                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0337n.06

                                            No. 19-1716


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                     FILED
                                                                                    Jun 09, 2020
 CITY OF GRAND RAPIDS, MICHIGAN,                )                               DEBORAH S. HUNT, Clerk
                                                )
         Plaintiff-Appellee,
                                                )
                                                )
         v.
                                                )            ON APPEAL FROM THE UNITED
 GRAND RAPIDS             POLICE       OFFICERS )            STATES DISTRICT COURT FOR
                                                )            THE WESTERN DISTRICT OF
 ASSOCIATION,
                                                )            MICHIGAN
         Defendant,                             )
                                                )                          OPINION
 MATTHEW JANISKEE,                              )
         Defendant-Appellant.                   )
                                                )


       BEFORE:         GIBBONS, McKEAGUE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. The City of Grand Rapids terminated Lieutenant

Matthew Janiskee based on information revealed in recorded telephone calls among Grand Rapids

police officers. When a dispute arose over liability for wiretapping, the City sought a declaration

that its actions did not violate federal and state wiretap laws, and Janiskee filed statutory and tort

counterclaims. The district court found that the City recorded those phone calls inadvertently, not

intentionally, and thus is not liable under federal or Michigan wiretap statutes. The court dismissed

all Janiskee’s claims, statutory and tort, based on that finding. We AFFIRM the dismissal of all

Janiskee’s claims except his invasion of privacy common-law tort claim. We REVERSE that

dismissal and REMAND for further proceedings on that claim.
No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


                                     I.   BACKGROUND

       In November 2016, the Grand Rapids Police Department dispatched an officer to a car

accident site. The driver of the car, a Kent County assistant prosecutor, drove down a one-way

street and struck a parked car. The on-scene officer called Defendant Watch Commander Matthew

Janiskee on a recorded, public line—Line 3604—and explained the accident; Janiskee responded

that the officer should hang up and call him on a non-public line—Line 3407—that the officers

understood to be unrecorded. The officer hung up and called Janiskee on Line 3407; five

conversations took place on that line and serve as the crux of this case.

       In December 2016, the Police Department investigated the car accident and the officers’

handling of it. Based on the recorded Line 3604 phone call, the Department sought information

about the five subsequent phone calls placed on Line 3407 and found that the Line 3407 calls had

also been recorded. It learned that phone calls made on Line 3407 had been recorded for at least

two years, starting on February 21, 2014, and that a database for those recordings had been created

on September 27, 2013. The Department did not, however, find a single City employee or witness

that was aware Line 3407 was being recorded throughout that time. The Police Department sought

legal advice and decided to use the recorded phone calls as part of its internal investigation of the

officers’ handling of the accident. Following the investigation, it terminated Janiskee on March

31, 2017.

       A.      Phone Technology and System Developments

       In 2010, the Police Department replaced its existing telephone system with a Cisco system

that included Voice over Internet Protocol (VoIP).           The City subcontracted with CDW

Government to implement the new system and oversee its daily operation, as well as provide

necessary support. CDW did so by employing various other subcontractors.




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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


       The Department requested that CDW make Line 3604, a publicly known line, configured

so that all calls were recorded, and Line 3407, a non-public line, unrecorded. CDW hired

independent contractor Damon Pointer to install the necessary hardware and software for recording

Line 3604 and he trained Scott Cox, a CDW senior network voice engineer, to configure the

telephone’s recording function. Both Pointer and Cox testified that no one from the City or the

Department requested that Line 3407 be recorded and that their testing of the installation ensured

that Line 3407 remained an unrecorded line. CDW noted, however, that when either line was

placed on hold and the other line was answered, both lines would be recorded; this was referred to

as Issue 61.

       To access and reconfigure various features of the Cisco phone system, including the

recording function, required certain administrative credentials.       Those credentials allow an

individual to log into two separate servers—the Call Manager server and the Quality Management

server—and complete various processes to implement changes in the system. The parties disputed

whether any City or Police Department employee had such credentials; the City claims it did not

and Janiskee asserts otherwise.

       B.      Procedural History

       The City filed this suit on February 3, 2017, seeking declarative relief that the five recorded

phone calls on Line 3407 were not obtained in violation of the Electronic Communications Privacy

Act (the Federal Wiretap Act), 18 U.S.C. §§ 2510 et. seq.             Janiskee answered and filed

counterclaims, alleging that by intentionally recording Line 3407, the City violated state and

federal wiretap laws, his Fourth Amendment rights, and state common law rights regarding

invasion of privacy. In response to the City’s motion for summary judgment, Janiskee filed Rule




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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


56(d) motions to conduct discovery limited to the technical issues related to recording Line 3407

and was granted two periods of discovery.

