; In re ..
.. -
-
l...-
PEOPLE'S 'EXHlBI't 40- KWAME TO CHRISTINE AND CSJUS'fINE TO KW AME \NOTE 'SHOULD ,Bt;: EX.
-
Recipl.;i Time Date Sender General Privilege
Nature of

DocwnOl!! __
13:37:09 to 615f02 Kwam<> KilpatrickiChriStiD.. Xwarne KllpalricktCbri'tine Text
404(b)'
I"aes to elements Ol charge9 offenses,
__
-6/!t/Ol
Beat\)'
B"'I!!X
!1
22:53:15 to . K ",ame Kilpatrick/Christine K warn" Kilpal.rUikJChdstine Text 404(b)
Referenced data & time not \n appendiX
23:04:lJ6 Beatty
Beanr c-
Messazcs '
of People's motion.
20:20:51 to 8126102 Kwame Kilpalricl:JChri.tine Kwame KilpatrlckJCbrisUne Text 4()4(b)
20:22:40
B""t1:y __
Beatty Mcssog""
I
8 :55 to 9125102 K warne KiipasrickiChrlstine K!lpatrlcklCbrlstine Text ' 4(}4(b)
10:46:04
.-
Beatty
J"elilI
V Messll.[CS Goes to elements of offenses.
22:54:4110 9128102 Kwame Kilpatrick/Christine -- KwameKilpatrickfCbristine 1'01\1 404{b)
,23:13:96 Beatty
Beat1:y , .'_

13:58:24 to 91'2.9102 K wam" KilpaltlcklChrislinc K wame KilpatriCk/Christine
T'''(
404(b)
16:00:41 Beatty Messa\. ...
22:20:37 IOnJ02 Kwamc Kilpatrlcl<lChrlsllna Kwarne KilpatriCk/Christine Text 4(}4(b)
Beatty

M.ssaee$
9: 111:25 10/8102 Kwame KllpatricklC';;istine Kwame Text 404(b)
._1...-
Beatty Beatty Messanes
.
CC ... Cotlllst:l CommuDicariQn$ DP ""' Deliberative Pl'occ!>1itExtcutivt: Prlvile,g,e 404(h) .. MItE 4C4(b) 5pt)U$8:1 Privilege
f'. ' .. '-.-,
People's Response to Defendant . latrick's List of Challenged Messages
16:07: 17 to I IOIIl102
16:20:19
20:24:27 to IOtfilO2
3:12:02 to 1111/02
22:12:38 11/4102
1$:18:16 11/611)2
iipatrick/Christioe XwameK
Beauy
iljlutrick!CtUlstiDe KwameK
Beatty
JlpatriciJCnrlst!ne KwameKl
Bealt:
llpatl'ick/Christine KwameKl
18:10:04 to
I ... _.M I
I I ll'JlV"- iplilrick/Chri5Une
Bea'> !8:15:09
16:58:43 1413/03 KWIlIl\eKi jlpatricWChrisline
23:47:43 to 1
l"_'M
Jlpatrick/Christine
23:53:02
2J:3B:20 4123103
14:43:38 to 4124)03
14:46:30
'-15:34:1! to 14/26103
122:03:39
511/03
21:43:55
1l:35:1S to I 5/2/03
18:21:02
20:41 :58 l(l 1516103

11 :00:04 to fl7l03 to
8:45:24 5(8103
6:2ii'Iito"- "Sfl2l03
B_eatty
KwameK
Beat'
atpatrickiCluistine KwameK
Be
KwamcKl
Beall
'patrick/Christine
KWilmoKi Ipatr.cklChristine

Ilpatrick/Christine KwameK
Beat!
G!patrickfChrlsline KwameKt
Bcntt-:'
f
Klipatrick/ChriSline KwameKt
Beal
KwameKlJ :iJpatrick/Christine

h..".... -L .
Privilege
Inapplicable
"
K warne Kilpatrick/Christine T.Kt 404(b)
lle;Ilt'll MessaQes
K wame Text 404(\
Beattv
--
K Wl!Jlle Kilpatrick/Christine Text 4ll4(b)
.BeattY __
!--404(1)) Kwarne Kilpatrick/Christine Text
Counts 4 & 6.
80lllly Messages
---'-
K WlllUa Kiij;iiiriciuCllristine Text 404(b)
Beattv Messalles
Kwame KilpatrickfClllist;ne Text 404(b)

Kwame KlipatrickiChristine Text 4l)4(b)
B<mltv Messae<:s
Kwame Kilpatrick/Christine Text
404(b)-
BI':!!!!L-_.
Kwarne Kilpatrick/Curistine Text DJ'
Relatlno factual matters, No deCision
Beatw Messae.es
making process Involved;
. Kwame Kllpatri-;'klcllristine
"'"
Counts.:l & 6.
Text .
. 404(b)
l3emtY I Messages
K warne Kilpatrick/Christine Tcxt DP
Relating factual matteI's. No decision
1>eattv .
M'-'Ssu!!1'ls
making process involved;
K wame Kilpatrick/Christine lOKt DP
--
Beal!}: _Mes!!!lI!eS
K warne Kilpatrlck/Christine Text DP
In re Subpoena Tecum, 145 F.3d
,Beany Me .. "ges
1422; In ro Sealed Case. 121 F_3d 729.
K wame Kilpatrick/Christine Text DP
B!\at1y
---
KWfmlC Kilpatrick/Christine 10K! DJ'
Beatty Messages
CC = CClUn5i Comn'll.mioi:BtiOil. DP == Deijbemtlv41troee&Si:EX('t;ULL'VQ PrivilCi;o 404(b) * MRE .1O<t(b) Privilege
-- ---- "._--_._._._---,---_. -'-' ._--

._--_._-----
People's Response to Defendant )atrick's List of Challenged Messages
,
Privilege
Inapplicable
15;54:01 to 5/12103 K wame Kilpatrick/Christine Kwame Kllpatrick/Ci.ristine I Text - . -
DP
In ra Subpoena Duces Tecum, 145 F .3d
16:22:50 Beatty
L!"I"""'ges
1422; In '" Sealed Case, 121 F.3d 729.
12:35:38 5/13/03 Kwame Kilpatriok/Christine K wame I Text Dl'
Beattv

