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Leibel v. General Motors Corp.3/1/2002
FOR PUBLICATION
I. Nature of the Case
Plaintiffs attached to their complaint a document (identified as the "Toth Memo") that General Motors (GM) says is protected from use in this litigation by the attorney-client privilege and work-product doctrine. This document was prepared by a GM in-house lawyer, Gary Toth, and renders legal advice to agents of GM regarding ongoing products liability litigation involving alleged defectively designed seatbacks in rear end collisions.
Plaintiffs say that the Toth Memo is not privileged because (1) the document is essentially factual, not legal, and (2) GM waived its privilege because it produced the Toth Memo in other litigation and the document is open to inspection in other court files. In response, GM says the Toth Memo is quintessentially legal advice and strategy regarding ongoing litigation and any disclosure of the Toth Memo in other litigation throughout the United States was either ordered or done inadvertently and, thus, GM has not waived its attorney-client or work product privileges as a matter of Michigan law.
Without addressing the mixed question of law and fact of whether GM voluntarily disclosed and thus waived its actual privilege, the trial court essentially ruled that, because the Toth Memo is open to inspection in other litigation throughout the United States, it is not privileged. Because we hold that the Toth Memo is clearly covered by the attorney-client and work product privileges, and because we further hold that involuntary disclosure through inadvertence or court orders in other jurisdictions does not constitute a voluntary waiver of the privilege, we reverse the trial court's holding to the contrary and remand to the trial court for it to determine whether GM voluntarily disclosed the Toth Memo in connection with other litigation.
II. Facts and Procedural History
A. Nature of the Disputed Document
In 1992, Gary Toth, an attorney on GM's legal staff, prepared a slide presentation (copies of which are identified as the "Toth Memo") regarding GM's defense of product liability lawsuits based on the seatback design in GM cars. Specifically, the Toth Memo discusses GM's analysis and documentation supporting the design of "yielding" shats and their effect on potential occupant ejections and injuries in rear collisions. In the memo, Toth also outlines problems encountered by GM in litigating seatback lawsuits and suggests particular information needed to bolster GM's position in seatback litigation.
On May 11, 1997, Charles Allen Leibel sustained severe injuries in an automobile accident involving a vehicle driven by James Samuel Napier and owned by Birdie Virginia Fisher. On February 20, 1998, Leibel filed a complaint against Napier and Fisher for negligence. Thereafter, Leibel filed an amended complaint and added his wife and children as plaintiffs and GM as a defendant. Plaintiffs alleged that GM negligently designed the seats in the 1988 Pontiac 6000, which Leibel was driving at the time of the accident. Plaintiffs attached a copy of the Toth Memo to their amended complaint.
B. The Dispute Regarding How the Toth Memo Became "Public"
The parties dispute exactly how plaintiffs' counsel acquired the Toth Memo. Plaintiffs and GM agree that plaintiffs' attorneys representing clients in other cases obtained the Toth Memo from a document repository at the law offices of McGuire, Woods, Battle & Booth, LLP, in Richmond, Virginia. Plaintiffs further maintain that attorneys in at least three of the cases reviewed the documents at McGuire, Woods and that a GM attorney voluntarily copied the Toth Memo, among other documents,
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