General Motors LLC v. Alphons Iacobelli

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

GENERAL MOTORS, LLC, and GENERAL FOR PUBLICATION

MOTORS COMPANY, May 11, 2026

11:42 AM

Plaintiffs-Appellees,

v Nos. 370051; 371977

Wayne Circuit Court

ALPHONS IACOBELLI, LC No. 20-011998-CB

Defendant-Appellant,

and

FCA US, LLC, and STELLANTIS, NV, formerly

known as FIAT CHRYSLER AUTOMOBILES,

NV,

Defendants-Appellees,

and

JEROME DURDEN,

Defendant.

GENERAL MOTORS, LLC, and GENERAL

MOTORS COMPANY,

Plaintiffs-Appellees,

v No. 373660

Wayne Circuit Court

ALPHONS IACOBELLI, LC No. 20-011998-CB

Defendant,

and

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FCA US, LLC, and STELLANTIS, NV, formerly

known as FIAT CHRYSLER AUTOMOBILES,

NV,

Defendants-Appellees,

and

JEROME DURDEN,

Defendant,

and

SUSANNE IACOBELLI,

Appellant.

Before: GADOLA, C.J., and MURRAY and M. J. KELLY, JJ.

MURRAY, J.

We granted leave to appeal in these consolidated matters to address a preemption issue, as

well as several discovery issues that involve constitutional and statutory privilege questions. In

the challenged orders, the trial court ruled that defendant Alphons Iacobelli did not, during his

deposition, properly invoke his Fifth Amendment right against self-incrimination, and could not

invoke the statutory spousal privilege as a way in which to avoid answering questions. The trial

court also ruled that nonparty-appellant Susanne Iacobelli, Alphons’ spouse, could not invoke the

spousal privilege when refusing to produce handwritten notes regarding conversations with her

husband. We affirm.

I. BACKGROUND FACTS

These appeals arise from a case involving allegations that the FCA Defendants1 embarked

on a systemic and near decade-long conspiracy to bribe certain senior union officials, corrupt the

collective-bargaining process, and weaken plaintiff General Motors to the point that it would agree

to merge with FCA. GM alleges that FCA gained competitive advantages when it came to union

wages and labor peace, causing GM to suffer billions of dollars in damages. Iacobelli was a lead

union-bargaining representative for FCA from 2008 to mid-2015, serving as FCA’s Vice President

of Labor Relations and the Director of the United Auto Workers-Chrysler Skill Development and

Training Program, doing business as the UAW-Chrysler National Training Center (the NTC).

1

Defendants FCA US, LLC, and Stellantis, NV.

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There is no dispute that certain FCA employees made improper payments to and on behalf

of certain UAW officials, resulting in a federal corruption investigation and the prosecution of 15

individuals working for either FCA or the UAW. There is also no dispute that Iacobelli, as the

Director of the NTC, was at the center of the scheme.

Iacobelli’s employment with FCA ended in mid-2015, before the scheme became public.

However, GM alleges that, in furtherance of the scheme, in June 2015, former UAW President

Dennis Williams selected then-UAW Vice President, Joseph Ashton, as well as Iacobelli, to serve

in high-level positions within GM, which they used to provide FCA with GM’s confidential

information. In other words, GM alleges that Iacobelli was an FCA informant when he worked

for GM. Iacobelli and Ashton were alleged to have concealed the conspiracy so that GM did not

discover it earlier. GM alleged that the FCA defendants used foreign bank accounts to make secret

payments to Iacobelli and the other individuals who were allegedly passing information about GM

to FCA.

Iacobelli worked at GM from early 2016 until mid-2017, when he was indicted on criminal

charges relating to the bribery of union officials while he worked for FCA. For their part, the FCA

Defendants acknowledge that Iacobelli and other individuals improperly utilized NTC funds to

make lavish personal purchases but maintain that they did so without FCA’s permission or

knowledge. More broadly, they denied the allegations that Iacobelli was acting on FCA’s behalf

once he left the company or that there was any scheme to harm GM. They maintained instead that

this lawsuit was a mechanism designed to upset a merger between FCA and French automaker

Peugeot.

In November 2015, a team of Assistant United States Attorneys sent a proffer letter to

Iacobelli’s criminal defense attorney in connection with a proposed plea agreement relating to the

bribery scheme. The proffer letter outlined the terms of an earlier discussion, which included the

following:

(1) Your client agrees to make a complete and truthful statement of his

knowledge of and role in the matters under investigation, and to fully and truthfully

answer all questions. This means, for example, that your client may not omit facts

about crimes, other participants, or his involvement in the offenses, and must

volunteer all information that is reasonably related to the subjects discussed in the

debriefing.

* * *

(8) If your client fails to provide truthful and complete information (such as

by making a false statement, providing false information, omitting facts or

otherwise misleading the government), there are no restrictions on the

government’s use of any statements made by your client or information provided

by you or your client. The government may then also bring additional charges

against your client based upon the failure to provide truthful and complete

information, such as perjury, obstruction of justice and false statements charges.

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Iacobelli and his counsel signed the letter and agreed to its terms. Three years later,

Iacobelli was indicted in the United States District Court for the Eastern District of Michigan on

charges of conspiracy to violate the Labor Management Relations Act (LMRA) (also known as

the Taft-Hartley Act), 18 USC 371; paying and delivering prohibited money and things of value

to union officials, 29 USC 186(a)(2) and (d)(1); conspiracy to defraud the United States, 18 USC

371; subscribing false tax returns, 26 USC 7206(1); and willful failure to file a tax return, 26 USC

7203. The indictment alleged that between January 2009 and July 2015, Iacobelli and other

individuals willfully paid and delivered more than $1.2 million in payments and things of value to

UAW officials through the NTC. The payments were used for travel expenses, a home mortgage,

and payments to a nonprofit organization affiliated with a UAW official. The indictment further

alleged that Iacobelli and others conspired to defraud the United States from collecting and

assessing taxes and filed fraudulent tax returns in relation to the improper payments. Iacobelli

allegedly filed false tax returns for tax years 2012 through 2015 in his personal capacity.

Iacobelli subsequently entered into a plea agreement with the United States Department of

Justice under FR Crim P 11, in which he pleaded guilty to subscribing a false tax return, 26 USC

7206(1), and conspiracy to violate the LMRA, 18 USC 371. The plea agreement outlined the

following factual basis for the plea:

7. Between in or before January 2009 and continuing through in or after

June 2015, Alphons Iacobelli knowingly and voluntarily joined a conspiracy in

which FCA and FCA executives and FCA employees agreed to pay and deliver,

and willfully paid and delivered, money and things of value to officers and

employees of the UAW. As part of that conspiracy, Alphons Iacobelli and other

FCA executives and FCA employees acting in the interest of employer FCA used

the bank accounts and credit card accounts of the NTC to benefit officers and

employees of the UAW, knowing that those individuals were not permitted to

receive the money and other things of value.

These unlawful payments included $1.5 million in prohibited payments to various UAW

entities and officials, which were made “in an effort to obtain benefits, concessions, and

advantages for FCA in the negotiation, implementation, and administration of the collective

bargaining agreements between FCA and the UAW.” As it related to the subscribing of a false tax

return, Iacobelli admitted that he “received hundreds of thousands of dollars in compensation from

the NTC, which compensation was falsely and fraudulently omitted from tax returns filed with the

Internal Revenue Service.” For tax year 2015, Iacobelli failed to report $861,927 in additional

income.

The plea agreement incorporated by reference a cooperation agreement that Iacobelli

signed the same day. The plea agreement explained:

The government agrees to bring no additional criminal charges against

defendant Alphons Iacobelli arising out of his involvement in the offenses charged

in the First Superseding Indictment, or for additional criminal conduct disclosed

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under the terms of the December 15, 2017 cooperation agreement, unless the

defendant withdraws his plea or breaches that cooperation agreement.2

In the cooperation agreement, Iacobelli agreed “to assist the United States Attorney’s

Office in the investigation and prosecution of others involved in criminal activities,” as detailed in

the agreement. He agreed to provide the United States Attorney’s Office with “truthful and

complete information” relating to “conspiracy, prohibited payments to union officials,

embezzlement, wire fraud, honest services fraud, theft of union assets, commercial bribery,

extortion, money laundering, obstruction of justice, and all related criminal activities.” He also

agreed to provide truthful testimony at all criminal and civil proceedings. In exchange, the

government would seek a downward departure or reduction of his sentence. The agreement

provided:

In exchange for defendant’s agreement to cooperate with the government,

as outlined above, the United States Attorney’s Office agrees not to use any new

information that defendant provides pursuant to this agreement as the basis for

initiating additional criminal charges beyond those set forth in the Information in

this matter. There shall be no such restrictions on the use of information: (1)

previously known to law enforcement agencies; (2) revealed to law enforcement

agencies by, or discoverable through, an independent source; (3) concerning

criminal activities about which defendant claims to have no knowledge or

involvement; or (4) in the event there is a breach of this agreement.

An exception existed if Iacobelli breached the agreement by taking actions or making statements

that are inconsistent with his continued cooperation under the agreement, such as criminal activity

or “other conduct which in any way undermines the effectiveness of defendant’s cooperation.”

