Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  March 18, 2011                                                                  Robert P. Young, Jr.,
                                                                                            Chief Justice

  140296                                                                          Michael F. Cavanagh
                                                                                        Marilyn Kelly
  GREGORY J. BOWENS, PAULA M.                                                     Stephen J. Markman
                                                                                  Diane M. Hathaway
  BRIDGES, and GARY A. BROWN,                                                         Mary Beth Kelly
             Plaintiffs-Appellees,                                                    Brian K. Zahra,
  and                                                                                            Justices

  ROBERT B. DUNLAP and PHILLIP A.
  TALBERT,
            Plaintiffs,
  v                                                     SC: 140296
                                                        COA: 282711
                                                        Wayne CC: 02-233251-CZ
  ARY, INC., d/b/a AFTERMATH
  ENTERTAINMENT, PHILLIP J.
  ATWELL, CHRONIC 2001 TOURING,
  INC., GERONIMO FILM PRODUCTIONS,
  INC., and ANDRE YOUNG,
              Defendants-Appellants,
  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,
  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.
  _________________________________________/

        On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we hereby REVERSE in
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part the September 24, 2009 judgment of the Court of Appeals and we REINSTATE the
December 4, 2007 summary disposition order of the Wayne Circuit Court.

       After ten years of litigation—during which time this case has been summarily
dismissed, reversed and remanded to the trial court for additional discovery, summarily
dismissed for a second time, and reversed and remanded yet again—our review of this
matter is limited to plaintiffs’ one remaining claim. Specifically, plaintiffs allege that
defendants violated Michigan’s eavesdropping statute, MCL 750.539a et seq., which
prohibits “[a]ny person who is present or who is not present during a private conversation
[from] willfully us[ing] any device to eavesdrop upon the conversation without the
consent of all parties thereto . . . .” MCL 750.539c (emphasis added). “‘[P]rivate
conversation’ means a conversation that a person reasonably expects to be free from
casual or hostile intrusion or surveillance.” People v Stone, 463 Mich 558, 563 (2001).
After considering all the evidence of record in the light most favorable to plaintiffs, the
non-moving party, Quinto v Cross & Peters Co, 451 Mich 358, 362 (1996), we conclude
that no genuine issue of material fact exists to warrant a trial concerning whether the
conversation at issue constituted a “private conversation.”

        As the Court of Appeals dissenting opinion correctly asserted, under the
circumstances presented, “no reasonable juror could conclude that plaintiffs had a
reasonable expectation of privacy in the recorded conversation” at issue. The following
evidence compels this conclusion: (1) the general locale of the meeting was the
backstage of the Joe Louis arena during the hectic hours preceding a high-profile concert,
where over 400 people, including national and local media, had backstage passes; (2) the
concert-promoter defendants were not receptive to the public-official plaintiffs’ requests
and, by all accounts, the parties’ relationship was antagonistic; (3) the room in which
plaintiffs chose to converse served as defendants’ operational headquarters with security
personnel connected to defendants controlling the open doors; (4) there were at least nine
identified people in the room, plus unidentified others who were free to come and go
from the room, and listen to the conversation, as they pleased; (5) plaintiffs were aware
that there were multiple camera crews in the vicinity, including a crew from MTV and a
crew specifically hired by defendants to record backstage matters of interest; (6) and
video evidence shows one person visibly filming in the room where the conversation took
place while plaintiffs were present, thereby establishing that at least one cameraman was
openly and obviously filming during the course of what plaintiffs have characterized as a
“private conversation.” Given these facts, plaintiffs could not have reasonably expected
that their conversation with defendants would “be free from casual or hostile intrusion or
surveillance.” Stone, 463 Mich at 563. To the contrary, the conversation strikes us as
one that was uniquely defined by both “casual” and “hostile” “intrusion,” and
“surveillance.” Accordingly, although a reasonable expectation of privacy is “generally”
a question of fact, id. at 566, no such question reasonably exists in this case.

      MARILYN KELLY, J. (dissenting).
                                                                                            3


        I respectfully dissent from the Court’s order reversing the judgment of the Court
of Appeals and reinstating the trial court’s order granting defendants’ motion for
summary disposition. I believe that material questions of fact exist regarding whether
plaintiffs could have reasonably expected their conversation with defendants to be
private. Accordingly, I would affirm the Court of Appeals.

       This case involves application of the Michigan eavesdropping statute 1 to
defendants’ videotaping of a conversation between plaintiffs and defendants. During that
conversation, plaintiffs demanded that a video, which they believed to be unsuitable for a
young audience, not be played during an upcoming concert. The concert included
performances by Dr. Dre, Snoop Dogg, and Eminem, among others. Defendants did not
play the video during the concert. But they used portions of a videotape of the
conversation with plaintiffs in a “bonus track” of a DVD of the concert tour, which drew
a worldwide audience.

