Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

June 12, 2009 

137997 

STEPHEN J. SAFRANEK, EDWARD 

C. LYONS, and PHILIP 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, and AVE MARIA 

FOUNDATION, 

Defendants. 

_________________________________________/ 

By order of January 14, 2009, 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 question 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 appeal in this case. I write separately to 

provide important background information concerning the defendant’s repeated attempts 

to avoid producing his personal notes.1

 

 

1

 I note further that the dissent improperly insinuates that the issue concerning the request 

for production of documents in this 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 Governors 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 defendant, among others, in October 2007. On March 

10, 2008, plaintiffs served document requests on the defendant’s attorneys. Of particular 

importance to this appeal was plaintiffs’ document Request 16, which asked the 

defendant to produce: 

All slips, note cards, index cards, or other paper format that Thomas 

S. Monaghan [defendant] carried 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 limitation, any material relating to any party in this 

action as well as any matter whatsoever involving AMSL [Ave Maria 

School of Law], AMU [Ave Maria University], AMC [Ave Maria College] 

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

The italicized language above limits the request for production to only those 

documents pertaining to the lawsuit; however, it appears that the defendant attempted to 

avoid or at least delay the production of the documents on the 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 evidently failed to disclose that he possessed documents that might 

pertain to the lawsuit, specifically defendant’s personal notes 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 group 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 mentioned 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 documents be they orange, green, or yellow: 

IT IS FURTHER ORDERED that defendant Monaghan shall 

produce documents responsive to Request 16, which may be limited to 

documents regarding the Ave Maria School of Law, its faculty/staff, named 

parties to the matter, and/or the move to Florida. 

Yet even after this order for production was entered on August 27, 2008, the 

defendant managed to stall production of the documents further 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, explicitly detailed what was required of the defendant and 

read, in part as follows: 

A. Defendant Monaghan shall comply with the Court’s order of 

August 27, 2008, and produce to plaintiffs’ counsel 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 the Ave Maria School of Law, its 

faculty/staff, named parties to this matter and/or the move to Florida. 

Defendant shall produce any documents that are responsive to Request 16 

. . . without regard to whether the document is an itinerary, included in a 

spiral-bound notebook, part of a legal or other pad of paper or loose, and 

without regard to the 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 interlocutory 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 stayed the trial court proceedings until the 

resolution of the defendant’s appeal and, on December 29, the Court of Appeals lifted the 

stay and denied the defendant’s application for leave to appeal. The defendant filed an 

application for leave to appeal the Court of Appeals order less than a week later, on 

January 2, 2009, nearly nine months after plaintiffs made their request for all documents 

pertaining to the lawsuit. 

In light of the history of plaintiffs’ repeated attempts to obtain copies of 

defendant’s relevant personal notes, the trial judge did not abuse her discretion in issuing 
4

the November 14, 2008, order. Over the course of eight months, defendant did not 

produce documents in response to plaintiffs’ requests. Even after the 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 production of those notes had not been ordered. 

While it is understandable why defendant 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 extent 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 taking action to force him to do so. As noted 

by the judge on page five of the November 14, 2008, order: “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 defendants’ application for leave to appeal. 

MARKMAN, 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 concerning religion, politics, people with whom he 

has met and with whom he associates, his family, his creative ideas, and his business 

dealings, regardless of whether these notes are discoverable or responsive to plaintiffs’ 

document request.

2

 Because I believe that such a disregard for both the court rules of this 

state and defendant’s privacy raises serious questions about whether the trial court abused 

its discretion, I would remand this matter 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 calculated to lead to discovery of admissible 

evidence.” “[We review] a trial court’s decision regarding discovery for an abuse of 

discretion.” Muci v State Farm Mut Automobile Ins Co, 478 Mich 178, 200 (2007). 

Significantly, a trial court must “ensure that discovery requests are fair and legitimate by 

providing that discovery may be circumscribed 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 production is also subject to a protective order, the 

efficacy of that protective order, 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 prolific notetaker and, over the past decade, has kept 

notes on three separate mediums -- orange paper, green notebooks, and yellow legal pads. 

The genesis of the current dispute lies in plaintiffs’ 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 sought 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 stated, “Right,” “that’s what they asked, aren’t 

those called the reminder notes, the orange ones?” 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 may be limited to documents 

regarding Ave Maria School of Law, its faculty/staff, named parties 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 voluntarily 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 August 27, 2008, order by 

only producing the orange notes since “[t]he court d[id]n’t say anything about [green] 

spiral versus orange versus yellow or white. [Defendant] just decided that.” Despite the 

fact that the court had specifically instructed defendant that he was only required to 

produce the orange notes, the court agreed with plaintiffs’ counsel and issued a 

subsequent order on November 14, 2008, that required defendant to produce all notes 

“wholesale” pertaining to Request 16 “without 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 loose, and without regard 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 materials 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 contrary 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, personal contacts, etc., are “reasonably calculated 

to lead to discovery of admissible evidence” in regard to the instant litigation. Instead, 

the court’s order seems likely to subject defendant to unwarranted “annoyance, 

embarrassment, oppression, [and] undue burden,” 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. Further, 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 essentially penalized him for not producing all types of 

relevant notes by now requiring that defendant produce all his notes “wholesale” to 
6

plaintiffs’ attorney. This seems extraordinarily unfair to defendant and, in my judgment, 

warrants further consideration 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 defendant’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 “confidential.” Because 

this violated the trial court’s protective order, which requires that plaintiffs take 

“reasonably appropriate steps . . . to preserve the confidentiality of information 

[designated as] confidential,” defendant moved to have those documents stricken from 

the record. Recognizing that the trial court specifically “require[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 court 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 public 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 “right 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 appealed 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’ interest in publically disclosing the contents of 

defendant’s personal notes in this fashion is troubling, and lends strength to the concerns 

raised by defendant in this appeal, which is that plaintiffs wish to disclose the substance 

of even irrelevant notes apparently for no other purpose than to publically denigrate 

defendant’s personal beliefs and attitudes regarding politics, religion, friends, etc. These 

personal beliefs and attitudes have 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 was “ambiguous.” How could the trial court 

have been any more clear that defendant was required only to produce his orange notes? 

This misapprehension on Justice Weaver’s part also explains her misapprehension 

concerning defendant’s arguments that he was 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 with a production order, 

since when is the appropriate remedy to require the production of irrelevant documents?
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, 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 properly made publicly available only after a determination of 

relevance and materiality. 

Thus, defendant’s concerns appear not to be unwarranted.4

 A party should not 

have to undergo an invasion of privacy of this sort in order to defend himself in civil 

litigation in this state. Therefore, I would remand this matter to the Court of Appeals to 

consider the propriety of the trial court’s November 14, 2008, order. However, because 

the majority does not concur with this position, I would respectfully urge the trial court to 

carefully review and reconsider the breadth of its production order. 

CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J. 

 

4

 To further emphasize defendant’s concern regarding the trial court’s production order, 

plaintiffs have acknowledged providing Ave Watch, a public website that is apparently 

antagonistic to defendant, with copies of defendant’s notes that they consider relevant to 

this litigation. However, defendant has alleged 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 cell phone to take a picture of this document, which she then 

sent to Ave Watch. Plaintiffs’ counsel denied this claim 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], apparently, was visiting [defendant]’s office in 

accordance with an earlier Court Order to produce documents. [Plaintiffs’ 

counsel] was allowed to view only a select 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 gone. Now they are in 

the minority.”