Howe v. Detroit Free Press, Inc

487 N.W.2d 374, 440 Mich. 203

• Court: Michigan Supreme Court
• Decided: July 14, 1992
• Docket: Docket Nos. 90042, 90043, (Calendar No. 1)
• Status: Published

Opinions

Griffin, J.

In this interlocutory appeal arising out of a civil suit for defamation, we must decide whether a probation report concerning one of the plaintiffs, prepared in connection with an unrelated Criminal matter, is absolutely privileged under MCL 791.229; MSA 28.2299, and therefore immune from discovery. Although the statute provides a privilege, we conclude that, under the circumstances presented here, the privilege was waived with respect to portions of the report that are relevant to issues raised in the defamation suit filed by plaintiffs. Accordingly, we reverse the decision of the Court of Appeals.

I

This defamation action is based upon a newspaper article originally published in the San Jose (California) .Mercury News on July 20, 1986, regarding major league baseball pitcher Steve Howe, son of plaintiffs Virgil and Barbara Howe. In the article, reporter Mike Antonucci wrote that "Howe [Steve Howe, plaintiffs’ son was] the eldest of five children and four sons in a family that was a prisoner of his father’s drinking problems.” The article also quoted Steve Howe as stating that his mother was forced to feed her children powdered milk "because his father [plaintiff Virgil Howe] was drinking up so many paychecks that the family was having enough trouble just coming up with a combined house and car payment of $84 a month.” The newspaper article was republished in the Detroit Free Press.

Plaintiffs commenced this defamation suit, naming as defendants the Detroit Free Press, Inc., Knight-Ridder Newspaper Sales, Inc., the San Jose Mercury News, and reporter Mike Antonucci. In the lawsuit, plaintiffs asserted that the quoted excerpts were false and defamatory. Defendants answered that the statements in the article were true. During the course of discovery, defendants sought release of a probation report¹ prepared in connection with a 1987 conviction of Virgil Howe in the 52nd District Court, 3d Division, for operating a vehicle while impaired (owi). MCL 257.625(2); MSA 9.2325(2). Defendants contended that the report contains information about Virgil Howe’s alcohol habits, relevant to defendants’ defense that Virgil Howe did in fact have "drinking problems.” An attempt was made to obtain the report by issuing a subpoena to the chief Oakland County probation officer. However, on advice of counsel for the county, the officer refused to deliver the report in the absence of consent by Virgil Howe or a court order directing that it be released. Plaintiffs objected to release, citing MCL 791.229; MSA 28.2299, which provides in part that such records and reports "shall be privileged or confidential communications not open to public inspection.”²

Thereafter, the trial court granted a motion by defendants for release of the report, ruling that plaintiffs, by bringing the lawsuit, had "waived any privilege with regard to statements in any presentence or probation report and supporting materials that [were] relevant to plaintiffs’ defamation claim . . . After reviewing the report in camera, the trial court determined that the entire report was relevant and should be delivered to defendants; however, access to the report was limited by the court to the parties to the lawsuit.³ At that point, plaintiffs sought an interlocutory appeal in the Court of Appeals.

Meanwhile, defendants moved in the trial court for discovery of certain supporting documentation referred to in the probation report. Specifically, defendants sought access to a portion of the probation file called "The alcadd Test,” which includes an alcohol-use questionnaire and the results of a test administered to Virgil Howe. When this request was denied by the trial court, defendants also filed an application for leave to appeal. The Court of Appeals granted both applications, consolidated the appeals, and stayed further proceedings in the lower court.⁴

In an opinion per curiam, the Court of Appeals reversed the trial court’s ruling that the report is discoverable, and affirmed its decision precluding release of the supporting alcadd test documentation.⁵ 184 Mich App 492; 459 NW2d 68 (1990). We then granted leave to appeal. 437 Mich 1035 (1991).

II

This appeal turns on the meaning and applicability under these circumstances of MCL 791.229; MSA 28.2299, which provides:

All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential 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.