        Plaintiffs filed suit alleging, among other things, invasion of privacy, fraud, and
eavesdropping. The trial court granted summary disposition to defendants on all of
plaintiffs’ claims, ruling that plaintiffs did not have a reasonable expectation of privacy in
the conversation. The Court of Appeals affirmed the dismissal of plaintiffs’ claims with
the exception of the eavesdropping claim. It concluded that there were outstanding issues
of fact as to whether the conversation was secretly taped and whether plaintiffs had a
reasonable expectation that the conversation would be private. 2 We denied defendants’
interlocutory application for leave to appeal. 3

       On remand, the trial court again granted summary disposition to defendants. It
concluded that plaintiffs did not have a reasonable expectation that the conversation
would be private. The Court of Appeals reversed the trial court’s decision on the
eavesdropping claim, concluding that plaintiffs presented compelling issues of fact that
only a jury may resolve. 4

       A majority of this Court holds that plaintiffs could not have reasonably expected
that their conversation with defendants would be free from casual or hostile intrusion or
surveillance. I disagree. MCL 750.539c prohibits “[a]ny person who is present or who is

1
    MCL 750.539a et seq.
2
 Bowens v Aftermath Entertainment, unpublished opinion per curiam of the Court of
Appeals, issued April 19, 2005 (Docket No. 250984).
3
    Bowens v Aftermath Entertainment, 474 Mich 1111 (2006).
4
 Bowens v ARY, Inc., unpublished opinion per curiam of the Court of Appeals, issued
September 24, 2009 (Docket No. 282711).
                                                                                          4

not present during a private conversation [from] willfully us[ing] any device to eavesdrop
upon the conversation without the consent of all parties thereto . . . .” A “private
conversation” is one in which a person reasonably expects to be free from casual or
hostile intrusion or surveillance. 5 Whether a conversation is private depends on the intent
and reasonable expectation of the plaintiff.6 And whether a person can reasonably expect
privacy in a conversation generally will present a question of fact. 7

       Applying those principles to this case, I cannot conclude that the Court of Appeals
clearly erred in holding that issues of fact exist concerning whether the conversation was
“private” under the statute. Without question, some portions of a conversation between
the parties were openly recorded. But a review of the recorded video footage submitted
to the Court reveals that it is quite possible that the conversation at issue was secretly
taped. Although defendants contend that the presence of the video camera should have
been obvious, there is no footage of the filming itself. It is not clear whether the camera
was visible when the contested filming occurred. Moreover, defendants’ representatives
explicitly acquiesced in plaintiffs’ demand that the conversation be held in private.
Hence, I believe that a material question of fact exists concerning whether plaintiffs
reasonably expected the conversation at issue to be private. At the very least, it is not a
question that this Court should definitively answer as a matter of law.

       A majority of the Court finds that six facts compel the conclusion that no
reasonable juror could conclude that plaintiffs had a reasonable expectation of privacy:
(1) the meeting was held backstage at Joe Louis Arena during the hectic hours preceding
a high-profile concert where over 400 people, including national and local media, had
backstage passes, (2) the defendant concert-promoters were not receptive to the requests
of plaintiffs, who were public-officials, and by all accounts, the relationship was
antagonistic, (3) the room in which plaintiffs chose to converse was defendants’
operational headquarters, and security personnel connected to defendants controlled the
doors, (4) at least nine people in the room, plus others who were unidentified, were free




5
    People v Stone, 463 Mich 558, 563 (2001).
6
    Dickerson v Raphael, 461 Mich 851 (1999).
7
    Stone, 463 Mich at 566.
                                                                                                                 5

to listen to the conversation and come and go from the room, (5) plaintiffs were aware
that there were multiple camera crews in the vicinity, including one from MTV and one
specifically hired by defendants to record backstage matters of interest, and (6) video
evidence shows one person visibly filming in the room where the conversation took place
while plaintiffs were present.

        Several of these facts have no relevance to whether plaintiffs had a reasonable
expectation of privacy in their conversation with defendants. First, the location of the
meeting and the fact that many people had backstage passes are irrelevant to whether
plaintiffs reasonably expected the conversation to be private. Simply because many
people were permitted entry to the room at one time or another does not render a
conversation held there open to all of them. Second, the fact that plaintiffs and
defendants had an antagonistic relationship is wholly immaterial to whether they engaged
in a private conversation. Third, it does not follow as a matter of law that, merely
because one party controlled access to the room where the parties conversed, a private
conversation did not occur there. Fourth, the fact that camera crews were in the vicinity
does not mean that plaintiffs could not reasonably expect a private conversation,
especially since defendants explicitly agreed to a private conversation. Fifth, the
presence of unidentified people in the room does not mean that the conversation at issue
was not private. Rather, it simply establishes that people had access to the room who
may or may not have been part of a private conversation.

        I believe that the majority erroneously substitutes its judgment for that of the trier
of fact. As we stated in Stone, “whether a person can reasonably expect privacy in a
conversation generally will present a question of fact.” 8 I would affirm the judgment of
the Court of Appeals and hold that, viewing the evidence in a light most favorable to
plaintiffs, there exists a material question of fact with regard to whether the parties’
conversation was private. 9 Accordingly, I respectfully dissent.




8
    Stone, 463 Mich at 566.
9
  “A court reviewing a motion for summary disposition must consider the pleadings,
affidavits, depositions, admissions, and any other evidence in favor of the party opposing
the motion, and grant the benefit of any reasonable doubt to the opposing party.” Radtke
v Everett, 442 Mich 368, 374 (1993).



                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           March 18, 2011                      _________________________________________
         p0315                                                                 Clerk
