x999-2" type="concurrence">Black, J.

(concurring). I agree with the result reached by the Brethren but cannot accept their premise that a question of judicial discretion is involved. I hold instead that the plaintiff in both cases at bar is possessed of a substantively valuable right to keep inviolate the entire product of preparatory work done and to be done by her counsel, and that the defendants and their counsel, this “one court of justice” as well, are possessed of no license or privilege to pry or nose into that product.

The difference between one’s substantive right and his right to invoke judicial discretion was marked precisely, with ample supporting authority, in recent Moyses v. Spartan Asphalt Paving Company (1970), 383 Mich 314, 325, 326:

“A substantive right is like the presence or absence of pregnancy. It exists or does not exist, and cannot be made to depend on any good or dismaying turn of judicial discretion. Hence one’s right of appeal to judicial discretion differs from his substantive rights in that the former is simply the ‘Power or privilege of the court to act unhampered by legal rule.’ ”

*284"We are referred to no Michigan Buie of Court, and to no procedural statute which might be deemed effective under GCB 1963, 16, and to no decision of this Court, holding that a motion for discovery of an opponent lawyer’s ever-provisional witness list, lay or expert, is a proper invocation of judicial discretion. No decision of this Court says that such motions are grantable as a matter of right. And the Gilmore record of our GCB indoctrination meetings of 1962 (as to which see Moyses, supra, at 323, 324) discloses no hint of intention of the drafters or doctrinary discussants, or of any then Justice of this Court, that any part of the new Buies would authorize — even in the name of judicial discretion — a motion as here for compulsive opening up of one’s witness-swearing intentions.

When and if this Court decides to open up a lawyer’s work product that way, doubtless it will do so by some constitutionally debated Buie of Court, the wording of which may easily make clear a judicial intention of reversing the policy which, for Wilson v. Saginaw Circuit Judge (1963), 370 Mich 404, 413, 414, was purposefully written:

“Discovery in the text of today’s issue has become an uncertain variable of provincial discretion, differing according to views of judges among the Federal circuits and Federal districts, and differing undeniably in the respective circuits of our State. The reason, as I see it, is that no court of ultimate authority has as yet defined with precision the ‘work product of the lawyer,’ and has then declared the extent to which — if at all — the traditional privacy of that product may be invaded by discovery proceedings.”

To that portion of the text we added, by footnote 2:

*285“Consider, as a related aside, the Topsy-grown practice hy which disclosure of the identity of witnesses the lawyer and his client may or may not call to the stand is — by some judges — penalty-compelled at pretrial. This indeed, unless resisted, pries into the attorney’s strategy as well as his ‘mental impressions’ and ‘legal theories.’ ”

Apropos the instant demand for discovery of the identity of some expert this plaintiff’s counsel may provisionally intend to call to the stand with vouch,1 we went on to say in Wilson at 415, 416:

“By People v. Pratt [1903], 133 Mich 125 (67 LRA 923), followed in Lindsay v. Lipson [1962], 367 Mich 1, 5, this Court is committed to ‘a somewhat liberal interpretation’ of the common-law right of professional privilege when the necessary relationship exists. We said, in the Pratt Case at 129:

“ ‘The privilege is not confined to communications made for the purpose of obtaining advice. It extends to “communications made to an attorney in the course of any professional employment, relating to the subject of the employment, and which may be supposed to have been drawn out in consequence of the relation in which the parties stand to each other.” ’

“Pratt’s ‘liberal’ rule defies discovery of the lawyer’s ‘work product.’ ”

The defendant seekers of identity rely upon GrCE 1963, 302.2 (1); in particular the phrase therein: “and the identity and location of persons having knowledge of relevant facts.” Not until now has *286anyone claimed in this Court — under that Rule— that litigants may force a deposed party or counsel to divulge under penalty the identity of “persons” whom such counsel has interviewed or consulted for trial-preparational purposes. Both People v. Prattand Lindsay v. Lipson, both supra, deny such claimed right. And this Court thus far, as Wilsonplainly discloses, has shown no disposition to overrule or modify that “somewhat liberal interpretation” of the common-law right of professional privilege when the necessary relationship exists.