, Messages
-- .
21 :34:3510 S/13/03 KWIll11e Kilpatrick/CMs!ine KWlIIIl.C Kilpatrick/Christme Text DF
In re .. , Cases.
22:14;()4 Beatty
Beatty ------7- Mtlll.!'agC$ _ .
18;21:00 to SIl4/03 K wame KilPatrick/Christine K wame Kitpatrick/Ci1.rhtine I Text 404(h)
Goes to elements of charged offenses. !
23:45 :?J._. __ Beattv Bc-dttv I.essagcs
---...-..........
1 1:02:57 to 5/15/03 Kwame Kilpn1rickiChristinc Kwame KilpatriCk/Christine I Text DF
19:11:01 Beattv Beatty Messages
In re Subpoena Duces Tecum,145 F.3d
10:47:2811 5/18103" Kwame Klipatrick/Christine K wamc KilpatrickiChrlsline Text DF
1422; In re Sealed case. 121 F.3d 729.
11:04:34

BeaJ.!L__ . M"".ages ___
11:22:40 10 5129/03 K warne Kitpatrick/Clu:i!rtipe Kwsille Kilpatrick/Christine I Text 01'
Relating factual matters, No decision
13:05:30 l'kmttv Beatty I. Messages
20,03:01 to 614/0f Kwame Kilputrlck/Christinc KWI\llle Kilpatrick/Christine l Text DP
In re.Subpoena Duces Tecl.Im,145-F.3d
20:12:43
i3<latty __ . __
.,1'!iess,!!!!es
7:08:47 to 6/12/03 Kwame Kilpatrick/Christine Kwame KllpatrickiCltrisline , Text DP
}:14:17 Bea!)X Beatly I Messages
to 6112!1}, Kwame l<ilpairlckfChristlne Kwame Kiijiatrlck/Christine J Text
1)P/404(b) --
19:51:50
Bea!!X .
Beol1 __
17:58:04(0 6124103
I Kwaroe Kilpatrick/Christine KilpatrickiChrislllll> Text DP
17:59:39 . MesSBj(e!I
making process Involved .
Beatty
12:51:23 6126103 Kwame Kilpatriek/Clrristinc K warne Kilpa1rickiChris1ine 1 ext 404(b)
Authentica1lon
Boatty .
. -,..-.
Beatty
13:06:46 to 6126/03 Kwame Kilpatrick/Christine K warne Kilpatrick/Christine Text DP
13;50:00 Bllattv Beatl'l

!
In re Subpoena Duces Tecum,145 F.3d
7:47:28 to 7/1/3 l(wame KilpalrickiChrlstine Kwame KilpatricklChristine Te;;:t DP
9:59:0.iL_ .
Be81tv

Mess_s
JO;58:44 to 718103 KWlImc Kilpatrick/Christine KW'.mte Kitpatri\\klChrlstine
__ _____ . __ 11;04;00 Beatty

Beauy
cc CGtUUel Commur.ic:ation$ Dp O=liboroui .. Processll!xeou!lvePrMI'1l' MRE 41l4(b) Sp""",! = Sjmlml Prlvitlogt;
People's Response to Defendant latrick's List of Challenged Messages
Privilege
Inapplicable
14:57:55 to 718/03 Kwame Kilpatrick/Chri;.1inl; KWllme Kilpatri.ckfChristine
te;u-
-
404{b)
15:09:15
--
Beattv . B<;atty _
Mess82eS
-
22:24:58 to 7/12/03 Kwame Kilpatriej(/Ctllistine I K warne Kilpatrick/Christine Text 404(b)
22:30:21 Bealt\' Messages
-
14:09:121u 7/13/03 Kwame Kilpall'iekiChristine Kwame KilpatrickfCbristine Text DP
14:17:11 Beattl' BeauI
process Involved;
17: 12:47 - 7115/03 Kwame Kilpatrick/Cbrlstine KWllJl11l Kilpamck/Cbrt,tiM Text DPI Context
Must review context to respond.
Beattv _ __ I
17:17:36to 7/181\)3 Kwame KilpatricklCbrlstine I Kwamc Kilpatrick/Christine DP
17:53:55 Beattv _.
making process invclved;
! 7:2&:57 to 7123103 KwameKilpatrick/Christine I KWlUne.Kl!pa1rlck/Cbrisline ITexl DP
U:04:3() Bea.!tv . __ ! Beatty _
i
i 22:31:15 7i241!l3 . Kwame KiIpatricklCbrlsIlne I Kw.me Kilpatrick/Cbri'tine ,Te>rt 404(b)
i Beally ! __ +
122:48:58 8/6/03- . Kwame KilpatriokiClui!;line KW8ml> Kilpatrick/Christine I 'fro I OP
Beattv . Be.tty . Messages I
making process involved;
16:13:28 a!1l03 Kwamt KllpatricklCiuistine Kwame Kiipatri()k/Christine 404{b)
10:19,01 to i2f26103
Beatty ._____ BOt!ll:Y __ M!?"y\os
Kwame Kilpatrick/Christine Kwame Kilpatrlck/Christine Te>rt 404(ll)
B:09:02 Beatty Be;;tty Messa_
1>;25: 15 to ! 417W. K.W.lme Kilpatrick/CbrLqtioe KwameKiJpatrlckfChristine 1';)(1 404(h}
15:27:3{) .
B;.attv ...
8:32:49 to 419104 Kwame Kilpatrick/Christine K wmne Kilpatrick/Christine 4Q4{b)
9:14:15 . Beattv Beatty Messages
W:21::iS 41!7/04 K wame Kilpatrick/Christine Kwame Kllpalricl<lChristine Text 404(h)
BeattY ._ Mes.'l!ll!es
---,-
14:09:55 4130/04 Kwante Kilpa1l'icl<lChrisline Kwante Kilpatricl<lCbristine Te."<1 DP
, Authentication; Reiating factual matters.
Beatty __
l!1essage$
No decision making process.
-
13:56:04 513/04 .Kilpatrick/Christine I K warne Kilpalrick/Christine Text DP
In re ... Cases.
----

-
Messap;es
cc - C" .... ol CcmDlUnlartiollll or = O.fibc .. lIve Proc."l1lxecutivel'rhikgo Ml\S 404(b) Spo"",1 Spo",al Privltog.
,';'
, .

