Yates v. Keane
| Decision Date | 16 July 1990 |
| Docket Number | Docket No. 114401 |
| Citation | 457 N.W.2d 693,184 Mich.App. 80 |
| Parties | Laurie YATES and Richard Yates, Plaintiffs-Appellants, v. Noel P. KEANE, individually, and Noel P. Keane, P.C., Defendants-Appellees. 184 Mich.App. 80, 457 N.W.2d 693 |
| Court | Court of Appeal of Michigan — District of US |
[184 MICHAPP 81] Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Lisa J. Vogler, Farmington Hills, for plaintiffs-appellants.
Miller, Canfield, Paddock & Stone by Kay Holsinger, Ann Arbor, for defendants-appellees.
Before HOLBROOK, P.J., and MURPHY and JANSEN, JJ.
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. [184 MICHAPP 82] 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 N.W.2d 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 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.
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 N.W.2d 480 (1988). Transactions with third persons not immediately connected with the alleged fraud can [184 MICHAPP 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 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. U.S....
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