In connection with the federal criminal matter, in September 2020, Iacobelli also signed a

declaration relating to foreign bank accounts, in which he declared under penalty of perjury, in

relevant part, that:

2. I am aware that the General Motors Company has alleged in a civil

lawsuit that I controlled bank accounts in countries outside of the United States.

3. In fact, however, I have never opened, maintained, or controlled a bank

account outside of the United States.

4. I have never opened, maintained, or controlled a bank account in my

name, in my wife’s name, in the name of Business Advisory Group, or in the name

of any other business under my control in Italy, Singapore, Switzerland, or

Lichtenstein.

2

The agreement added, “Unless otherwise indicated, this agreement does not bind any government

agency except the United States Attorney’s Office for the Eastern District of Michigan.”

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5. I have never opened, maintained, or controlled a bank account in my

name, in my wife’s name, in the name of Business Advisory Group, or in the name

of any other business under my control with Deutsche Bank, UBS, Credit Suisse,

DBS Bank, Vaduz Bank, or VP Bank.

6. My wife, Susan [sic] Iacobelli, has never opened a bank account for me,

for herself, or for a business that I controlled or had an interest in outside of the

United States. I have never directed my wife, Susan [sic] Iacobelli, to take control

of any bank account that I had previously controlled in any country outside of the

United States.

Susanne signed a nearly identical declaration with the same representations about foreign bank

accounts.

GM filed two prior actions in relation to the same events, both filed in United States District

Court for the Eastern District of Michigan, Case Nos. 2:19-cv-13429 and 2:20-cv-12556, that are

no longer pending. In the 2019 case, GM raised state-law claims, as well as a claim under the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USC 1961 et seq., under the

theory that FCA bribed the UAW to obtain competitive advantages that were withheld from GM,

which caused harm to GM. Gen Motors, LLC v FCA US, LLC, 44 F4th 548, 556, 559 (CA 6,

2022). The federal court declined to exercise supplemental jurisdiction over GM’s state-law

claims, id. at 556, and dismissed the complaint on the basis that GM could not establish causation.

The United States Court of Appeals for the Sixth Circuit held that the NLRB did not have exclusive

jurisdiction over GM’s RICO claim and that the federal district court did have jurisdiction to

adjudicate the claim, and upheld the dismissal on appeal. Id. at 562-568.

GM then filed this lawsuit in the Wayne Circuit Court, raising claims for (1) fraudulent

misrepresentation against the FCA Defendants, (2) silent fraud (fraud by omission) against the

FCA Defendants, (3) fraudulent misrepresentation against Iacobelli, (4) silent fraud (fraud by

omission) against Iacobelli, (5) breach of fiduciary duty against Iacobelli, (6) aiding and abetting

breach of fiduciary duty against the FCA Defendants, (7) unfair competition against the FCA

Defendants, and (8) civil conspiracy against all defendants.

After an unsuccessful attempt at removing the case on the basis of federal diversity

jurisdiction, the FCA Defendants moved for summary disposition, arguing that (1) the complaint

did not plead a valid claim for relief, (2) the federal court already ruled that the basis for GM’s

claims was not plausible, and (3) the claims were preempted by the exclusive jurisdiction of the

NLRB. Iacobelli likewise moved for summary disposition, also arguing that the claims fell within

the exclusive jurisdiction of the NLRB and that, alternatively, the claims against himself should

be dismissed for failure to state a claim.

Not surprisingly, GM responded, in relevant part, that its claims were not preempted

because it did not allege a claim for bad-faith bargaining, but did allege tortious conduct targeting

GM. Additionally, an exception to preemption applied because the claims were deeply rooted in

local feelings and responsibilities such that it could not be presumed that Congress intended to

preempt state law in relation to GM’s claims. GM noted that the FCA Defendants failed to cite a

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single provision of the NLRA that would apply to GM’s claims and argued the complaint did not

attack the bargaining process and was not seeking damages on the part of UAW members.

Relevant to this appeal, the trial court held that the first-amended complaint failed to state

valid claims for relief because the damages were hypothetical in nature and GM would not be able

to establish causation. The court did not decide the preemption question. GM moved for

reconsideration, providing for the first time the affidavit of Peter DeLorenzo, who stated that

Iacobelli admitted to participating in “the biggest corporate corruption case in US business

history,” and provided numerous details about the scheme, explaining that the “end game” of the

scheme was to “make a move on GM to force a merger.” The court granted the motion for

reconsideration and permitted GM to file a second-amended complaint with new allegations based

on the affidavit.

Iacobelli and the FCA Defendants both moved for summary disposition of the second-

amended complaint, which the trial court granted in part and denied in part. The motions for

summary disposition raised a variety of arguments, including a renewed preemption argument

under San Diego Building Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775

(1959). With respect to the preemption issue, the court ruled as follows:

This Court doesn’t believe that GM’s claims are preempted or that

[Garmon] comes into play at this point. As we’ve stated earlier the NLRA was

designed to protect employee rights, neither FCA nor Iacobelli could point to any

case where there would be titled [General Motors v FCA] in an NLRB proceeding.

It certainly would be unprecedented and in any event Mr. Iacobelli wouldn’t be

subject to going to the NLRB as to General Motors[’s] allegations against him.

The Defendant argue [sic] that there is this preemption because the claims

are predicated on bad faith bargaining, that’s kind of half the story, certainly bad

faith bargaining, but GM hasn’t necessarily alleged just a bad faith bargaining

Complaint or claim.

After the case proceeded to discovery, the trial court appointed retired judge Lita Popke to

serve as a discovery facilitator. Iacobelli objected to GM’s first set of interrogatories on the basis

of both his Fifth Amendment right to be protected from self-incrimination, and the spousal

privilege. According to Iacobelli, his plea agreement in the federal criminal case did not provide

blanket immunity or otherwise bar his assertion of his right to be protected from self-incrimination.

GM moved to compel Iacobelli’s answers to the interrogatories.

The discovery facilitator heard the motion to compel, and suggested that Iacobelli’s

assertion of spousal privilege was too broad. Regarding self-incrimination, the facilitator

suggested that she was not provided with all the facts to establish why the discovery responses

would create a risk for further criminal prosecution, and conducted an in camera review on the

issue. Following the in camera proceeding on the Fifth Amendment issue, the facilitator

recommended that (1) spousal privilege could not be raised in relation to the interrogatories

because the privilege only applied to an examination in court (and not to written discovery), and

(2) Iacobelli’s assertion of the Fifth Amendment privilege could not be evaluated until his

deposition.

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The spousal privilege issue was raised again during a motion hearing before the trial court.

After hearing arguments from both counsel, the court ruled that Iacobelli did not establish that the

interrogatory responses were covered by the spousal privilege considering the privilege had to be

construed strictly, the interrogatories did not amount to in-court testimony, and they did not relate

to Susanne.

During his deposition Iacobelli invoked his privilege against self-incrimination almost 500

times, and on 20 occasions he refused to answer questions on the basis of spousal privilege. The

objections generally centered around the following topics:

• Questions regarding the details and scope of Iacobelli’s plea agreement, particularly

regarding certain individuals who may have been involved in the conspiracy.

• Questions regarding the alleged bribery scheme, as well as Iacobelli’s knowledge of the

details of the scheme.

• Questions involving Iacobelli’s involvement in the 2015 collective-bargaining process and

FCA’s possible motives to merge with GM.

• Questions involving whether Iacobelli held money in any foreign bank accounts in his own

name or in Susanne’s name.

• Questions regarding why Iacobelli’s employment at FCA ended in 2015 and why he

decided to seek employment at GM.

• Questions about alleged misconduct at GM or in GM’s Center for Human Resources

(CHR), as well as meetings between Iacobelli and GM officials.

• Questions about whether Iacobelli passed GM’s confidential information to FCA while

working at GM.

• Questions about alleged inaccuracies in DeLorenzo’s affidavit, as well as related questions

about their conversation.

• Questions about improvements that were made to Iacobelli’s home, a red Ferrari Spider,

and other personal and credit card expenses, presumably paid for by the NTC.

• Questions about donations Iacobelli made to his son’s high school, Brother Rice High

School, presumably through the use of NTC funds.

Iacobelli also declined to answer 20 questions about Susanne on the basis of “spousal privilege.”

At the discovery facilitator’s invitation, GM and the FCA Defendants filed briefs regarding

489 instances of Iacobelli’s invocation of the Fifth Amendment privilege during his deposition.

According to the facilitator’s summary of the arguments, GM and the FCA Defendants asserted

that Iacobelli’s invocation of his Fifth Amendment privilege was overbroad as Iacobelli already

pleaded guilty in relation to the bribery scheme, and thus there was no tangible, genuine, or

substantial risk of prosecution. For their part, the FCA Defendants sought to compel Iacobelli’s

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answers relating to five categories of information it sought during his deposition: (1) Iacobelli’s

alleged misappropriation of funds from the NTC, (2) Iacobelli’s communications with FCA after

his employment with the company ended, (3) alleged inaccuracies in DeLorenzo’s affidavit, (4)

alleged foreign bank accounts, and (5) alleged misconduct at GM or the CHR.