. People's Response to Defendant
Privilege
I Inapplicable
!
15:58:06 515/04 KWlIme KilpatrictiiciiriStiiie'-TKWiimc KilpatricklChrlstiJll.l I TeXt
!DP
. Authentication factual; No deCision
! Bealty Beatty i Messages
13:12:24 to .5/6104 KWlIIllc KilpalricklChrlstinc K warne KiipatricldChrlstinc ' Text \404(b)
Goes to elements of charged offenses. !
13:2{:36 Beatl}' Beatty MessllJle5
j
23:51:30 ,5126/04 Kwame KilpatricklCbrrstine K warne Ki\patrick/Clmsline DF
"No decision making,
Beany Beatty Mcssllges
10:06:32 ! 6/26/04 [(wwe Kilpatrick/Christine Kwame Kilpatrick/Christine text UP
I Beatty. __ . __ ___ ._. ___

14:52:08 to 6127/04 I K warne Kilpatrick/Christine Kwwe Kilpatrick/Christine Text DF
IS:(l4:11 BeaU)' Beatty Messages
.--'-_.
PEOPLE'S l\iOTION lLXHlBlT 41- RUTH CAKfER
'*For Ibe puqlOses of brevity, Mayor Kilpatrick ohjeo;tS to aU messages included in E.xhibit 41 based upOllllie COUllScl
Communication Privilege and Deliberative ProeessiBxeIlutivc PriVilege.
PEOPLE'S MOTION EmmIT 42- CARLItA KILPATRICK
--
rime Date
Sende;:------
Reclplwt General I'rivi\egeIClain'l
Nalureof
Document
15:40:11 515103 Carlita Kilpatrick K warne Kilpatrick Text Spousal
MeS$\lges
--
18:25:00 5/9/03 Carlita Kilpatrick Kwame Kilpatrick Text Spousal
--
-;;-;---_._-----_.-

I
14:12:25 to 1121103 . Carlita K wa_ Kilpatrick Text Spousal
r:\.4: 1 4:04_
, Meosap;es
SpollSUI--
18:55:28 to 717.3J03 Carilla Kilpatrick Kwamc Kilpatrick Text
j!l:OtQ2._ Messa8.'::'_ .
9:56:29 lfl2i04 Carlita Kilpatrick "K';.;;meKilpalrick Text Spousal
,
MessageS
_______ ... _1_. __
cc ('.ounsci C.<lmmtlnicatiolll OP tJ<:lIbcm!lve Jlro"",slExceutlvc Privilege 404(b) Ml\E 4\Iol(b) Spo",al Spo\l$al Privilege
RelaUng factual matters. No decision
In ra ... Cases,
"Counsel must make Individualized
objections in order for People to
respond. ..
Privilege
Inapplicable
People v, Fisher. 442 Mich. 560 + case
raw and brief; Mel 600.2162.
!
i
,
--:-0-:-. -. --_._'':1'" -.----.. ._-----.-.-.--.--,-.-__ . ____

."'-.
. latrick's List of Challenged Messages

PEOI'Ut's MOTION EXHIBIT 44 - JERRY OLlVER
Time Date
........... - ...." ,
Sender ! Recipient General Privilege/Claim Privilege
-
K__ I -'-
Nature"f
Inapplicable
Document
. 1 5;22:49 to 515/03 Text DP
. 15:35:20 Messages I
1"?:41:38to
. ----fm---
Sm03 Jetty OlivcrlChristine Beatly Christine Beany!JeiTy Oliver making process involved; In re
19:10:54
Jmy OllverlChrlstine Bealty- Jchristiue Beatty/Jerry On;;-
I, . Subpoena Duces Tecum.145 F ,3d
16:46:t6 519103
'Text DP ,.-. 1422; In r& Sealao Case. 121 F.3d 729.
1-=-:-:-

10:46;24 51\0103 Beatty I Jerry Olivet' Text DP
I 1
Messages
7:23:08 to 5114103 Jerry OliverlRuth Carter l Jerry OliverlRulh Carter Text DPfCC
SAME AS ABOVE; No lagal advice.
9:36:40 Me$lIages
12:44:1)1 5f14l03 Kwume Kilp!!d.lick Jerry OHver ! Text DP
(n re .. Cases; No legal advice.
.
I Me.sAAelI
5114/03 Jetty OliverJRuth Carter Jerry OliverJRutll Carter Text DP/CC
14:06:45
M<:lisages
making process involved:
15:39:5410 51l4f(}3 Jerry Oliver Christine Beauy Ten DP
In re Subpoena Duces Tecum, 145 F.3d
Messages
1422; In '" Sealed Case, 121 F.3d 729.
9:31:13 to 5/15/03 . Christine Beatiy/Jerry OUV\Ol' Jerry Oliver/Christine Beatiy Text DP
9:39:28 Messall.s
11:35:39 5!t6f03 Jerry Oljver Kwame Klipatrlck Text DP making process involved;
Messaaes
5123/03 Jrry Oliver Christine Beatty Text DP
\
Messa...,.
CC = .. l COlnmnnicatlons D!' .. ProtO$Sllt,,'Ulivo l'<i.11..., Ml\ 40-\(\>} Sp .... l PriYlIcgc
. ':'it, .,'.
. .
.'''-'- ._.. .. _ .. ---_ ....
People's Response to Defendar List of Challenged Messages
lWs
CIJruSTlNE BEATTY'S IN CAMERA 1'.lllVU;IiXJE I,OG OF RI'l..\SONS TO SEAL EXHIJl;1TS

l'Nsecllirrr;'s lhhlhitl
!!l K!llll!
-_.
,
Privilege InaQQlicabJe
P>p!eS Boalv,t , N"lp,ev;o",ly released
hwalid Ohjection .
.
1111311003 Bilal1y
'_N ___ "''''_
Peopl.es Nll!pl',wiously released
Exh!bll6
,
11m
/l.l!t;"d S.nMr Scglllllilllilll$:ml.jI;"ol;Jlf
Privilege InaQl;!licable
'ji21f20(j3 MaYll1 Kilpelrkit Stllkes Not released
No stZlding to challenge; No legal basis.
_ ............... ,-
712112003 MaY'll Kilpatrick
. ..
.N'ot prcyiousty relcastXl
])Cffflt.\Cut9r'"
_ .._ ..
.... --.
..
1Ihm.
. A!!!:I1",d Keen S""t.d

