State Farm Mutual Automobile Insurance Company v. Elite Health Centers Inc. et al
Filing
503
OPINION AND ORDER GRANTING STATE FARM MUTUAL'S 345 Motion FOR ORDER PERMITTING Disclosure of Statements Made by Mark Radom to Amy Rosenberg; GRANTING 346 Sealed Motion--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Plaintiff,
Case No. 2:16-cv-13040
District Judge Avern Cohn
Magistrate Judge Anthony P. Patti
v.
ELITE HEALTH CENTERS, INC.,
ELITE CHIROPRACTIC, P.C.,
ELITE REHABILITATION, INC.,
MIDWEST MEDICAL
ASSOCIATES, INC., PURE
REHABILITATION, INC., DEREK
L. BITTNER, D.C., P.C., MARK A.
RADOM, DEREK LAWRENCE
BITTNER, D.C., RYAN MATTHEW
LUKOWSKI, D.C., MICHAEL P.
DRAPLIN, D.C., NOEL H. UPFALL,
D.O., MARK J. JUSKA, M.D.,
SUPERIOR DIAGNOSTICS, INC.,
CHINTAN DESAI, M.D., MICHAEL
J. PALEY, M.D., DEARBORN
CENTER FOR PHYSICAL
THERAPY, L.L.C., MICHIGAN
CENTER FOR PHYSICAL
THERAPY, INC., and JAYSON
ROSETT
Defendants.
_________________________/
OPINION AND ORDER GRANTING STATE FARM MUTUAL’S MOTION
FOR ORDER PERMITTING DISCLOSURE OF STATEMENTS MADE BY
MARK RADOM TO AMY ROSENBERG (DEs 345, 346 (SEALED))
I.
Introduction
This matter is before the Court for consideration of Plaintiff State Farm
Mutual Automobile Insurance Company’s (“State Farm’s”) Motion for Order
Permitting Disclosure of Statements Made by Mark Radom to Amy Rosenberg
(DEs 345, 346 (Sealed)), Defendant Mark Radom’s response in opposition (DEs
352, 353 (Sealed)), State Farm’s reply brief (DEs 358 (Sealed), 359), and the joint
statement of resolved and unresolved issues (DE 460). All discovery matters have
been referred to me for hearing and determination (DE 229), and a hearing was
held on this motion on May 10, 2019, at which the Court entertained oral argument
and took this matter under advisement. (DE 472.)
II.
Background
A.
The Rosenberg Affidavit
On or about October 3, 2018, State Farm obtained an affidavit (hereinafter
“the Affidavit”) from a nonparty witness, Amy Rosenberg (formerly Amy Radom),
the ex-wife of Defendant Mark Radom. (DE 346-1 (Sealed); DE 352-9 at 2.)
Rosenberg and Radom were married on April 29, 1995 and divorced on January
22, 2016. (DE 352 at 17.) The Affidavit addresses the time period before, during
and after Rosenberg’s marriage to Radom, and includes statements purportedly
made by Radom to Rosenberg during that time period. (See DE 346-1 (Sealed).)
State Farm provided a copy of the Affidavit to Radom and advised his counsel that
2
it would not publicly disclose the Affidavit “absent either (1) confirmation from
you on behalf of Radom that the foregoing statements are not privileged; or (2) a
ruling from the Court.” (DE 352-9 at 2-5.)
On October 5, 2018, Radom responded to State Farm’s inquiry and objected
to the disclosure of any statements in the Affidavit made by him to Rosenberg
during their marriage as privileged, pursuant to the Michigan statutory marital
communications privilege, MCL § 600.2162(4). (Id. at 2.) The opinion and order
which follows will provide the “ruling from the Court” to which State Farm
alluded.
B.
