Nuriel v. YOUNG WOMEN'S CHRISTIAN ASSOCIATION

463 N.W.2d 206, 186 Mich. App. 141, 1990 Mich. App. LEXIS 433
CourtMichigan Court of Appeals
DecidedNovember 5, 1990
DocketDocket 110269
StatusPublished
Cited by17 cases

This text of 463 N.W.2d 206 (Nuriel v. YOUNG WOMEN'S CHRISTIAN ASSOCIATION) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nuriel v. YOUNG WOMEN'S CHRISTIAN ASSOCIATION, 463 N.W.2d 206, 186 Mich. App. 141, 1990 Mich. App. LEXIS 433 (Mich. Ct. App. 1990).

Opinions

Brennan, J.

Plaintiff appeals by leave granted from the trial court’s order denying her motion to compel fingerprint samples and rolled ink impressions. We affirm.

The issue presented on appeal is whether the trial court abused its discretion by denying plaintiffs motion to compel fingerprint samples and rolled ink impressions of nonparties. We answer in the negative.

Plaintiff is a former director of Interim House, a shelter for abused women, which is sponsored by defendant. Defendant discharged plaintiff on January 31, 1984, after a story about plaintiff and her work at Interim House appeared in The Detroit News. The article was accompanied by a picture [144]*144which, according to defendant, identified some of the children of mothers then residing at Interim House. Defendant discharged plaintiff for cause on the basis that plaintiff, who had consented to the article, breached program confidentiality rules by allowing the picture to be taken and published. Defendant prohibits the taking and publishing of photographs of Interim House residents in order to insure their privacy and safety.

On February 7, 1984, plaintiff appealed her discharge to defendant’s five-member grievance appeal committee. Plaintiff argued that she was discharged without cause because the News photographers had agreed not to take identifiable pictures of any of the Interim House residents. (The News confirmed this in writing to defendant.) The appeal board denied plaintiff’s claim. Plaintiff then filed a wrongful discharge suit in Wayne Circuit Court on May 23, 1984.

Approximately fourteen months after her discharge, plaintiff received an anonymous letter containing anti-Semitic statements. Plaintiff believes that a person involved in either the decision to discharge her or the decision to deny her appeal wrote the letter. On October 13, 1986, plaintiff moved to amend her complaint to add a claim of religious discrimination. The trial court denied the motion. On November 30, 1986, plaintiff filed a second action, claiming religious discrimination. The two cases were then consolidated.

Plaintiff sought handwriting samples from defendant’s executive director, who actually discharged plaintiff, and the five members of the panel that denied plaintiff’s appeal. Plaintiff and defendant stipulated to a procedure by which handwriting samples of the six individuals would be obtained and analyzed. The stipulation was later embodied in the trial court’s June 13, 1988, [145]*145protective order. The samples were to be analyzed by a mutually agreed upon expert. The stipulation and order also provide:

The parties have agreed that if the expert does not give a conclusive or definitive opinion that a person actually wrote the letter, then that person shall be considered as having not written the letter.

The handwriting samples were taken on May 27, 1988. The handwriting expert reported back to plaintiffs counsel that he had discovered fingerprints on the letter sent to plaintiff. Because none of the six women who provided writing samples touched the letter since plaintiff received it, he concluded that if the fingerprints of one of them were on the letter, that person must be presumed to be the one who wrote the letter. Plaintiff then filed the motion which is the subject of this appeal. The trial court denied the motion on June 24, 1988. The trial court stated:

Right now, you can take this on appeal. I do not think you are entitled to take fingerprints or blood samples of third parties or parties who are not part of a lawsuit. I am concerned about those parties who might be a part of the lawsuit — but go out and take fingerprints of other parties, no. I think it is an invasion óf privacy and constitutionally impermissible.

On July 20, 1988, the handwriting expert submitted his report to the parties. The expert was unable to conclusively determine whether any of the individuals tested wrote the letter.

We granted plaintiffs application for leave to appeal on August 2, 1988.

Plaintiff argues that the taking of fingerprints of [146]*146defendant’s agents is sanctioned under MCR 2.310. Plaintiff contends that fingerprints are "tangible things” within the contemplation of the court rule. Plaintiff also contends that the taking of fingerprint samples in this case does not infringe upon any constitutional rights. Thus, plaintiff argues, the trial court erred in denying the motion to compel.

A trial court’s decision to grant or deny discovery is subject to reversal only if there has been an abuse of discretion. McDonald Ford Sales, Inc v Ford Motor Co, 165 Mich App 321, 329; 418 NW2d 716 (1987). The trial court should consider whether the granting of discovery will facilitate or hamper the litigation. Factors such as the timeliness of the request, the duration of the litigation and the possible prejudice to the parties should also be considered. Id. at 330.

We disagree with the trial court’s conclusion that the taking and furnishing of fingerprints by a nonparty is unconstitutional. The taking and furnishing of fingerprints is not violative of the prohibition against compulsory self-incrimination. The prohibition protects only testimonial evidence; noncommunicative evidence, such as a fingerprint, is beyond its protection. People v Davis, 17 Mich App 615; 170 NW2d 274 (1969). Furthermore, the taking of fingerprints is not violative of the prohibition against unreasonable searches and seizures. There is no reasonable expectation of privacy in one’s fingerprints. It is also plain to us that there is no general privacy interest which would preclude the taking and furnishing of fingerprints. The taking and furnishing of fingerprints does not represent an invasion of an individual’s solitude or private affairs. See Beaumont v Brown, 401 Mich 80; 257 NW2d 522 (1977).

Nevertheless, we find that the trial court did not [147]*147abuse its discretion by denying plaintiffs motion to compel because the stipulation and order regarding the handwriting samples precludes the requested discovery.

Plaintiff stipulated that if the handwriting analysis failed to conclusively establish that an examinee actually wrote the letter, then that person would be considered as not having written the letter.

A stipulation is given full force and effect and is binding upon the parties unless abandoned or disaffirmed. Dana Corp v Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963); Kimball v Bangs, 321 Mich 394; 32 NW2d 831 (1948). Once received and approved, stipulations are sacrosanct. Neither a judge nor a hearing officer may alter them. Dana Corp, supra.

A stipulation is to be construed as a whole and in light of the facts and circumstances surrounding its making. Security Trust Co v Glazier, 170 Mich 26; 135 NW 904 (1912). A stipulation may not be construed to effect the waiver of a right unless such an intent is plainly indicated. Celina Mutual Ins Co v Citizens Ins Co, 133 Mich App 655, 658; 349 NW2d 547 (1984).

Parties to a lawsuit may stipulate to the manner in which discovery will be conducted. MCR 2.302(F)(2). Furthermore, they may stipulate to facts. Dana, supra.

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Nuriel v. YOUNG WOMEN'S CHRISTIAN ASSOCIATION
463 N.W.2d 206 (Michigan Court of Appeals, 1990)

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Bluebook (online)
463 N.W.2d 206, 186 Mich. App. 141, 1990 Mich. App. LEXIS 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nuriel-v-young-womens-christian-association-michctapp-1990.