It is plaintiffs’ position that the probation report is absolutely privileged under the statute, and that the privilege was not waived by their initiation of the instant defamation suit. On the other hand, defendants contend that the statute does not create an evidentiary privilege; rather, it merely places restrictions upon disclosure of probation records and reports. If a privilege is created, defendants argue that it cannot be absolutely inviolate in light of language in the statute allowing for access to the report, not only by judges and probation officers, but also by certain designated state officials as well as "law enforcement agencies.” Defendants find support in the writing of one commentator:

Because the latter authorities can be given access to the material by the probation officer in charge of a case or a superior official, without any requirement of defendant concurrence, it also 'seems difficult conceptually to structure this as a privilege. [George, A Practical Analysis of Michigan Evidence Law, § 15.30(J).]

Defendants further contend that, even if a statutory privilege were to be recognized, any such privilege was waived by plaintiffs when they commenced this lawsuit for defamation, particularly in light of the fact that denial of access to the report and its supporting materials would deprive defendants of relevant evidence essential to their defense. Defendants assert that the report and its supporting materials weigh heavily on the ultimate issue in this case — the falsity or truthfulness of statements in the newspaper article concerning Virgil Howe’s "drinking problems.”

A

Privileges have not been readily endorsed or broadly construed by the courts, for reasons explained by Professor McCormick in his treatise on Evidence (3d ed), ch 8, § 72, pp 170-171:

The overwhelming majority of all rules of evidence have as their ultimate justification some tendency to promote the objectives set forward by the conventional witness’ oath, the presentation of "the truth, the whole truth, and nothing but the truth.” Thus such prominent exclusionary rules as the hearsay rule, the opinion rule, the rule excluding bad character as evidence of crime, and the original documents (or "Best Evidence”) rule, have as their common purpose the elucidation of the truth, a purpose which these rules seek to effect by operating to exclude evidence which is unreliable or which is calculated to prejudice or mislead.

By contrast, the rules of privilege . . . are not designed or intended to facilitate the fact-finding process or to safeguard its integrity. Their effect instead is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light.

Privileges do serve a purpose, however:

[R]ules of privilege are not without a rationale. Their warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice. ... [A] substantial number operate to protect communications made within the context of various professional relationships, e.g., attorney and client, physician and patient, clergyman and penitent. The rationale traditionally advanced for these privileges is that public policy requires the encouragement of the communications without which these relationships cannot be effective. [Id., p 171.]

The existence and scope of a statutory privilege ultimately turns on the language and meaning of the statute itself. Cf. People v Love, 425 Mich 691, 705; 391 NW2d 738 (1986) (opinion of Cavanagh, J.). As this Court has said:

The primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in-the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute. [White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). See also People v Smith, 423 Mich 427, 441; 378 NW2d 384 (1985) (opinion of Williams, C.J.).]

The first sentence of MCL 791.229; MSA 28.2299 states that probation reports and records "shall be privileged or conñdential communications not open to public inspection” (Emphasis added.) The next two sentences allow access to the probation reports and records by designated court personnel and law enforcement authorities. The final sentence of the statute provides that "[t]he relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.”

We disagree with defendants’ contention that the portion of the statute that permits access by court and law enforcement personnel somehow undermines plaintiffs’ claim of privilege vis-á-vis the present defendants. We conclude that the statute’s provisions, when read as a whole, do establish an evidentiary privilege that precludes disclosure to the general public, even though access to the report may be available to certain designated public authorities. The first sentence of the statute expressly elevates probation reports and records to the level of "privileged or confidential communications.” The second and third sentences carve out specific exceptions to this rule. The final sentence, requiring that the relation of confidence between the probation officer and probationer shall remain "inviolate,” when read in conjunction with the preceding provisions, makes clear that this mandate applies to the public, but not to certain court or law enforcement personnel. Cf. People v Smith, supra at 463-464 (opinion of Boyle, J.); People v Hooper, 157 Mich App 669, 674; 403 NW2d 605 (1987).

