Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

June 12, 2009

137997

STEPHEN J. SAFRANEK, EDWARD C. LYONS, and PHIL IP A. PUCILLO, Plaintiffs-Appellees, v SC: 137997 COA: 289237 Washtenaw CC: 07-001134-CZ THOMAS STEPHEN MONAGHAN, Defendant-Appellant, and

BERNARD DOBRANSKI, and AVE MARIA SCHOOL OF LAW, Defendants-Appellees, and

FRIENDS OF AVE MARIA SCHOOL OF LAW a/k/a AVE MARIA SCHOOL OF LAW FOUNDATION, a nd AVE MARIA FOUNDATION, Defendants.

________________ _______________ __________/

By order of January 14, 2 009, this Court granted immediate consideration and a stay of enforcement of the order entered by the Washtenaw Circuit Court on November 14, 2008. On order of the Court, the application for leave to appeal the December 29, 2008 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the ques tion presented should be reviewed by this Court. The stay of enforcement of the Washtenaw Circuit Court’s November 14, 2008 order, ordered on January 14 , 2009, is DISSOLVED.

WEAVER, J. ( concurring ). I concur in the order denying leave to app eal in this case. I write separately to provide important background information conc erning the defendant’ s repeated attempts to avoid producing his personal notes. 1

**1** I note further that the dissent improperly in sinuates that the issue concerning the request for production of documents in th is case is also an issue that should be addressed in the companion case of Safranek v Monaghan, Docket No . 138055.2

Plaintiffs are former law professors at defendant Ave Maria School of Law. Plaintiffs claim that their employment was wrongfully terminated at Ave Maria in 2007 because they reported violations or suspected violations of law by Ave Maria. Plaintiffs brought suit against Ave Maria and others, including Thomas S. Monaghan, who is the chairperson of both the Ave Maria Board of Governor s and the Ave Maria Foundation.

At the outset, the public should be made aware of the fact that defendant Monaghan’s attempts to avoid the production of these personal notes have a long history. Plaintiffs first filed suit against the defenda nt, among others, in October 2007. On March 10, 2008, plaintiffs served do cument requests on the defendant’s attorneys. Of particular importance to this appeal was plainti ffs’ document Request 16, which asked the defendant to produce:

All slips, note cards, index cards, or other paper format that Thomas S. Monaghan [defendant] ca rried on his person and/or used to log or record his thoughts and/or to record, as they occur to him, tasks, reminders, “to do” items, creative ideas or agenda items for himself or others. Mr. Monaghan made use of such writing during his taped deposition in this action, and on information and belief, makes the use of such writings part of his daily work practice and has kept the originals or transcriptions of

such documents for decades. Such request is limited to documents or portions of documents that relate to any matter raised in this litigation, including, without li mitation, any material rela ting to any party in this action as well as any matter what soever involving AMSL [Ave Maria School of Law], AMU [Ave Maria Uni versity], AMC [Ave Maria College]

or his investments or other interests in Florida . [Emphasis added.]

The italicized language above limits th e request for produc tion to only those documents pertaining to the lawsuit; however, it appears that the defendant attempted to avoid or at least delay the pr oduction of the documents on th e ground that the request was “overbroad” and “unduly burdensome” when, in fact, the request was appropriately limited to only those documents pertaining to the lawsuit. It is also pertinent that defendant Monaghan eviden tly failed to disclose th at he possessed documents that might pertain to the lawsuit, speci fically defendant’s personal not es recorded on yellow legal pads. Indeed, defendant’s own attorneys were apparently not aware of the existence of these personal notes at the time of the May 21, 2008, court hearing.

On May 21, 2008, the trial court held a hearing on defendant Monaghan’s motion for a protective order and plaintiffs’ motion to compel. In its bench ruling, the court stated, “The Court’s ruling on that whole gr oup of things is, that any reminder notes regarding the law school shall be produced.” The defendant asserts that because the yellow legal pads were not specifically menti oned in the court’s bench ruling, the ruling was limited to the orange travel itineraries. Although the ruling is apparently ambiguous,3

there is no question that the trial judge’s August 27, 2008, memorialization of her May 21, 2008, bench ruling pertained to all doc uments be they orange, green, or yellow:

IT IS FURTHER ORDERED that defendant Monaghan shall produce documents responsive to Re quest 16, which may be limited to documents regarding the Ave Maria Scho ol of Law, its faculty/staff, named parties to the matter, and/or the move to Florida.

