GREGORY J BOWENS V ARY INC

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STATE OF MICHIGAN COURT OF APPEALS GREGORY J. BOWENS, PAULA M. BRIDGES and GARY A. BROWN, UNPUBLISHED September 24, 2009 Plaintiffs-Appellants, and ROBERT B. DUNLAP and PHILLIP A. TALBERT, Plaintiffs, v ARY, INC., d/b/a AFTERMATH ENTERTAINMENT, PHILLIP J. ATWELL, CHRONIC 2001 TOURING, INC., GERONIMO FILM PRODUCTIONS, INC., and ANDRE YOUNG, Defendants-Appellees, and AMAZON.COM, INC., AOL TIME WARNER, INC., BARNES & NOBLE, INC., BARNES & NOBLE.COM, INC., BEST BUY COMPANY, INC., BLOCKBUSTER, INC., BORDERS GROUP, INC., CDNOW, INC., JOHN DOE #1, JOHN DOE #2, EAGLE ROCK ENTERTAINMENT, EAGLE VISION, INC., HARMONY HOUSE RECORDS & TAPES, HASTINGS ENTERTAINMENT, INC., HMV MEDIA GROUP, HONIGMAN MILLER SCHWARTZ & COHN, L.L.P., HOUSE OF BLUES CONCERTS/HEWITT/SILVA, L.L.C., INGRAM ENTERTAINMENT HOLDINGS, INTERSCOPE RECORDS, INC., ERVIN JOHNSON, MAGIC JOHNSON PRODUCTIONS, -1- No. 282711 Wayne Circuit Court LC No. 02-233251-CZ L.L.C., METROPOLITAN ENTERTAINMENT GROUP, INC., MGA, INC., MOVIE GALLERY.COM, INC., MTS, INC/TOWER RECORDS, THE MUSICLAND GROUP, INC., PANAVISION, INC., RADIO EVENTS GROUP, INC., RED DISTRIBUTION, INC., PHIL ROBINSON, WILLIAM SILVA, TRANS WORLD ENTERTAINMENT CORPORATION, KIRDIS TUCKER, WHEREHOUSE ENTERTAINMENT, INC., and WH SMITH, P.L.C., Defendants. Before: Murray, P.J., and Gleicher and M.J. Kelly, JJ. PER CURIAM. In this action alleging a violation of Michigan’s eavesdropping statutes, MCL 750.539a et seq., plaintiffs Gregory J. Bowens, Paula M. Bridges and Gary A. Brown appeal as of right a circuit court order granting summary disposition to defendants. We affirm in part, reverse in part, and remand for further proceedings. I. Underlying Facts and Proceedings On July 6, 2000, the “Up in Smoke” music tour, featuring performances by artists known as Dr. Dre, Eminem, Ice Cube and Snoop Dogg, prepared for a concert at Joe Louis Arena in Detroit. During the late afternoon of July 6, 2000, several Detroit officials, including Bowen, a mayoral press secretary, Bridges, a Detroit Police Department spokesperson, and Brown a Detroit police commander, arrived at the arena and sought a meeting with tour organizers. Plaintiffs expressed concern about an eight-minute video introduction to the performances of Dr. Dre and Snoop Dogg. Plaintiffs advised concert personnel that because the video contained sexually inappropriate images, its display would violate city ordinances. They threatened legal sanctions and disruption of power to the arena if the video accompanied the concert performance. Contentious discussions and negotiations ensued. Eventually, the concert proceeded without the video. The tour promoters subsequently incorporated, as “exclusive backstage footage” on a tour concert DVD, audio and video recordings of portions of plaintiffs’ discussions with tour personnel. The DVD achieved a worldwide audience. Plaintiffs filed suit against the present defendants, Ary, Inc., d/b/a Aftermath Entertainment, Phillip J. Atwell, Chronic 2001 Touring, Inc., Geronimo Film Productions, Inc., and Andre Young, along with many others. Plaintiffs alleged that they had requested repeatedly that the portion of the July 2000 meeting included on concert DVD remain private, and that they had not given anyone permission to record the discussion. The initial complaint asserted multiple claims, including false light invasion of privacy, invasion of privacy through appropriation, fraud, and eavesdropping. Defendants moved for summary disposition, and the -2- circuit court dismissed the lawsuit in its entirety. This Court affirmed the circuit court’s ruling in nearly all respects, except with regard to plaintiffs’ eavesdropping claim, which the Court remanded so that the parties could conduct additional discovery. Bowens v Aftermath Entertainment, unpublished opinion per curiam of the Court of Appeals, issued April 19, 2005 (Docket No. 250984), lv den 474 Mich 1111 (2006). The Court explained that from a review of the cassette submitted to the trial court, it is not at all clear that plaintiffs were aware that the meetings were being taped. Indeed, while at some points in the footage a hand-held video camera appears in a reflection from a mirror, when plaintiffs are shown, the footage contains characteristics that suggest that the meeting was being secretly taped. For example, at times there are no bright lights as there are when the video camera’s presence is clear, and at the same time, the person being taped appears, because of the proximity and height of the recording, to be speaking to an individual who was not holding a video camera. Thus, it is quite possible that the meeting with plaintiffs was secretly taped, yet the other portions of the segment (where plaintiffs were not present) were openly videotaped. Only further discovery, and in particular, a review of any unedited versions of the recordings, will reveal the existence or non-existence of such material facts. [Id. at 2-3.] Further discovery yielded a limited quantity of unedited footage of the discussions that appeared on the DVD. Defendants again moved for summary