Iacobelli responded to GM’s motion, arguing that (1) the fact that he pleaded guilty to two

crimes in federal court did not prohibit him from invoking his Fifth Amendment privilege in this

case, (2) he did not need to prove a risk of incrimination to invoke the Fifth Amendment privilege,

and (3) an Assistant United States Attorney recently told the trial court that the criminal

investigation remained ongoing. Thus, Iacobelli was not immune from prosecution. In the

alternative, he argued the facilitator should conduct an in camera review of additional information,

such as an explanation from counsel regarding why Iacobelli invoked his Fifth Amendment

privilege in response to certain questions.

As for the FCA Defendants’ motion, Iacobelli argued he did not have immunity from

prosecution in other federal jurisdictions and that the cooperation agreement would not provide

complete immunity. He had a reasonable apprehension of incrimination in relation to each

invocation of privilege considering the broad allegations against the FCA Defendants and

Iacobelli.

In mid-November 2023, GM served a subpoena duces tecum on Susanne, requesting 27

categories of documents. Susanne moved to quash the subpoena, arguing that the same documents

were requested in related federal litigation known as the Ashton cases3 and that the subpoena was

unreasonable and disproportionate to the needs of this case.

The discovery facilitator issued a report and recommendation on GM’s and the FCA

Defendants’ motions to compel. The facilitator categorized her findings on the invocations of

privilege into five categories: (1) the invocation of privilege is barred by “selective waiver”

(Category 1), (2) the invocation was proper because there existed a reasonable risk that Iacobelli

could be prosecuted for perjury (Category 2), (3) the invocation was improper because the answers

did not pose a reasonable risk of prosecution or there existed an imaginary fear of prosecution

(Category 3), (4) the invocation of the privilege was not proper because the answers were protected

by plea agreement or the cooperation agreement (Category 4), and (5) the invocation of the

privilege was not proper because Iacobelli did not face a reasonable risk of prosecution for

potential crimes barred by the statute of limitations (Category 5). The facilitator included a

detailed chart outlining each instance in which defendant invoked the Fifth Amendment privilege

during his deposition, the positions taken by GM and the FCA Defendants in relation to the

privilege, and the facilitator’s recommendations for each invocation of privilege.

Relating to Category 1, the facilitator concluded that numerous instances existed in which

Iacobelli answered a question voluntarily but then refused to provide further details when asked

follow-up questions. For Category 2, which represented a small subset of questions, the facilitator

3

Gen Motors, LLC v Ashton, United States District Court for the Eastern District of Michigan

Case No. 22-mc-50034; Gen Motors, LLC v Ashton, United States District Court for the District

of New Jersey Case No. 20-cv-12659.

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concluded that there were certain instances in which Iacobelli properly invoked the Fifth

Amendment because there was a reasonable risk of future prosecution for perjury. More

specifically, the facilitator agreed with Iacobelli’s argument that a possibility existed that if he

were to answer the questions about the foreign bank accounts in a manner inconsistent with his

earlier representations, he could be prosecuted for perjury. The facilitator concluded that because

there was no evidence that an absolute bar existed for prosecution for perjury (and the statute of

limitations had not run), the court should conclude that Iacobelli’s invocation of the Fifth

Amendment was proper.

For Category 3, the facilitator concluded that Iacobelli refused to answer several deposition

questions relating to the activities of other individuals. Because he could not be prosecuted for the

conduct of others, his invocation of the Fifth Amendment was not justified. This would include

questions about misconduct at GM or the CHR that occurred before he joined the company. As

for Category 4, involving whether Iacobelli faced a reasonable risk for prosecution when

considering the language of his plea agreement and the cooperation agreement, the facilitator

reasoned that Iacobelli’s fear of prosecution in other jurisdictions was not reasonable. The

facilitator reasoned that because all the alleged bribery and kickback schemes involved in this case

arose in Michigan, there was no reasonable risk that Iacobelli could be prosecuted in any other

states. Furthermore, the prosecution of crimes arising out of the bribery scheme would be barred

by a five-year limitations period for noncapital offenses outlined in 18 USC 3282, and Michigan’s

six-year criminal limitations period outlined in MCL 767.24(10). For this same reason, as to

Category 5, the facilitator reasoned that there was no reasonable risk of future prosecution in

relation to the bribery or kickback scheme because the federal and state limitations periods expired.

Iacobelli objected to the discovery facilitator’s December 11, 2023 report and

recommendation and moved the court to set it aside. The trial court, however, largely adopted the

facilitator’s recommendation. With respect to selective waiver, the court explained that “a witness

cannot set forth certain testimony and then withdraw from the crossfire of interrogation before the

reliability of his testimony has been fully tested.” Rather, “[w]hen a witness voluntarily testifies

about a subject, the waiver of any Fifth Amendment right extends to any matter within the scope

of relevant cross examination, including matters affecting the witness’s credibility.” The court

also concluded that the responses to the questions “would pose no real danger of prosecution,”

noting that the facilitator used the correct legal standard by examining whether there existed a

genuine threat of prosecution. Additionally, the court ruled that Iacobelli failed to identify a single

offense for which the limitations period had not expired. The facilitator, according to the court,

was not required to accept his claim of apprehension of a real danger of incrimination at face value.

With respect to the foreign bank accounts, the court found that they fell within the scope of the

selective waiver because Iacobelli affirmatively offered testimony on the subject. The court

therefore adopted the report and recommendation in all respects except that it overruled the

privilege assertion in relation to GM’s and FCA’s questions concerning foreign bank accounts.

GM and the FCA Defendants then moved to compel Iacobelli’s answers to the 20

deposition questions he refused to answer on the basis of spousal privilege. The facilitator issued

a report and recommendation regarding Iacobelli’s assertion of spousal privilege, recommending

that the court rule that spousal privilege did not apply and that Iacobelli should be required to

answer the 20 deposition questions. The facilitator found that Iacobelli’s argument that spousal

privilege could apply outside of court was incorrect and contrary to the court’s prior ruling in

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relation to the interrogatories. Even if it were correct, the testimony would not be “ ‘for or against

his wife,’ ” as required for the spousal privilege to apply.

In that regard, the testimony would not disfavor Susanne’s legal interests in this case

because she was not a party to the case, and any prosecution of Susanne in relation to the

embezzlement scheme would be time-barred under the five-year federal limitations period for

noncapital offense outlined in 18 USC 3282 or the six-year criminal limitations period outlined in

MCL 767.24(10). The same was true in relation to any potential tax fraud charges which were

subject to a six-year limitations period, 26 USC 6531(2). Thus, because there was no conceivable

risk of prosecution to Susanne, Iacobelli could not invoke spousal privilege for any of the 20

deposition questions.

Iacobelli objected to the report and recommendation and moved the trial court to reject it.

The court ruled in favor of GM and the FCA Defendants, explaining that any crimes for which

Susanne could be implicated were time-barred and that the spousal privilege would not otherwise

apply because Susanne was not a party to the action. Thus, Iacobelli’s testimony would not be

against her legal interests.

Before the trial court ruled on Susanne’s motion to quash GM’s subpoena, GM moved the

trial court to compel Susanne’s compliance with its subpoena. At issue was Susanne’s continued

withholding of handwritten notes of her conversations with Iacobelli, which GM argued was not

covered by the spousal privilege. The facilitator found that Susanne did not properly invoke the

spousal privilege under MCL 600.2162(1) because she was not examined as a witness “for or

against” Iacobelli without his consent. Nor was she testifying in a court proceeding under oath.

The facilitator further found that the subpoena did not contain “testimonial aspects” for purposes

of the Fifth Amendment act-of-production doctrine because the authenticity or existence of the

notes was not at issue. And, the doctrine had only been used in the Fifth Amendment context and

not in the context of spousal privilege. The facilitator recommended the court grant GM’s motion

to compel production of the notes.

The court adopted the facilitator’s recommendation and granted the motion to compel

disclosure of the notes. The court ruled that the spousal privilege is testimonial in nature and

“limited to those situations in which a spouse is being examined in court proceedings.” The court

explained that it previously rejected a broad application of spousal privilege and found that the

doctrine should be strictly construed to apply to testimony, only. The court held that the act-of-

production doctrine applying to Fifth Amendment privilege in the federal context did not apply to

spousal privilege because Susanne’s notes were not considered testimony and there was no dispute

that the notes existed and were relevant to the claims.

II. ANALYSIS

A. PREEMPTION

Before addressing the discovery issues, we first turn to whether the NLRA preempts the

claims brought by GM, thus depriving the trial court of subject-matter jurisdiction to resolve this

dispute.