I 71'2.11'2003 MftYOf Kilpatrick C",),,,, XHplIldrk Pdvilege'
k_, ..........,,,-
._------
11 ))orliofls of me t..'Xhibms forth lito -as ptl't tlrjr:.' Brat l1, I. 20.13
1
.:.10-,. 32. 3343. Tho.se:
1)( leNt (}( the nrid should bo ftl'f 'th !ct 1l<ll'i11m wjim i('l illr.
2i :kit$: p\;Il1!'f.'fttO raise. on of Mayor- KU}!IittL'iok Of' his blrt flo1a
""010 'b, 111bjiO<' 10 jus! as H a.,. .nd h<t fuLmor IVai,,, -1Itre"1Il tho slIbjllct
tv pri"'il!lr I
Privilege Inal!l!licable
No Standing; PeopJr! v, Fi.sher . ..
,
-,--------
>-.""
People's Response to Defendan
:atty's List of Challenged Messages
Kxbibit9
1Dlill!
Sen!l!!il: alll!Jl!!!
:: :
Privilege InaI!I!licable
ii21r'!OO3 M;\),o,l).ilpnWick Carilla Kllpll\rick
112 \1'200, Carlita Kilpatrick ! MI1}'or lCi1.patl'lcl<; S!X'ui!4i1 PrivileW'
No Standing; People \'. Fisher, , .
-
.......... ,.,......_-
mlnOif:l l;-laY"" l<.tipalrick C.rlim Privilege
l:m!!Sutnr'. ExM!It
-
'.
--
Th!!l:. i\.k1Iigod &!!:ui1lU:\
Privilege Ina[!l!licable
412e12003 (entire Maynr 'KUpaukk : Diclletl. ,Dclibemlive \>TOC ...
Factual: No decision making process,
--
Hi
"'... _-
llJi.& A1l!l:gd eJ!.W: ,!llf.!lGU n''''!Ukl!! jQ glOw !Wiled
Privilege Inapplicable
516iWH3 Maym De,,,kMillo>!'
- -
I D\}Jibetl<;h'o INa standing; In re - - , Cases,
l'roseutll.", Exbibjl17
.: "
-
Silli!ler ta"lWl
! 1,I\0{2004 (entire tx-t:hilXl,!,") W.aJ'Ol' Kilpatrick Miller Delibor3liv(} privilT
No standIng; In ra ... Cases.
2
--.;-' ---'--.;.:,---,.- ._. "._-'---""'-"'-.'".-..
.,
People's Response to Defendar
}atty's List of Challenged Messages
Pr(j;;tcu h't'
! t.Ut_'''"ll
d
r
_ '1' '" &;!sanLo ttl KL",p IiJlnl&d Privilege Inapplicable
1 2123/200'\ (cl\1iro e .. Ml1l'Qt Kil}ll\<rick ))0<",< Miller n"liberativ<> p!<XlO<lS No .',ndong.
Factual; No decision making process.
2l23tl004 {"nat" excllOnge) I, Mille, _ ....... __________ .....1

'.-
Privilege
gI' Alleggd ROil/wnW 1/1 KAAII

MavO! Kilpa lTil;k
No standing.
, -
Dell,bemtlve proo;e""
I
I
1 I i\ Il<!e<<l Send.
\ Ruth .,
P ...... eepl<>f.:'J1.1.;l!,j!!Jil,l.
lam
...
. BraJlli.,n1 RwllAOO tg 'lMi:1lll!l!!l!ld
Privilege Inalllllicable
.... , - ft
1121912003 I Kilpatricll Beatly Not , .. Iea..sed
Invalid objection: No legal basis.
-- -
E:drlbit M
lila!:'
...
.... 1l!!:Ii.tl /i..,der RecipjslI!
! -m.lWfl3 (mlir; .
-
j M"yor Xilplltricl!. Not previOllSly r,;:\etIsed
No standing; No legal basis.
..
3
. ...:.l-_________ . ____ .c ___ __ .
__
;.;
People's Response to Defendan
:atty's List of Challenged Messages
I'nl ""!,,.,', ExMtJlt '1(,
nSI!.a' .
Privileru:.lu.;l.j)plicable
Exhibit 3ft.
.!ll!M tJ!. K""11 Seal",l
Inapplicable
4/2Sf2tl\)3 MayOI' KJlj>.uricl:. 'had acts
standing.
4f25r:lOO3 oall,r bod acts
El bib;' -ll
...-................
i D"t.
A;U':2ed _.&l!wwO til Sful,,
Privilege InalHllicable
1If)f2IJ03
-
Ma},,:.Kll},"llick . Other Oliicl
No standing.
-
l'l'Il.esu!gr'. l'ixh\.lllUi
Date AlIlIed Rw.nlimi
. R.lI .,.,t.) III Kee!. Staled
Privilege Inalllllicable
.....
, 311412004 (entire eJWbrulg<:l
-
Mayo, Kill'31riek (lth<:l bad ".1.
No standing.
--
..
:...:.-_______ .. __ :.o:.. . __ ..
People's Response to Defendar
List of Challenged Messages
f;luihU 3,>
-....
.. -.-. '. '---.-.

Allllr,:ed . ! l!l: .
Privilege Inalmlicable
/ ;SJ15l2003 (emil<: el<!.!bungll) .ll"..utt:{ I Mayor .. . JDeUberotiv"
In re . . _ Cases .
__
Prflse:cutpr
t
!' "Exhibit -34
llllll< ..
. --
!leoli!!cnt
lliliMIlUHll, K!l.iIo llij_llIIl
Privilege Inaeelicable
.. .' . "
......... --' .......-'-..... -,
i7flV20Q1 M.e.YQt KMpatti,tk. B.atty No\. p,eviOllJ;ly retea.ed
Invalid objection.
--- -

--
,-
..
JlIllt
lk.ll'!!.n t
Privilege
i
. 5i!9.120M R\1UJ (' .&Iler Mayor Kit9atrlck
No standing; Not her prlvllege to assert. I
-
_ D&llller<!tive proCClSS privIlege
i
e"""':""f>e)_.
Dkkens KHp,olrick - i!.oellberm:iw pJ'l>OeM
No standing.
I .. .....-- -

li.lkg!l!l
5$:1!1!l!l
Privilege ,
'I i (enlire
Ii &"tl. Ma,vGt Not ll!evioo.ty ,ckas&l
Invalid objection.
1 !. ,
5
.-.-----. -.. : ... _ .. _-_._. --' --.-:......-_._._--_.- ......... -----..
.(.
. ...:.;;..
"
People's Response to Defendan :atty's List of Challenged Messages
Pr'l'tM!!l'" Ellbibit 37
.... -- .. .. - ..
lmI&
.