disposition, contending that plaintiffs lacked any reasonable expectation of privacy during their videotaped discussions with tour personnel, and that the nature of the conversations did not qualify as “intensely personal,” as required under case law construing the eavesdropping statutes. Plaintiffs responded that defendants failed to turn over complete raw footage of the conversations, and that the record evidence demonstrated that defendants had covertly recorded a private conversation and displayed it on the DVD. The circuit court granted defendants summary disposition, finding that the circumstances did not give rise to a reasonable expectation of privacy. II. Issues Presented and Analysis Plaintiffs raise several challenges to the circuit court’s grant of summary disposition. This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). We also review de novo the interpretation and application of statutes as questions of law. Gilliam v Hi-Temp Products, Inc, 260 Mich App 98, 108; 677 NW2d 856 (2003). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App 621. When a court affords “the benefit of reasonable doubt to the opposing party” and identifies an issue about which reasonable minds “might differ,” summary disposition should not be granted. West, 469 Mich 183. A court may not make findings of fact when deciding a summary disposition motion. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866 (1995). -3- A. Plaintiffs’ Eavesdropping Claim Plaintiffs maintain that defendants eavesdropped on a private conversation by recording it without their consent.1 Bowens averred in an affidavit that he “asked that we have a private unrecorded meeting and the tour representatives agreed to my suggestion.” The parties supplied this Court with DVDs depicting the segment of the allegedly private conversation that defendants included as “exclusive backstage footage” on the “Up In Smoke” DVD and outtakes obtained during discovery. A portion of the DVD footage contains the following conversation: Bowens: Did you have a good time running to get MTV? Tour Official: We can come in here and shut the door. Bowens: Good. I am glad you did. We’re still going to have a private meeting. We can have a private meeting here, or we can have a private meeting someplace else. Tour Official: Okay. Brown testified at his deposition that he noticed “thousands of dollars’ worth” of video equipment backstage, and learned from an MTV cameraman that “he was shooting a video.” Both Brown and Bowen recounted that they instructed people wielding cameras to turn them off. When asked whether he would “have done anything different if they had said we are not shutting the camera off,” Brown responded, “We would not have had that meeting had I known the camera was on.” Bridges’s deposition testimony also supported that the parties had agreed to an unrecorded meeting: “When I first entered the room and [Bowens] and the tour officials were at the door and they were discussing it not being videotaped and the tour officials said sure, of course, and they walked out, and the cameras walked out with them. I did not see them reenter.” Brown explained that the private conversation requested by Bowens took place in a backstage area at Joe Louis Arena called “[t]he referees’ room.” A sign on the room’s door stated, “Authorized Personnel Only.” Brown described that he allowed into the room during the private conversation “[o]nly persons that I deemed to be authorized to be there,” and that a security person “attached to the promoters” stood outside the room during the meeting. Concerning the accessibility of the backstage referees’ room, William Silva, a representative of the tour promoters, testified that “you certainly couldn’t walk through the door there. It would be somebody who had backstage credentials or somehow had access to the backstage area.” Plaintiffs averred that they did not see any cameras present during the conversation that occurred in the referees’ room. Plaintiffs insist that when defendants acquiesced to their request that the conversation in the referees’ room remain unrecorded, the meeting qualified as private under the eavesdropping 1 The second amended complaint alleges that “in violation of MCL 750.539a et seq, defendants knowingly aided, employed or procured persons to eavesdrop on the private discourse.” -4- statutes. Michigan law establishes civil and criminal penalties for conduct violating prohibitions against “eavesdropping” or “surveillance.” The Legislature has created the following civil remedy for eavesdropping violations: Any parties to any conversation upon which eavesdropping is practiced contrary to this act shall be entitled to the following civil remedies: (a) An injunction by a court of record prohibiting further eavesdropping. (b) (c) 750.539h.] All actual damages against the person who eavesdrops. Punitive damages as determined by the court or by a jury. [MCL In MCL 750.539a(2), the Legislature defined “eavesdropping” as “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” Eavesdropping contrary to the act occurs when “[a]ny person who is present or who is not present during a private conversation and … willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or … knowingly aids, employs or procures another person to do the same . . . .” MCL 750.539c. In People v Stone, 463 Mich 558, 563; 621 NW2d 702 (2001), our Supreme Court defined the term “private conversation” as follows: “[P]rivate conversation” means a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance. Additionally this conclusion is supported by this Court’s decision in Dickerson v Raphael[, 461 Mich 851; 601 NW2d 108 (1999),] in which we stated that whether a conversation is private depends on whether the person conversing “intended and reasonably expected that the conversation was private.” Dickerson v Raphael, 222 Mich App 185; 564 NW2d 85 (1997), rev’d in part 461 Mich 851, arose from “the surreptitious, nonconsensual recording, simultaneous transmission, and later broadcast” of a conversation between a mother and her children. Id. at 188. The conversation took place in an Ann Arbor public park, while the participants sat on park benches. Id. at 190. “At the park, plaintiff’s children discussed with their mother her income, the stability of her marriage, and her religious beliefs.” Id. The children did not inform their mother that one of them wore a device that transmitted the conversation to a company simultaneously recording it for later broadcast on television. The defendants later played four vignettes from the recorded conversation on a nationally televised program. The plaintiff sued several defendants, claiming a violation of Michigan’s eavesdropping statutes. The trial court denied the plaintiff’s motion for a directed verdict regarding her eavesdropping claim, and a jury returned a no cause of action verdict in favor of the defendants. Id. This Court held that as a matter of law, the defendants’ conduct violated the Michigan eavesdropping statutes. Dickerson, 222 Mich App 195-196. The Supreme Court reversed in part, holding that the “[p]laintiff was not entitled to a directed verdict because reasonable minds could differ on the question whether the conversation at issue was ‘private.’” Dickerson, 461 -5- Mich 851. The Supreme Court explained that the trial court “should have instructed the jury that the question whether plaintiff’s conversation was private depends on whether she intended and reasonably expected it to be private at the time and under the circumstances involved.” Id. (emphasis omitted). Whether a conversation is private depends on the intent and reasonable expectation of the plaintiff, and “not whether the subject matter was intended to be private.” Id. Our Supreme Court again construed Michigan’s eavesdropping statutes in Stone, 463 Mich 558, in which it considered “whether a conversation held on a cordless telephone is a ‘private conversation’ as that term is used in the statutes.” Id. at 559. The Supreme Court noted that the plain language of the eavesdropping statutes does not specifically define the term “private conversation.” Id. at 563. The Court defined conversations that are private by applying concepts set forth by the Legislature in defining the term “private place”: Thus, “private conversation” means a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance. Additionally, this conclusion is supported by this Court’s decision in Dickerson v Raphael, in which we stated that whether a conversation is private depends on whether the person conversing “intended and reasonably expected that the conversation was private.” [Stone, 463 Mich 563.] The Supreme Court also observed that under the Michigan eavesdropping statutes, “whether a person can reasonably expect privacy in a conversation generally will present a question of fact.” Id. at 566. The Supreme Court held that “[a]s a matter of law, it was not unreasonable for [plaintiff] to expect that her cordless telephone conversations were private” because, “although the victim may have known that her cordless telephone conversations could be wilfully intercepted with a device, she also could presume that others would not eavesdrop on her cordless telephone conversations using any device because doing so is a felony under the eavesdropping statutes . . . .” Id. at 565-566. In this case, our Court’s prior opinion observed that factual questions existed with respect to whether plaintiffs’ conversation with the tour promoters had been secretly recorded: [F]rom a review of the cassette submitted to the trial court, it is not at all clear that plaintiffs were aware that the meetings were being taped. Indeed, while at some points in the footage a hand-held video camera appears in a reflection from a mirror, when plaintiffs are shown, the footage contains characteristics that suggest that the meeting was being secretly taped. [Bowens, slip op at 2-3.] The unedited versions of the recordings obtained during subsequent discovery fail to clarify with certainty whether plaintiffs knew or should have been aware of the presence of functioning cameras during the conversation they believed to be private. After reviewing the additional materials submitted, we find no basis to disagree with this Court’s prior observation that “[i]t is quite possible that