       On the cross motions for summary judgment, the district court granted in part the City’s

motion and denied Janiskee’s motion. It held that whether the City recorded the phone calls

inadvertently was an issue of material fact and preserved the parties’ competing wiretap claims

and Janiskee’s two invasion of privacy claims. Following Janiskee’s technical discovery on

recording Line 3407, the court held a bench trial limited to the “inadvertent/intent . . . issues only”

under the wiretap statutes. In their Revised Final Pretrial Order, the parties acknowledged that the

bench trial would be limited to issues of fact and law regarding the City’s intent under the wiretap

statutes. After the trial, the court found that the City recorded Line 3407 inadvertently and thus

would not be liable under either federal or state wiretap laws. The court then returned to the

remaining invasion of privacy counterclaims and dismissed all of them based on its finding that

the City’s recording of Line 3407 was inadvertent.

       Janiskee timely appeals.

                                        II.   ANALYSIS

       “After a bench trial, we review the district court’s factual findings for clear error and its

conclusions of law de novo.” Holt v. City of Battle Creek, 925 F.3d 905, 909 (6th Cir. 2019)

(quoting Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 643–44 (6th Cir. 2013)).

       A.      Federal and State Wiretap Statutes

       Title III of the Omnibus Crime Control and Safe Streets Act, known as the Federal Wiretap

Act, provides the standards and procedures for the use of electronic surveillance. See 18 U.S.C.

§§ 2510 et. seq. The Act subjects to criminal sanction anyone who “intentionally intercepts,

endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire,



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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


oral, or electronic communication.”        18 U.S.C. § 2511(1)(a).       It excludes from liability

“inadvertent interceptions.” Sanders v. Robert Bosch Corp., 38 F.3d 736, 743 (4th Cir. 1994)

(quoting Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir. 1992)); see also First v. Stark Cty.

Bd. of Comm’rs., 234 F.3d 1268, at *4–5 (6th Cir. 2000) (Table). Similarly, the Michigan

Eavesdropping Act prohibits “willfully us[ing] any device to eavesdrop upon [a private]

conversation without the consent of all parties thereto.” Mich. Comp. Laws § 750.539c. The terms

willful and intentional are synonymous. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133

(1988).

          After hearing from eleven live witnesses and reviewing depositions and over fifty exhibits

at trial, the district court found that the City recorded Line 3407 inadvertently. The evidence

revealed that, when CDW implemented the Cisco telephone system in 2010, it configured Line

3407 not to record telephone calls, and independent contractors and CDW employees tested and

confirmed that the line would not record. The City subsequently hired IT subcontractors to make

upgrades to the system, including switching to a virtualized system in 2013. That change,

according to contractor Pointer and City IT administrator Tim Becker, may have allowed for

human error in reconfiguring telephone settings. See Sanders, 38 F.3d 742–43 (refusing to find

intentionality where recordings were a “result of design defect and was not known to anyone”).

No City or Police Department employee testified that he or she knew or was aware that the Cisco

system was recording phone calls on Line 3407 until December 7, 2016, when the Police

Department investigated its officers’ handling of the car accident. Following extensive discovery,

Janiskee provided no evidence showing that anyone intentionally recorded Line 3407 or had any

reason to do so. See First, 234 F.3d 1268, at *5 (dismissing wiretap claim at summary judgment

because the plaintiff failed to proffer any evidence that the defendant “‘intended’ to record personal



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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


conversations”). The record supports the district court’s finding that the City recorded the phone

calls inadvertently.

       Janiskee argues that the district court erred in relying on Becker’s testimony because it was

not based on personal knowledge and he was not admitted as an expert. Becker served as the

City’s networks and operations administrator between December 2008 and June 2016 and in that

position, participated in the day-to-day operation and implementation of the multiple technological

updates to the Police Department’s Cisco telephone system. He testified that in switching to a

VoIP system, Pointer designed the software; he “analyzed” it; the CDW implemented it; and he

“follow[ed] up and ma[d]e sure the contractor got done what needed to be done.” The record

demonstrates that Becker had personal knowledge of the system upgrades because he participated

in that process. At a minimum, his testimony is “rationally based on [his] perception” of those

upgrades. United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) (quoting Fed. R. Evid.

701). The district court did not err in allowing and relying on Becker’s testimony.

       Janiskee also argues that the district court disregarded the “Recording Access by User”

report, generated by the City’s telephone system, that provided evidence of secret downloads. The

report demonstrated that Line 3407 had been accessed a handful of times, innocently and in the

course of unrelated work. At trial, Janiskee showed that one can access and download recordings

without leaving a trace on the access report; thus, the report did not foreclose the possibility that

someone intentionally recorded and accessed the recordings of Line 3407. That inference is

unavailing.   Despite significant discovery, Janiskee failed to offer any specific evidence

demonstrating intentionality; ample grounds support the district court’s finding that the City

recorded Line 3407 inadvertently. See First, 234 F.3d 1268, at *5. That the court’s finding of

inadvertence was related only to the five phone calls, moreover, does not undermine its



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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


determination because it was based on the full timeline of development of the Cisco telephone

system.