PriviL!l2e InaI!l!licable
...
31l.Snl1[M (entire Beall), .. MayO!' 1. NOiprevioosly released .
Invalid objection .
_ ..__ .....
f .. Q .. .w
K\1'sltle to Chrb:iing !tOO Christine ttl KWltriR
!
-
, pate
,
AlleWld Bec!llilmt
Privilege InaI!I!licable
. AIl"l'g.1 $<lndet
r--'
i 615102 (entire Mayor Benny Not previously 1,,!eaood
Invalid .
. -
611Ml2 (entire exchange) MayClf Be<llf)' Nut jlrvim"l\y rddl."",l
611 li02 Beetty Kilpatrick process privilege
No dedslon making process.
!
.
!
61211{}2 (Olltire exchange) Mli)'or Kilpatrick Ileal!}' Not prevlflusiy telealloo
...... ...,_-.....-. I
6122102
--
o Mayor Killlalt!ek
!
5t2Ji02 (II11-ce C:<CMllg..,) ! Mayor Kilpatrick Bettty Not previously released
I
&25102 Mn)l<>j' e I!}' , No( !eleai!ed
Invalid obJection.
61'2.9/02 Ma;ror Kilpatrick Bea!ty . Not released
...... ... - ....., ............. -.
,
Ml\;tllt KlIJja(rick Not previ1)usly
I
718f1J2 Beatly Not previously released
719/f/J, (enure e::nange) Mayor KilpatdCk Beall.jl Not pte\'illWlly relea.'led_
6
, "
"
p
........... ..""""-"-.. "' ............
7H 1/02
..... .. .. --- - .
I 71\ 2f02 (entire
Si3l0l
BI')i02. (enlire
Sl221U2{ootirc =-1umge)
8123,'02 (et\dre
31'2611)2 (Jlful> "KchWlge)
8t27/m. (<lltJre exchange)
812&11ll (entire
SfJO/(l2 (cnlir;:; cXOOango)
Il()2 (eotlre exen.l'ge)
9il!02 (entire Iixc!Wlllc)
,
: 9W\l2 {eoti",
9i'li02 (<mUIf,
9151{fi. e.xc"!"ge)
9i\\I02
913102
919m2
\ 9110102 (entire excllllllge)
R
-"'-
!'leoti)'
B.atty

--

! .. tty
Beatty
B'la\ty
l>eatly
Beil.l,iy

Beatty
Beatty
Beatly
&Ott),
Be-Jity
..,_ ...... _.
Kiljl'41rkik
Mayer Kilpatrick
BeaUy
,

---'---- ... -._ .... _--------...... __. __ .--.- . "-.
to Defend
L-
If
_._------"'-- ------ -- ,'-
Privilege InaEEllcabie

Not previously
- ,
Ma)l<ll' lUlpalrlck '\ Not

KUpmrick ' N ot r1!Wasoo
Mf1YI)< Kilp!l!rick Not pttw\ollllfy rilleruren
Mayor.Ki1polrick Not rekIL<6l!
Mayor Kllllatdck Not pre\.Iuusly released
......... ....
Mayo! Kilpatrick Not previoUllly
Ma)'{'1' Kilp .. trlck Not previously released
Maylll' Ki1r;Jrtrick Not
l M.ayor Kilp.<r("k NQI
Invalid objection_
May(},' Kilpan'ick Not lltevlo,lSiy released
--" ..........
.......u,........... ___
Mayer Kilpatlick , N<>, PNV;Q\ISl,y lIlj".""d
Mayor Kl!plUrick ' Not previollsly
Ml11/ol' Kllplllril'k Not relool;e<l
Mayor Kilplltrlck Not p",,1cu.ly
-,-
l13eatlv
, '
, Noq)re"ious!y rei(;lowd
...

! NCl! liM-'iously i<:leased
Kilpatrick NOll'WViousiy relea.sed
..... .
M.,y"r " Not .d<.w;(:d
1
. :,
People's Response to Defendar List of Challenged Messages
Privilege
-......
. 9111lw'(culir<: Beatly Kllpaldck
9/12,0'02 (entire e;<;dlllUge)'
I
lBe.mj' f Kilptltrir:k Ntl'l preYiously ,eleasoo
9/14:102 (entire .Bel\lty Mayn! Ki1/laUkk ]'<nt Jlre"im1Sly rcte='Ci
.. .. . .. .. - .. ."""-'-_ .....
911 Mn (etl'.ire Mayor 'K:i'pat!,'nk Nut I">'vio""1y relem;ed
. WIW'{j2 (entll'l; MayoI' Rllpatri<;k
....--....
! N<)t. Jll'<W'u".ly r<le .. o<l
9120102 Mayo.i" Kilpattick. Semij' 'Not pl'eviollsly released
(I!IlWr. ellch""g.) Be"tty i Mayor No; re1" .. ed
9125102 (entire exc\llInge)
.1leany

Ma}'\'l1'
Nut previously releose<!
Invalid objection.
: (cn!i:r\!':(;)CchtJnge) B lty MayorK11patrici< Not
!,9130/02 May'of Kilpauick 8eatty No! pl'llvious.ty released
lOi3J()2 , Boatly Mayur N<ll
l{}J'sm'];'(entj're B....ty Mayor KilpaMcl; Not pIevlolisly released, Ba!e.
I No.
--
Hl'6.!Q2 {entire e,'(clu"lllO} Mayor lGipatrlok I Not r<:kasorl
--
. I {j!9IW
Not \wflviously
..
, lOf1 VOl (emir. Bcany MilYor Kilpatrick . No! P!'ev!(.!lSiy telua:sw
10115102 ' Beatty Kilpatrick Not prc.viously <eleased
_ ... _.
-
31 Two ftcm. t:hii c-cen rf!ktruicd,. Bm:s
.
.. -.__ ._ .. _. __ ._--_ .. _- ........ __ .-=-___ _1 . _ . ...:._-._
Ie's R fend L' ,fC
11
_. ';:'-- .... ,,'-
Privilege
",.......
'. '
I Hill6102 Mayor Kilpalrkk Beatty Not previ.:msly l't:lclISed
..
llill8102 {entire \lXllbange) 6ellIW MaY<lf Kilpa!rick '
--- ---,
I'
-
JOllWrJ2 . Be-.Mty l Mayor Kllp"ltwk N()i,
, I iJilil.f{)'J, Kilpattick IkM1Y , Not previollsly re.leased
-- ,
.
)10129102 ,<,ntire .XGh.,l\gO) Beatty M4yu" KJlp'Mick 1"o( ,'(iJ<;li$eO
\(#31102 (;tiGre e'lWhlU\ge) ,Really hiaY<!I Ki!patrick 'Net prc"iously
Invalid objection.
1111102 (clIltlre x"lllmgej
, Not ,elease"; ,
l11i/Ol .. B(j!\uy f M<Ij'orNl1pal,icl: N(ll
cx,ch"lgc) Beatty ; Mayo, Kilputrick , Not p'0Viously rolcaS<ltl
1114,'02 {entire ey..,n.1ng;;) Bel'llt)' Jlpatdclt Not I'"",iousll' re!e!lsed
11li'6102 (e,l1are e;a;bat1ll"')
.....-........--............-...........-
-_ ... -..--............-_.--
filially MtY{)f No! flt ..
.1119102 (enth'" Beatty
.Kil))attkk
,released
.

