Yates v. Keane , 184 Mich. App. 80 ( 1990 )

184 Mich. App. 80 (1990) 457 N.W.2d 693

YATES
v.
KEANE

Docket No. 114401.

Michigan Court of Appeals.

Decided June 4, 1990.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Lisa J. Vogler), for plaintiffs.

Miller, Canfield, Paddock & Stone (by Kay Holsinger), for defendants.

Before: HOLBROOK, JR., P.J., and MURPHY and JANSEN, JJ.

JANSEN, J.

Plaintiff Laurie Yates contracted with defendants to act as a surrogate mother for defendants' clients. Plaintiffs brought suit against defendants for fraudulent or innocent misrepresentations in the surrogate 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 surrogates who had served as such. Plaintiffs argue that this information was relevant and was not protected by a privilege and, therefore, is discoverable. We agree and reverse.

In order to proceed with discovery, a plaintiff need only show that the matter upon which discovery is sought is relevant and not privileged. Davis v O'Brien, 152 Mich. App. 495, 503; 393 NW2d 914 (1986), lv den 426 Mich. 869 (1986). Even inadmissible 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 Dorn Co, 169 Mich. App. 524, 528; 426 NW2d 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.

First, we must determine whether the evidence sought through discovery is relevant. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. Plaintiffs brought suit alleging that defendants fraudulently misrepresented material facts in their surrogacy contract. One element for an action 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 NW2d 480 (1988). Transactions with third persons not immediately connected with the alleged fraud can be probative of defendants' knowledge and therefore relevant under MRE 401. Temborius v Slatkin, 157 Mich. App. 587; 403 NW2d 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 prior clients and surrogate mothers is reasonably calculated and is likely to lead to the discovery and production of relevant evidence.

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 purpose of obtaining legal advice. US Fire Ins Co v Citizens Ins Co of America, 156 Mich. App. 588, 592; 402 NW2d 11 (1986); Kubiak v Hurr, 143 Mich. App. 465, 472-473; 372 NW2d 341 (1985). The purpose of the privilege is to permit a client to confide in his counselor, knowing that such communications are safe from disclosure. US Fire, supra.

We find that the identity of defendants' clients or other surrogate mothers is not protected as a privileged communication. In regard to the identity of other surrogate mothers, this information is not protected as a privileged communication because the prior surrogates were not defendants' clients and, therefore, do not fall within the purview of the attorney-client privilege. Further, the client's identity is not a 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 disclosure to third parties. Owen v Birmingham Federal Savings & Loan Ass'n, 27 Mich. App. 148, 163; 183 NW2d 403 (1970). Therefore, we find that the identities of other surrogate mothers and defendants' clients are not privileged communications within the attorney-client privilege.

Although we find plaintiffs have a right to discovery in the present case, the trial court may set limited restrictions under MCR 2.302(C); Eyde v Eyde, 172 Mich. App. 49, 56; 431 NW2d 459 (1988), lv den 432 Mich. 852 (1989). On remand, the trial court may protect the privacy rights involved by issuing a protective order which would allow disclosure of the information for the sole purposes 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 jurisdiction.