the meeting with plaintiffs was secretly taped, yet the other portions of the segment (where plaintiffs were not present) were openly videotaped.” Id. at 3. Although defendants submit that the camera’s existence should have been “obvious,” the outtakes supplied do not include footage of the filming itself. Stated differently, no new evidence conclusively refutes this Court’s earlier finding that “the footage contains characteristics that suggest that the meeting was being secretly taped.” Id. -6- The circuit court ruled that regardless whether someone secretly recorded the meeting, plaintiffs lacked a reasonable expectation of privacy because no barrier prevented people from entering and leaving the referees’ room. The circuit court opined that “the plaintiffs could have selected another—a better—room,” but that “[u]nder the circumstances, the plaintiffs could not have had a reasonable expectation of privacy.” Defendants suggest that the conversation could not have objectively qualified as private because its venue was not a “private place”: “The City Officials could have no reasonable expectation of privacy when they did not control access to the room, nor the door, and did not even recognize everyone who was in the room.” We reject the notion that as a matter of law, parties may not conduct a “private conversation” under MCL 750.539c in a public place, or a location where nonparticipants in the conversation are physically present. Secret monitoring of a conversation deprives the participants of their right to control the reach of their words. However, the mere presence of others in the general vicinity does not eliminate the parties’ ability to carry on a private conversation. “[T]he proper question is whether plaintiff intended and reasonably expected that the conversation was private.” Dickerson, 461 Mich 851 (emphasis omitted). A private conversation takes place when a person reasonably expects the conversation “to be free from casual or hostile intrusion or surveillance.” Stone, 463 Mich 563. “A private conversation may occur within the sight but not the hearing of others.” Dickerson, 222 Mich App 201. Private conversations may occur in public parks, as in Dickerson, or in public buildings. The location of a conversation, standing alone, does not dispositively establish whether the parties to the conversation reasonably intended and expected that their interchange would remain private. Here, the record evidence establishes that plaintiffs insisted that the conversation in the referees’ room occur in the absence of recording devices, and that defendants’ representatives acquiesced to plaintiffs’ demand. This evidence suffices to create a material question of fact with regard to whether the parties’ conversation constituted one in which a person could reasonably expect to be free from casual or hostile intrusion or surveillance. Stone, 463 Mich 563. The parties do not dispute that defendants recorded some portion of the conversation that plaintiffs believed was private. Viewed in the light most favorable to plaintiffs, the evidence establishes a genuine issue of material fact concerning whether defendants violated MCL 750.539c, which prohibits a person from willfully using any device to eavesdrop on a private conversation without the consent of all parties thereto. We respectfully disagree with the dissent’s conclusion that “even if Silva agreed to a private meeting as plaintiffs claim and even though plaintiffs were unaware they were being recorded against their express wishes,” “there is no genuine issue of material fact showing that” plaintiffs had a reasonable expectation of a private conversation, given the evidence that other people wandered in and out of the room and had “all eyes on the conversation. Post at 6. To the contrary, the circumstances presented here give rise to compelling factual questions about the reasonableness of plaintiffs’ expectation of privacy, and do not as a matter of law eliminate an eavesdropping claim under MCL 750.539c. We find no support in the statutory language, Stone, or the Supreme Court’s order in Dickerson for the proposition that an eavesdropping claim cannot proceed unless the violation occurred in a “private place.” Rather, the Supreme Court has directed that a reviewing court’s inquiry must focus on the reasonableness of a party’s expectations of privacy. “[A] person is not unreasonable to expect privacy in a conversation although he knows that technology makes it possible for others to eavesdrop on such -7- conversations.” Stone, 463 Mich 568. Irrespective whether others present in a room may qualify as potential eavesdroppers, a person in a public place may nevertheless possess a reasonable expectation of conducting a private conversation. Consistent with the mandate in Stone, a jury must make the determination whether plaintiffs’ expectation of privacy under the circumstances presented here qualified as a reasonable one. Id. at 566. B. Claim Alleging Installation of a Device We next consider whether plaintiffs have presented sufficient evidence to establish a violation of MCL 750.539d, which in 2000 provided, Any person who installs