That the statute discriminates between the public and court officials is logical when considered in light of the underlying purpose of the statute. The report, which includes information gathered as the result of an investigation, is designed to facilitate the sentencing process pursuant to Michigan’s indeterminate sentencing laws by individualizing each case. See MCL 771.14; MSA 28.1144. The probation officer is a nonadversarial adviser to the court whose function it is to collect and evaluate information concerning the life and character of the subject and to make recommendations. Williams v New York, 337 US 241, 250; 69 S Ct 1079; 93 L Ed 1337 (1949); MCL 771.14(2); MSA 28.1144(2). From the perspective of the subject, confidentiality allows that person to make sensitive disclosures that may enhance the potential for rehabilitation without fear of public scrutiny or recrimination. From the standpoint of the probation officer, privacy allows the officer to gather information from sources that might not otherwise be available. Since the information is gathered for the purpose of assisting the court in determining the sentence to be imposed, of course, access to the reports and records by court officials is a necessity. However, disclosure to the public could seriously undermine the process. Since the present defendants do not fall within the category of persons allowed access by the statute, we conclude that an evidentiary privilege may be asserted in the present case.

B

We turn now to consider the argument that plaintiffs have waived the privilege provided by statute. Contending that the privilege is absolute, plaintiffs emphasize that the statute contains no "good cause” or other express provision for waiver. Compare MCL 600.2157; MSA 27A.2157 (physician-patient privilege); In re Baby X, 97 Mich App 111; 293 NW2d 736 (1980). Plaintiffs point out that the statute contains no provision that expressly allows the subject of the report to consent to a violation of the confidentiality mandate.

Nevertheless, there is authority for the proposition that a privilege can be waived through conduct that would make it unfair for the holder to insist on the privilege thereafter.⁶ Dean Wigmore’s discussion of waiver of the physician-patient privilege is instructive:

A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield (in Lord Mansfield’s phrase concerning an infant’s exemption from liability). [8 Wigmore, Evidence (McNaughton rev), § 2388(3), p 855.]

In several cases, our Court of Appeals has ruled that the statutory privilege here at issue must yield where it conflicts with certain constitutional rights. As an example, in People v Rohn, 98 Mich App 593; 296 NW2d 315 (1980), the defendant was convicted of aiding and abetting in the commission of first-degree murder and conspiring to commit first-degree murder. For impeachment purposes, the defendant had requested, but was denied, access to presentence reports of three prosecution witnesses who were accomplices to the murder. The Court of Appeals reversed and held that the reports should have been made available, relying on Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). In Davis, the United States Supreme Court held that the Sixth Amendment right of confrontation entitled a defendant to certain confidential information for impeachment purposes, even though such use conflicted with Alaska’s asserted interest in preserving the confidentiality of juvenile delinquency adjudications. The Rohn Court stated:

Although the defendants’ interests differ, the Davis defendant sought to impeach to show a witness’s bias while Rohn wants to impeach to attack the credibility of incriminating information, we agree that the latter impeachment is as equally necessary as the former. It is critically important that any finding of guilt or any sentence be predicated on accurate information. See People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Thus, we must conclude that the need for impeachment of criminal accusations outweighs any need for confidentiality of presentence reports. This does not mean that defendants should receive wholesale access to the confidential records of others. We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness’s testimony. [Rohn, supra, p 600.]

[7]

In contrast to the implied waiver found in Rohn, supra, our Court of Appeals, in two other cases, has examined MCL 791.229; MSA 28.2299 in the context of civil proceedings and has found the statutory privilege at issue here to be absolute and unyielding.

In Havens v Roberts, 139 Mich App 64, 68; 360 NW2d 183 (1984), an insurance company sought disclosure of information contained in an accomplice’s probation report in order to avoid liability for the actions of its insured who had committed a crime. The Court of Appeals held that the probation officer’s files were not discoverable:

We note that on appeal Nationwide continues to argue that it should be given the opportunity to review the probation officer’s files. This report is absolutely privileged and cannot be a subject of discovery. As stated in the statute, this confidence "shall remain inviolate.” MCL 791.229; MSA 28.2299.

In Peters v Bay Fresh Start, Inc, 161 Mich App 491; 411 NW2d 463 (1987), two felons left a halfway house and burglarized the residence of a Dr. Jones, seriously injuring him. In a civil suit for negligence brought against the halfway house and a probation officer, the plaintiff, conservator of the estate of Dr. Jones, sought discovery of the felons’ presentence reports to prove that the probation officer knew of the felons’ prior history of violent behavior. The trial court entered an order allowing discovery of portions of the reports. However, the Court of Appeals reversed and ruled that the reports were absolutely privileged:

[T]he language of the statute is absolute. We agree with Rohn, supra, that there are some constitutional rights which may supersede the privilege, but the interests asserted by plaintiff here hardly compare with the right to confrontation in criminal cases. It is, of course, possible that the Legislature intended only to protect probationers and informants, so that the privilege would not apply when neither a probationer nor an informant, but only a probation officer, requested nondisclosure. The language of the statute itself contains no such proviso, however. We reverse the trial court . . . insofar as it held that any of the probation officer’s records or reports were discoverable. [Peters, supra, pp 497-498.]

