            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS



THOMAS A. FERRANTI,                                               FOR PUBLICATION
                                                                  November 19, 2019
              Plaintiff-Appellant,                                9:05 a.m.

and

FRANCYNE B. STACEY,

              Appellant,

v                                                                 No. 342934
                                                                  Livingston Circuit Court
ELECTRICAL RESOURCES COMPANY and                                  LC No. 16-029044-CD
TERRY GRIEVE,

              Defendants-Appellees.


Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

       Appellants, 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.1 We reverse.

                                      I. BASIC FACTS

        Ferranti 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


1
 Ferranti v Electrical Resources Co, unpublished order of the Court of Appeals, entered October
10, 2018 (Docket No. 342934).



                                              -1-
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 follows:

               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.

      Ferranti’s 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.2

       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.

        The 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.

                  II. CRIMINAL CONTEMPT SHOW CAUSE AFFIDAVIT



2
  Although there is an extensive e-mail discussion between counsel for the parties regarding a
different expert, access, and fees, we render no opinion regarding whether this discussion fell
within the confines of the disputed stipulated order, particularly where it is unclear if all e-mail
communications were submitted in the lower court record.


                                                -2-
        Appellants 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 NW2d 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 NW2d 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 NW2d 44 (2009). Additionally, questions of law related to the trial court’s decision are
reviewed de novo. Id.

       A trial 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 NW2d 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:

               Initiation of Proceeding. For a contempt committed outside the immediate
       view and presence of the court, on a proper showing on ex parte motion supported
       by affidavits, the court shall either

               (1) order the accused person to show cause, at a reasonable time specified
       in the order, why that person should not be punished for the alleged misconduct;
       or

               (2) issue a bench warrant for the arrest of the person.

        Accordingly, a trial court’s order to show cause why a party should not be held in
contempt must be based on “a proper showing on ex parte motion supported by affidavits.”
MCR 3.606. There must be “a sufficient foundation of competent evidence and legitimate
inferences therefrom” before a show-cause order may be issued. In re Contempt of Steingold,
244 Mich App 153, 158; 624 NW2d 504 (2000) (quotation marks and citation omitted). To be
valid, an affidavit in a contempt proceeding must be made by someone who has personal
knowledge of the facts stated in the affidavit. Id. The affidavit must sufficiently state facts that,
along with legitimate inferences from the facts, constitute contempt as a matter of law. Id. To
establish criminal contempt, the charged party must have willfully disregarded or willfully
disobeyed a court order. People v Mysliwiec, 315 Mich App 414, 416-417; 890 NW2d 691
(2016).

        In this case, defendants sought dismissal of the civil case on the basis that appellants, or
someone else who was provided the username and password, had “manipulated metadata,”
moved documents within the system, and attempted to modify the account password. Further,
defendants sought to hold appellants in criminal contempt for violation of the stipulated order
and suggested that they be required to pay any costs incurred in restoring their records to their
original configuration. However, at the time of filing their motion, defendants attached an
unexecuted affidavit stating that metadata was modified or deleted. The attached affidavit did

                                                -3-
not sufficiently state facts that, along with legitimate inferences from the facts, constitute
contempt as a matter of law.

       First, the affidavit did not identify any specific orders that were violated, identify any
contemptuous actions, or even identify the individual or individuals responsible for the alleged
conduct.3 Further, the affidavit did not meet the requirements of an affidavit under MCR
2.119(B)(1), which requires the affidavit to:

               (a) be made on personal knowledge;

              (b) state with particularity facts admissible as evidence establishing or
       denying the grounds stated in the motion; and

             (c) show affirmatively that the affiant, if sworn as a witness, can testify
       competently to the facts stated in the affidavit.