,
l'ully-Cunllu;ng.s proc<:Ols privilege
Factual; No decision makir\g process.
41l10} Befilt)' Not pre,'\ously teleased
._._._.-
4l2.10} ""cb .. Beatty Ma)'Ilr Kiip"trlclc Not I''''V'o".ly release,l
,
: 41310:\ Mayor Kllpau:lck Not previously rel ..... cd
Invalid objection.
41&103 'Mayor NOI 111'll'fiousiy l"elerulw Beatty
<\I91'i}3 (entil" ell<:ban,g,,) ,8ciiily i Mllj'or Ki1l)ffirick No.1 previously n:l"il5,l
4f11l03 (e.I\!J:C Beatty Mny,)t KHpatrlck Not l" .viouslyrel."".d
9
.; I
. . J
-
- ................ ;::1-...., Ie's R Def. d tv's L' f Chall dM
:;.9", ,
Privilege
.. -
4f16il1$ (e:1ltlt'e exchange) Beatty Mayor KiiplI".rick No! pl,,,,';,,,,,,1y ,de"",,u
.... .. - _.. . - .............- ....... ...-., ......... "" .. .. .
InvaUd Objection .
4/18to:l
'.
llealty releasoo
-----
4f231'01 Muyor KUpatriek B;;atty i Not
.Bently N'.liyor KiljNItrkk N{li prcvioo51y Iden,od
Invalid objection; No decision making
i 4l24/()3
process involved.
!)e\t;\let'3tive FrOCesS prlvllege
--
.
Invalid objection.
41251\}3 (c",ti", ",",ch.nge) , Sc.lly Mayar Kilpotr;ck No! Jll"O'i'iously ",JcWl""
S/liD3' I M"yor pr(>IlCS!i privilege
in (8 ... Cases.
Beatty
_M'.
II Invalid objection: No decision making
5,.210:< (ulit'1: Be!llly , Mayor Kilp.idck Notpr'Niow:iy rol4sod
process Involved.
.-
' l)"Hb.t>rtivo proo .... l'",vllego'
-C .
InvaUd objection.
1
513
,'03
BeattY . Not relell.lloo
15l4m3 (en\;re excnsn11.II) Bcntl}, Mayor Kllp',trkk Not !>re'iously reltlil!W
5!61!l3 (entire excbang<J) Mayor J)ellb<lrffth'c process
In re ... Cases.
I (except l3aiOS NQjl.
l
.ond 1"205118)
(entire cxchante) Bell!IY .. J\l[f;yQr Kilp<tlrick .. Not ll<""'i<}llil1y ..
Invalid objection .
-,-..--.-.. -_.
,
InvaUd objection; ractual; No decision
5/8/03 (entire ThJatlY Mayor I'..llpllaick J loll'll rel .. a.oo making process Involved .
. '
4; Belie:S Nt>.
5/ t-o !'sat:! No. T1574'S3.

----._- .;--------------,------_.
. .1
---- --
Defend L' ,fC
II dM
I.
. .
- -
Privilege Ina!!!2l1cable1
519m3 (,mi,ro Beaily Kilpatrick DdihOi .. ti,e }'l'Gcess p<ivilege'
No decision making process involved.
-.. ... .. ....... .-.-.",..,-,=-..,..,.,- ...
. ... .. -,.-" .. ''''-
Invalid objection.
S/lUll,.
- Beattv'
Nbl;iQr Kilp(>lrick No! p.rcvi()\.I$iy vclcMe:i
. .
,
In re ... Cases.
Si1210:; I,ell(rre ogchimge) Buatty , May", Kilpatrkk Delibenid". proC<'l55 pri viliej!.'
51Dl03 Btlntty Mayo< KilJ"lldck Dellberuti.,o pt<lOOSS ptivl!c.,e
No decision making process involved.
, - .
.. Invalid objection,
U;/J 4/{)3 (entire exchan[;e} ll-eatty M?yur Kilpa1ri<k Not
!
I SIJ ,ilY,; (""lire MaJor Kll)"'Uick . Nat previoWlIY
Invalid objection: In re ... cases. !
Delibenilivo pr1Yfieg<
---
Invalid objection,
.
5117103 Kilpatrick Beat'ty Net previQusly .el<lilSed
511 (e.ntlrell(l(crumge.) !lel,ttJ Mayor kllpntllck Not
Invalid objection; fn re .. , Cases.

