Stavale v. Stavale

332 Mich.App. 556

957 N.W.2d 387

Candice R. STAVALE, Plaintiff-Appellee,

v.David A. STAVALE, Defendant-Appellant,

No. 349472

Court of Appeals of Michigan.

Submitted June 3, 2020, at Grand Rapids.

Decided June 11, 2020, 9:15 a.m.

Bolhouse, Hofstee & McLean, PC (by Michelle M. McLean and Matthew F. Burns ) for plaintiff.

Corbet, Shaw, Essad & Bonasso, PLLC (by Kenneth M. Essad, Detroit, and Erika Jost) for defendant.

Before: K.F. Kelly, P.J., and Fort Hood and Swartzle, JJ.

Fort Hood, J.

In this interlocutory appeal by leave granted,¹ defendant, David A. Stavale, appeals the trial court's order denying defendant's motion to quash subpoenas on the basis of the requested information being protected by the attorney-client privilege. Defendant contends that the trial court erred when it concluded that defendant intentionally and voluntarily disclosed privileged information by communicating with his attorney through his employer-provided e-mail address such that he could not avail himself of the attorney-client privilege. We conclude that the trial court erred in its application of the law, and as matter of first impression, we articulate in this opinion a framework within which the trial court should reconsider this issue on remand.

This is an action for divorce. The particular issue raised on appeal arose when plaintiff, Candace R. Stavale, issued subpoenas to defendant's employer, requesting e-mails that defendant had sent to his personal attorney through his employer-provided e-mail address. Defendant moved to quash the subpoenas on the basis of the attorney-client privilege, and plaintiff responded that the privilege did not apply because, according to the employer's employee handbook, defendant had no reasonable expectation of privacy when he used the employer-provided e-mail address to communicate with his personal attorney.

Although it is not entirely clear from the record whether the trial court was addressing the appropriate legal question, the court ultimately sided with plaintiff. This appeal followed.

As noted, it is not clear from the record whether the trial court denied the motion to quash on the basis of the attorney-client privilege having never attached to the communications at issue, or on the basis of defendant having waived any use of the privilege after it attached. What is clear is that defendant's argument before the trial court and on appeal is that he did not waive the attorney-client privilege because he did not intentionally and voluntarily disclose his privileged e-mails to his employer. However, the Michigan cases defendant relies on to explain his application of waiver involve whether disclosure of already privileged information to a third party constituted a waiver of the attorney-client privilege. See Leibel v. Gen. Motors Corp. , 250 Mich. App. 229, 242, 646 N.W.2d 179 (2002) (analyzing whether a waiver occurred when otherwise privileged information became public as a result of litigation in another court); Sterling v. Keidan , 162 Mich. App. 88, 90, 412 N.W.2d 255 (1987) (examining whether the defendant waived attorney-client privilege when he inadvertently sent an otherwise privileged document to the plaintiff).

Whether a communication is made in a confidential manner such that the attorney-client privilege can attach is not the same issue as whether an already privileged communication has been voluntarily disclosed to a third party such that attorney-client privilege is waived. See Leibel , 250 Mich. App. at 238-242, 646 N.W.2d 179 (separately analyzing application of the attorney-client privilege and waiver of the privilege). The distinction is important because, although related, the standard for waiving a privilege that already exists is not the same under Michigan law as the standard for applying the privilege in the first place. See id. at 236, 240, 646 N.W.2d 179 (noting that attorney-client privilege attaches only to confidential communications between a client and an attorney, and separately noting the circumstances under which a waiver of the privilege may occur after it has attached). The issue in this case is not one of waiver, or at least not the type of waiver analyzed in Leibel and Sterling . The issue in this case, fundamentally, is whether defendant had a reasonable expectation of privacy in the use of his employer-provided e-mail such that attorney-client privilege attached to the communication between defendant and his counsel in the first place.

"Whether the attorney-client privilege applies to a communication is a question of law that we review de novo." Nash Estate v. Grand Haven , 321 Mich. App. 587, 592, 909 N.W.2d 862 (2017) (quotation marks and citation omitted). In Michigan, "[t]he attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice." Id. at 593, 909 N.W.2d 862 (quotation marks and citation omitted). "The scope of the privilege is narrow: it attaches only to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice." Id. (quotation marks and citation omitted). See also People v. Compeau , 244 Mich. App. 595, 597, 625 N.W.2d 120 (2001) (explaining that attorney-client privilege does not apply unless there is an "element of confidentiality"). "The attorney-client privilege is designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure." Nash Estate , 321 Mich. App. at 593, 909 N.W.2d 862.

In Compeau , there was no element of confidentiality when the defendant spoke to his counsel in the courtroom and a bailiff overheard because the defendant failed to take reasonable precautions to keep the communication confidential, i.e., by quietly whispering or by communicating in writing. Compeau , 244 Mich. App. at 597-598, 625 N.W.2d 120. Recently, in People v. Miller (On Reconsideration) , unpublished per curiam opinion of the Court of Appeals, issued February 5, 2019 (Docket No. 337460), p. 4, 2019 WL 452928,² we concluded that statements made by a defendant over a jail phone line that the defendant knew to be monitored and recorded were not confidential for the purpose of asserting attorney-client privilege. In both cases, we held that attorney-client privilege did not apply despite the fact that the respective defendants did not necessarily intend to disclose their communications to a third party. See Compeau , 244 Mich. App. at 597-598, 625 N.W.2d 120 ; Miller , unpub. op. at 4.

With respect to the specific facts of this case, however, no Michigan court has addressed how attorney-client privilege applies in cases in which a party uses an employer-provided means of communication to communicate with a personal attorney, the employer reserves the right to monitor that communication, but either the party is not aware of that monitoring or the employer cannot or does not actually monitor as suggested in its policy. The issue has been addressed, however, by several federal and state courts.³

The seminal case in the federal system is In re Asia Global Crossing, Ltd. , 322 B.R. 247 (Bankr. S.D. N.Y., 2005). At issue in that case was "whether an employee's use of [a] company e-mail system to communicate with his personal attorney destroy[ed]" attorney-client privilege. Id. at 251. After reviewing Fourth Amendment cases and right-of-privacy cases, the court concluded that four factors should be considered in determining an employee's expectation of privacy in the employer's computer files and e-mail:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies[.] [ Id. at 257.]

Ultimately, the Asia Global court concluded that the company in that case clearly had access to the employee's e-mails contained on the company server and clearly had a policy banning personal use of the employee e-mail system and providing to employees that communications sent through the corporate e-mail server were "not private or secure." Id. at 259 (emphasis omitted). However, the court noted that it was unclear whether employees had ever been notified of the policy or of the monitoring of their e-mails and that the court could not conclude "as a matter of law" that employees lacked a reasonable expectation of privacy when they used their corporate e-mails to communicate with their personal attorney. Id. at 261.⁴

Asia Global has been "widely adopted" in the federal system as a tool to aid in "the ‘reasonable expectation of privacy’ determination in the context of email transmitted over and maintained on a company server...." In re Reserve Fund Securities & Derivative Litigation , 275 F.R.D. 154, 159-160 & 160 n. 2 (S.D. N.Y., 2011).⁵

Another notable and instructive case comes from a California appellate court.

In Holmes v. Petrovich Dev. Co., LLC , 191 Cal. App. 4th 1047, 119 Cal. Rptr. 3d 878 (2011), a California appellate court held that attorney-client communications made over the plaintiff's company computer were not privileged.⁶ In reaching its conclusion, the court noted that the plaintiff

used a computer of defendant company to send the e-mails even though (1) she had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages ... at any time," and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to

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