The Instant Motion
On October 22, 2018, with leave of the Court, State Farm filed the instant
motion seeking an order permitting the disclosure of statements in the Affidavit
made by Radom to Rosenberg. (DEs 345, 346 (Sealed).) State Farm argues that
the Affidavit contains “[c]ritical statements [that] relate to the ownership of
Horizon Imaging, LLC (“Horizon”), an MRI business that played a key role in the
fraud scheme at issue,” and “describes Radom’s statements to Ms. Rosenberg
about businesses and people connected to the fraud scheme.” (DE 345 at 9.) State
Farm contends that the statements in the Affidavit are not “confidential” statements
barred by the Michigan marital communications privilege because: (1) they
involve business matters involving or conveyable to third parties; (2) they discuss
3
the division of assets during divorce; (3) the privilege does not apply to
communications in furtherance of frauds on third parties; and (4) the statements
regard conduct that exposes Rosenberg to liability. (Id. at 20-26.) State Farm
further argues that at least two statutory exceptions apply: (1) Radom deserted or
abandoned the marriage and thus cannot invoke the privilege; and, (2) Rosenberg’s
statements in the Affidavit were not elicited through an examination in a court
proceeding, as required by MCL § 600.2162(4), and thus are not covered by the
privilege. (Id. at 26-28.)
Radom filed a response, arguing that the Affidavit improperly discloses
confidential martial communications in violation of the Michigan marital
communications privilege, MCL § 600.2162(4). (DE 352.) He asserts that: (1) his
statements to Rosenberg during the marriage were “absolutely confidential;” (2) a
“business/financial matter” exception does not apply; (3) the communications were
not “regarding division of assets during divorce” or made “in furtherance of frauds
on third parties;” (4) Rosenberg was not exposed to liability; and, (5) there are no
applicable statutory exceptions to the privilege. (Id. at 17-27.) Radom also
contends that: (6) the statements in the Affidavit are inadmissible because they are
based on insufficient knowledge or speculation. (Id. at 12-17.)
State Farm filed a reply brief reasserting its position that the statements in
the Affidavit are not barred by the marital communications privilege because
4
Rosenberg is not being “examined,” as required by the statute, MCL §
600.2162(4), and, alternatively, that the statements are admissible because they are
not “confidential,” were made in furtherance of a crime or fraud, and exposed
Rosenberg to liability. (DE 359.)
III.
Discussion
A.
Federal Rule of Evidence 501 Provides that State Law Determines
the Application of Privileges in This Case
Federal Rule of Evidence 501 provides that “in a civil case, state law
governs privilege regarding a claim or defense for which state law supplies the rule
of decision.” Fed. R. Evid. 501; see also Jewell v. Holzer Hosp. Found., Inc., 899
F.2d 1507, 1513 (6th Cir. 1990) (“In a civil case involving claims based on state
law, the existence of a privilege is to be determined in accordance with state, not
federal law.”). Plaintiff’s Complaint alleges only state law claims in this diversity
case, and thus Michigan law supplies the rule of decision as to the claims and
defenses and Michigan’s law of privileges is applicable.
B.
Michigan’s Marital Communications Privilege
Michigan provides for a statutory marital communications privilege,1 as
follows, in relevant part:
1
The Michigan statute also provides for a spousal privilege, which precludes one
spouse from being “examined as a witness” for or against his or her spouse without
their consent. MCL § 600.2162(1). This privilege applies only if the marriage
exists at the time of trial, People v. Fisher, 442 Mich. 560, 568-69, 503 N.W.2d 50
5
[A] married person or a person who has been married previously
shall not be examined in a civil action or administrative proceeding
as to any communication made between that person and his or her
spouse or former spouse during the marriage.
MCL 600.2162(4) (emphasis added). “While the statute refers to ‘any
communication,’ it is intended to embody the common law and therefore extends
only to confidential communications.” People v. Rosa, 268 Mich. 462, 485, 256
N.W.2d 483 (1934). Thus, to be privileged, “the communication must be made
during the marriage, be intended to be confidential, and not be made in the
presence of a third party.” People v. Fisher, 442 Mich. 560, 588 n.10, 503 N.W.2d
50 (1993). “The nature and circumstances of the communication may be
considered in determining whether a communication is confidential.” People v.