        As noted above, at the time that defendants filed the motion, the affidavit submitted was
unexecuted and unsworn. The affidavit was later executed by Mark Sanges, a technical support
manager for DocStar. At Sanges’s deposition, he indicated that he provided the content for his
affidavit “after asking members of [his] support team and [the] operations team to pull the data
that was being requested.” Thus, the affidavit that he ultimately signed was not necessarily
premised on personal knowledge. Further, Sanges was not aware whether the username
associated with the audited activity was provided to Ferranti. Accordingly, it is clear that he
could not establish that Ferranti was responsible for the changes made in DocStar or violated any
order. Additionally, while Sanges acknowledged that the system could recognize that changes
were made to certain documents, he could not detail what changes were made or whether the
contents of the documents were modified. Accordingly, Sanges’s affidavit, even when coupled
with his testimony, remained insufficient to establish contemptuous acts. “If an inadequate
affidavit is the predicate which underlies the contempt proceeding or if no affidavit at all
accompanies the petition, the court lacks jurisdiction over the person of the alleged contemnor.”
In re Contempt of Steingold, 244 Mich App at 159 (citation and quotation marks omitted).
Accordingly, the trial court erred by ordering a show-cause hearing on the basis of the submitted
affidavit.

                                       III. DISCOVERY4


3
  The affidavit submitted in support of the motion seeking dismissal and criminal contempt did
not contain a name of the DocStar employee or his title at the company. Moreover, it merely
delineated a series of modifications on four different dates, correlated to a user with a specific
login, the same login that was given to Stacey.
4
 Because defendants may seek to correct any defects in the affidavit proffered in support of the
order to show cause of criminal contempt, we provide the following direction for purposes of
guidance on remand.


                                               -4-
         Appellants also contend that the trial court improperly denied their request for discovery
in light of the deprivation of rights, including imprisonment, and consequences associated with
criminal contempt.5 We agree.

        “The power to hold a party, attorney, or other person in contempt is the ultimate sanction
the trial court has within its arsenal, allowing it to punish past transgressions, compel future
adherence to the rules of engagement, i.e., the court rules and court orders, or compensate the
complainant.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 708, 624 NW2d 443
(2000). Because contempt power is so great, it has the equally great responsibility to be applied
judiciously and only when clearly and unequivocally shown. Id. “Criminal contempt is a crime
in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or
imprisonment or both.” In re Contempt of Henry, 282 Mich App at 666 (quotation marks and
citations omitted).

       Although criminal contempt is really only a “quasi-crime,” criminal contempt
       proceedings encompass many of the same due process safeguards available to
       defendants charged with traditional crimes. For instance, an alleged criminal
       contemnor is presumed innocent and is protected from compelled self-
       incrimination. The alleged contemnor must be allowed to offer a defense to the
       contempt charge, as well as adequate time in which to prepare the defense. [In re
       Contempt of Auto Club Ins Ass’n, 243 Mich App at 713-714 (citation omitted).]

Criminal contempt proceedings require some of the due process safeguards provided in an
ordinary criminal trial. Porter v Porter, 285 Mich App 450, 456; 776 NW2d 377 (2009).
Therefore, an individual charged with criminal contempt is presumed innocent, must be informed
of the nature of the charge, has the right against self-incrimination, has the opportunity to prepare
a defense, has the opportunity to secure counsel, and the contempt must be proven beyond a
reasonable doubt. Id. Further, criminal penalties may not be imposed upon an individual who
was not afforded the protections that the Constitution requires in criminal proceedings. Int’l
Union, United Mine Workers of America v Bagwell, 512 US 821, 826; 114 S Ct 2552; 129 L Ed
2d 642 (1994).

        “No person shall be . . . deprived of life, liberty or property, without due process of law.”
Const 1963, art 1, § 17. While Michigan courts have recognized that there is no general
constitutional right to discovery, People v Elston, 462 Mich 751, 765; 614 NW2d 595 (2000), it
is well-established that disclosure of exculpatory material and impeachment evidence is
mandated by due-process principles, People v Lester, 232 Mich App 262, 281; 591 NW2d 267


5
  We note that in discussing the discovery issue, the trial court noted that the issue was limited to
whether there was a violation of a court order. Although defendants’ counsel concurred in that
representation, counsel acknowledged that it would pursue “restitution.” However, the contempt
statutes address penalties, MCL 600.1715, and damages of actual loss or injury, MCL 600.1721.
Because the issue of contempt as raised by defendants was not limited to a correction of
appellants’ acts or behavior, but sought to be made whole for the alleged acts, it rendered the
issue of actual loss pertinent to the purported criminal contempt.


