(concurring in part and dissenting in *228part). Because the trial court concluded the entire report was relevant and that finding is not contested here, I would hold that the probation report must be released to the defendants. MCL 791.229; MSA 28.2299, does not create an evidentiary privilege, but, rather, confers on a probationer a right to assert that the presentence report and supporting documentation are confidential as against disclosure. Assuming arguendo that the statute creates an evidentiary "privilege,” I agree the privilege was waived.
I
The judiciary’s concern for the fact-finding process dictates a conservative approach to recognizing obstacles to truth finding unless required by policy concerns of great significance.1 Thus, where statutes purport to make secret certain disclosures, courts traditionally construe the cloak of secrecy as narrowly as possible consistent with the obligation to uphold the legislative purpose, while guarding against the loss of relevant evidence. Where the Legislature has not clearly acted to create an evidentiary bar, the statute should be construed to create confidentiality in the records, rather than *229an absolute testimonial privilege. Where a statute provides that the records are confidential, a person seeking to prevent their release may seek a protective order under MCR 2.302(C).2
A
Neither legal literature nor evidentiary codes provide a comprehensive definition of privilege. See 23 Wright & Graham, Federal Practice & Procedure, § 5422, p 667. However, Wright and Graham offer the following definition: "[A privilege is] a rule that gives a person a right to refuse to disclose information to a tribunal that would otherwise be entitled to demand and make use of that information in performing its assigned function.” Id.
Questions concerning the extent of the cloak of secrecy created by statute involve what uses of what information may be suppressed at whose request. Privilege is "concerned with disclosure [of information] in court.” Id., § 5437, p 892, n 15. Confidentiality is concerned with "extrajudicial disclosures.” Id. "Courts are not always careful to distinguish between privilege (the right to refuse to disclose information in response to judicial inquiry) and confidentiality (the right to prevent others from making extrajudicial disclosures).” Id., § 5423, 1992 Pocket Part, p 206, n 11, citing Nixon v Freeman, 216 US App DC 188, 197; 670 F2d 346 (1982). Plaintiff contends that the statute creates a *230right to suppress the disclosure of information in court, i.e., that it creates an evidentiary privilege. I disagree.
The consequence of characterizing a statute as one creating an evidentiary privilege, rather than one creating confidentiality, is the potential loss of relevant evidence. If the statute is characterized as creating a privilege, a "court cannot compel disclosure of matters falling within the statute when adjudicating preliminary questions of fact.” Wright & Graham, supra, § 5437, p 891. Moreover, the privilege applies at every stage of adjudication —the information it protects cannot be discovered, nor can a grand jury compel its disclosure. Id. at 891-892.
MCL 791.229; MSA 28.2299 provides:
All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or conñdential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer,' the assistant director of probation, or the assistant director’s representative, shall permit the attorney general, the auditor general, and law .enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate. [Emphasis added.]
In one sentence the statute refers to records as "privileged or confidential” (emphasis added), while in the last sentence it refers to the "relation of confidence” that "shall remain inviolate.” Moreover, the statute expressly states that these records "shall . . . not [be] open to public inspection,” yet it provides for access by law enforcement agencies and other officials. The statute does not *231address compelled disclosure in collateral litigation, and thus does not unambiguously create an evidentiary privilege. Because it is subject to more than one construction, the statute should be construed to create a rule of confidentiality.3
B
Analysis of the purpose of evidentiary privileges leads to the same result. At common law, the rules of privilege were developed as a protection against the court’s power to compel testimony.
For more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule .... [8 Wigmore, Evidence (McNaughton rev), § 2192, p 70.]
The United States Supreme Court is generally reluctant to recognize new rules of privilege. "We do not create and apply an evidentiary privilege unless it 'promotes sufficiently important interests to outweigh the need for probative evidence ....’” Univ of Pennsylvania v EEOC, 493 US 182, 189; 110 S Ct 577; 107 L Ed 2d 571 (1990), quoting Trammel v United States, 445 US 40, 51; 100 S Ct 906; 63 L Ed 2d 186 (1980). Moreover, because the application of a rule of privilege " 'contravene[s] the fundamental principle that "the public . . . has a right to every man’s evidence,” ’ . . . any such privilege must be *232'strictly construed.’ ” Id., quoting Trammel, 445 US 50, quoting United States v Bryan, 339 US 323, 331; 70 S Ct 724; 94 L Ed 884 (1950).