Byrd, 207 Mich. App. 599, 602, 525 N.W.2d 507 (1994). The person asserting the
privilege has the burden of proof. See Morganroth & Morganroth v. DeLorean,
123 F.3d 374, 383 (6th Cir. 1997) (citing People v. Whalen, 129 Mich. App. 732,
736-37, 342 N.W.2d 917 (1984)).
The Michigan Supreme Court has recognized that “[t]he undisputed modern
trend is toward a restrictive, rather than expansive interpretation of the [marital
communications] privilege” and that “[t]he principle that privileges should be
narrowly defined and the exceptions to them broadly construed is not new.”
(1993), and thus in inapplicable here, as Rosenberg and Radom are no longer
married.
6
Fisher, 442 Mich. at 573-74; People v. Eberhardt, 205 Mich. App. 587, 589–90,
518 N.W.2d 511 (1994). Accordingly, Michigan courts follow “the fundamental
rule” that:
Testimonial exclusionary rules and privileges contravene the
fundamental principle that “the public … has a right to every man’s
evidence.” As such, they must be strictly construed and accepted “only
to the very limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining
truth.”
Fisher, 442 Mich. at 574-75 (citation and internal quotation marks omitted).
Radom “concede[s] it’s a narrowly construed privilege.” (DE 472 at 82.)
With those principles in mind, and focusing on the statutory language, the
Michigan Supreme Court found that the phrase “be examined” in MCL § 600.2162
“connotes a narrow testimonial privilege only—a spouse’s privilege against being
questioned as a sworn witness about the described communications.” Id. at 575
(emphasis added). The Court continued that “[t]he introduction of the marital
communication through other means is not precluded.” Id. (emphasis added).
C.
The Michigan Marital Communications Privilege Does Not Bar
Statements Contained in Rosenberg’s Affidavit
As the parties agreed at the hearing, the threshold issue here is whether the
Michigan marital communications privilege applies to the statements in the
Affidavit. (DE 472 at 82, 84, 95.) State Farm contends that the privilege does not
apply because, in providing the Affidavit, Rosenberg is not being “examined” in
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court proceedings, as required by the statute. (DE 345 at 27-28.)2 Radom counters
that the privilege does apply to the statements in the Affidavit because affidavits
are “testimonial in nature” and “the functional equivalent of in-court testimony”
and thus fit within the requirements of the statute. (DE 352 at 25-26.) While the
scope of the marital communications privilege has been addressed by courts in
other circumstances,3 neither the parties nor the Court have found a case discussing
2
State Farm acknowledged at the hearing, however, that if the Court determined
that some or all of the statements that Radom made to Rosenberg were privileged,
then State Farm could not examine Rosenberg as a witness at trial with regard to
those statements. (DE 472 at 65.) Further, as correctly stated by Radom, if the
privilege applies, it applies to all statements made during the marriage, including
statements made while the parties are separated and in the process of getting a
divorce, up to the date of the final divorce decree. See People v. Vermeulen, 432
Mich. 32, 37-38, 438 N.W.2d 36 (1989) (“the trial courts may not inquire into the
viability of the marriage”); People v. Hamacher, 428 Mich. 884, 402 N.W.2d 484
(1987) (the statute “contains no exception to the privilege regarding
communications between a husband and wife where the husband and wife are
separated or are in the process of obtaining a divorce”). In a similar vein, State
Farm’s argument that Radom’s mere statement that he was no longer interested in
being married or no longer believed in marriage should constitute “desertion or
abandonment” is not well-taken. (DE 345 at 27.) The Court will not make a
determination of when the marriage ended independent of the state family court;
but in any case, impertinent comments about the desire to end a marriage do not
equate to “desertion or abandonment.”
3
See, e.g., People v. Lutz, No. 278619, 2008 WL 2812134, at *1 (Mich. App. July
22, 2008) (holding that “the marital communications privilege would not have
precluded the prosecution from eliciting testimony from Detective Declerq relating
what defendant’s wife told him about a statement made by [her husband to her]”);
People v. Morgan, No. 272143, 2007 WL 3015242, at *1 (Mich. App. Oct. 16,
2007) (wife’s statements on 911 audiotape not precluded because the privilege
“does not apply when the spouse is not a witness at trial”); People v. Schultz, No.
