Souris, J.
These cases 1 require our determination whether statements and reports of witnesses and parties procured by an insured party’s insurance carrier were subject to discovery under the provisions of our former Court Rule No 35, § 6 (a) (1945). Since January 1, 1963, discovery such as was sought and ordered in these cases has been subject to the provisions of our new court rules, specifically GrCR 1963, 302.2, 306.2, and 310.
It is quite apparent that the controversies presented to us in these cases arose as a result of our recent decision in Kalamazoo Yellow Cab Company v. Kalamazoo Circuit Judge, 363 Mich 384, in which [408]*408we beld that a written automobile accident report given to the taxicab company by its driver was subject to discovery under Court Rule No 35, § 6, but only for possible use at trial to impeach the driver if called as a witness (the only purpose for which its discovery was requested) unless subsequently shown to be otherwise admissible. In the Kalamazoo Case, as in Berney v. Volk, 341 Mich 647, 649, 650, and Sovereign v. Hart, 363 Mich 32, 37, we clearly construed Court Rule No 35, § 6 (a), to be subject to the limitations of section 6 (b).3 See, also, Tomlinson v. Tomlinson, 338 Mich 274, 278, and Christie v. Board of Regents of University of Michigan, 364 Mich 202, at 230 (dissenting opinion). The issue was presented in the Kalamazoo Case by the taxicab company’s claim in the trial court and before this Court that its driver’s accident report was not subject to discovery because it was not “admissible under the rules of evidence governing trials” as required by section 6 (b). In the cases before us now, the same claim is repeated, but in addition it is also [409]*409claimed that the reports and statements should be immune from discovery by application of the attorney-client privilege (also recognized as a basis for exclusion from discovery by section 6 [b]) to information obtained by insurers for use by attorneys in defending their insureds against claims and by public policy against discovery of an attorney’s “work product.”
Setting aside for the moment the questions of privilege and “work product” policy, and considering first the claim that the documents ordered discovered in these cases were inadmissible in evidence within the meaning of section 6 (b), we see no valid basis for distinguishing the prospective witnesses’ and parties’ statements and reports procured by defendants’ insurance companies and the adjudicated admissibility of the driver’s accident report in the Kalamazoo Case. In the event the prospective witnesses or the parties are called to testify at trial, the contents of their prior extrajudicial statements and reports can be used for their possible impeachment by the opposite party and, consequently, they are not barred from discovery under section 6 (a) by the admissibility requirement of section 6 (b). Plaintiff Chaffee’s statement procured by defendant Stenger’s insurer may not, of course, be used by him for his own impeachment, but the admissibility qualification of section 6 (b) is without the further express or implied limitation that it must be admissible upon the offer of the party seeking its discovery. In other words, the requirement of admissibility is met if the matter sought to be discovered is admissible by any party. That this conclusion accords with the contemplated use of our discovery procedures under Court Rule No 35, § 6, was indicated by the author of Ilonigman’s Michigan Court Rules Annotated, 1959 Pocket Part, pp 77, 78:
[410]*410“Whereas discovery was formerly the rare exception, the new provision makes discovery the rule rather than the exception. This basic change should serve to remold the concept of trial work. It means that there no longer need be any surprises which confront an attorney at the time of trial. It means that each side can have available to it before going into trial practically all of the testimony that is to be used by the opposite side.
“With each side knowing what the other side will be able to show at the trial, there is increased opportunity for a more realistic determination on the part of attorneys and their clients as to the advisability of settlement.”
It is consistent also with fundamental principles implicit in all statutory and rule provisions for liberal discovery. In Hickman v. Taylor (1947), 329 US 495 (67 S Ct 385, 91 L ed 451), the United States supreme court expressed the objective to be served by pretrial discovery as follows, at p 507:
“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries.”
The boundaries of Michigan’s discovery procedure are more limited than those of the Federal procedures considered in Hickman v. Taylor, there being [411]*411no admissibility requirement in the Federal rules such as there is in ours, for example. But whatever the differences, the ultimate objective of pretrial discovery is to make available to all parties in advance of trial all relevant facts which might be admitted in evidence at trial. To so narrowly read the admissibility requirement of section 6 -(b) that it would permit discovery only of those matters admissible in evidence by the party seeking discovery would too frequently thwart a litigant’s proper inquiry before trial of “the facts underlying his opponent’s case.”
