(dissenting). I respectfully dissent.
The investigation file at issue is a governmental file concerning a closed criminal investigation. As such, it is likely that the file is subject to disclosure pursuant to the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq.1 See Evening News Ass’n v City of Troy, 417 Mich 481; 339 NW2d 421 (1983), Haskins v Oronoko Twp Supervisor, 172 Mich App 73; 431 NW2d 210 (1983), and Post-Newsweek Stations, Michigan, Inc v Detroit, 179 Mich App 331; 445 NW2d 529 *103(1989). This alternative basis for affirmance, however, was neither resolved below nor adequately addressed by the parties on appeal. Accordingly, I would remand.
This case appears postured on grounds that are broader than necessary for its resolution. Rather than deciding the case on narrow grounds, the majority strikes a blow to abolish the common-law work-product privilege of nonparties. The implications from today’s decision are far-reaching and troubling.
i
The general scope of discovery is set forth in MCR 2.302(B)(1):
In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action .... [Emphasis added.]
Our rules further provide that the common law determines the existence and scope of a privilege unless the privilege is modified or superseded by statute or court rule:
Privilege is governed by the common law, except as modified by statute or court rule. [MRE 501.]
The majority focuses on a discovery subrule that by its terms governs only the conduct of parties to litigation. MCR 2.302(B)(3)(a) provides:
Subject to the provisions of subrule (B)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under subrule (B)(1) and prepared in anticipation of litigation or for trial by or for another party or another party’s *104representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only on a showing that the party seeking discovery has substantial 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 materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
As noted by the majority, this subrule is silent with regard to the scope and duration of the work-product privilege applicable to nonparties. Because the subrule neither addresses nor modifies the common-law work-product privilege enjoyed by nonparties, it has no effect on the privilege.
ii
Any analysis of the common-law work-product privilege must begin with the landmark United States Supreme Court decision in Hickman v Taylor, 329 US 495; 67 S Ct 385; 91 L Ed 451 (1947). In Hickman, the Supreme Court affirmed a decision by the Third Circuit Court of Appeals, which recognized and established a common-law work-product privilege. In analyzing the then existing Federal Rules of Civil Procedure, the Third Circuit noted that certain rules applied to parties while others applied to nonparties. Further, some rules made explicit reference to privileges while others did not. Nevertheless, the Third Circuit concluded that privileges must be applicable to all the rules because "we cannot believe that such omission was intended”:
To have interrogatories addressed to one not a *105party to the litigation, therefore, the procedure must be under Rule 26, not Rule 33.
As already stated, Rule 26 has a privilege limitation upon the scope of examination. Rule 33 says nothing about privilege. We think that Rule 33 is subject to the same privilege limitation as Rules 26 and 34. One reason for so concluding is that Rule 26 covers interrogatories as well as oral testimony, and the privilege rule stated in 26 carries over to 33. Another reason is that we cannot believe that such omission was intended. We can see no logic in leaving it out of 33 and putting it in 26 and 34. And we cannot think a rule as old as that of privilege is to be lightly thrown overboard. [Hickman v Taylor, 153 F2d 212, 221 (1945). Emphasis added.]
The Third Circuit Court of Appeals, in establishing a common-law privilege for an attorney’s work product, cited public policy arguments that apply to both parties and nonparties "who have lawsuits and prospective lawsuits”:
We are clear in our own minds, however, that "privilege” as used in the rules comprehends the material asked for in the interrogatory which is the foundation of this proceeding, namely memoranda of talks with witnesses, signed statements made by witnesses, the lawyer’s recollection of talks with witnesses. . . . But here we are dealing with intangible things, the results of the lawyer’s use of his tongue, his pen, and his head, for his client. This was talked about as the "work product of the lawyer” in the argument of the case. This is a phrase which seems pretty well to describe what we are after, though we hesitate to adopt it as a label for our concept for fear that it may contain implications not now apparent to us. It does with fair accuracy describe what we are excluding here under the term privilege. It seems likewise to be about what is represented by the English law though the difference in phraseology of the rules makes reference only moderately helpful.