204846, 1998 WL 1988666, at * 1 (Mich. App. Dec. 11, 1998) (audiotape of
8
the applicability of the statute in the context of statements contained in a spouse’s
(or former spouse’s) affidavit in a civil matter.
The primary issue therefore is one of statutory interpretation of the Michigan
statute: whether Rosenberg’s Affidavit constitutes “be[ing] examined in a civil
action … as to any communication made between” her and her former spouse,
Radom, such that the Michigan marital communications privilege applies to the
statements in that Affidavit. See MCL 600.2162(4) (emphasis added). It is
Radom’s burden to establish that the privilege applies. See Morganroth &
Morganroth, 123 F.3d at 383.
1.
Statutory interpretation
Michigan law on statutory interpretation is essentially the same as it is under
federal law. “Under Michigan law, statutory interpretation requires an
examination of the plain language of the statute.” Performance Contracting Inc. v.
DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014) (citing In re Certified
Question, 468 Mich. 109, 659 N.W.2d 597 (2003)). A statute that is clear and
unambiguous on its face needs no interpretation by a court. Jones v. Grand Ledge
Pub. Sch., 349 Mich. 1, 9, 84 N.W.2d 327 (1957); In re Certified Question, 468
recorded conversation between husband and wife not barred by the marital
communications privilege); Fisher, 442 Mich. at 575-76 (wife’s statements in
detective’s affidavit to obtain a search warrant were not privileged because
“[a]lthough the detective testified concerning the statements made to him … at no
time was Mary Fisher examined as a witness against her husband”).
9
Mich. 109 (“A fundamental principle of statutory construction is that a clear and
unambiguous statute leaves no room for judicial construction or interpretation.”).
“The Legislature is presumed to have intended the meaning it plainly expressed
and, therefore, the clear statutory language must be enforced as written.” People v.
Szabo, 303 Mich. App. 737, 741, 846 N.W.2d 412 (2014) (citations omitted); see
also People v. McGraw, 484 Mich. 120, 126, 771 N.W.2d 655 (2009) (“In
interpreting a statute, we avoid a construction that would render part of the statute
surplusage or nugatory.”); Mason v. City of Menominee, 282 Mich. App. 525, 528,
766 N.W.2d 888 (2009) (“Courts must give effect to every word, phrase, and
clause in a statute and avoid a construction that renders nugatory or surplusage any
part of a statute.”).
Likewise in federal court, “[w]hen the statutory ‘language is plain, the sole
function of the courts – at least where the disposition required by the text is not
absurd – is to enforce it according to its terms.’” Arlington Cent. Sch. Dist. v.
Murphy, 548 U.S. 291, 296-97 (2006) (multiple internal citations omitted).
Although canons of construction “are no more than rules of thumb[,]” in
interpreting a statute “a court should always turn first to one, cardinal canon before
all others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says there.
[multiple Supreme Court case citations omitted] When the words of a statute are
10
unambiguous, this first canon is also the last: ‘judicial inquiry is complete.’”
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (quoting Rubin
v. United States, 449 U.S. 424, 430 (1981)). As explained below, the state statute
in question is unambiguous, its language is plain, the disposition required by the
text is not “absurd,” and the Court is bound to narrowly enforce its clear terms.
2.
An “affidavit” is not an “examination”
Regardless of whether an affidavit is “testimonial in nature,” the more
pertinent question is whether Rosenberg was “examined” with respect to the
communications at issue in her Affidavit.