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This Court reviews de novo both the issue whether the trial court has subject-matter

jurisdiction, Forest Hills Coop v Ann Arbor, 305 Mich App 572, 616; 854 NW2d 172 (2014), and

the trial court’s ruling on a motion for summary disposition, Ass’n of Home Help Care Agencies v

Dep’t of Health & Human Servs, 334 Mich App 674, 684; 965 NW2d 707 (2020). A motion under

MCR 2.116(C)(4) examines whether the trial court has subject-matter jurisdiction and

encompasses issues of federal preemption of state law. Henry v Laborers’ Local 1191, 495 Mich

260, 273; 848 NW2d 130 (2014). “In deciding whether to grant a motion for summary disposition

pursuant to MCR 2.116(C)(4), a court must consider [t]he affidavits, together with the pleadings,

depositions, admissions, and documentary evidence then filed in the action or submitted by the

parties . . . .” Id. (quotation marks and citation omitted; alteration in original).

Subject-matter jurisdiction refers to the court’s right to exercise its judicial power over a

class of cases, as opposed to the case before the court. Southfield v Shefa, LLC, 340 Mich App

391, 406; 986 NW2d 607 (2022). “ ‘A trial court is duty-bound to recognize the limits of its

subject-matter jurisdiction, and it must dismiss an action when subject-matter jurisdiction is not

present.’ ” Id. (citation omitted).4 “A challenge to a court’s subject-matter jurisdiction is

determined by allegations in the pleadings.” Id.

Preemption under Garmon is considered somewhat “unusual,” as under that decision “the

NLRA preempts state law even when the two only arguably conflict,” Glacier Northwest, Inc v

Int’l Bhd of Teamsters Loc Union No 174, 598 US 771, 776; 143 S Ct 1404; 216 L Ed 2d 28

(2023), whereas the Court “typically applies a high bar before concluding that federal law ‘strip[s]

state courts of jurisdiction to hear their own state claims,’ ” id. at 785 (THOMAS, J., joined by

ALITO, J., concurring), quoting Atlantic Richfield Co v Christian, 590 US 1, 15-16; 140 S Ct 1335;

206 L Ed 2d 516 (2020) (alteration in original). Yet Glacier Northwest adhered to the Garmon

doctrine, including its two exceptions.

The extent of Garmon preemption was discussed in Henry. There, the Court explained,

“[i]n the absence of explicit statutory language, state law is pre-empted where it regulates conduct

in a field that Congress intended the Federal Government to occupy exclusively or when it actually

conflicts with federal law.” Henry, 495 Mich at 275 (quotation marks and citations omitted).

There is no standard formula, and the key is whether Congress intended to preempt state law in

relation to the specific context of the state law at issue. Id. at 275-276.

As it relates to the NLRA, the Court explained that the law creates “federal rules of decision

regarding labor relations, but also delegates enforcement of that policy to an administrative

agency,” referring to the NLRB. Id. at 277. Section 7 of the NLRA provides, in relevant part:

Employees shall have the right to self-organization, to form, join, or assist

labor organizations, to bargain collectively through representatives of their own

4

For this reason, the FCA Defendants’ suggestion that GM waived this issue by failing to argue

the substantive merits in its brief on appeal is of no consequence. This Court is independently

obligated to examine its subject-matter jurisdiction.

-12-

choosing, and to engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection . . . . [29 USC 157.]

Section 8 of the NLRA also prohibits employers from interfering with, restraining, or coercing

employees from participating in the protected activities outlined in § 7. 29 USC 158(a)(1). The

NLRA charges the NLRB with prevention of unfair labor practices affecting commerce. 29 USC

160(a).5 The congressional purpose of the designation of the NLRB as a central administrative

agency was to apply substantive rules uniformly and avoid possible differences and conflicts from

the application of local laws and procedures on labor controversies. Henry, 495 Mich at 277.

Garmon explored “the extent to which the maintenance of a general federal law of labor

relations combined with a centralized administrative agency to implement its provisions

necessarily supplants the operation of . . . state regulation.” Id. at 278 (quotation marks and

citation omitted). As the Garmon Court declared, “[w]hen an activity is arguably subject to [§§ 7

or 8] of the [NLRA], the States as well as the federal courts must defer to the exclusive competence

of the National Labor Relations Board if the danger of state interference with national policy is to

be averted.” Garmon, 359 US at 245. “To leave the States free to regulate conduct so plainly

within the central aim of federal regulation involves too great a danger of conflict between power

asserted by Congress and requirements imposed by state law.” Id. at 244.

According to the Garmon Court, to show that the claims are “arguably subject” to NLRB

jurisdiction, “the party claiming pre-emption is required to demonstrate that his case is one that

the Board could legally decide in his favor.” Int’l Longshoremen’s Ass’n, AFL-CIO v Davis, 476

US 380, 395; 106 S Ct 1904; 90 L Ed 2d 389 (1986). Thus, the party must “advance an

interpretation of the [NLRA] that is not plainly contrary to its language and that has not been

‘authoritatively rejected’ by the courts or the Board.” Id. The focus is on the conduct—not on the

formal description of the legal standards in issue. Henry, 495 Mich at 287.

The Garmon Court did, however, recognize two exceptions to the general rule regarding

preemption. The first exception, not applicable here, applies “where the activity regulated was a

merely peripheral concern” of the NLRA. Garmon, 359 US at 243. The second exception exists

“where the regulated conduct touched interests so deeply rooted in local feeling and responsibility

that, in the absence of compelling congressional direction, [the Court] could not infer that Congress

had deprived the States of the power to act.” Id. at 244. The key concern of the second exception

is “whether there exist[s] a significant state interest in protecting the citizen from the challenged

conduct and whether the exercise of state jurisdiction over the [state] claim entail[s] little risk of

interference with the regulatory jurisdiction of the [NLRB].” Henry, 495 Mich at 280 (quotation

marks and citation omitted; alterations in original). In this context, the NLRA does not preempt

state-law claims involving intentional torts such as trespass, intentional infliction of emotional

distress (IIED), “malicious interference with a lawful occupation,” or malicious libel. Id.

Henry involved claims under The Whistleblowers’ Protection Act, MCL 15.361 et seq.,

arising from alleged retaliation for reporting suspected wrongdoing to the United States

5

There is no dispute for purposes of these appeals that the issues raised in the second amended

complaint would affect commerce. 29 USC 152(7).

-13-

Department of Labor. Id. at 267, 288. The Henry Court held that the plaintiffs were seeking to

improve their working conditions and acted with the purpose of furthering the goals of a group,

which was considered protected activity under the NLRA. Id. at 288-289. “Their claims of unfair

wages and an unsafe work environment are prototypical issues of dispute under the NLRA.” Id.

at 289. The claims were therefore arguably protected under the NLRA and subject to NLRB

preemption, and neither of the Garmon exceptions applied to the plaintiffs’ concerted activity. Id.

at 289-290. See also Calabrese v Tendercare of Mich, Inc, 262 Mich App 256, 257, 263-264; 685

NW2d 313 (2004) (holding that the plaintiff’s wrongful-discharge and tortious-interference claims

arising from the wrongful termination of her employment after she refused to fire other employees

for engaging in unionizing activities were preempted under Garmon because the plaintiff alleged

that the defendants engaged in unfair labor practices). But see Roberts v Auto Club of Mich, 138

Mich App 488, 497; 360 NW2d 224 (1984) (holding that Garmon preemption did not apply to a

contractual dispute because the state has a substantial interest in adjudicating contract claims), and

Trudeau v Fisher Body Div, Gen Motors Corp, 168 Mich App 14, 19; 423 NW2d 592 (1988)

(holding that the plaintiff’s intentional tort claim against her employer was not preempted under

Garmon because the plaintiff did not allege a violation of the NLRA, the tortious activity did not

require analyzing the terms of a collective-bargaining agreement, and “the state has a legitimate

and substantial interest in protecting its citizens from the tort complained of”).6

The FCA Defendants argue that GM’s claims are arguably subject to the NLRA because

they are predicated on an “overarching bribery scheme,” and therefore are essentially based on the

FCA Defendants breaching a duty to bargain in good faith. More specifically, the FCA Defendants

argue that the basic gist of the unfair competition claim is that FCA obtained benefits and

advantages from the UAW that were denied to GM. However, that claim contains no allegations

under §§ 7 or 8 of the NLRA or that would arguably fit under those statutory provisions. Again,

the focus of § 7 is on the rights of employees to be involved in labor organizations, bargain

collectively, or engage in concerted activities, 29 USC 157, while the focus of § 8 is on prohibiting

an employer from interfering with, restraining, or coercing employees from participating in the

protected activities outlined in § 7, 29 USC 158(a)(1). While in a general sense engaging in bribery

6

We disagree with the FCA Defendants’ assertion that in Gen Motors, LLC, the Sixth Circuit

already addressed Garmon preemption involving “virtually identical factual allegations.” First,

the Sixth Circuit did not address explicitly whether Garmon preemption applied to GM’s state-law

claims, which were dismissed by the time the case reached the appellate court. It was assumed,

for purposes of the issue, that the NLRB would have jurisdiction but for the language in RICO

incorporating § 186 of the LMRA. Second, and perhaps more importantly, the allegations in the

federal litigation were focused on the bribery scheme and how the scheme impacted GM. Gen

Motors, LLC, 44 F4th at 551-556. While the first-amended complaint in the federal case

mentioned the scheme to have Ashton and Iacobelli infiltrate GM, the focus in that case was the

broader bribery scheme that occurred between 2009 and 2015. In contrast, although the second-

amended complaint in this case discusses the bribery scheme as it occurred between 2009 and

2015, the claims themselves are focused primarily on the events occurring in 2015 and later, and

specifically on whether Iacobelli and other individuals infiltrated GM and passed along trade

secrets and confidential information. So, while the causes of action in the two lawsuits were

interrelated, the factual basis was not identical, or even substantially similar.