in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, or eavesdropping upon the sounds or events in such place, or uses any such unauthorized installation, is guilty of a felony . . . . In Lewis v LeGrow, 258 Mich App 175, 186; 670 NW2d 675 (2003), this Court defined the statutory term “install” as “to place in position or connect for service or use.” The common meaning of the term “install” contemplates a settled location. In context, MCL 750.539d forbids a person from setting up a secret recording device in a private place to record words or activity. Applying the common meaning of the term “install,” we detect no evidence supporting that defendants “installed” a device for observing or eavesdropping on plaintiffs. The parties agree that if someone employed a secret or hidden camera to record the conversation in the referees’ room, it was handheld, and not placed in position or used in a specific location. Accordingly, we affirm the circuit court’s grant of summary disposition regarding plaintiffs’ claim under MCL 750.539d. C. Remaining Issues Defendants assert that plaintiffs’ status as public officials at the time of the allegedly private meeting rendered their conversation with the tour promoters public “per se.” According to defendants, “police officers cannot reasonably expect their public law-enforcement actions to be private.” We note initially that only Brown was employed as a police officer in July 2000. Bowen worked for the office of the mayor, and Bridges was a civilian employee of the Detroit Police Department. But even assuming that all three plaintiffs worked as police officers, we decline to hold that as a matter of law an on-duty police agent may not engage in a private conversation. Defendants have pointed to no case law supporting this position. Furthermore, such a rule would unduly inhibit the ability of police officers to converse among themselves or with others at a crime scene or other law enforcement locations. Consequently, we reject the suggestion that police officers may not engage in private conversations immune from eavesdropping under MCL 750.539c. Defendants also contend that because the cameramen were present during the July 6, 2000 conversation and consented to the recording, neither they nor their principals violated the eavesdropping statute. The plain language of MCL 750.539c reveals the weakness of this argument. Section 539c imposes criminal liability on “any person” present during a private conversation who willfully eavesdrops “without the consent of all parties thereto.” (Emphasis -8- added). “[A] participant may not unilaterally nullify other participants’ expectation of privacy by secretly broadcasting the conversation.” Dickerson, 461 Mich 851. Defendants lastly assert that pursuant to the United States Supreme Court’s decision in Bartnicki v Vopper, 532 US 514; 121 S Ct 1753; 149 L Ed 2d 787 (2001), the First Amendment shields those defendants “who did not directly participate in the interception” of the conversation at issue. In Bartnicki, an unknown person illegally intercepted a cellular telephone conversation between union representatives that occurred during contentious contract negotiations. Id. at 518. A radio station played a tape of the conversation, which the station claimed that it received from someone who had found it in his mailbox. Id. at 519. The union representatives filed suit alleging that the radio station had violated federal and state wiretapping statutes because it knew or should have known that the conversation was intercepted illegally. Id. at 519-520. The Supreme Court accepted the fact that the radio station and other defendants “played no part in the illegal interception,” and that their “access to the information on the tapes was obtained lawfully, even though the information was intercepted unlawfully by someone else.” Id. at 525. The Supreme Court concluded that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535. In contrast to Bartnicki, plaintiffs here allege that defendants directed the camera operators, and thus did not qualify as “strangers” to the disclosure. Furthermore, defendants are not members of the press, and did not disseminate the fruits of the allegedly illegal recordings to the media. Instead, they used the recordings for profit. In Bartnicki, the Supreme Court distinguished between the facts of that case and the more common situation in which intercepted information is used for purposes other than informing listeners about matters of public interest: “Although this suit demonstrates that there may be an occasional situation in which an anonymous scanner will risk criminal prosecution by passing on information without any expectation of financial reward or public praise, surely this is the exceptional case.” Id. at 531. We find these distinctions compelling, and supportive of our conclusion that the First Amendment does not shield the instant defendants, under circumstances such as these, from the applicability of Michigan’s eavesdropping statutes. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Elizabeth L. Gleicher /s/ Michael J. Kelly -9-

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