Black’s Law Dictionary defines an “affidavit” as a “voluntary declaration of
facts written down and sworn to by a declarant.” BLACK’S LAW DICTIONARY, 68
(10th ed. 2014) (emphases added). On the other hand, an “examination” is defined
as “[t]he questioning of a witness under oath.” Id. at 680 (emphasis added). This
definition is consistent with the Michigan Supreme Court’s interpretation of the
statute’s language “be examined” as “connot[ing] a narrow testimonial privilege
only – a spouse’s privilege against being questioned as a sworn witness about the
described communications.” Fisher, 442 Mich. at 575 (emphasis added). In
Fisher, the Michigan Supreme Court found the marital communications privilege
inapplicable to statements contained in an affidavit to obtain a search warrant and
subsequently written into the presentence report “because Mary Fisher [the
11
defendant’s wife] was not called to testify either at trial or the evidentiary
hearing….” Id. (noting that “at no time was Mary Fisher examined as a witness
against her husband”). Similarly, in People v. Morgan, No. 272143, 2007 WL
3015242, at *1 (Mich. Ct. App. Oct. 16, 2007), the Michigan Court of Appeals
stated that, “Michigan law is clear that the marital communications privilege does
not apply when the spouse is not a witness at trial.” (emphasis added) (finding that
because defendant’s wife “did not testify at trial, … the marital communications
did not apply” and the privilege did not bar admission of a 911 audiotape of
defendant’s wife).
It is undisputed that Rosenberg has not been “examined” about Radom’s
statements in the Affidavit at this time. Even Radom admits that “Rosenberg was
not ‘examined’ because State Farm canceled her deposition….” (DE 352 at 26.)
Instead, she has only provided an affidavit – a “voluntary declaration of facts
written down and sworn to by … [Rosenberg].” See BLACK’S LAW DICTIONARY, at
68. As the Michigan Supreme Court has explained, in the context of a different
aspect of the marital communications privilege:
Section 2162 … does not purport to bar a spouse from disclosing a
confidential communication. Hamacher’s wife, without violating §
2162, related the statement she attributed to her husband to social
service workers, police officers, the prosecutor, and could have done so
to newspaper and other reporters. She could indeed have gone on the
nightly news and made a full statement of the confidential
communication without violating § 2162, The “secret” would then no
longer have been secret and “never again a wholly private matter.”
12
Nevertheless, there can be no doubt that despite the wide
communication to the world at large of the “secret,” Hamacher’s wife
could not, consistent with § 2162, “be examined” in court with regard
to the communication.
People v. Hamacher, 432 Mich. 157, 177, 438 N.W.2d 43 (1989) (Levin, J.
separate opinion) (emphasis added) (“The courts have no basis for declaring that
the statutory purpose in 1861 was to protect the secrecy of the communication
when the statute itself clearly does not purport to do so.”). Likewise, Rosenberg
was free to disclose the marital communications at issue here to State Farm, even if
State Farm could not, in turn, examine her about them in court or deposition.
Consistent with this reasoning, Radom, through counsel, conceded at the
hearing that the marital communications privilege is narrowly construed and that it
does not prohibit Rosenberg from talking about or disclosing the statements made
by Radom during their marriage, but only from being examined about them by a
third party. (DE 472 at 82, 89.) He also acknowledges that an affidavit does not
fit “squarely” within the “four corners” of the statute as an affidavit “may not be”
an “examination.” (Id. at 80, 84.) He instead argues that the privilege nevertheless
applies to the statements in the affidavit, contending an affidavit is “testimonial in
nature” and that it is a “reasonable interpretation of [the statute]” to find that it
applies to statements in an affidavit because “there is some gray in that [statute’s]
language,” and that to find otherwise is just “quibbling … with the exact language
[of the statute].” (DE 352 at 25-26; DE 472 at 84-85, 90.) Elsewhere, he argues
13
that the Affidavit is “the functional equivalent of in-court testimony….” (DE 352
at 26 (emphasis added).)
However, the Court finds that the statutory language at issue is clear and
unambiguous. And, as stated at the hearing and consistent with the law regarding
statutory interpretation discussed above, the Court “do[esn’t] have any choice but
to quibble with the exact language [of the statute]” and to enforce “the plain
language of the statute” as written. (See DE 472 at 90.) See also DynaSteel Corp.,
750 F.3d at 611. To read the statute as Radom urges would require that the Court
go beyond the “plain language of the statute” and engage in “judicial construction
or interpretation,” which is not permissible here. See In re Certified Question, 468
Mich. 109 (“A fundamental principle of statutory construction is that a clear and
unambiguous statute leaves no room for judicial construction or interpretation.”).