Wigmore sets forth four criteria necessary to establish a privileged communication that incorporate the concept that a refusal to disclose information must be justified by the need to uphold a competing social good. Wright & Graham, supra, § 5422, p 671. For communications to be privileged:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [8 Wigmore, Evidence (McNaughton rev), § 2285, p 527. Emphasis in original.]
The reports claimed as privileged under MCL 791.229; MSA 28.2299 satisfy none of these criteria. They were not created in confidence that they would not be disclosed. In fact, quite the opposite is true. At the time a presentence report is generated, the defendant under investigation knows that it will be forwarded to the prosecutor and the court.
Furthermore, while confidentiality is desirable vis-á-vis extrajudicial disclosure of the report, an evidentiary privilege is neither contemplated by the words of the statute nor essential to the full and satisfactory relation between the defendant under investigation and the probation officer. *233Again, the opposite is true. The defendant under investigation has every reason to present himself to the probation officer in the best light possible so that a favorable impression is transmitted to the court and to other officers of the court. To paraphrase McCormick’s criticism of the marital privilege, the danger of suppression of relevant proof is clear and certain. The probable benefits of the rule of privilege (in encouraging the relationship) is at best doubtful and marginal.
Moreover, the relationship, between the probation officer and defendant is not one that the community as a community has an interest in fostering. The relationship is an artificially created one, ordered by the court for the court’s purposes. This observation does not denigrate the importance of the relationship, but, rather, distinguishes it from other relationships such as those represented in the common-law privileges, which are assumed to protect relationships more broadly reflective of society’s interests.4
Finally, the benefits gained for the correct disposal of, litigation, i.e., reliable fact finding, are certainly greater than any harm to the probation officer/defendant relationship as a result of disclosure of the information. Stated otherwise, because the defendant under investigation already has a motive to present himself favorably to a probation officer, suppression of information, in collateral litigation not contemplated at the time of the investigation, is too remote a consequence to justify suppression in judicial proceedings.
c
Where a statutory privilege is claimed, the *234court’s analysis focuses on the language of the statute, the purpose to be obtained, and the effect on the truth-finding process. People v Hamacher, 432 Mich 157; 438 NW2d 43 (1989). Where the Legislature intends to exclude testimony about a topic, it frequently expressly so states. For instance, under MCL 333.18237; MSA 14.15(18237), a psychologist "shall not be compelled to disclose confidential information . . . .” Nor can a psychiatrist be compelled to disclose privileged communications. "Privileged communications shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege, except in the circumstances set forth in this section.” MCL 330.1750(2); MSA 14.800(750)(2). Likewise, MCL 330.2028(3); MSA 14.800(1028)(3) states that an opinion concerning competency to stand trial "may not be admitted as evidence for any purpose in the pending criminal proceedings,” and husbands and wives "shall not be examined” for or against each other without the consent of the other. MCL 600.2162; MSA 27A.2162; People v Love, 425 Mich 691; 391 NW2d 738 (1986).
However, where the Legislature decreed: *235this Court held that the Legislature did not intend to preclude testimony by bank examiners "in the courts of the State under oath and upon due process.” In re Culhane Estate, 269 Mich 68, 80; 256 NW 807 (1934).
*234The commissioner of the banking department, his deputy or deputies, every clerk in his employment, and examiner shall be bound by oath to keep secret all facts and information obtained in the course of such examination, except in as far as the public duty of such officer requires him to report upon or take official action, regarding the affairs of such bank [1929 CL 11940],[5]
*235Since the Legislature did not expressly create a rule of privilege when it enacted MCL 721.229; MSA 28.2299, we should decline to do so.