DeUb<lml; ... ptt'_ plivilogo
-"
-
512&0:1 (ellti,e=hHng) &alt)" Mltyor KIlpal!lck I Not previously l'<Il_d
5t2iIM (entiTe excllan,ge) beatty
M"}">l' Kii:p<l:tri"k ..
Invalid objection,
512911}1 "".<honge) B,atiy : M&y<>r Kil)"'IIkk . Not previously
; fil2JiJ3 (enti .. " udlflll.ge) . May-or KilpllU'iek. NOII',.""i<l\lsly ,elOOlled
Invalid Objection; No decision making
process Involved.
DelibeIlltiY"Ill"Oc('.:;s I'rivikgc
(enIlL'l! exch,."ge) Beatty Mayot Kilpatrick Not I!!eviously tcl_d
D<:!ibmtive P"''''''S
I 6J1iCB Bealty Ma;y",' Kilpalnck , N\)t previously rel""sod
Invalid Objection.
61 Awli., Ie aut .. W ... , end '1'10356B_
7f &mM of thfj- Wtl'2' reh!2!1:!d.
II
--.. .. - .. .. ----':"'"
->-----_. __ .
>
People's Response to Defendar latty's List of Challenged Messages
Privilege Inalmlicable
..
, (emire xcha"ge) Kilpalr;ck Not p"",tousJy rel"" .. d
6/9/0; (enure Beatty lYlayor > Not JlI'1V;oU8l.I'
Invalid objection.
61Hlill3 Mayoy KiJpairkk Be>ltt" Not provioll$iy relel!JSoo
... _....-_- "" ......... :.:..'"'"'-" .. _---
tifl 110;\ ("!lute> el<:olmnge) Bealty I Kilp;\lr,ck Not p"wi"l'JlitY 1I'\cnsod
I Invalid objection; No decision making
6112/03 (<MInt''' excl_ge) Beatt, > Mayor Ki1l'atrkl( Not previous!y
process involved.
Detil>eratM: proe.ess pri"ilege
, /i1131i1l3 (entire excll&'llle) Beatly
----
.':!::xor Kilpatdck
Net previously relea!<Od
! 6/15/03
MayorKi1il"(,jd,
Nt)1 :'eleollled
InvaHd objection.
> .. -....... " ..
61161{) 3 (ctltil'llel(chllnge) B tty Mayor Kilpaliicik Not pr."iously
,
tnvalid objection; No decision making
B<>Otly . May"r Kilpatrick N<>\ llreviau5ly ,elea.sed process involved.
{
DeHmUw pro= l>ri'liilege
6/1810:> Bentty J;L'J''Or Not pr<!Viously re!eased
-- -
.......................
1 ,,,,,Ii,,, exCiJ.nge) lkat!)" Mayv-t
Invalid objection,
6/22103 Mayor Kilpatrick B tty Not prcvwusly rclL"tlScd
61241{}3

Beatty
.....
Mf1'!Il\ K\lp!tlricJ\. Not released
6/2510> (entire el>crumgc) . &arty
Mayor Kilpatrick Not
--
-I M;t t;l26.103 (<l\>th exc)""'ge) Beall)' Not previously relCllsca
Invalid objection; In re . , .Cases; No
I;r,jibcrall .... c process prh'ilcge
decision making process Involved.

Invalid objection.
6128/(1.\ (e"tire exchange) !lealty Mayo!' , N{)t prevlnmly lele:!scd
12
"--'---'-_.'- - --'-'
Privilege
. "---
In Ie , , . Cases,
7/iK!3 (e(,tire <:xcitan&e) , &ii\!y Mayor Kllp.trick ; Not ",<-",lollSi}' rek .. sed
'Dclibcrntive pmccSi> pr1\,jrcse
.. - . " . - ................... -
No decision making process Involved.
i 1IUG.' nun .xolWllg") , ,\Watt}' .Mayor KHp-aou1l:lk Not ptevlou,.ly released
__ """'H''''_''' ____ ''''_''''''
:------"._--"-""'-"-. -
pri "lo,se
7191'03 j}eatly , Mayor Ki\ralliuk '". rel.MOO
,
7!lll03 {e,mrc ""ch1illge,) Beatty ! Mayor Kilpatrick Not
Invalid objection,
(on!;'. Ma>", KHpatrkk N<>t previousiy
.--
" 7 fl3f{(; (""tire exchange) ,B .. ,,!\), M"yor Kilp.t<ic.\; Nt,! previously teloascd
, 1.11S,I03 ("lIt;", ""c!lange) "BeatlY Mal'"r KHpairiok Noi ",ka$i
invalid objectloo; No decision making
PlOO<3;;
process involved,

112l/03 (<r,me exclliwgc) , Bc>t!y Mayor Kilpakiok N\}\ previollil!y
717.2/03 (f>(QlllmSc) Mal'(ll' KH;l\itliicl<, NGi previo1lSly
7.'23103 Beany lI.-lllYol1t KilpllUkk , PI\lvio\O!Iy
c--- '
invalid objection.
, i124,U?> (.",tire BC\ltt)' MayO\' K\lplliricl< _ ' N olprevil}ustfl'Cle!!3cd
, 7125103 (entire e"ch;mge) Be1<Uy MUYIl1 Kil;l\itticl: NotpreviGlls!y released
}tl6J()'f {e,o>u'o excJ.m!l") Beatty lvlayor Kiljmlnck Nol previQus')), rell!asod
, 7127!O) Mayor KilpatricK N<>'p,,,,.,lously rel .... od
I, -- Invalid No decision making
., 713MB (entire Beatty Mayor Noi
process involved.
DeUbtn.tive prOO:SS
Slim ____ ,_
.. - ....-
Mayor Kilpatrick

Not role_d
Invalid objection.
l3
____ .,:,,'.-.,_. ___ _____ . _____ .c.
-
::-.,;..
,;",
p
Ie's R to Defend tty'S List of Chall dM
,
v

Privilege
\8i6fQ3 (;;;;;; Noot previuusly
Invalid objection; No decision mak.ing
,
aeatty Mayor l('lpaLricit
process involved. ,
Ddiil<:ro.tive
_.
-_.
snm (enUt"'. excl!an!;l4l) Bear.ty Mat'" l<Jlpntriok Not p""'i,,"sly.<!\e;,.. .. d
SIZ4/\l 3 o>!.elltlllge) Ileatty May,,! No! jR-evinllsly released
... .