In further support of the effort to bar discovery of the documents, it is argued that Stenger’s statement and report of loss to his insurance company should be treated as confidential communications from a client to his attorney to be conveyed to the attorney through the insurance company as an intermediary or agent, and thus privileged (within the meaning of section 6 [b]) from discovery. Upon careful examination of the record of the Chaffee case, we find that no proofs were offered in the trial court, by affidavit or otherwise, to show when defendant’s report of loss was made (although defendant’s counsel improperly included in his brief on appeal information outside the record relating to this matter); when and by whom defense counsel was retained; the relationship between defendant’s counsel and his insurance company, including the degree of control each exercised over the activities of the other; or any other proofs pertinent to the claimed agency. Absent such proofs, we cannot find, on this record, that defendant Stenger’s statement and report of loss to his insurance company were [412]*412barred from discovery as privileged communications or otherwise.
Free access — add to your briefcase to read the full text and ask questions with AI
Souris, J.
These cases 1 require our determination whether statements and reports of witnesses and parties procured by an insured party’s insurance carrier were subject to discovery under the provisions of our former Court Rule No 35, § 6 (a) (1945). Since January 1, 1963, discovery such as was sought and ordered in these cases has been subject to the provisions of our new court rules, specifically GrCR 1963, 302.2, 306.2, and 310.
It is quite apparent that the controversies presented to us in these cases arose as a result of our recent decision in Kalamazoo Yellow Cab Company v. Kalamazoo Circuit Judge, 363 Mich 384, in which [408]*408we beld that a written automobile accident report given to the taxicab company by its driver was subject to discovery under Court Rule No 35, § 6, but only for possible use at trial to impeach the driver if called as a witness (the only purpose for which its discovery was requested) unless subsequently shown to be otherwise admissible. In the Kalamazoo Case, as in Berney v. Volk, 341 Mich 647, 649, 650, and Sovereign v. Hart, 363 Mich 32, 37, we clearly construed Court Rule No 35, § 6 (a), to be subject to the limitations of section 6 (b).3 See, also, Tomlinson v. Tomlinson, 338 Mich 274, 278, and Christie v. Board of Regents of University of Michigan, 364 Mich 202, at 230 (dissenting opinion). The issue was presented in the Kalamazoo Case by the taxicab company’s claim in the trial court and before this Court that its driver’s accident report was not subject to discovery because it was not “admissible under the rules of evidence governing trials” as required by section 6 (b). In the cases before us now, the same claim is repeated, but in addition it is also [409]*409claimed that the reports and statements should be immune from discovery by application of the attorney-client privilege (also recognized as a basis for exclusion from discovery by section 6 [b]) to information obtained by insurers for use by attorneys in defending their insureds against claims and by public policy against discovery of an attorney’s “work product.”
Setting aside for the moment the questions of privilege and “work product” policy, and considering first the claim that the documents ordered discovered in these cases were inadmissible in evidence within the meaning of section 6 (b), we see no valid basis for distinguishing the prospective witnesses’ and parties’ statements and reports procured by defendants’ insurance companies and the adjudicated admissibility of the driver’s accident report in the Kalamazoo Case. In the event the prospective witnesses or the parties are called to testify at trial, the contents of their prior extrajudicial statements and reports can be used for their possible impeachment by the opposite party and, consequently, they are not barred from discovery under section 6 (a) by the admissibility requirement of section 6 (b). Plaintiff Chaffee’s statement procured by defendant Stenger’s insurer may not, of course, be used by him for his own impeachment, but the admissibility qualification of section 6 (b) is without the further express or implied limitation that it must be admissible upon the offer of the party seeking its discovery. In other words, the requirement of admissibility is met if the matter sought to be discovered is admissible by any party. That this conclusion accords with the contemplated use of our discovery procedures under Court Rule No 35, § 6, was indicated by the author of Ilonigman’s Michigan Court Rules Annotated, 1959 Pocket Part, pp 77, 78:
[410]*410“Whereas discovery was formerly the rare exception, the new provision makes discovery the rule rather than the exception. This basic change should serve to remold the concept of trial work. It means that there no longer need be any surprises which confront an attorney at the time of trial. It means that each side can have available to it before going into trial practically all of the testimony that is to be used by the opposite side.