In the instant case, the Court of Appeals expressly followed the decisions in Peters, and Havens, ruling "that the privilege is absolute and that the trial court erred in allowing defendants to discover the probation reports.” 184 Mich App 495. We note, however, that Havens and Peters are not factually analogous to the present case. Here, the party asserting the statutory privilege is one of the plaintiffs in this civil suit. By commencing this defamation action, Virgil Howe has put the contents of the probation report at issue. Defendants maintain that information contained in the report is not only relevant, but essential to their defense. Hence, unlike Havens and Peters, we must decide in this case whether this statutory privilege can be used by a plaintiff in a civil suit as both the metaphorical sword and shield. Under these circumstances, we look to a number of federal court decisions that are more instructive.

III

The federal courts have utilized three approaches in ruling on testimonial or evidentiary privileges asserted by plaintiffs in civil litigation. The "automatic waiver” rule requires that a plaintiff seeking relief waive whatever privilege he possesses. A second theory finds that a privilege will be waived if (1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. The third theory balances the need for discovery against the need for protecting secrecy.

The "automatic” waiver rule was first espoused in Independent Productions Corp v Loew’s, Inc, 22 FRD 266 (SD NY, 1958). In Loew’s, the plaintiffs, movie producers and distributors, filed a private antitrust suit against the defendants, alleging conspiracy to restrain the distribution of a certain film. The defendants deposed the president and sole stockholder of one of the plaintiffs, inquiring into his alleged association with subversive organizations and his refusal to testify before a congressional committee. During the deposition, he invoked the First and Fifth Amendment privileges in refusing to answer questions concerning these matters. The court found the questions to be relevant for purposes of pretrial discovery and ruled that the stockholder had waived his constitutional privileges by having his company commence the civil suit. The court explained:

Plaintiffs in this eivil action have initiated the action and forced defendants into court. If plaintiffs had not brought the action, they would not have been called on to testify. Even now, plaintiffs need not testify if they discontinue the action. They have freedom and reasonable choice of action. They cannot use this asserted privilege as both a sword and a shield. Defendants ought not be denied a possible defense because plaintiffs seek to invoke an alleged privilege. [Id., p 277.][8]

A second approach was utilized in Hearn v Rhay, 68 FRD 574 (ED Wash, 1975), where the court rejected the "automatic waiver” rule and applied instead a three-part test to determine whether a privilege had been impliedly waived. In Hearn, an inmate in a state penitentiary instituted a civil rights action against prison officials after he was confined in a mental health unit of the prison without a hearing or other review. The prison officials raised the affirmative defense of qualified immunity on the basis of good faith, claiming that they acted on legal advice received in confidence from the state’s attorney general. However, when the plaintiff sought to discover information related to that affirmative defense, the defendants asserted the attorney-client privilege. The court held that where three conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct:

(1) [Assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;

(2) [T]hrough this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and

(3) [Application of the privilege would have denied the opposing party access to information vital to his defense. [Id., p 581.]

Applying these elements to the facts, the Hearn court stated:

[D]efendants assert the privilege in aid of the affirmative defense that they are protected from liability by a qualified immunity. Therefore, all the elements common to a finding of waiver are present in this case: defendants invoked the privilege in furtherance of an affirmative defense they asserted for their own benefit; through this affirmative act they placed the protected information at issue, for the legal advice they received is germane to the qualified immunity defense they raised; and one result of asserting the privilege has been to deprive plaintiff of information necessary to "defend” against defendants’ affirmative defense, for the protected information is also germane to plaintiff’s burden of proving malice or unreasonable disregard of his clearly established constitutional rights. Since all the elements of an implied waiver exist, defendants must be found to have waived their right to assert the attorney-client privilege by virtue of having raised the affirmative defense of immunity. [Id. See also AfroLecon, Inc v United States, 820 F2d 1198 (CA Fed, 1987); Zenith Radio Corp v United States, 764 F2d 1577 (CA Fed, 1985).]

