The Michigan Court of Appeals recently addressed, in a published opinion, the issue of the attorney-client privilege and how it applies to communications between an attorney and client over e-mail. In Stavale v. Stavale, Docket No. 349472 (Mich. Ct. App. June 11, 2020), the Court of Appeals discussed the issue of whether the privilege applies when the client uses an employer-provided e-mail address to communicate with his attorney on a personal legal matter. Specifically, in Stavale, the plaintiff-wife filed an action for divorce against the defendant-husband. In the course of discovery, the plaintiff-wife subpoenaed the employer of the defendant-husband asking it to produce e-mails the defendant-husband had exchanged with his attorney in the divorce action. The defendant-husband sought a protective order asking the trial court to quash the subpoenas on the basis of the attorney-client privilege. The plaintiff-wife objected, arguing that the attorney-client privilege did not apply because the defendant-husband has no reasonable expectation of privacy in using his employer’s e-mail system. The trial court quashed the subpoena, but the matter was reviewed by the Court of Appeals on an application for interlocutory appeal.
On appeal, the Court of Appeals first clarified the issue presented in the motion: did the attorney client privilege apply? The Court of Appeals clarified that the issue had nothing to do with whether the attorney-client privilege was waived. Rather, the Court of Appeals explained that the issue was whether the attorney-client privileges applied. In order for the privilege to apply, the Court of Appeals explained, under established Michigan law, the client’s communication to the attorney must be made confidentially, meaning that the client makes the communication “knowing that his communications are safe from disclosure.” Thus, the question in this case was whether the client, using his employer’s e-mail address, made communications to his personal attorney with the knowledge that the communications were confidential.
Drawing from federal and other state cases that have addressed this issue, the Court of Appeals created a two-factor analysis to determine whether a client’s use of an employer-provided e-mail or computer system to communicate with his attorney is protected by the attorney-client privilege: “(1) whether the employer maintains a policy with respect to the use of those systems and what the policy entails, and (2) whether the employee was ever notified of made aware of the employer’s policies and practices with respect to computer privacy and monitoring.”
Of further note, the Court of Appeals rejected the view of other states, and some federal courts, that where an employer’s policy says it may monitor its employees’ e-mail, but in practice the employer never actually engages in such monitoring, the express policy may be ignored. Rather, the Court of Appeals held that it is the employer’s policy that sets the employee’s expectation of privacy, not its practice.
The Court of Appeals emphasized that the two factors identified may not be exhaustive of the inquiry, and the inquiry will necessarily turn on the facts of each case. In fact, the Court of Appeals made no decision on the merits of whether the attorney-client privilege applied in the instant case; instead, it remanded the case to the trial court to apply the newly identified factors.
The primary takeaway for practitioners from this case is two-fold: (1) practitioners need to caution their clients not to communicate with them or store any confidential documents on computer systems or e-mail servers belonging to their employer; and (2) practitioners need to consider sending a subpoena to an opposing party’s employer, because it may be a fertile ground for obtaining discovery in the form of e-mail communications sent on the employer’s e-mail system.
Authored by: Stephen T. McKenney