*106The reason for this frank extension of privilege beyond testimonial exclusion rests on the same foundation that the rule of evidence does. ... It is rather, a rule of public policy, and the policy is to aid people who have lawsuits and prospective lawsuits. Those members of the public who have matters to be settled through lawyers and through litigation should be free to make full disclosure to their advisers and to have those advisers and other persons concerned in the litigation free to put their whole-souled efforts into the business while it is carried on. . . . We believe it is sound policy; we know that it is irrefutably established in the law. That the principle finds application in the facts presented to us on this appeal we are all thoroughly convinced. [Id. at 222-223.]
Following the Third Circuit Court of Appeals decision in Hickman, supra, the Advisory Committee on the Federal Rules of Civil Procedure on June 14, 1946, recommended the following amendment to Federal Rule 30(b):
The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, and indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 35, the conclusions of an expert. [McCormick, Evidence (3d ed), § 96, p 234.]
Hickman was argued in the United States Supreme Court on November 13, 1946. In 1947, when the Supreme Court affirmed the work-product priv*107ilege, the proposed federal rule had not yet been adopted. The United States Supreme Court, however, established a common-law work-product privilege that rests on many of the public policy arguments relied on by the Third Circuit Court of Appeals:
Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
Proper preparation of a client’s case demands that he [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and -plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the "Work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interest of the clients and the cause of justice would be poorly served. . . . But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade the privacy to establish adequate reasons to justify production *108through a subpoena or court order. [Hickman v Taylor, 329 US 495, 510-512 (1947).]
The public policy argument cited by both the United States Supreme Court and the Third Circuit Court of Appeals, applies to both parties and nonparties. Whether an attorney’s client has yet to be sued makes very little difference when an attorney’s work product has been subpoenaed. The public policy underlying the common-law work-product privilege applies to the work product of both parties and nonparties prepared in anticipation of litigation.
hi
In Michigan, the work-product privilege is and has been governed by a mesh of common-law privilege and court rule modification.
The Michigan Supreme Court in J A Utley Co v Saginaw Circuit Judge, 372 Mich 367, 373; 126 NW2d 696 (1964), in discussing Michigan’s common-law work-product privilege, stated:
To determine in each like case whether a document sought to be discovered is privileged, we must bear in constant mind that the professional relationship does not arise when the attorney is an ordinary agent or employee of his principal; also that the privileged relationship has to be the special and personal one the common law has always protected. For definitions, see People v Pratt, 133 Mich 125 (67 LRA 923) [94 NW 752 (1903)], followed in Lindsay [v Lipson, 367 Mich 1; 116 NW2d 60 (1962)].
To enjoy the privilege in the context of this case the document must be the attorney’s own work product; not the product of work done by agents and employees owing primary allegiance to their employers rather than to the attorney. Such at *109least was the essence of our decision in the Lindsay Case, where the content of the doctor’s report to the plaintiff’s attorney was held privileged as against the defendants’ demand for revelation thereof.
Later, Judge (now Justice) Levin, writing for our Court, noted that both our common-law work-product privilege and our court rule can trace their origins to Hickman:
Both the "work product” rubric and the language of our Court rule (GCR 1963, 306.2) spelling out the work product restriction are traceable to Hickman v Taylor (1947), 329 US 495 (67 S Ct 385, 91 L Ed 451). Thus, although that decision of the United States Supreme Court is not binding on the states and Michigan is free to develop its own discovery jurisprudence, Hickman v Taylor is where we must begin if we are to understand where we are.
The "good cause” requirement of the original Federal Rule 34 was not incorporated into our corresponding rule 310, but in a series of decisions the Michigan Supreme Court and our Court ruled that "good cause” or "cause” must be shown before trial preparation materials can be required to be produced. [Powers v City of Troy, 28 Mich App 24, 28-29, 32 (1970).]
From such decisions as Utley and Powers, it is clear that Michigan recognizes a work-product privilege not only through its court rules but also through its common law.