The third approach used to determine whether a civil plaintiff has waived a privilege is enunciated in Greater Newburyport Clamshell Alliance v Public Service Co of New Hampshire, 838 F2d 13 (CA 1, 1988). There, the court applied a variation of the balancing test utilized in Hearn, supra, to decide whether the plaintiffs, by instituting a civil rights action, had waived their attorney-client privilege with regard to relevant confidential information. The plaintiffs’ lawsuit alleged violation of their Sixth Amendment right to counsel when the defendant public utility used undercover informants to infiltrate attorney-client meetings. After the defendant subpoenaed records of the meetings, the plaintiffs moved to quash the subpoena on the ground of attorney-client privilege. The trial court held that the plaintiffs had waived the privilege by filing suit and held the plaintiffs in contempt for not producing the notes. The plaintiffs appealed the contempt citation. Finding the situation to be "quasi-constitutional” (the conversations occurred when the attorney was preparing a defense to a criminal case), the United States Court of Appeals for the First Circuit weighed the competing interests of the parties:

[T]he automatic waiver rule, in what may be termed a "quasi-constitutional” situation, is too harsh. Without any consideration of the relative interests involved, it simply destroys a privilege even if the privilege would not shield evidence of any significance to the defense. Instead, a court should begin its analysis with a presumption in favor of preserving the privilege. In a civil damages action, however, fairness requires that the privilege holder surrender the privilege to the extent that it will weaken, in a meaningful way, the defendant’s ability to defend. That is, the privilege ends at the point where the defendant can show that the plaintiff’s civil claim, and the probable defenses thereto, are enmeshed in important evidence that will be unavailable to the defendant if the privilege prevails. The burden on the defendant is proportional to the importance of the privilege. The court should develop the parameters of its discovery order by carefully weighing the interests involved, balancing the importance of the privilege asserted against the defending party’s need for the information to construct its most effective defense. [Id., p 20.]

The First Circuit directed the district court to dismiss the contempt charges and to allow further discovery. In order to assist the district court regarding future requests for discovery of privileged matter, the First Circuit offered the following guidelines:

First, defendants should demonstrate that the material to be discovered is relevant to their case. This showing should include an articulation of how the material could assist the preparation of their defense in a meaningful way. A showing comparable to that presented regarding the contents of discussion to which Nims was privy would be sufficient. Secondly, defendants should demonstrate why it would be unreasonably difficult for them to obtain the information elsewhere or that redundant evidence will be helpful to their case. They do not have to prove that it is absolutely unavailable from other sources. Of course, the more the requested discovery would intrude into the privilege, the greater should be the showing of need and lack of reasonable alternative sources. [Id., p 22.]

Other federal courts have likewise employed a balancing analysis to determine whether a civil plaintiff may invoke either constitutional or non-constitutional privileges to limit the scope of discovery. See, e.g., Sedco Int’l, SA v Cory, 683 F2d 1201 (CA 8, 1982) (attorney-client privilege), Black Panther Party v Smith, 213 US App DC 67; 661 F2d 1243 (1981), judgment vacated without opinion sub nom Moore v Black Panther Party, 458 US 1118 (1982) (First and Fifth Amendment privileges), and Wehling v Columbia Broadcasting System, 608 F2d 1084 (CA 5, 1979) (Fifth Amendment privilege against self-incrimination).

IV

Without suggesting that every waiver of privilege claim should be treated in the same manner, we conclude that under these particular circumstances, the Clamshell decision provides the most appropriate basis for resolving the claim now before us. We select the Clamshell mode of analysis because it avoids the rigidity of the automatic waiver rule and provides enhanced flexibility beyond the three factors to be considered under Hearn, supra.

In applying the balancing test, we counsel that a court "should begin its analysis with a presumption in favor of preserving the privilege.” Clamshell, supra, p 20. Accordingly, the burden of establishing a waiver under the balancing approach rests on the party seeking discovery. Id., p 19; Zenith, supra, p 1580. Further, we emphasize that discovery, if allowed, should be narrowly limited to those portions of the privileged material that bear directly on the issues at hand. As the Court in Rohn, supra, p 600, aptly cautioned, the need to pierce the veil of confidentiality "does not mean that defendants should receive wholesale access to the confidential records of others.”

