I.
Introduction
§1.1
In Upjohn Co v United States, 449 US 383 (1981), the U.S. Supreme Court acknowledged that the attorney-client privilege—the “oldest of the privileges for confidential communications known to the common law”—has the crucial purpose of “encourag[ing] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.” 449 US at 389. Similarly, in Hickman v Taylor, 329 US 495 (1947), the Court stressed the importance of the work-product doctrine, noting that “[n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” 329 US at 510. To be sure, the attorney-client privilege and the work-product doctrine serve significant interests and, at a practical level, attorneys constantly encounter issues involving these principles.
Nevertheless, many attorneys do not become familiar with these crucial principles in any systematic way. Law school courses and casebooks often treat these principles superficially, and busy practicing lawyers tend to research specific issues only as they arise in the course of their work. As a result, many attorneys (and perhaps some judges) may not clearly understand the significance, scope, and limits of these doctrines.
This book offers a systematic and thorough examination of the attorney-client privilege and the work-product doctrine under Michigan law. Wherever possible, Michigan authority has been cited and quoted. In some instances, federal cases are instructive in interpreting Michigan law or in filling an apparent gap in Michigan law. The goal is to provide a comprehensive examination of these principles as interpreted by the Michigan courts. For analysis of privilege and work-product issues in other states, see Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine (ABA 6th ed 2017); The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality (Vincent Steven Walkowiak & Oscar Rey Rodriguez eds, ABA 7th ed 2019); and Paul R. Rice et al, Attorney-Client Privilege in the United States (2021). For a discussion of the related ethics concepts of attorney-client confidentiality, see Michigan Basic Practice Handbook ch 22 (ICLE 6th ed).