Yet even after this order for produc tion was entered on August 27, 2008, the defendant managed to stall pr oduction of the documents furt her by objecting to how to produce them. Thus, there were hearings on these discovery motions on October 1, November 12, and December 17, 2008.

The trial court’s November 14, 2008, order, relating back to the hearings on October 1 and November 12, ex plicitly detailed what was required of the defendant and read, in part as follows:

A. Defendant Monaghan shall comp ly with the Court’s order of August 27, 2008, an d produce to plaintiffs’ coun sel by producing copies of all notes, of any description and/or date, which might reasonably contain matters (a) responsive to the plaintiffs ’ “Request 16,” to which that Order refers, and (b) which pertain to th e Ave Maria School of Law, its faculty/staff, named parties to this ma tter and/or the move to Florida. Defendant shall produce any documents t hat are responsive to Request 16 . . . without regard to whether the doc ument is an itinerary, included in a spiral-bound notebook, part of a legal or other pad of pa per or loose, and without regard to th e color of the paper . [Emphasis added.]

Rather than comply with the trial court’s November 14 order, defendant Monaghan filed a motion on November 21, to stay the effect of the November 14 order while he pursued an application for leave to file an interloc utory appeal in the Court of Appeals. The hearing on the defendant’s motion to stay was held on December 17 and the trial judge warned the defendant that if he did not produce the documents within seven days, she would hold him in contempt of court and order sanctions of $2,500.

On December 23, the Court of Appeals stay ed the trial court proceedings until the resolution of the defendant’s ap peal and, on December 29, the Court of Appeals lifted the stay and denied the defendant’s application fo r leave to appeal. The defendant filed an application for leave to app eal the Court of Appeals order less than a week later, on January 2, 2009, nearly nine months after pl aintiffs made their re quest for all documents pertaining to the lawsuit.

In light of the history of plaintiffs’ re peated attempts to obtain copies of defendant’s relevant personal notes, the trial judge did not abuse her discretion in issuing4

the November 14, 2008, order. Over the c ourse of eight months , defendant did not produce documents in response to plaintiffs’ re quests. Even after th e trial court issued the order on August 27, 2008, defendant did not offer to produce the relevant notes on yellow legal pads, but contended that the produc tion of those notes had not been ordered.

While it is understandable why defend ant does not want to produce notes revealing his private thoughts on subjects unrelated to this lawsuit, some of his notes might be relevant to this lawsuit. To the ex tent any of those notes are relevant, he should have produced them long before the hearing on October 1, 2008.

Thus, in light of defendant Monaghan’s failure to produce the relevant notes voluntarily, the trial judge was justified in taki ng action to force him to do so. As noted by the judge on page five of the November 14, 2008, orde r: “These documents . . . should have been produced without objection months ago— many months ago . . . .” Thus, because the trial judge did not abuse her discretion in issuing the November 14, 2008, order, I concur in the order denying de fendants’ application for leave to appeal.

M ARKMAN

, J. ( dissenting ). I dissent. This case involves a trial court’s sweeping, over-broad, and inherently unfair order, which forces defendant to produce over 10 years of personal notes detailing his most intimate and private thoughts concerni ng religion, politics, pe ople with whom he has met and with whom he associates, his fa mily, his creative ideas, and his business dealings, regardless of whether these notes are di scoverable or responsive to plaintiffs’ document request

. 2 Because I believe that such a disreg ard for both the co urt rules of this state and defendant’s privacy ra ises serious questions about wh ether the trial court abused its discretion, I would remand this matt er to the Court of Appeals for further

consideration.