In balancing the competing interests of the parties in this case, we begin by noting that the Michigan Court Rules provide for broad discovery in civil cases. MCR 2.302(B)(1). See also Domako v Rowe, 438 Mich 347; 475 NW2d 30 (1991). Indeed, it has been argued that the invocation of sanctions would be appropriate here, if plaintiffs resist discovery. See MCR 2.313(B)(2)(a).⁹ A similar argument apparently influenced the Loew’s court, which applied the "automatic waiver” rule and cited with approval an excerpt from Moore’s Federal Practice that mirrors the sanctions authorized by MCR 2.313(B)(2)(a). See ante, p 219, n 8.

However, we reject the "automatic waiver” rule urged upon us by defendants because it is inflexible and appears to minimize the plaintiff’s interest. MCR 2.302(B)(1) limits discovery to "any matter, not privileged.” (Emphasis added.) In the instant case, plaintiffs are entitled to stand by their claim of statutory privilege and have their interests carefully weighed against those of the defendants without the threat of automatic waiver or sanctions.

Plaintiffs seek to collect damages from defendants because of their published statement that Virgil Howe had a problem with alcohol. The trial judge conducted an in camera inspection of the probation records from Virgil Howe’s 1987 impaired driving conviction to determine the relevancy of the materials contained in the report. She ultimately concluded that the whole report was relevant. We agree that "the plaintiff’s civil claim, and the probable defenses thereto, are enmeshed in important evidence that will be unavailable to the defendant if the privilege prevails.” Clamshell, supra, p 20. Certainly a conviction for driving while intoxicated and the events surrounding it, as capsulized in the probation report, are significant points of evidence which bear directly on the defense of truth.

The special standing of truth as a defense in a defamation action must be underscored. In that regard, we note that the Court of Appeals erred when it stated that "[t]he present case does not involve constitutional rights which may supersede the privilege.” 184 Mich App 495. A constitutional right is implicated here. Art 1, § 19 of the Michigan Constitution provides:

In all prosecutions for libels the truth may be given in evidence to the jury; and, if it appears to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the accused shall be acquitted.

If this constitutional right is to have meaning, surely it is necessary to afford libel defendants a reasonable opportunity to discover relevant evidence that is essential to their defense of truth. In the context of the instant case, such considerations are especially important in light of the fact that a private-figure plaintiff is not required to prove malice in a libel suit against a media defendant. Instead, it is enough to show that the challenged statement was false and that the media defendant was negligent in reporting it. Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 206; 398 NW2d 245 (1986). In these circumstances, it would be anomalous, indeed, if a plaintiff could significantly lighten the burden of proving falsity by using the statutory privilege as a shield to preclude evidence of truth.

Although the fact of Howe’s 1987 conviction of impaired driving, standing alone, offers some justification for the statements set forth in the newspaper article, the defendants in this lawsuit have no guarantee of success in the defamation suit. Their ability to defend by proving that Virgil Howe had "drinking problems” is seriously undermined by plaintiffs’ assertion of privilege.

Our conclusion that the privilege should yield is bolstered by the further belief that assertion of the privilege in this case bears little or no relationship to its protective purpose. As earlier noted, ante, p 210, privileges are exceptional and subject to narrow definition. United States v Nixon, 418 US 683, 710; 94 S Ct 3090; 41 L Ed 2d 1039 (1974); People v Love, supra at 700-701, 712; People v Dixon, 161 Mich App 388; 411 NW2d 760 (1987); 8 Wigmore, supra, § 2291, p 554 (a privilege "ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle”). At common law, one of the essential conditions for the establishment of a privilege was that "[t]he 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.” Id., § 2285, p 527 (emphasis deleted).

The privilege established by MCL 791.229; MSA 28.2299 is designed to encourage unfettered communication between the probation officer and the accused in the presentencing phase of a criminal case. There is no rational reason to believe that the Legislature intended that the statute be used in the present manner — as an offensive weapon to block access to information relevant and vital to the just determination of issues in an unrelated civil case. The benefit gained by waiving the privilege is far greater than the injury that will inure to the probation officer-probationer relationship.