       Janiskee also points to Issue 61, which allowed for the recording of Line 3407 when a call

was put on hold and a call from Line 3604 was answered. Issue 61, however, disappeared when

the Police Department upgraded its phone system in 2013. And Janiskee has not shown that the

City intentionally implemented that initial configuration or that such a configuration leads to the

conclusion that the City intentionally recorded the five phone calls at issue. Though the City’s

two-year retention policy prevents access to any Line 3407 phone call recordings prior to February

21, 2014, that does not detract from the ample record evidence supporting the district court’s

inadvertence determination.

       The district court’s determination that the City recorded the phone calls inadvertently is

supported by the record and was not an abuse of discretion. That finding resolves the federal and

state statutory wiretap claims.

       B.      Remaining Counterclaims

       We turn now to the counterclaims raised by Janiskee that were not the focus of the limited

bench trial. Janiskee argues that the district court erred by simply employing its finding of

inadvertence to dismiss his other claims, which included: (1) other violations of the Federal

Wiretap Act and (2) the common-law invasion of privacy tort claims. The court did not err in

dismissing Janiskee’s claims under the Federal Wiretap Act because its finding that the City

inadvertently, not intentionally, recorded Line 3407 is dispositive of those claims. See Obron

Corp. v. Barr, 990 F.2d 861, 863–64 (6th Cir. 1993) (holding that using tapes obtained under a

§ 2511 exemption did not violate the Federal Wiretapping Act); see also First, 234 F.3d 1268, at

*4 (“To prevail on a use or disclosure claim, there must be an illegal interception.”); In re High



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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


Fructose Corn Syrup Antitrust Litig., 216 F.3d 621, 625 (7th Cir. 2000) (“Section 2511 exempts

the conversations covered by it from the entirety of Title III. ‘Since . . . the interception in the case

was not obtained in violation of the Act, its subsequent use and disclosure was not a violation of

the Act.’” (alteration in original) (quoting Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir. 1971))).

        We turn to the tort claims. “The tort of invasion of privacy is based on a common-law right

to privacy,” which protects against, among others, intrusion upon an individual’s seclusion and

public disclosure of embarrassing private facts about an individual. Doe v. Mills, 536 N.W.2d 824,

828 (Mich. App. Ct. 1995). Janiskee brought a claim under each of these theories.

        The court did not err in dismissing Janiskee’s claim for intrusion upon seclusion based on

its inadvertence finding. See Doe, 536 N.W.2d at 832 (clarifying “that an action for intrusion does

not exist where ‘[t]he only aspect of the contemplated disclosure offensive to the plaintiffs is the

fact of disclosure, not the method by which it was obtained.’” (quoting Tobin v. Mich. Civ. Serv.

Comm’n, 331 N.W.2d 184, 190 (Mich. 1982))); see also Geiling v. Wirt Fin. Servs., Inc., No. 14–

11027, 2014 WL 8473822, at *53 (E.D. Mich. 2014) (interpreting Michigan law to find that

“defendants who inadvertently receive [private] information have not intruded” upon another’s

seclusion); Johnson v. Northshore Univ. Judge Presiding Healthsystem, No. 1–10–0399, 2011 WL

10069086, at *5 (Ill. Ct. App. Mar. 31, 2011) (finding that defendants who obtained private

information based on an “inadvertent error” did not engage in “offensive prying”).

        Janiskee’s privacy claim based on public disclosure of embarrassing private facts, however,

raises issues distinct from inadvertence. This claim was never addressed by the district court. It

requires Janiskee to show “(1) the disclosure of information, (2) that is highly offensive to a

reasonable person, and (3) that is of no legitimate concern to the public.” Id. at 828. As




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No. 19-1716, City of Grand Rapids, Mich. v. Grand Rapids Police Officers, et al.


demonstrated by these elements, the court’s determination on inadvertence is not dispositive of

this claim. The court erred in dismissing Janiskee’s invasion of privacy common law tort claim.

        “This court can affirm a decision of the district court on any grounds supported by the

record, even if different from those relied on by the district court.” Wallace v. Oakwood

Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020) (alterations omitted) (quoting Brown v.

Tidwell, 169 F.3d 330, 332 (6th Cir. 1999)). Indeed, given the facts alleged in Janiskee’s

countercomplaint and the facts developed in the record, we struggle to see how Janiskee could

prove that Grand Rapids disclosed private facts that were of no legitimate concern to the public.

We recognize, however, that the record here is limited—the district court granted limited discovery

and held a limited-purpose bench trial. It never listened to the five recorded calls at issue because

their content was irrelevant to the issue of inadvertence. But without a record of the calls, we

cannot determine whether the calls concerned private facts that were of no legitimate concern to

the public. Because the record is insufficient, we remand to the district court for consideration of

this claim in the first instance.

                                    III.   CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s judgment on all claims save

Janiskee’s invasion of privacy common-law tort claim for public disclosure of private facts.

We REVERSE that dismissal and REMAND for further proceedings on that claim.




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