Order Michigan Supreme Court
Lansing, Michigan
June 12, 2009 Marilyn Kelly,
Chief Justice
137997 Michael F. Cavanagh
Elizabeth A. Weaver
STEPHEN J. SAFRANEK, EDWARD Maura D. Corrigan
Robert P. Young, Jr.
C. LYONS, and PHILIP A. PUCILLO, Stephen J. Markman
Plaintiffs-Appellees, Diane M. Hathaway,
v SC: 137997 Justices
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?
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.”
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.
June 12, 2009 _________________________________________
p0609 Clerk