The privilege plainly only applies to “be[ing] examined” MCL § 600.2162(4)
(emphasis added), which, as explained above, means being questioned, i.e., being
questioned on direct examination, cross examination, or redirect. The Michigan
legislature could have included language in the statute that a married or previously
married person “shall not give a statement” or “shall not give testimony” or “shall
not disclose” or even “shall not give an affidavit” – instead of, or in addition to the
prohibition against being “examined” – but did not. It is not the function of this
Court to re-write or expand the plain language in the statute. Rather, as the Fisher
14
court recognized, “[o]f course, it is the prerogative of the Legislature, if it chooses,
to expand the marital communications privilege beyond its testimonial nature.
However, in the absence of such direction, we follow the mandate of strict
construction, particularly where, as here, ascertainment of the truth transcends the
need to exclude relevant evidence.” Id. at 579 (emphases added).
3.
An affidavit is not the “functional equivalent” of in-court
testimony
The Court is also not persuaded by Radom’s argument that an affidavit is the
“functional equivalent” of in-court testimony. Leaving aside, for the sake of
argument, the absence of any reference to “affidavits” in the statute at issue,
affidavits are uncompelled, voluntary statements, given and used for a variety of
purposes, both within and outside of litigation. When used within litigation, they
are most often given in order to avoid appearing in court. And where they are
submitted to a court, the affiant actually steers clear of being “examined,” at least
for the time being. Not so for instances in which a witness appears – whether in
court or in a deposition – “to be examined” in a civil action. In those
circumstances, the testimony may be compelled, or even if voluntarily undertaken,
subjects the witness to potentially adverse and possibly hostile direct or crossexamination. While information conveyed in an affidavit is freely given,
information relayed while being examined in court or deposition may involve a
process of prying the information out of the witness, possibly with the Court’s
15
assistance. Indeed, unlike the typical situation in court and deposition, an affidavit
may be prepared, revised, sworn to and notarized without any lawyers being
involved. Here, regardless of whether State Farm’s counsel had anything to do
with preparing this Affidavit, Rosenberg was free to put down on paper whatever
information she wanted in the form of an affidavit, swear it out under oath before a
notary, and present it to whomever she might choose. Nothing in the marital
privilege statute prevented her from doing that, and nothing in this particular
statute prevents the use of the Affidavit here.
In sum, because Rosenberg was not “examined” in her Affidavit about
marital communications she had with Radom, the Michigan marital
communications privilege, MCL § 600.2162(4), is not applicable to the Affidavit.4
D.
Radom’s Remaining Arguments are Without Merit
1.
Rosenberg’s Affidavit is distinguishable from Dr.
Gunabalan’s affidavit
Radom compares Rosenberg’s Affidavit with the affidavit of Dr. Ramasami
Gunabalan, which the Court has prohibited the parties from “attach[ing],
referenc[ing] or otherwise rely[ing] on ... in their pending motions” (DE 349), and
4
Even if, arguendo, portions of the Affidavit were precluded from disclosure by
the marital communications privilege, Radom concedes, as he must, that many of
the communications at issue here, especially in ¶¶ 45-53 of the Affidavit, did not
occur until after the divorce was final. (DE 472 at 77- 79; DE 352 at 17.)
16
argues that Rosenberg’s Affidavit should be treated similarly. (DE 352 at 11.)
The Court disagrees.
Gunabalan purportedly signed an affidavit on June 23, 2017, and State Farm
relied on the statements in that affidavit in a number of motions before this Court.