-14-

might interfere with the collective-bargaining rights of GM’s employees, the focus of GM’s unfair-

competition claim is on the damages done to GM as a business, not to its employees as union

members. Resolving the claim also does not require interpreting a collective bargaining

agreement, and the relief sought does not seek to untie any labor contracts. Nor do the allegations

indicate that FCA interfered with, restrained, or coerced its own employees from participating in

any protected activities. To reach that conclusion would require reading additional allegations into

the second-amended complaint. For this reason, the unfair-competition claim does not arguably

fall under either section of the NLRA.

The fraud claim is a closer call, as it is premised on the allegation that FCA and the UAW

“orchestrated a decade-long conspiracy to corrupt the collective bargaining process and labor

relations and harm GM.” Specifically, GM alleged that former FCA president Sergio Marchionne

made misrepresentations in relation to the status of the collective-bargaining process in 2015 and

that Williams falsely advised GM during the bargaining process about the UAW’s relationship

with FCA and why the UAW selected FCA as its targeted company for bargaining. The second-

amended complaint further details how Ashton’s and Iacobelli’s fraudulent misrepresentations

harmed GM, as the purpose of the false statements surrounding the 2015 collective-bargaining

negotiations “was to assure GM, and the public, that their decisions related to the selection of FCA

as the lead and the substance of the 2015 tentative agreement was not tainted by any wrongdoing.”

But as noted, GM is not seeking damages on behalf of its employees for violation of labor

laws, but rather, is seeking damages on its own behalf for various torts it alleges FCA and the

individual defendants committed. Thus, while there is a colorable argument that the fraud claim

at least touches on protected activity under § 7 of the NLRA, because the focus is on

misrepresentations made to harm a competitor, and not the collective-bargaining process itself, we

conclude that the fraud claim is not preempted under Garmon.7

The FCA Defendants present caselaw from various federal circuit courts purportedly

holding that for Garmon preemption to apply, the employee need not be the plaintiff, and the claim

can be filed by various other individuals and entities. Nat’l Labor Relations Bd v Indiana & Mich

Electric Co, 318 US 9, 17; 63 S Ct 394; 87 L Ed 579 (1943). True enough, but they have cited no

caselaw extending Garmon preemption to a fraud claim by a competitor for damages to the

competitor, as opposed to the competitor’s employees. 8

7

The civil-conspiracy claim is premised on the viability of the other claims, Early Detection

Center, PC v New York Life Ins Co, 157 Mich App 618, 632; 403 NW2d 830 (1986), so it is

likewise not preempted by federal law.

8

To support federal jurisdiction, the FCA Defendants cite two unpublished federal district court

decisions, DeShetler v FCA US, LLC, unpublished opinion of the United States District Court for

the Northern District of Ohio, issued November 30, 2018 (Case Nos. 3:18-CV-78 and 3:18-CV-

85), aff’d 790 Fed Appx 664 (CA 6, 2019), and Swanigan v FCA US, LLC, unpublished opinion

of the United States District Court for the Eastern District of Michigan, issued August 23, 2018

(Case No. 18-cv-10319), aff’d 938 F3d 779 (CA 6, 2019), both of which were LMRA lawsuits

arising from the same bribery scheme. However, neither of these cases involved GM or the

-15-

Even if the second-amended complaint arguably alleged unfair labor practices falling

within the scope of the NLRA, we would conclude that the local-interest exception applied as the

issues raised in that complaint touch on interests that are so deeply rooted in local feeling and

responsibility that, absent compelling congressional direction, we should not infer that Congress

intended to deprive the state of the power to act. See Henry, 495 Mich at 280.

As recounted, the second-amended complaint alleges a variety of intentional tort claims

which are historically considered matters of local concern that are not preempted under the NLRA.

See Garmon, 359 US at 247 (Court identified, as typical of the kind of state law that would not be

pre-empted, “the traditional law of torts.”). And the local feeling and responsibility are perhaps

even more compelling in a case involving the interrelations between two of the three Detroit-based

automakers, where billions of dollars in damages are at stake, and where the outcome could

indirectly affect both Michigan’s economy and its citizens. The NLRA does not contain any

provisions that could be characterized as “compelling congressional direction” that would dictate

that the NLRA applies in this context. Also, the FCA Defendants do not explain, and we cannot

discern, how the state’s adjudication of the issues in the second-amended complaint would threaten

undue interference with the federal regulatory scheme. See Farmer v United Brotherhood of

Carpenters & Joiners of America, Local 25, 430 US 290, 305; 97 S Ct 1056; 51 L Ed 2d 338

(1977) (framing the issue of local feeling and responsibility as whether the NLRB should retain

sole jurisdiction because “there is a realistic threat of interference with the federal regulatory

scheme”). Resolution of these claims will not entail a review of the terms of any collective

bargaining agreement, see Trudeau, 168 Mich App at 19, there is no allegation of unfair labor

practices that will be resolved as would occur in the NLRB, see Roberts, 138 Mich App at 497,

and if GM prevails it will not be awarded relief that interferes with the collective bargaining

agreements that were completed years ago, but would be awarded damages that the NLRB could

not award. See Radcliffe v Rainbow Constr Co, 254 F3d 772, 787 (CA 9, 2001).

Even if there were any legitimate threat to the federal scheme under the NLRA, it is

counterbalanced by the state’s legitimate and substantial interest in enforcing its own tort law. See

Roberts, 138 Mich App at 494-497 (discussing both Linn v United Plant Guard Workers, 383 US

53; 86 S Ct 657; 15 L Ed 2d 582 (1966) (malicious libel), and Farmer (state intentional infliction

claim not preempted)); Belknap, Inc v Hale, 463 US 491, 509-511; 103 S Ct 3172; 77 L Ed 2d 798

(1983) (holding that a state has an interest in protecting its citizens from fraudulent

misrepresentations that involve issues peripheral to the NLRA and that for the state to decide the

claims for breach of contract and fraud by replacement workers during a strike the state court did

not have to adjudicate any issues that could have been presented to the NLRB). For these reasons,

Garmon preemption does not apply, and the trial court had subject-matter jurisdiction over this

case.

Nor do we agree with the FCA Defendants that the NLRB has already exercised its

jurisdiction over the issue of prohibited payments that “underpin” GM’s claims. Back in 2021, an

NLRB administrative law judge dismissed claims against the UAW relating to the bribery scheme,

allegations involving the alleged infiltration by FCA’s former employees to pilfer trade secrets and

confidential information, and therefore provide no helpful guidance.

-16-

which included allegations that representatives of FCA “unlawfully bribed agents of the [UAW]

to the tune of over a million dollars from 2010 to 2015.” Int’l Union, United Auto, Aerospace &

Agricultural Implement Workers of America (UAW), AFL-CIO (FCA US, LLC), unpublished

decision of the National Labor Relations Board, Division of Judges, issued February 26, 2021

(Case Nos. 07-CB-213726, 07-CB-213747, and 07-CB-213749), adopted by Int’l Union, United

Auto, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO (FCA US,

LLC), unpublished order of the National Labor Relations Board, entered May 11, 2021 (Case Nos.

07-CB-213726, 07-CB-213747, and 07-CB-213749). This conduct allegedly occurred “during a

time period when FCA and the UAW twice negotiated successor collective-bargaining agreements

covering unit employees.” Id. at 2. The NLRB’s general counsel alleged that the UAW breached

a duty of fair representation to its employees and violated § 8(b)(1)(A) of the NLRA by engaging

in conduct that was “inherently destructive of employees’ rights.” Id. at 2. The ALJ dismissed

the claim because the general counsel relied solely on hearsay statements found within the various

plea agreements in the criminal cases to support the allegations against the UAW. Id. at 3, 26-27.9

Neither the ALJ nor the Board resolved the issues raised here.

B. FIFTH AMENDMENT

Turning now to the first non-jurisdictional issue, Iacobelli argues that the trial court abused

its discretion in granting defendants’ motion to compel his answers to upward of 500 deposition

questions. According to Iacobelli, the Fifth Amendment to the United States Constitution permits

him to avoid providing answers because answering them could incriminate him.

The right to be protected from self-incrimination is recognized under both the Fifth

Amendment, as applied to the states through the Fourteenth Amendment to the United States

Constitution, as well as under Michigan’s 1963 Constitution. PCS4LESS, LLC v Stockton, 291

Mich App 672, 677 & n 3; 806 NW2d 353 (2011). The Fifth Amendment protections are not

limited to the criminal context; they protect an individual from answering questions “[i]n any other

proceeding, civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” Id. at 677 (quotation marks and citation omitted). Or stated

differently, the Fifth Amendment extends to any situation in which a forced answer to a question

“would furnish a link in the chain of evidence needed to prosecute[.]” Id. (quotation marks and

citations omitted). See also Hoffman v United States, 341 US 479, 486; 71 S Ct 814; 95 L Ed 1118

(1951). And the privilege may be invoked even if a criminal proceeding has not been instituted or

planned. Huntington Nat’l Bank v Ristich, 292 Mich App 376, 384; 808 NW2d 511 (2011).