Parenthetically, the searching and thoughtful text of Kelley v. Richardson (1888), 69 Mich 430, 436, 437 in cautious mind, I agree with the Brethren when they say (ante at p 282) that “An expert is not a person ‘having knowledge of relevant facts’ within the meaning of GCR 1963, 302.2.” That alone should be enough for summary reversal of the order reviewed, without tiptoeing into and out of the great realm of judicial discretion.

The right way to test interpretive questions like this is simply to try them out. Let the defendants depose, under Rule 302 (which they haven’t done), either the plaintiff or her counsel, and then commence what is said to be rightful interrogation. If the plaintiff is the first deponent, will she not refer the interrogator to her counsel, the subject after all being the “work product” they are assembling?2 Then, if counsel are deposed, will not the interrogator be up against the common-law privilege?

*287The fact is that a conscientious preparationist for legal war is not apt — the privilege considered — to disclose to his opponent or opponents any of his work-produced intentions, purposes, or plans, and no law compels him so to do. His intentions are bound to change from left to right or straight ahead, or to some other strategic variable, depending upon developments up to the eve of and during the course of trial. To make it plain, Ms intentions are Ms business.

To summarize both an appeal and a pair of tragically mired lawsuits:

1. Thus far we have not sanctioned any violation of the privacy of any part of any work product trial lawyers construct for their clients. That product is a concomitant of the relationship of attorney and client, and of the privilege arising therefrom. It is a really broad privilege, one we have maintained for the 67 years since Pratt, supra,was decided. The effort here is to invade what is a substantive right. I hold that there is no discretionary power to open it up for anyone, no matter what showing of “cause” the invoker of judicial discretion may exhibit or proffer.

2. The first of these cases was commenced by Mr. Klabunde in March of 1962 by what, to that time and as far back as this Court’s beginning session of 1843, was known as a declaration. In the next year, however, stirring hosannas having heralded the General Court Buies of 1963,3 Mr. Klabunde’s *288declaration became a complaint. Then, as veteran lawyers now are wont to say, GCR. procrastination set in.

It is regrettable, in retrospect, that the trial judge in early 1963 did not for Mr. Klabunde employ the judicial prerogative of then new (GCR) Rule 14. Rule 14 permitted the judge to apply “the former procedure” upon finding that the new procedure “would work injustice.” The new procedure in this instance has done just that with a vengeance, our order of November 30, 1970 considered. That order directed immediate trial of these consolidated Klabunde cases, but it cannot help the permanently paralyzed (until 1965 death) Mr. Klabunde. He was defeated totally by unrealistic new Rules of Court and the built-in cunctation they have fostered since 1962, and thereby was denied the privilege of testifying before a jury to that which he knew about the facts and results of his 1960 surgery.

I join the other Justices in reversal and remand for reinstatement of the order entered by Judge Hughes.

Dethmers, J., concurred with Black, J.Kelly, J., did not sit in this case.

Such decisions can never be safely and finally made in advance of trial. They depend naturally upon developments during trial starting with the voir dire examination. They depend also on possible last minute decisions of consulted experts that they will not testify to any opinion or opinions entertained by them. All persons, “experts” included, really do have a personal right to retain their opinions, distinguished from knowledge of admissible facts, free from compulsive divulgation.

That is just what Mr. Klabunde did, while still alive and waiting for his unmercifully stalled case to,come to trial. He answered “no knowledge” under oath to defendants’ interrogatory No. 3:

“State the name and address of every member of the medical profession that you have consulted or had conferences with, or your attorneys have had conferences with or consulted with as proposed expert witnesses to testify on your behalf as to the alleged negligence or malpractice of Defendants.”

Here are the final notes of the trumpet (copied with reference to source from Husted v. Consumers Power Company [1965], 376 Mich at 60):

“As these new laws of procedure become more .fully understood and utilized, they will earn recognition as the greatest achievement of our generation in advancing the cause of the improvement in administration of justice in this State.”

To and including 1962 the eourts of Michigan got along both expeditiously and certainly under no more than 78 rules of Court. Now we have more than 900 of “these new laws of procedure,” the *288interpretation and application of which is bound to vex lawyers and judges, and time-delayed and expense-dismayed litigants, for many more than the already elapsed 8 years.

Citation profile

How this case has been treated — in progress