The Court of Appeals reversed the trial court’s decision denying the defendant’s motion to quash subpoenas because it was unclear whether the defendant knew that his communications with his attorney, through the use of his employer-provided email address, were not protected by the attorney-client privilege.  

In denying the defendant’s motion, the trial court’s decision was unclear as to whether the denial was based on the fact that the attorney-client privilege never attached to the defendant’s emails or that the defendant waived the attorney-client privilege after it attached to the defendant’s emails. 

The Court stated, “[t]he 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.”

Background

In this action for divorce, the plaintiff issued subpoenas to the defendant’s employer seeking email communications that the defendant sent to his attorney via his employer-provided email address. Claiming attorney-client privilege, the defendant filed a motion to quash the subpoenas to which the plaintiff argued the attorney-client privilege did not apply.

The plaintiff’s argument was based on the fact that the employer’s policy stated that employees had no reasonable expectation of privacy in using the employer-provided email address; thus, the defendant could not assert attorney-client privilege when he used the employer-provided email address to communicate with his attorney. Defendant argued at trial that he did not waive attorney-client privilege because he did not “intentionally and voluntarily disclose” the emails in question to his employer. However, the defendant’s argument rests on the basis that the emails in question were already privileged.

The Court of Appeals highlighted the distinction between when a communication is made in a manner that attorney-client privilege attaches and when attorney-client privilege is waived as it pertains to an already privileged communication. The distinction was important because the case is not about waiver of an already privileged communication, but rather about applying the privilege “in the first place.”

Attorney-Client Privilege

On appeal, the Court stated that the issue was “whether the 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.” Further, the Court noted that no Michigan court had 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.”

To analyze the case at bar, the Court looked to the decisions in In re Asia Global Crossing, Ltd., and Holmes v. Petrovich Dev. Co., LLC, a federal and California appellate court cases respectively.

The court in Asia Global established a four-factor test to determine whether an employee had a reasonable expectation of privacy in using an employer-provided service, such as an email.

(1) Does the corporation maintain a policy banning personal or other objectional use; (2) does the company monitor the use of the employee’s computer or email; (3) do third parties have a right of access to the computer or emails; and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

In Holmes, the California appellate court used identical factors as the court in Asia Global to analyze whether there was a reasonable expectation of privacy in the employee’s communications from an employer-provided email. Importantly, Holmes highlighted the fact that the company “explicitly told employees that they did not have a right to privacy in person e-mail sent by company computers . . . and the company never conveyed a conflicting policy.” 

The Michigan Court of Appeals used both the factors in Asia Global and the emphasis on employer policy in Holmes to guide its decision in this case. The Court stated that in order for an employee to have a reasonable expectation of privacy when using an employer-provided email, a court should analyze, on a case-by-case basis, (1) whether the employer maintains a policy with respect to the use of those systems and what that policy entails, and (2) whether the employee was ever notified or made aware of the employer’s policies and practices with respect to computer privacy and monitoring.

In this case, the Court held that the employer did in fact implement an “unambiguous policy” regarding the use of the employer-provided email service. The ambiguity that was present was whether the employee was properly notified of the employer’s policy. The Court noted that the trial court apparently made no finding of this issue and the defendant’s brief “at the very least, suggests  . . . that defendant may never have been asked to read or sign the employee manual that puts forth the relevant policy.”

Given this new legal framework, the Michigan Court of Appeals reversed the trial court’s decision to determine whether the defendant had a reasonable expectation of privacy.