MI: Civil discovery must comply with the 4A; here a cell phone search

Civil discovery must comply with the Fourth Amendment. Here, there was an order to turn over a cell phone for forensic evaluation, and it was essentially based on probable cause. Attorney-client privilege must also be protected. Martin v. Martin, 2020 Mich. App. LEXIS 708 (Jan. 28, 2020):

Michigan’s court rules regulate the use of discovery in a civil proceeding. Although the scope of discovery is broad, the discovery must be relevant to the subject matter and must not be privileged. See MCR 2.302(B)(1). Moreover, to the extent that a party or person from whom discovery is sought objects to a discovery request, that party or person may seek a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense. See MCR 2.302(C). The rules further authorize trial courts to provide significant protections against unreasonable discovery requests. See MCR 2.302(C). And improper discovery requests may be subject to sanction. See MCR 2.302(G). Finally, a party aggrieved by a trial court’s decision to order discovery may appeal the trial court’s decision to this Court. See MCR 7.203(B)(1). Accordingly, the court rules provide adequate protections to ensure that properly made discovery orders are reasonably consistent with the Fourth Amendment. See Bowerman, 431 Mich at 19-20.

In this case, Jeffrey moved to compel discovery of Tammy’s phone after he discovered evidence that Tammy was using her phone to communicate with AM2 in violation of the court’s orders. The evidence presented thus far amounted to probable cause to believe that Tammy’s phone had evidence relevant to the trial court’s orders governing custody and was consistent with the requirements of MCR 2.302(B)(1). While the trial court entered the order after resolving the custody dispute, the court’s orders governing custody remained in force and Tammy’s history of repeatedly violating orders and interfering in Jeffrey’s relationship with the children constituted cause to believe that she would continue to engage in such behavior. As such, the order was not beyond the scope of discovery. See MCR 2.302(A)(4). Tammy opposed the motion, and the parties had the opportunity to argue their respective positions before the trial court. Additionally, the court entered a protective order to limit the risks associated with the discovery as permitted under MCR 2.302(C). Under the totality of the circumstances, the protections afforded to Tammy exceeded those applicable when police officers make a warrant request. See People v Martin, 271 Mich App 280; 721 NW2d 815 (2006) (noting that a magistrate’s decision to issue a warrant will not be disturbed if a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause). Consequently, the order was reasonable within the meaning of the Fourth Amendment.