In the present instance, I agree with the majority that MCR 2.302(B)(3)(a) by its terms codifies a work-product privilege that is applicable to the parties to the litigation. Nevertheless, because the work-product privilege also arises from our com*110mon law, I disagree with the majority’s conclusion that MCR 2.302(B)(3)(a) abolishes such a privilege for nonparties for materials prepared in anticipation of litigation. Were such the case, a party could easily commence a lawsuit against a nontarget defendant and promptly proceed to subpoena all the work product of a targeted adversary who has yet to be added to the lawsuit. The public policy considerations and protections enunciated in Hickman would clearly be violated by such strategic discovery.
IV
The majority is correct in noting that MCR 2.302(B)(3)(a) and its federal counterpart, FR Civ P 26(b)(3), are nearly identical.
The prevailing construction of FR Civ P 26(b)(3) is well articulated in the following often cited passage of 8 Wright & Miller, Federal Practice and Procedure: Civil § 2024, pp 197-198:
Rule 26(b)(3) is entirely in accord with the prior case law in denying work product immunity to documents that were not "prepared in anticipation of litigation or for trial.” Some cases have attributed significance to whether a document was obtained before or after litigation was commenced, but this cannot be sound. Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.
Wright and Miller appear to recognize that the common law affords a work-product privilege to *111nonparties that is not expressly provided by Rule 26(b)(3):
The work product rule [Rule 26(b)(3)] has no application to a document prepared by and in the hands of a third person who is neither a party to nor interested in the action. A person in this situation may have a claim of privilege or grounds for a protective order but he cannot rely on Rule 26(b)(3). [Wright & Miller, supra at 209. Emphasis added.]
The Fifth Circuit Court of Appeals in United States v Davis, 636 F2d 1028, 1040 (CA 5, 1981), cert den 454 US 862 (1981), summarized federal precedent as follows:
It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. See Kent Corp v NLRB, 530 F2d 612, 623 (CA 5, 1976), cert den 429 US 920; 97 S Ct 316; 50 L Ed 2d 287 (1976); In re Grand Jury Investigation (United States), 599 F2d 1224, 1229 (CA 3, 1979). We conclude that litigation need not necessarily be imminent, as some courts have suggested, see, e.g., Home Ins Co v Ballenger Corp, 74 FRD 93, 101 (ND Ga, 1977); In re Grand Jury Investigation (Joseph B Sturgis), 412 F Supp 943, 948 (ED Pa, 1976), as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation. See Osterneck v E T Barwick Industries, Inc, 92 FRD 81, 87 (ND Ga, 1979), citing 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2024, at 198 (1970).
As the federal district court stated in Arney v Hormel & Co, 53 FRD 179, 181 (D Minn, 1971):
Generally the test whether the work product *112immunity applies is not whether the litigation has begun but whether the documents may be said to have been prepared or obtained in anticipation of litigation. Hickman v Taylor, 329 US 495; 67 S Ct 385; 91 L Ed 451 (1946); Stix Products, Inc v United Merchants & Manufacturers, Inc, 47 FRD 334 (SD NY, 1969); Ownby v United States, 293 F Supp 989 (WD Okla, 1968); Kelleher v United States, 88 F Supp 139 (SD NY, 1950).
v
Our common law is not, nor should it be, stagnant. Today’s decision is tomorrow’s common law.
As illustrated by Hickman, our evolving common law is moved and molded by compelling public policy arguments. If the policy considerations underlying Hickman are applicable to both parties and nonparties, as I believe they are, the work-product privilege should also be applicable to nonparties for materials prepared in anticipation of litigation.
vi
In conclusion, I would remand to the lower court for briefing, argument, and a ruling regarding whether the closed governmental file at issue is discoverable pursuant to the Freedom of Information Act. I would reverse the lower court’s ruling that our court rules abolished the work-product privilege enjoyed by nonparties for materials prepared in anticipation of litigation and remand for reconsideration of the common-law privilege.
Privileges, of course, belong to the client. Dierickx v Cottage Hosp Corp, 152 Mich App 162, 167; 393 NW2d 564 (1986). Governmental attorneys are servants of the public. Accordingly, the traditional work-product privilege that is at issue in the instant case may be inapplicable.