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MICHIGANHenry B. CooneyMatthew StanczykEllisse ThompsonPLUNKETT COONEY535 Griswold StreetSuite 2400Detroit, MI 48226Phone (313) 965-3900www.plunkettcooney.comhcooney@plunkettcooney.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Generally, the investigative materials are considered to be work product under MCR2.302(B)(3)(a). However, “…if a party demonstrates the substantial need and unduehardship necessary to discover work product, that party may discover only factual, notdeliberative, work product.” Leibel v Gen Motors Corp, 250 Mich App 229, 247 (2002).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?MCR 2.302(B)(3)(a) also applies to the discoverability of written or recorded statementstaken during the investigation of an incident. For example, in Jones v General MotorsCorp, 2002 WL 31956941 (Mich App rel’d Dec. 20, 2002), the Michigan Court ofAppeals rejected the defendant’s argument that the trial court erred in failing to orderplaintiffs to produce discovery statements recorded and videotaped from nine factwitnesses in the early stages of investigation where the defendant neither demonstrateda substantial need nor undue hardship.Similarly, with respect to written statements in Koster v June’s Trucking, Inc, 244 MichApp 162 (2000), a driver of a truck owned by defendant trucking company hit a vehicleand killed two people. The Court reversed the order for the insurer of the truck to turnover its entire claims file. Although the insurer could not claim attorney-client privilege,the documents could have been protected under the work product doctrine. UnderMCR 2.302(B)(3)(a), the documents prepared in anticipation of litigation by or for theinsurer were not discoverable absent a showing that appellees had a substantial needfor and were unable without undue hardship to obtain the substantial equivalent of thematerials by other means.