Under MCR 2.302(B)(1), parties may obtain discovery regarding any “relevant” information that “appears reasonably calcula ted to lead to discovery of admissible evidence.” “[We review] a trial court’s de cision regarding discovery for an abuse of

discretion.” Muci v State Farm Mu t Automobile Ins Co , 478 Mich 178, 200 (2007). Significantly, a trial court must “ensure that discovery request s are fair and legitimate by providing that discovery may be circumscribe d to prevent excessive, abusive, irrelevant, or unduly burdensome requests.” Hamed v Wayne Co , 271 Mich App 106, 110 (2006), citing MCR 2.302(C).

2 Although the trial court’s order for producti on is also subject to a protective order, the efficacy of that protective or der, as discussed below, has been seriously called into question and in no way alters the onerous burden to produce over 10 years of largely

irrelevant notes that the trial court has now imposed on defendant.5

Defendant is apparently a pr olific notetaker and, over the past decade, has kept notes on three separate medi ums -- orange paper, green noteb ooks, and yellow legal pads. The genesis of the current dispute lies in pl aintiffs’ requests for production (Request 16), which sought “Monaghan’s daily reminders, his daily notes to himself,” to which defendant objected that plaintiffs’ request was “over-broad.” During a May 21, 2008, hearing on this matter, defense counsel so ught clarification from the trial court concerning whether the request only “applies to the orange and the [green] notebook items, if it says law school.” The court stat ed, “Right,” “that’s what they asked, aren’t those called the reminder notes, the orange one s?” Thus, the court’s ruling specifically limited plaintiffs’ Request 16 to defendant’s orange notes, which limitation was then

memorialized in an August 27, 2008, order that stated “defendant Monaghan shall produce documents responsive to Request 16, which ma y be limited to documents regarding Ave Maria School of Law, its faculty/staff, named part ies to this matter, and/or

the move to Florida.”

Defendant complied with the court’s order by making the orange notes available to plaintiffs’ counsel, and volu ntarily producing relevant portions of the green spiral notebooks. However, plaintiffs’ counsel then filed a motion to compel production of all notes, claiming that defendant had violated the trial court’s Augus t 27, 2008, order by only producing the orange notes since “[t]he court d[id]n’t say anything about [green] spiral versus orange ve rsus yellow or white. [Defendant] just decided that.” Despite the fact that the court had specifically instru cted defendant that he was only required to produce the orange notes, the court agreed with plaintiffs’ co unsel and issued a subsequent order on November 14, 2008, that re quired defendant to produce all notes “wholesale” pertaining to Request 16 “withou t redaction . . . and without regard to

whether the document is an itinerary, included in a spiral -bound [green] notebook, part of a [yellow] legal or other [orange ] pad or paper or l oose, and without rega rd to the color of the paper.” Additionally, the order also stated that “ plaintiffs shall redact any part of any page of notes that contains both responsive and non-responsive mate rials and make such redactions known to defendant.” (Emphasis added.) Thus, defendant must now produce over 10 years of notes regardless of their relevancy or discoverability.

This order appears to be directly co ntrary to MCR 2.302 (B)(1), inasmuch as plaintiffs have offered no discernable reason why all of defendant’s notes, which include his religious beliefs, private thoughts, person al contacts, etc., are “reasonably calculated to lead to discovery of admissi ble evidence” in regard to th e instant litigation. Instead, the court’s order seems likely to subject defendant to unwarranted “annoyance, embarrassment, oppression, [and] undue burd en,” MCR 2.302(C)(1), the very result our court rules are intended to prevent. Thus, I believe there are serious questions concerning

whether the court abused its discretion. Fu rther, I find it even more troubling that the court affirmatively represented to defendant that plaintiffs’ Request 16 pertained only to the orange notes, but then essentia lly penalized him for not producing all types of relevant notes by now requiring that defe ndant produce all his notes “wholesale” to6

plaintiffs’ attorney. This seem s extraordinarily unfair to de fendant and, in my judgment,

warrants further considerati on by the Court of Appeals. 3

Additionally, plaintiffs’ recent appeal to this Court in the companion case of Safranek v Monaghan , Docket No. 138055 , raises further concerns that the trial court’s production order risks compromising defendan t’s legitimate privacy concerns. During defendant’s intermediate appeal in the instant case, plaintiffs publically disclosed five pages of defendant’s personal notes that had been designated as “c onfidential.” Because this violated the trial court’s protective or der, which requires that plaintiffs take “reasonably appropriate steps . . . to preserve the conf identiality of information [designated as] confidential,” defendant move d to have those documents stricken from the record. Recognizing that th e trial court specifically “re quire[d defendant] to produce [his notes] subject to the protective order ,” the Court of Appeals ordered that notes designated as “confidential” be stricken from the record. The co urt also specified, however, that these documents could still be used in the trial court if the trial court found