But a party or witness cannot simply invoke the amendment’s protections for any reason.

As explained in Hoffman, the seminal case on the scope of the Fifth Amendment privilege, the

protection afforded by the privilege “must be confined to instances where the witness has

reasonable cause to apprehend danger from a direct answer.” Hoffman, 341 US at 486. Thus,

“[t]he witness is not exonerated from answering merely because he declares that in so doing he

9

Contrary to what the FCA Defendants argue, the NLRB action was focused on the conduct of the

UAW and did not involve any allegations on the part of GM, specifically. In fact, the ALJ never

discussed jurisdiction in the opinion provided to this Court, and no judgment was entered

resolving the allegations GM raises here.

-17-

would incriminate himself—his say-so does not of itself establish the hazard of incrimination.”

Id. Rather, the court must decide whether the privilege applies and must require the party to answer

the question “if it clearly appears to the court that he is mistaken.” Id. (quotation marks and citation

omitted). The privilege therefore only applies to “real dangers,” and not to “remote and speculative

possibilities.” Zicarelli v New Jersey State Comm of Investigation, 406 US 472, 478; 92 S Ct

1670; 32 L Ed 2d 234 (1972). “To sustain the privilege, it need only be evident from the

implications of the question, in the setting in which it is asked, that a responsive answer to the

question or an explanation of why it cannot be answered might be dangerous because injurious

disclosure could result.” Hoffman, 341 US at 486-487. Accord PCS4LESS, 291 Mich App at 678,

and In re Morganroth, 718 F2d 161, 167 (CA 6, 1983) (the privilege should be applied liberally

but cannot be applied “if it clearly appears that [the witness] is mistaken as to the justification for

the privilege in advancing his claim as a subterfuge”).

To that end, in order to compel the answer it must be “perfectly clear to the court ‘from a

careful consideration of all of the circumstances in the case, that a witness is mistaken, and that

the answer[s] cannot possibly have such a tendency to incriminate.’ ” Id. at 169, quoting Hoffman,

341 US at 488 (alteration in original). Thus, “sufficient evidence is presented by a witness if a

court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a

reasonable fear of prosecution.” Morganroth, 718 F2d at 169. The Sixth Circuit explained,

however, that

a witness must supply personal statements under oath or provide evidence with

respect to each question propounded to him to indicate the nature of the criminal

charge which provides the basis for his fear of prosecution and, if necessary to

complement non-testimonial evidence, personal statements under oath to meet the

standard for establishing reasonable cause to fear prosecution under this charge.

[Id. at 169-170.]

Additionally, “[i]t is well settled that a defendant may waive his right . . . to claim his Fifth

Amendment privilege against self-incrimination by negotiating a voluntary plea agreement with

the government.” United States v Scruggs, 356 F3d 539, 546 (CA 4, 2004) (quotation marks and

citation omitted; alteration in original). Whether the statute of limitations has run on a crime is

also relevant, as “the Fifth Amendment’s privilege against self-incrimination does not apply after

the relevant limitations period has expired.” Stogner v California, 539 US 607, 620; 123 S Ct

2446; 156 L Ed 2d 544 (2003).

1. PROPER LEGAL STANDARD

Iacobelli first raises some semantics. He argues that the trial court committed a legal error

by adopting the facilitator’s report and recommendation despite language in the report stating the

legal standard as whether the questioning would “expose the witness to a genuine threat of

prosecution,” relying on this Court’s unpublished opinion in People v Barbour, unpublished per

curiam opinion of the Court of Appeals, issued July 8, 2010 (Docket No. 290341). Although the

facilitator did not commit a legal error by relying on this Court’s unpublished opinion, an

unpublished opinion is not precedent and should not be cited when a published decision states the

same proposition of law. And the Barbour Court’s position that there must be a reasonable basis

for the witness to anticipate incrimination, and that the threat cannot be remote or speculative, was

-18-

supported by published caselaw. In any event, like the trial court, we see no discernable difference

between the “genuine prosecution” standard and the “real danger” standard outlined in Hoffman.

In either case, the question is essentially the same: was there a reasonable basis for the witness to

fear incrimination, or was the fear of incrimination too remote or speculative?

In that regard, the facilitator also properly cited the legal standard as whether “the witness

‘has reasonable cause to apprehend danger’ of criminal liability” and whether “the individual

‘reasonably believes’ ” the evidence “ ‘could be used against him in a criminal prosecution,’ ”

quoting Hoffman, 341 US at 486, and Maness v Meyers, 419 US 449, 461; 95 S Ct 584; 42 L Ed

2d 574 (1975). The facilitator applied the correct legal standard in reviewing the arguments, and

no legal error occurred.10

2. SELECTIVE WAIVER

Turning to the merits, Iacobelli criticizes the facilitator for only discussing three examples

of selective waiver in her report and recommendation (designated as Category 1), rather than

discussing each of the nearly 250 instances of alleged selective waiver individually. To the

contrary, however, the facilitator conducted a detailed, question-by-question analysis of the

invocations of privilege and, as noted, designated the questions into five different categories.

Regarding selective waiver, the Supreme Court has held that “a witness, in a single

proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-

incrimination when questioned about the details.” Mitchell v United States, 526 US 314, 321; 119

S Ct 1307; 143 L Ed 2d 424 (1999). When this occurs, the individual waives the privilege for the

matters for which he provides testimony, “and the scope of the waiver is determined by the scope

of relevant cross-examination.” Id. (quotation marks and citation omitted). The Court explained

that “[t]he justifications for the rule of waiver in the testimonial context are evident: A witness

may not pick and choose what aspects of a particular subject to discuss without casting doubt on

the trustworthiness of the statements and diminishing the integrity of the factual inquiry.” Id. at

322. Otherwise, the witness could distort the facts by self-selecting where to stop in the testimony.

Id. See also In re Flint Water Cases, 53 F4th 176, 202 (CA 6, 2022) (“A witness cannot set forth

certain testimony and then ‘withdraw from the cross-fire of interrogation before the reliability of

his testimony has been fully tested.’ ”) (citation omitted).

The first category of questions relate to allegations in Iacobelli’s criminal indictment

regarding misappropriation of NTC funds for his personal use, including purchasing a 2013

10

Iacobelli also faults the facilitator for interchangeably using the terms “incrimination” and

“prosecution,” but the federal courts have used the terms interchangeably as well. See In re

Morganroth, 718 F2d at 166-169. Iacobelli likewise criticizes GM for referring to the “real

danger” of prosecution instead of the “possibility of prosecution” throughout its briefing, citing

Convertino v United States Dep’t of Justice, 795 F3d 587, 594 (CA 6, 2015). This is again a matter

of semantics and, as stated earlier, the facilitator correctly articulated the legal standard. See

Hoffman, 341 US at 484.

-19-

Ferrari. During his deposition, Iacobelli testified that he was told by FCA that he was being

terminated because of the Ferrari purchase, and later provided details about that transaction, which

he claimed was purchased for a raffle at a charity event. He explained that, after the charity idea

fell through, he offered to pay for the vehicle and later took possession of it. The trial court found

that Iacobelli engaged in selective waiver by refusing to answer questions about the details of the

Ferrari purchase as well as “questions concerning other purchases he made or authorized that were

paid for with NTC funds,” after he had opened the door to questioning about the other personal

purchases he made by testifying about purchasing the Ferrari.

Iacobelli’s testimony about the Ferrari clearly opened the door to further questions about

the Ferrari, though whether he waived the privilege as it relates to any other personal purchases he

made through the use of NTC funds is less clear. Nevertheless, because Iacobelli could not pick

and choose among which NTC-funded purchases to discuss at his deposition after voluntarily

discussing the Ferrari, the court’s decision did not fall outside the range of reasonable and

principled outcomes. Once Iacobelli opened the door to his personal purchases, he waived the

privilege on that subject.

With regard to Iacobelli’s refusal to testify about whether he communicated with FCA

officials or employees after he was terminated, Iacobelli testified that he never spoke with

Marchionne after he left FCA in 2018. Yet he refused to answer several follow-up questions about

those conversations with Marchionne. Under the selective waiver doctrine, once Iacobelli opened

the door by testifying that he had no conversations with Marchionne after he left FCA, he waived

the privilege about his communications with Marchionne.

The final example highlighted by the trial court was Iacobelli’s invocation of waiver in

relation to DeLorenzo’s affidavit. As the court noted, Iacobelli volunteered during his deposition

that “there are a number of inaccuracies in his affidavit, gross inaccuracies and misstatements.”

Yet, he later invoked his Fifth Amendment privilege when asked to identify those inaccuracies.

Under established law, once Iacobelli testified that the affidavit contained inaccuracies, he could

not withdraw from the crossfire on this issue by invoking privilege, regardless of whether his

testimony was “vague” in nature.