“With each side knowing what the other side will be able to show at the trial, there is increased opportunity for a more realistic determination on the part of attorneys and their clients as to the advisability of settlement.”
It is consistent also with fundamental principles implicit in all statutory and rule provisions for liberal discovery. In Hickman v. Taylor (1947), 329 US 495 (67 S Ct 385, 91 L ed 451), the United States supreme court expressed the objective to be served by pretrial discovery as follows, at p 507:
“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries.”
The boundaries of Michigan’s discovery procedure are more limited than those of the Federal procedures considered in Hickman v. Taylor, there being [411]*411no admissibility requirement in the Federal rules such as there is in ours, for example. But whatever the differences, the ultimate objective of pretrial discovery is to make available to all parties in advance of trial all relevant facts which might be admitted in evidence at trial. To so narrowly read the admissibility requirement of section 6 -(b) that it would permit discovery only of those matters admissible in evidence by the party seeking discovery would too frequently thwart a litigant’s proper inquiry before trial of “the facts underlying his opponent’s case.”
In further support of the effort to bar discovery of the documents, it is argued that Stenger’s statement and report of loss to his insurance company should be treated as confidential communications from a client to his attorney to be conveyed to the attorney through the insurance company as an intermediary or agent, and thus privileged (within the meaning of section 6 [b]) from discovery. Upon careful examination of the record of the Chaffee case, we find that no proofs were offered in the trial court, by affidavit or otherwise, to show when defendant’s report of loss was made (although defendant’s counsel improperly included in his brief on appeal information outside the record relating to this matter); when and by whom defense counsel was retained; the relationship between defendant’s counsel and his insurance company, including the degree of control each exercised over the activities of the other; or any other proofs pertinent to the claimed agency. Absent such proofs, we cannot find, on this record, that defendant Stenger’s statement and report of loss to his insurance company were [412]*412barred from discovery as privileged communications or otherwise.
It is not claimed that the statements of prospective witnesses other than parties procured by the insurance companies are within the scope of the insureds’ privileged communications with their attorneys, nor could such claim be made. Instead, it is claimed that the bar against their discovery is raised because they represent the attorneys’ “work product” procured by their agents, the insurance companies. Even if we were to assume that the policy which bars an attorney’s work product from an opposing litigant’s inquiry extends to data assembled for the attorney by his agents, these appellants are not entitled to urge this claim in these cases. As we have already noted, the record in the Stenger case does not even permit our determination of the nature of the relationship between defendant’s counsel and his insurance company. The record in Wilson discloses employment of defense counsel by the insurer, not the defendant; that statements were taken by insurance agents even before employment of counsel; and that the insurance company determined which statements to disclose to its trial counsel and which to withhold even from him. Nothing in that record, any more than in Stenger’s permits our finding that counsel engaged the services of insurance agents to assemble for him his “work product.” The judicial policy which protects an attorney’s work product from discovery by his adversary, considered at length in Hickman v. Taylor, supra, may not be invoked in the circumstances of these cases to justify exclusion from discovery of witnesses’ statements obtained, not by counsel personally or even at his request and under his direct supervision, .but rather by the agents of an insurance carrier acting so independently of counsel' that the [413]*413insurer even withheld from counsel subsequent notice that such statements had been taken.
We conclude that neither the attorney-client privilege nor the public policy underlying exclusion of an attorney’s work product is applicable to bar disclosure before trial in these cases of the witnesses’ statements, Stenger’s statement, or his report of loss. Defendants below having failed to show good cause otherwise for denying the requested discovery, as it was their burden to do in accordance with section 6 (b), we hold that the orders for discovery were properly entered and that defendants below are not entitled to their vacation by order of this Court. Accordingly, the order to show cause in the Wilson case is dismissed and the order from which appeal was taken in the Chaffee case is affirmed. The prevailing parties may tax their costs.
Carr, C. J., and Dethmers, Kelly, Black, Kav-anagh, and Smith, JJ., concurred with Souris, J.