V

We therefore conclude that plaintiffs have waived the statutory privilege accorded by MCL 791.229; MSA 28.2299, and that the probation report is a proper subject of discovery by defendants. Accordingly, the decision of the Court of Appeals is reversed.

In keeping with our holding that discovery allowed under these circumstances should be narrowly confined, we remand to the trial court and direct that the probation report be reexamined in camera and that portions of the report, if any, which do not bear directly on the issues at hand, be excised.

With regard to that part of the probation file referred to as the alcadd test, an alcohol use questionnaire, we do not possess adequate information to allow for a review concerning its relevancy. Consequently, on remand the trial court is directed to examine and determine the discoverability of the alcadd test in accordance with the principles set forth in this opinion.

Reversed and remanded.

Cavanagh, C.J., and Brickley, Riley, and Mallett, JJ., concurred with Griffin, J.

1 The document referred to as a "probation report” was prepared by a probation officer employed by Oakland County. Such a document is also referred to as a "presentence report.” It includes background information concerning the accused, and is provided to assist the judge in sentencing. See MCL 771.14; MSA 28.1144.

2 The full text of the statute is set forth below at p 209.

3 The trial court’s order provided that when and if the case were submitted to mediation pursuant to MCR 2.403, a copy of the probation report could be shown to the mediators but could not be attached to or made a part of a mediation brief.

4 Defendants also moved in the trial court for an order allowing them to depose the probation officer who prepared the probation report concerning Virgil Howe. The motion was scheduled for argument but never heard because of the stay of proceedings.

5 On April 18, 1989, the Court of Appeals also denied defendants’ request to modify the stay to permit motions in the trial court unrelated to the issue before the Court of Appeals. That order is not germane to the issues raised in this appeal.

6 At least for purposes of this case, we conclude that the holder of the privilege is the subject of the report. As already noted, the statute, grounded in public policy, is designed to encourage the subject to lay the facts fully before the probation officer and show any mitigating circumstances before sentencing. In turn, the probation officer can act effectively only if he is advised of all the circumstances before making a recommendation. The process succeeds only if there is a guarantee of confidentiality to the subject and would fail if the probation officer could unilaterally and arbitrarily waive the requirement of confidence. Consequently, while either party to the communication may raise the privilege, the power to waive it lies with the subject alone, or the probation officer acting with the consent of the subject.

Our conclusion in this regard means that to the extent that the plaintiff wife in the instant case may have made statements in connection with the presentence report, she is not privileged to refuse to disclose them since she is not the subject of the report.

The decision in this case is not intended to address that facet of the statute which may establish a confidential relationship between the probation officer and informants. See, e.g., MCR 6.425; MCL 771.14(3); MSA 28.1144(3). The instant case does not involve the protection of third-party confidential sources.

7 See also People v Hooper, 157 Mich App 669; 403 N-W2d 605 (1987); cf. People v Lawrence Johnson, 111 Mich App 383; 314 NW2d 631 (1981) (the statutory physician-patient privilege yielded in a prosecution for altering a prescription); cf. People v Davis, 91 Mich App 434, 442; 283 NW2d 768 (1979) (in a trial charging criminal sexual conduct, the court disallowed discovery of the complainant’s medical records regarding treatment for alcoholism, purportedly bearing on the defense of consent, on the ground that a generalized claim of privilege must give way only to a " 'demonstrated specific need for evidence’ ” in a pending criminal trial).

8 The Loew’s court quoted with approval the following passage from Moore, Federal Rules & Official Forms, 164 (1956):

"[A]ssume that plaintiff sues on the alleged slanderous statement that defendant had called him a Communist; the defendant pleads truth as an affirmative defense; and on the taking of plaintiff’s deposition plaintiff pleads his privilege against incrimination to a properly framed and relevant question as to plaintiff being a Communist. Does not fairness demand that defendant’s affirmative defense be taken as true for the purpose of the action?” [Loew’s, supra, p 276.]

9 MCR 2.313(B)(2)(a) provides:

If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may order such sanctions as are just, including, but not limited to the following:

(a) an order that the matters regarding which the order was entered or other designated facts may be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order ....