II
The purpose of the Legislature may be served by construing the statute to create confidentiality in the probation records. Thus, a defendant does not have an unqualified right to prevent disclosure of his communications or of the probation records in subsequent actions. The statute requires the probation department to keep this information confidential, and to keep the information from the general public. In the event, as here, that a party seeks discovery of the information in subsequent litigation, the defendant’s remedy is to seek a protective order. The court should then inspect the material in camera, excise irrelevant information, and order the parties not to release the information to others not connected to the litigation.6
Levin, J.(separate opinion). The majority rejects the "automatic” waiver rule1 and opts for a "varia*236tion of the balancing test utilized in”2 Hearn v Rhay, 68 FRD 574 (ED Wash, 1975). The variation "is enunciated in Greater Newburyport Clamshell Alliance v Public Service Co of New Hampshire, 838 F2d 13 (CA 1, 1988).”
In Hearn and Clamshell, the party resisting discovery put directly in issue the evidence sought to be shielded by the asserted privilege. In the instant case, the Howes, the parties resisting discovery, did not put directly or indirectly in issue the presentence report or supporting documentation.
In Hearn, an inmate in a state penitentiary commenced a civil rights action against prison officials. The prison officials raised qualified immunity as an affirmative defense, claiming that they had acted on legal advice received from the state’s attorney general. When the inmate sought to discover information relating to the affirmative defense, the prison officials asserted the attorney-client privilege.
To have allowed the privilege to be invoked by the prison officials would have been akin to permitting a defendant in a criminal case, who claims on appeal to have been ineffectively assisted by counsel at the trial, to assert the attorney-client privilege to prevent his trial attorney from testifying at a posttrial hearing held to assess the alleged ineffectiveness of counsel. It is well established that a defendant in a criminal case who asserts ineffective assistance of counsel waives by doing so the attorney-client privilege. Courts readily reach that conclusion without invoking the doctrines adverted to by the majority.
In Clamshell, the plaintiffs commenced a civil rights action claiming that the defendant public *237utility employed undercover informants to infiltrate attorney-client meetings. When the public utility sought to subpoena records of the meetings, plaintiffs asserted the attorney-client privilege. Although the plaintiffs claimed that their Sixth Amendment right had been violated by the intrusion on attorney-client meetings, they sought to shield from discovery a record of what occurred when their Sixth Amendment right was assertedly violated.
The Detroit Free Press ran a news article concerning Virgil M. Howe without awareness of the presentence report, and thus without reliance on the presentence report. Any relationship between the contents of the presentence report and the alleged defamatory material is adventitious, while what occurred at the attorney-client meetings in Clamshell and the advice of the attorney general in Hearn was the focus of the claim in Clamshell and the defense in Hearn.
The precedents relied on by the majority do not support the conclusion that the Howes waived the statutory privilege.
The Detroit Free Press relied on information other than the presentence report in running the news article. The reliability of that information and other nonprivileged evidence provide a defense. There is no need here to develop a new legal analysis to protect the freedom of the press or to support and defend the First Amendment.
United States v Nixon, 418 US 683, 710; 94 S Ct 3090; 41 L Ed 2d 1039 (1974) ("[T]hese exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth”).
Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. . . . "Limitations are properly placed upon the operation of this general principle only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” [Id. at 710, n 18, quoting Elkins v United States, 364 US 206, 234; 80 S Ct 1437; 4 L Ed 2d 1669 (1960) (Frankfurter, J., dissenting).]
MCR 2.302(C) provides in relevant part:
Protective Orders. On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect'a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....
The government has not asserted a privilege.
Compare People v Love, 425 Mich 691; 391 NW2d 738 (1986) (spousal privilege) with People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973) (restriction on the use of the juvenile record).
5 MCL 487.329; MSA 23.710(29), the statute’s current version, incorporated this Court’s holding in In re Culhaiie Estate, 269 Mich 68; 256 NW 807 (1934). It currently provides that all facts and information are secret, but an employee may "testify in any proceedings regarding the affairs of any institution.”
In Pennsylvania v Ritchie, 480 US 39; 107 S Ct 989; 94 L Ed 2d 40 (1987), the Court relied on the fact that the Legislature contemplated some use of confidential records in judicial proceedings in concluding that although due process did not require pretrial discovery of the record, it did require the trial court to review the record upon a plausible showing that it contained matter both material and favorable to the defense.
See Independent Productions Corp v Loew’s, Inc, 22 FRD 266 (SD NY, 1958).
Ante, p 221.