10,'13103 Mayor KilpnlrIck
.. _ . ..
Not t\l1e\lllW
lO1l1/O3
May,), J(j1patrick
...
Not previously re!1)II!W
,
1114103 elICh.,.-,g.) "Beatty Mayo! lUlpatrkk ' tWt Prt., ... relen.sed
"
1113/03 (enilie exchange) Not ""loa.cd
.",.
11l211Q3 (entire
Mayor lGlpalrlck Nl)l relc!lJlW
1 ! 122103 Beatty Mayor Kill'af.rick NUl pveviu"sky le\l$Sed
Invalid objection.
UmlO3 neatl)' J Ma.yo! Not previously rel.ascd
Ma)'Ur Betttty Not !,,:"viollSty l'eleftSea
--
\ 12l9ill3 (I,\1'Itire e'l.<!i>ange) Beatty 2::?! previously .!cl:iO-,.d
l2llgl03 BCI\Uy Mayor Kilpatrick NOI previously relel!Sed_
----_ . ,--.. ,
--
12112lQ, Beau)' Mayer Not prev,01lJlly ",l<lased
- .
12125}(I, (entiN Beatty !.<!aycr Kilpatrick ' No! prev.ously
-
l'tI26103 (l>lf{ire exnhllflgtl) Mayor li.iJ,pall:icl;; Not r.l<o.,,11
I lil.l:'1i03 (clJctiJ:e ""
. .. - . .............
Bea!1y Mayor Not rwlooed
12129103 &:.rt\y Kilpatrid, _ Not relousod
l4

---'--"-'--..
", ..., . ..-... ' ......
Il102l04 Mayor EeMty l'f"t 1'."",;(>\I,j1y
---
liM)4 (ciltire """,'iM@e) , Mayor Kllpl1trielt IleaiW N<)l relc2.loo
--
(entire excba!ijbe) Ma)'l}t Kili-.at!ick Beatty Not previously re!=d
Bcal1y M .. v<>r Kilpatriok NoE pt'evioUc'ly l1i9104
3mQ4 (entite e>\c!>allse) MayoI Kilpatrick .-"Beatty No! p,,,,,;,,,,eJy rel", .. ed
.
3/11104 (end .. ",,<ih.nge) Ml"t Kllp>l!rlel'
\
"""'tty
Notprevlously
1 ot'i 5/04 Ma:lOr Kilpatriok BeattY Not occ!eJited
Invalid objection.
:;n 8;'04 (4ntil:<:cl<"lwnllo) Kilpau'iok Beatly N<lI1l"t,vio1l$ly""leased
4;'6104 (enlli'e Mayo, Kilpatrio..i( . Bealty Not previously ,111_1
.-
417104 (<l:Eltirt ll-1a}'<lT Kilpatdcl( 1 Boutt:; ; Not pr;w\o\1sl}' tcica ... d
-
-
i 419i\l4 (enl\re 6cllsng.e) Mal'<lt Kiq;alrick BeanO' , }!{)\ pre.iou;!y reieas.,1
41171114 . ! .. K-Upatckk lk."tty NOI p''eviOllsly rtlcMed
4mlD4 Mayor Kilpatrick a""it)!
Not
'-
4126-/04 {cnlive .l(chllrlij,e} IGJp"tricik
. Beatty
No! Ii'""i(l-Ucqly rc(e2sed
412711!J4. (emir. e:rohqo) MacYClr K;i1p"triolt Beally Not pt'cviously ..
4130/1)<1 Beatty . Kilpat'k1< Not Pl1lvi_iy
tnvaUd objection; No decision making
plOceSS ",i.i1"I\
process Involved.
,
.- .. - ... -
May",
lIMlty Not. relcaood
Invalid objection.
!5l2J04je'lllleexclwngpJ Ma)'t>r KiJpii!iM:_
-
I N<>! I<lle!lStld __ ._.
15
._.\._ .... _----_ ..
People's Response to Defendan List of Challenged Messages
Privilege Inam!licable
St.iIi)4 exchange] Beai1y Mayor Kilpatrick I. Not pnwiolloly ",lel\scd
- .
-
Invalid objection.
. ;;/&04 exol"ll'lEe) Mayor H.flUY Not
,
, (eJ)t;'" excb\ljige) Mo.y", Kllpa.'ick Seany NOlllrevi"".ly r;!e8sw
"""'..-"""",-
(y1261(}4 Mayor l(;lpalrkk Denny N<J\ oelensed
Invalid objection; In ra ... Cases.
Dellb"fllti'/e p.oce .. prlvUc!!"
6127(04 (entire Mayor Kilpatrick ! Be.:mv . Not previously retoob"d!
Invalid objection: No decision making
, ,
process involved.
n.HbenlUv;t
6J29l04 Mayor KilpatricK Beatty
!
! Not l'rev!<lIliSly released
Invalid objection.
......... ,
t'tIMl.llge. 1'1
'l nat"
! Bl.lw!!lt
Privilege InaQl!licable
! Bean yNwioWl Ueatll'ivnrlous DeJibel\ltiye procc$S f1,'ivileg:e
In re ... Cases.
ali
to I'Tooocuior'. P,,,\1,bit39, S""I,on ""titl"d to Cuine.1Illd Cidstill<l (0 KWllUl"" - SruneReasons apply
Incorrect Objections to Exhibit 40.
16
i' . _ . __. __... ___ . __._. ___ _ ___ _____________ :. ___ :. __ ., _.:...0. __ _____ __ ___ ", ""
, .
People's Response to Defendan atty's List of Challenged Messages
l'rq,<&sotltr's lW,llblt 41
llm!
end","
Kii!:D,s,wll
Privilege Inal!lllicable
.

_ __I {{uu, Cal,etlvatlQU.
Must make individual objections in order
YJlri"".
R"th ClIItet!vwious privileii"'
for People to respond.
- -
I DelibmuV\< prooeSll pri .ilege
Rxbbit 42
I Bewe
tn 5!'/!lt<I
Privilcl:e Inannlicable
i ...art"""
No Standing; P(!t)ple Fisher, 442 Mich.
Carlita Kllpatrlcl< Mayor Kilpatrlc1< Sp<J=l privilege
!i60 + case law and brief. MeL 600.2162,
1. i M",'or Carlita __ Spousal
Prn8uOOl(!r'll E;fbilil! {3
;
Privilege [nalmlicable
:
AlI!llI
ed
!>'l!!W: .
Vntitlu8 Andrea C.m.Qll Carlita Klljlatrick Not l'l\!!viouoly
Invatld objectlon.
i
.. __ ...
vru-iQUS Clttllia Kilpatrick : AIIW$
-
N<ll prevltlusiy
--
- i
--
E>:hibit 44
D.de Al!.!e#jlgSeltdtr -AII'llled R>lciuw..t
"1!l Ii! Sealed
Privilege lnalll!licable
: vgriQ\lS Oliv ... 'tfvariou5 .. .. process \'lrivili:ge
Must make Individual Objections in o!de,
- ...-- .. --- ..--...- .. .. - _ ...- _ .... __ ... _ .... _ ..... - - -- .- .. _- - .... - ...-
--
for People to respond. '
17

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Kilpatrick Text Messages

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STATE OF MICIDGAN

IN THE THIRD CIRCUIT COURT

". TIP $ ... X: .. "

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