However, when Gunabalan was questioned about his statements in that affidavit in
a deposition on July 18, 2018, he broadly invoked the Fifth Amendment privilege
against self-incrimination throughout the deposition and refused to answer any
questions involving the substance, authentication of, or claims made in the
affidavit. (DE 327-2, 327-5.) It was in this context that, following a hearing on
the Elite Defendants’ motion to strike Gunabalan’s affidavit, the Court declined to
strike the affidavit but instead entered an order that the parties “cannot attach,
reference or otherwise rely on [Gunabalan’s affidavit]... in their pending motions”
based on his “unwillingness to testify[.]” (DEs 349, 354.)
As explained at the hearing on the instant motion, while Gunabalan
essentially refused to testify about the statements in his affidavit, Rosenberg asserts
in her Affidavit that she is “competent to testify to the facts stated in this Affidavit,
which are based on [her] personal knowledge, information and belief” and she
apparently stands ready to testify about the statements in her Affidavit, unless
Radom objects to such testimony based on the marital communications privilege.
(DE 472 at 76-77.) Thus, if she cannot testify at a deposition or at trial about the
17
statements in her Affidavit, it would be appear, at least at this time, to be because
Radom would be blocking that testimony, not because she would be unwilling to
testify, as Gunabalan was at his deposition. (Id. at 76-77, 83.) Accordingly,
contrary to Radom’s assertion, Rosenberg’s Affidavit should not be treated by this
Court like Gunabalan’s.
2.
Radom’s remaining arguments regarding the Affidavit go
to the weight or probative value of statements in the
Affidavit, not to whether the statements are privileged
Radom also generally complains that Rosenberg’s Affidavit is “problematic”
because, while the Affidavit includes language that Rosenberg is “competent to
testify as to the facts stated in this Affidavit, which are based on [her] personal
knowledge, information and belief,” Radom argues that many of the statements are
speculative, based on Rosenberg’s “admitted lack of knowledge,” or contain
“knowledge qualifiers or [‘]I don’t recalls[’] or [‘I]t’s my understanding.[’]” (DE
352 at 12-17; DE 346-1, ¶ 1 (Sealed); DE 472 at 76, 79-80.) Radom also
speculates that the Affidavit was actually prepared by counsel for State Farm, not
Rosenberg, which may well be true. (DE 352 at 15-16.)
However, as the Court explained, and as Radom’s counsel conceded at the
hearing, such arguments go to the weight or probative value of the statements in
the Affidavit, not to whether the statements within the Affidavit are protected by
the Michigan marital communications privilege. (DE 472 at 79-80.) Rosenberg
18
attests that the facts in the Affidavit are based on her “personal knowledge,
information and belief,” and then explains in the Affidavit which statements are
based on belief or information, including which statements are based on her
“understanding” or what Radom “told [her].” (DE 346-1.) The fact that Radom
may have other evidentiary bases to object to certain statements in the Affidavit if
used in support of a motion or if Rosenberg is ultimately examined as a witness in
this matter (e.g., hearsay, speculation, relevancy, etc.) does not mean that she is not
competent to testify about such matters, or that such matters are privileged. In
addition, whether Rosenberg drafted the Affidavit, or whether counsel for State
Farm drafted the Affidavit for Rosenberg’s approval and signature (as Radom
surmises), is likewise immaterial to the marital communications privilege analysis.
An affidavit is, by definition, a “voluntary declaration,” which Rosenberg was
under no obligation to sign at all, let alone under oath, irrespective of who drafted
it. That is a far cry from being subject to subpoena and being forced to respond to
an attorney’s questions in open court.
IV.
Conclusion
In the final analysis, “the public” does indeed have “the right to every man’s
evidence,” Fisher, 442 Mich. at 574-75, and this right favors a narrow, literal
application of the statutory marital communications privilege, as written. For the
reasons set forth above, the Michigan marital communications privilege, MCL §
19
600.2162(4), is not applicable to the Affidavit at issue here because Rosenberg was
not “examined” about communications with Radom during her marriage in that
Affidavit. Therefore, State Farm’s motion for an order permitting disclosure of
statements made by Mark Radom to Amy Rosenberg in her Affidavit is
GRANTED.
IT IS SO ORDERED.
Dated: June 12, 2019
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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