Iacobelli also argues that he did not selectively waive his Fifth Amendment privilege when

he was simply asked to confirm the language of his plea agreement, which he argues GM’s counsel

sometimes incorrectly paraphrased. We agree that any instance in which he simply confirmed that

GM’s counsel read his plea agreement accurately was not a selective waiver of his Fifth

Amendment privilege. Iacobelli did not volunteer any information by confirming that GM’s

counsel had correctly read his plea agreement. However, any error the trial court may have

committed in relation to this category of selective waiver was harmless because, as we explain

later, Iacobelli did not have a reasonable apprehension of a real danger of incrimination. The trial

court’s ruling on this issue was not an abuse of discretion.

C. SPOUSAL PRIVILEGE

Iacobelli also argues that the trial court abused its discretion in not allowing him to assert

the spousal privilege in response to almost two dozen questions that he claims could criminally

implicate Susanne.

-20-

This Court reviews as a mixed question of law and fact whether a privilege exists.

Centennial Healthcare Mgt Corp v Mich Dep’t of Consumer & Indus Servs, 254 Mich App 275,

284; 657 NW2d 746 (2002).11 We review de novo whether the trial court properly applied the law

to the facts and review for clear error the trial court’s factual findings in relation to the privilege.

Id. Clear error occurs when this Court is definitely and firmly convinced that the trial court made

a mistake. Hill v City of Warren, 276 Mich App 299, 308; 740 NW2d 706 (2007).

“The common law governs a claim of privilege, unless a statute or court rule provides

otherwise.” MRE 501. Michigan’s spousal privilege is contained in MCL 600.2162, and codified

the common-law spousal privilege. People v Stubli, 163 Mich App 376, 379; 413 NW2d 804

(1987). It provides, in relevant part:

In a civil action or administrative proceeding, a husband shall not be

examined as a witness for or against his wife without her consent or a wife for or

against her husband without his consent, except as provided in subsection (3).

[MCL 600.2162(1).]

The statute outlines certain exceptions to privilege in subsection (3), but none are at issue in this

appeal. See MCL 600.2162(3). As with any privilege, the spousal privilege should be construed

narrowly and the exceptions should be applied broadly. People v Fisher, 442 Mich 560, 574-575;

503 NW2d 50 (1993). The historical justification for spousal privilege was to preserve marital

harmony. People v Wadkins, 101 Mich App 272, 283; 300 NW2d 542 (1980).

The key questions we must resolve are whether (1) the spousal privilege in MCL

600.2162(1) applies to testimony about a spouse who is not a party to the proceeding (or any

related proceeding), and (2) the privilege applies to a spouse who is not at risk of prosecution

because the limitations period has expired for any potential charges. Iacobelli’s theory is that the

spousal privilege protected his testimony because, in his view, GM is attempting to implicate

Susanne in a broader conspiracy involving “imaginary foreign accounts.”12

11

Krusac v Covenant Med Ctr, Inc, 497 Mich 251, 263 n 10; 865 NW2d 908 (2015), limited the

holding and reasoning in Centennial relating to peer-review privilege to its facts, but did not

otherwise vacate or modify that decision.

12

Relying on Fisher, GM and the FCA defendants argue that the privilege does not apply because

Iacobelli’s testimony was not taken in court, arguing that under a narrow interpretation of the

statute, spousal privilege would not apply to out-of-court deposition testimony. In Fisher, 442

Mich at 563, 576, the Court held, in the context of a criminal appeal, that the marital-

communications privilege, MCL 600.2162(4), did not apply to statements the defendant’s

estranged wife made to a police detective that were later set forth in a search-warrant affidavit and

outlined in the presentence investigation report, because the spouse was never examined as a

witness. The Court held that the phrase “ ‘be examined’ ” relates only to “a spouse’s privilege

against being questioned as a sworn witness about the described communications.” Id. at 575.

Thus, the privilege was limited to situations in which the spouse is examined “in court

proceedings.” Id. at 576. As the Court explained, “[b]ecause defendant’s spouse was not

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The spousal privilege did not apply to Iacobelli’s testimony because the statute applies only

to testimony by one spouse “for or against” the nontestifying spouse within the same civil action

or administrative proceeding. MCL 600.2162(1). To that point, the parties do not dispute that

Susanne could not be called at trial to testify against Iacobelli, absent some applicable exception

to spousal privilege. Likewise, should Susanne ever be sued or should criminal charges be filed

against her in Michigan, she could invoke the spousal privilege in relation to the admission of any

incriminating testimony by Iacobelli. But Susanne is not a party to this civil action (or any of the

related actions), which is dispositive because of the longstanding principle of common law that

“neither husband nor wife could be examined as witnesses for or against each other when either

was an actual party to the litigation, whether civil or criminal.” Parsons v People, 21 Mich 509,

512 (1870). No matter, Iacobelli argues, because Susanne may be implicated by his testimony

regarding her involvement with foreign financial accounts on the basis of GM’s assertion that

Susanne maintained foreign financial accounts in her name and facilitated the foreign accounts in

her husband’s name.

To the contrary, in People v Upton, 169 Mich 31, 35; 135 NW 108 (1912), the Court

concluded that, under a prior version of the spousal-privilege statute which also contained the “for

or against” language, the victim’s wife could testify at trial in an assault case because “[h]er

husband was not a party to the proceeding, and, in a legal sense, her testimony concerning what

occurred would be neither for nor against him.” This was true even though the prosecutor argued

that any testimony the wife may give would tend to prove that the victim was the aggressor and

would therefore implicate him in the crime. Id. Likewise, the current version of the spousal

privilege statute contains no language that would allow the privilege to apply to testimony that

may impact Susanne’s interests or that could be construed as broad enough to cover her reputation,

well-being, or marital relationship. See MCL 600.2162(1).

Several decisions highlight our conclusion. In a case relied upon below, United States v

Burks, 152 US App DC 284, 287-288; 470 F2d 432 (1972), quoting 8 Wigmore, Evidence

(McNaughton rev), § 2234, p 231, the United States Court of Appeals for the District of Columbia

Circuit13 held that the common-law spousal privilege was limited because it “applies only when

the testimony of one spouse would favor or disfavor ‘the other spouse’s legal interests in the very

case in which the testimony is offered.’ ” Additionally, as the court explained, the Wigmore

treatise expressly stated that the privilege did not extend to situations in which the testimony would

simply disparage or disfavor the other spouse. Burks, 152 US App DC at 435 n 6.

Also contrary to Iacobelli’s position is United States v George, 444 F2d 310, 313 (CA 6,

1971), where the court rejected the defendant’s argument that his grand-jury testimony would force

examined as a witness, we conclude that the privilege was not available in the circumstances

presented here.” Id. at 563. However, depositions contain sworn testimony and are part of court

proceedings, unlike out-of-court statements a witness gives to police.

13

The federal privilege also codified the common law and includes the same “for or against”

language contained in the Michigan statute, so caselaw construing that same language can be

persuasive. See Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858

(2020), and United States v George, 444 F2d 310, 313 (CA 6, 1971).

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him to be a witness against his wife on the basis that they “filed joint income tax returns, and that

his testimony might possibly indicate discrepancies between their reported and actual income,

thereby conceivably exposing his wife to civil and criminal penalties.” The court held the privilege

inapplicable, reasoning that the questions did not relate in any way to the defendant’s wife, who

was not being investigated by the grand jury. Id. at 314. Extending spousal privilege to

hypothetical claims against the spouse would frustrate the grand-jury process and the court noted

there was no evidence the government intended to use the defendant as a witness against his wife.

Id. See also United States v Premises Known As 281 Syosset Woodbury Rd, 71 F3d 1067, 1070-

1071 (CA 2, 1995) (The court explained in dicta that even if spousal privilege applied in the context

of civil forfeitures, “[t]he adverse spousal testimony privilege is not applicable except in

proceedings where one spouse is a party and the other spouse is called to testify.”).14

In any event, even if spousal privilege could be construed to apply to testimony by one

spouse that could potentially harm the nontestifying spouse in a future legal proceeding, there is

no risk that Iacobelli’s responses to the 20 deposition questions would be against Susanne’s legal

interests. See In re Grand Jury, 111 F3d 1083, 1087 (CA 3, 1997) (explaining that spousal

privilege is not available if the testimony would not be adverse to the nontestifying spouse).

Iacobelli argues that GM made “broad allegations of illegal conduct” involving foreign

bank accounts against Susanne in the related federal actions (such as the Ashton cases), and his

deposition testimony could incriminate Susanne. Again, the questions for which Iacobelli invoked

spousal privilege involved the alleged embezzlement of NTC funds back in the 2009 to 2015

timeframe, primarily asking about an American Express account. None of the questions involved

alleged foreign bank accounts. The theft of the NTC funds occurred before Iacobelli left FCA in

mid-2015. So any criminal charges arising from that embezzlement would be time-barred under

the five-year limitations period outlined in 18 USC 3282(a).