                                                -5-
(1998), overruled on other grounds People v Chenault, 495 Mich 142, 145; 845 NW2d 731
(2014). The essence of the right of due process is the principle of fundamental fairness. In re
Adams Estate, 257 Mich App 230, 233-234; 667 NW2d 904 (2003). What process is due in a
particular proceeding depends on the nature of the proceeding, the risks involved, and the private
and governmental interests that might be affected. In re Brock, 442 Mich 101, 111; 499 NW2d
752 (1993).

        The purposes of discovery are to promote the fullest possible presentation of the facts,
minimize the opportunities for falsification of evidence, and eliminate vestiges of trial by
combat. People v Valeck, 223 Mich App 48, 51-52; 566 NW2d 26 (1997). Under the Michigan
Rules of Professional Conduct, a prosecutor has a duty to timely disclose to the defense all
evidence and information known that tends to negate the defendant’s guilt or mitigates the
degree of the offense. MRPC 3.8(d); People v Aldrich, 246 Mich App 101, 111; 631 NW2d 67
(2001). Further, in criminal proceedings, except for information protected from disclosure by
constitution, statute, or privilege, MCR 6.201(C); People v Holtzman, 234 Mich App 166, 181;
593 NW2d 617 (1999), a party must provide to all other parties, upon request, the following
information about witnesses or evidence that the party intends to produce at trial: (1) names and
addresses of all lay and expert witnesses or the names of witnesses and an opportunity to
interview them; (2) any written or recorded statement pertaining to the case by a lay witness,
except that a defendant is not obliged to provide the defendant’s own statement; (3) the
curriculum vitae of an expert the party might call at trial and the expert’s report or a written
description of the substance of the testimony, the expert’s opinion, and the basis for that opinion;
(4) any criminal record intended for impeachment purposes; (5) a description or list of criminal
convictions known to the party of any witness that the party might call at trial; and (6) a
description of and opportunity to inspect any tangible physical evidence, including documents,
with copies provided on request, MCR 6.201(A); People v Greenfield (On Reconsideration), 271
Mich App 442, 449-450; 722 NW2d 254 (2006).

        Pertinent to this appeal, the court may also order that a party be given the opportunity to
test, without destruction, any tangible physical evidence upon a showing of good cause. MCR
6.201(A)(6); Greenfield, 271 Mich App at 450. Further, on good cause shown, the court may
order a modification of the requirements and limitations of the rule. MCR 6.201(I).

        We conclude that the nature of criminal contempt, the necessity for due process, and the
possibility of imprisonment as a penalty warrant application of the court rules governing
discovery, MCR 6.201. However, we decline to set specific parameters regarding the extent and
timing of the discovery. Rather, we have entrusted the broad power of the trial court to exercise
its discretion regarding the extent of discovery, particularly to prevent ambush and surprise.
People v Lemcool (After Remand), 445 Mich 491, 497-498; 518 NW2d 437 (1994).
Accordingly, if defendants seek to cure the defect in the affidavit, the scope of discovery in the




                                                -6-
criminal contempt proceeding must be presented to the trial court in accordance with MCR
6.201.6

                          IV. APPOINTMENT OF PROSECUTOR

       Finally, appellants challenge the appointment of defense counsel as the prosecutor.
However, this Court has previously indicated that a private party’s attorney may act as the
prosecutor in a criminal contempt proceeding. In re Contempt of Henry, 282 Mich App at 666;
DeGeorge, 276 Mich App at 600. Moreover, defense counsel represented that a new member of
her firm would pursue the contempt, and he appeared and argued the discovery issues. This
claim of error is without merit under the circumstances.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                         /s/ Stephen L. Borrello
                                                         /s/ Kirsten Frank Kelly
                                                         /s/ Deborah A. Servitto




6
  We note that civil contempt only requires that an accused be accorded “rudimentary due
process.” Cassidy v Cassidy, 318 Mich App 463, 506; 899 NW2d 65 (2017). That is, the
accused need only be given notice and an opportunity to present a defense, and the burden of
proof is preponderance of the evidence. Id. Yet, defendants chose not to pursue this course of
action.


                                             -7-