them to be relevant-- a determination that has not yet been made. Nonetheless, plaintiffs have appealed that decision to this Court in Docket No. 138055. In doing so, they argued that these notes are “matters of which the pub lic generally has a right to know,” which is only true in the event the trial court concludes that those documents are relevant to the issues in this case. There is no public “ri ght to know” the personal beliefs and attitudes of a person simply because that person has become a party to a lawsuit, unless such beliefs and attitudes are materially relevant to the lawsuit.

In other words, plaintiffs have app ealed whether defendant’s notes, which plaintiffs may still attempt to introduce at trial

, should be made public before any determination by the trial court that those documents are indeed relevant to the subject matter of plaintiffs’ claim. Plaintiffs’ intere st in publically disc losing the contents of defendant’s personal notes in th is fashion is troubling, and lends strength to the concerns raised by defendant in this appeal, which is th at plaintiffs wish to disclose the substance

of even irrelevant notes apparently for no other purp ose than to publically denigrate defendant’s personal beliefs and attitudes regard ing politics, religion, friends, etc. These personal beliefs and attitudes ha ve no obvious relationship to the issues involved in the

3 In light of the trial court’s ruling that defendant, in response to Request 16, was only required to produce the orange notes, it is puzzling how Justice Weaver in her concurrence could assert that this ruling wa s “ambiguous.” How could the trial court have been any more clear that defendant was required onl y to produce his orange notes? This misapprehension on Ju stice Weaver’s part also explains her misapprehension concerning defendant’s arguments that he wa s unfairly treated by being required to produce all of his notes “wholesale,” in apparent response to having violated the initial production order. Finally, even if a litigant has failed to comply wi th a production order, since when is the appropriat e remedy to require the production of irrelevant documents?I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 12, 2009

p0609 7

instant lawsuit, and are proper ly made publicly available only after a determination of relevance and materiality.

Thus, defendant’s concerns a ppear not to be unwarranted. 4 A party should not have to undergo an invasion of privacy of th is sort in order to defend himself in civil litigation in this state. Ther efore, I would remand this matte r to the Court of Appeals to consider the propriety of the trial court’s November 14, 2008, orde r. However, because the majority does not concur wi th this position, I would respectf ully urge the trial court to carefully review and reconsider th e breadth of its production order.

C ORRIGAN and Y OUNG , JJ., join the statement of M ARKMAN , J.

4 To further emphasize defendant’s concern regarding the trial c ourt’s production order, plaintiffs have ack nowledged providing Ave Watch , a public website that is apparently antagonistic to defendant, with copies of defe ndant’s notes that they consider relevant to this litigation. However, defendant has allege d that one of his notes, which had not yet

been filed with the trial court and that defendant had not been afforded an opportunity to designate as “confidential,” was provided to Ave Watch. Defendant alleged that plaintiffs’ counsel used her ce ll phone to take a picture of this document, which she then

sent to Ave Watch . Plaintiffs’ counsel denied this cl aim and stated that “I’m not even savvy enough to get this thing. I barely can print a blurry thing off my phone. But even if I had I wouldn’t have provided it to [ Ave Watch .]” However, the note at issue did

appear on Ave Watch

, http://avewatch.com/?p=89 (accessed June 1, 2009), accompanied by the following narrative:

[Plaintiffs’ counsel], a pparently, was visiting [defendant]’s office in

accordance with an earlier Court Order to produce documents. [Plaintiffs’ counsel] was allowed to view only a se lect subset of [defendant]’s personal notes, and was then denied a request to have any of the notes copied. Why? One sample was preserved as a photo on [plaintiffs’ counsel’s] cell phone.

This note stated, “November 4 Goals; 5 down, 6 to go. 2 leaders g one. Now they are in the minority.”