THOMAS A. FERRANTI, Plaintiff-Appellant, and FRANCYNE B. STACEY, Appellant,
ELECTRICAL RESOURCES COMPANY and TERRY GRIEVE, Defendants-Appellees.
Livingston Circuit Court LC No. 16-029044-CD
Before: Borrello, P.J., and K. F. Kelly and Servitto, JJ.
plaintiff Thomas A. Ferranti and his counsel, Francyne B.
Stacey, appeal by leave granted the trial court order denying
discovery following a show cause notice of criminal contempt,
arising from a purported violation of a discovery
order. We reverse.
was a sales representative for defendant, Electrical
Resources Company (Company). He left the Company in 2015, and
brought a lawsuit alleging age discrimination and failure to
pay sales commissions against the Company and one of its
employees, defendant Terry L. Grieve. During discovery,
appellants sought to examine the Company's sales records.
The parties stipulated to a discovery order that required the
Company to provide Ferranti's expert with access to the
sales records, which were stored in a cloud-based server
called Epicor. The order provided, in relevant part, as
Plaintiff's forensic expert, Fortz Legal, shall be
provided access to and the opportunity to copy all sales
information contained in Defendant Electric Resources
Company's ("ERC") electronic sales records from
October 2014 up to and including the present. Plaintiff's
expert may specifically access any customer or sales tracking
or cloud software or services utilized by ERC during the
stated time period.
expert encountered problems accessing the electronic sales
records. After an exchange of e-mails across numerous dates,
Stacey, Ferranti's counsel, then requested that the
Company's counsel send a username and password to access
the records via the internet. The Company's counsel sent
the username and password to Stacey.
gave the username and password to Ferranti, and he accessed
the records, downloaded certain records, and sent the
downloaded records to Stacey electronically. An Epicor
specialist later determined that a user who logged in with
the provided username and password during the same timeframe
had modified or removed metadata from the electronic records.
Ferranti acknowledged that he had accessed the records, but
denied intentionally modifying or removing any data.
Company filed a motion to dismiss the civil suit as a
sanction for violation of the stipulated discovery order. In
the same motion, the Company sought to hold appellants in
criminal contempt for violation of the stipulated order. The
trial court held a hearing on the contempt motion and, after
confirming that the Company wished to proceed with criminal
contempt, the court advised appellants of the contempt
allegations. Appellants stood mute to the charges, and the
court entered not guilty pleas on their behalf. The court
appointed defense counsel to act as the prosecutor in the
criminal contempt proceeding. Appellants retained separate
counsel, and a motion for discovery was filed on their
behalf. The discovery motion included a request for documents
in accordance with MCR 6.201(B)(1) as well as the opportunity
for an independent forensic examination of relevant stored
documents and files among other items. Defendants opposed the
motion, asserting that appellants were seeking discovery and
information pertinent to restitution that presented an
inquiry separate and distinct from the criminal contempt. The
trial court denied the motion for discovery. We granted
appellants' application for leave to appeal.
CRIMINAL CONTEMPT SHOW CAUSE AFFIDAVIT
initially contend that the information provided to the trial
court was insufficient to warrant the issuance of an order to
show cause for criminal contempt. We agree. A trial
court's decision regarding a contempt motion is reviewed
for an abuse of discretion, while its factual findings are
reviewed for clear error. DeGeorge v Warheit, 276
Mich.App. 587, 591; 741 N.W.2d 384 (2007). "If the trial
court's decision results in an outcome within the range
of principled outcomes, it has not abused its
discretion." Taylor v Currie, 277 Mich.App. 85,
99; 743 N.W.2d 571 (2007). Further, "[c]lear error
exists when this Court is left with the definite and firm
conviction that a mistake was made." In re Contempt
of Henry, 282 Mich.App. 656, 668; 765 N.W.2d 44 (2009).
Additionally, questions of law related to the trial
court's decision are reviewed de novo. Id.
court has inherent and statutory authority to enforce its
orders. MCL 600.611; MCL 600.1711; MCL 600.1715.
"Contempt of court is defined as 'a willful act,
omission, or statement that tends to . . . impede the
functioning of a court.'" In re Contempt of
Dudzinski, 257 Mich.App. 96, 108; 667 N.W.2d 68 (2003)
(quotation marks and citation omitted). MCR 3.606(A), which
specifically governs the initiation of contempt proceedings
for conduct occurring outside the immediate presence of the
court, states as follows:
of Proceeding. For a contempt committed outside the immediate
view and presence of the court, on a proper showing on ex