14

Iacobelli’s reliance on In re Grand Jury Matter, 673 F2d 688, 692-693 (CA 3, 1982), in which

the court addressed a situation where the government was openly seeking one spouse’s testimony

to implicate the nonwitness spouse in a crime, is misplaced. The court held that, in that limited

circumstance, “the testimony sought is sufficiently adverse to the interests of the absent spouse to

permit invocation of the privilege against adverse spousal testimony.” Id. at 692. Accord In re

Grand Jury Subpoena to Mrs CD, 22 F Supp 2d 507, 507-509 (D Md, 1998) (following Grand

Jury Matter in a case in which the wife was subpoenaed to answer questions before a grand jury

concerning her activities and transactions when her husband was one of the targets of the grand

jury’s investigation of an alleged conspiracy). Here, no evidence suggests that Susanne is being

targeted for prosecution by any entity. And this is a dispositive difference as the court noted in

Woodbury Rd, 71 F3d at 1071 (Grand Jury Matter was limited “to situations in which the

government is manifestly seeking to use a spouse’s testimony in one proceeding against her or his

partner in a related proceeding.”). Indeed, none of the 20 questions were about foreign bank

accounts—the questions were about the personal charges that Iacobelli made through NTC funds,

primarily through the use of an American Express account. Iacobelli’s theory that GM was seeking

to use his testimony as a basis for a future claim against Susanne is speculative.

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Similarly, any tax-fraud charges against Susanne relating to the theft of NTC funds would

be barred by the six-year limitations period. 26 UC 6531(1). The same six-year limitations period

applies in Michigan for civil fraud and conspiracy. See Boyle v Gen Motors Corp, 468 Mich 226,

230; 661 NW2d 557 (2003) (outlining the limitations period for fraud claims); Terlecki v Stewart,

278 Mich App 644, 653; 754 NW2d 899 (2008) (explaining that a conspiracy claim has the same

limitations period as the underlying wrongful act). The six-year limitations period also applies to

state-level criminal charges arising from the theft of NTC funds. MCL 767.24(10). Thus, the

limitations period for any potential claim against Susanne arising from her alleged involvement in

the conspiracy expired several years ago.

Iacobelli also suggests that Susanne could be prosecuted for subscribing one or more false

tax returns after 2015 but fails to provide any concrete details to support this position. As discussed

earlier, the allegations regarding the foreign bank accounts related to Iacobelli’s conduct from mid-

2015 and earlier. There is no reason to believe that Susanne could be charged for subscribing false

tax returns after 2015. Similarly, Iacobelli suggests that Susanne could be incriminated for perjury

should GM prove that her September 2020 declaration regarding foreign bank accounts was false.

But that declaration related to foreign bank accounts, which was again not a subject of the 20

deposition questions at issue in this appeal. Iacobelli’s argument that Susanne could be implicated

by his testimony is speculative in nature.

As a result, the spousal privilege did not apply because Susanne was not a party to this case

and the testimony would not be “against” her. The trial court therefore did not abuse its discretion

by compelling Iacobelli’s answers to the 20 deposition questions.

D. SPOUSAL PRIVILEGE - SUSANNE

Finally, as to the production of Susanne’s notes, the trial court did not abuse its discretion

by finding that the notes were not protected by spousal privilege and by compelling their

disclosure.

As noted earlier, MCR 2.302(B)(1) outlines the proper scope of discovery of information

in a civil case and provides as follows:

Parties may obtain discovery regarding any non-privileged matter that is

relevant to any party’s claims or defenses and proportional to the needs of the case,

taking into account all pertinent factors, including whether the burden or expense

of the proposed discovery outweighs its likely benefit, the complexity of the case,

the importance of the issues at stake in the action, the amount in controversy, and

the parties’ resources and access to relevant information. Information within the

scope of discovery need not be admissible in evidence to be discoverable.

[Emphasis added.]

At issue are 12 to 15 documents containing handwritten notes that Susanne took regarding

discussions with Iacobelli, which were included on her privilege log in the Ashton litigation. The

documents were not provided in either the trial court or in this Court, but there is no dispute for

purposes of this appeal that they include Susanne’s handwritten notes and relate to conversations

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she had with Iacobelli. Susanne argues that the requested documents are privileged under the Fifth

Amendment15 or, alternatively, on the basis of the spousal privilege.

Turning to the spousal privilege, GM does not dispute for purposes of this appeal that the

handwritten notes were intended to be either “for or against” Iacobelli. See MCL 600.2162(1).

Rather, the focus is on whether Susanne’s production of the documents constitutes an

“examination” under the spousal privilege statute. We conclude that it does not, and as a result the

spousal privilege statute does not apply to Susanne’s production of the notes.

As noted earlier, the Fisher Court held that the marital-communications privilege did not

apply to statements the defendant’s estranged wife made out of court to a police detective that were

set forth in a search-warrant affidavit and were later outlined in the defendant’s presentence

investigation report because the defendant’s estranged spouse was never examined as a witness.

Fisher, 442 Mich at 563, 576. The Court held that the phrase “ ‘be examined’ ” relates only to “a

spouse’s privilege against being questioned as a sworn witness about the described

communications.” Id. at 575. Thus, “the spouse must testify for the privilege to apply,” and “[t]he

introduction of the marital communication through other means is not precluded.” Id. Because

the estranged spouse was not called to testify at either the trial or at an evidentiary hearing, she

was not examined as a witness against the defendant. Id. at 575-576.

Susanne argues that GM’s reliance on Fisher is misplaced because the statements in

question in that case were voluntarily provided to the police by the defendant’s estranged wife.

However, Susanne cites no caselaw that has distinguished Fisher on this basis, and there is no

language in MCL 600.2162(1) suggesting that application of spousal privilege depends on whether

disclosure was voluntary or involuntary in nature. Additionally, although Fisher involved a

criminal case and the marital-communications privilege, the same rationale can apply to the

spousal privilege in the civil context because the critical phrase “be examined” appears in both the

spousal-privilege provision and the marital-communication privilege provision. See MCL

600.2162(1) and (4).

The final question is whether the Fifth Amendment act-of-production doctrine may be

applied to the notes in question to deem their production testimonial in nature. The act-of-

production doctrine originates from Fisher v United States, 425 US 391, 408; 96 S Ct 1569; 48 L

Ed 2d 39 (1976), in which the Court held, in the context of working papers used to prepare tax

returns, that the Fifth Amendment proscribes the compelled production of documentary evidence

when an accused individual must make a testimonial communication that is incriminating in

nature. The idea is that by producing documents in response to a subpoena, the witness may be

making a compelled testimonial act. United States v Hubbell, 530 US 27, 36; 120 S Ct 2037; 147

L Ed 2d 24 (2000). “By producing documents in compliance with a subpoena, the witness would

15

Susanne did not argue in the trial court that the Fifth Amendment protected these documents

from disclosure, instead relying solely on spousal privilege. Although the Fifth Amendment

argument is waived, we will consider it because it involves a legal question that revolves around

undisputed facts, and is necessary to fully resolve this issue. See Tolas Oil & Gas Exploration

Co v Bach Servs & Mfg, LLC, 347 Mich App 280, 289; 14 NW3d 472 (2023).

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admit that the papers existed, were in his possession or control, and were authentic.” Id. (quotation

marks and citation omitted). Also,

when the custodian of documents responds to a subpoena, he may be compelled to

take the witness stand and answer questions designed to determine whether he has

produced everything demanded by the subpoena. The answers to those questions,

as well as the act of production itself, may certainly communicate information about

the existence, custody, and authenticity of the documents. [Id. at 37.]

Under the “act of production” doctrine the act of producing information — not just the information

itself — may be protected by the privilege against self-incrimination. The doctrine is intended to

avoid those situations in which the document production “ ‘would furnish a link in the chain of

evidence needed to prosecute the claimant for a federal crime.’ ” Id. at 38, quoting Hoffman, 341

US at 486.

Susanne cites no precedent for her position that the federal act-of-production doctrine

applies outside of the Fifth Amendment context or, more specifically, to the spousal privilege in

Michigan. It is also noteworthy that there is no question about the existence or authenticity of the

handwritten notes as these facts were established when Susanne produced her privilege log in the

Ashton litigation, in which she represented that the documents existed and were in her control.

According to Susanne, her Fifth Amendment rights are implicated because GM argued in

its motion to compel that the purpose of the document request was “to establish [Susanne’s]

‘involvement in the UAW bribery scheme.’ ” However, beyond this general and short description,

Susanne provides no tangible basis for concluding that her disclosure of the notes in the context

of this civil litigation would create a real risk of future prosecution. Indeed, the facilitator correctly

found that there was no reasonable risk of prosecution against Susanne because the limitations

period expired for both federal and state claims, and the five-year limitations period has also

expired for any theoretical perjury charges arising from Iacobelli’s and Susanne’s September 2020

declarations. Therefore, Susanne is not protected by the Fifth Amendment privilege from

producing the documents.

The trial court did not abuse its discretion by granting GM’s motion to compel and finding

that the notes in question were not subject to the spousal privilege.

Affirmed.

/s/ Christopher M. Murray

/s/ Michael F. Gadola

/s/ Michael J. Kelly

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