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When is an email to your attorney not subject to the attorney-client privilege in Michigan? The Michigan Court of Appeals recently provided guidance that might surprise you. Specifically, the appellate court recently ruled that an email sent to his attorney by an individual going through a divorce may not be subject to the attorney-client privilege because it was sent from his company’s email account. This ruling is significant because it makes clear that emails sent by people to their attorneys with employers’ email systems/computers may not be privileged from discovery.

Factual Background

On June 11, 2020, the Michigan Court of Appeals decided Stavale v Stavale ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 349472; selected for publication). In Stavale, the parties were going through a divorce. Plaintiff Candice R. Stavale subpoenaed Defendant David Stavale’s work e-mail account, requesting e-mails sent by Mr. Stavale to his divorce lawyer. Id. at 1. Mr. Stavale asked the trial court quash the subpoenas to his employer, citing the attorney-client privilege. The trial court disagreed and ordered the production of the emails. Mr. Stavale sought leave for an interlocutory appeal. An interlocutory appeal is an appeal taken and heard before a case is tried/or subject to a final order. These types of appeals are only heard when the Michigan Court of Appeals agrees to hear them. Mr. Stavale’s interlocutory appeal was granted as to whether his emails were privileged.

In Stavale, Defendant David Stavale’s used his work email to communicate with his divorce lawyer. Mr. Stavale’s employer’s employee handbook explicitly stated that: “[u]sers have no legitimate and/or reasonable expectation of privacy regarding system usage” with regard to company computers, email accounts and other communications systems. Stavale, supra, p 7. However, Mr. Stavale’s company also had never accessed Mr. Stavale’s work email, had “never had a desire or need to do so,” and that the employer did not have Mr. Stavale’s password, which was required to access the emails. Id. By the time the issue got to the Michigan Court of Appeals, it was not clear whether Mr. Stavale was aware of the company policy or had read the employee handbook. Id. at 8.

The Attorney-Client Privilege in Michigan Generally

Under Michigan law, “[t]he attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice.” Nash Estate v Grand Haven, 321 Mich App 587, 592; 909 NW2d 862 (2017) (internal quotations and citations omitted). It is “designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure.” Id. at 593.

Importantly, the attorney-client privilege does not apply to communications unless there is an “element of confidentiality.” People v Compeau, 244 Mich App 595, 597; 625 NW2d 120 (2001). For example, when a client in a courtroom speaks to his attorney loudly enough that it can be overheard by the bailiff, that is not confidential (hint: whisper or write it down). Id. at 597-598. Similarly, statements made by a criminal defendant to his attorney over a jail phone line are not privileged when the defendant knew that the lines to be monitored and recorded (hint: if you are in jail, don’t talk about anything you don’t want recorded and used against you, even if you are talking to your attorney). People v Miller, unpublished per curiam opinion of the Court of Appeals, issued February 5, 2019 (Docket No. 337460), p 4. Put differently, just because a client does not intend to disclose an attorney-client communication to a third party, it does not mean that it is necessarily privileged.

Until Stavale, Michigan courts had yet to address the issue of attorney-client privilege in the context of a party’s using an employer’s email system to communicate with is personal attorney.

The Stavale Holding and What it Means for the Attorney-Client Privilege in Michigan

            The Stavale court used federal and other states’ law to aid in answering the previously unanswered question under Michigan’s law. Though other jurisdictions’ rulings are not necessarily “precedent,” they can be used as persuasive, non-binding authorities by our courts.

            Looking to the issues at hand and considering other jurisdictions’ handling of the issue, the Michigan Court of Appeals set forth a two-factor test:

(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.

Stavale, supra at 6. The court also observed that the analysis should be performed “on a case-by-case basis,” and that the two factors (above) are non-exhaustive. Id. The Stavale court observed that whether the company actually monitors email accounts may be relevant in some cases. Id. at 6-7. In that context, the court referred to the email from Mr. Stavale’s employer (that it did not read his emails and did not have his password) in a footnote.

As to the second factor, the court cited another case where an employee handbook was given to an employee but not read and an acknowledgement of reading was not signed by the employee, indicating such issues are relevant to an employee’s awareness. See id. at 8. However, it did not rule on the issue of notice to Mr. Stavale specifically. The court remanded the case to the trial court to make that determination within the framework it provided. Id.  

In Stavale, the Michigan Court of Appeals clarified the law of attorney-client privilege when an employer’s email and/or computer equipment is used by a person to communicate otherwise-privileged information to his/her attorney. The Stavale court made clear that communications from a person to his/her attorney via a company’s email system may not be privileged. The court provided a framework to be applied by the trial court and remanded the case for determination using the framework. Absent intervention by the Michigan Supreme Court, attorneys and parties in Michigan should expect that the Stavale court’s analytical framework should be controlling of this issue in the future.

Practical Considerations

Practically, attorneys should caution their clients about using company email addresses, networks, computers, etc. for confidential communications. Much of the analysis depends on the policies of a particular company and how corporate policies are employed. However, it is not uncommon for employers of all sizes to require employees to receive, review and sign an acknowledgement of a company’s employee handbook. This is often done early on in the employment process—potentially years in the past—and may not be remembered by clients. Given this, attorneys should consider advising clients to communicate only via private email accounts and communications equipment in the absence of certainty about employer policies.

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Article on September 2018 Trial Victory

Here’s a link to an article from TV6 about a recent trial victory in a personal injury case involving a 2016 propane explosion:

It was alleged that the Defendant was negligent by improperly inspecting and delivering a leaking 100-pound propane cylinders that was severely corroded and 78 years old at the time of the explosion. The jury reached a verdict of $2.5 million dollars for the Plaintiff after a two week trial. Afterward, the parties settled the case based on the jury’s verdict.

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Trial Victory in Shareholder Dispute Affirmed by Michigan Court of Appeals

A minority shareholder oppression case I tried last summer where control of two companies was returned to my client and other rightful shareholders just got affirmed by the Michigan Court of Appeals in a published opinion. Woohoo! The appellate court issued its opinion on November 27, 2018.

The Court of Appeals affirmed the trial court’s ruling that two proxies used to take control of two corporations were not valid, ruling on the issue as a matter of first impression. I am pleased that the trial court’s ruling was upheld, and that control of the company was rightfully returned to the shareholders. A link to the opinion of the Michigan Court of Appeals is below.

Menhennick Family Trust, et al. v Timothy Menhennick.COA No. 342391

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When is an Off-Road Vehicle Not a Motor Vehicle? The Michigan Court of Appeals Provides Guidance

What is covered by the Michigan No-Fault Act? One requirement for insurer payment is that the injury has to arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. But what is a “motor vehicle” under the law? The answer is not as simple as you might think. A “motor vehicle” is not a motorcycle, moped, farm tractor, quadricycle, off-road vehicle (“ORV”) or golf cart. Injuries involving these vehicles are generally not covered by Michigan No-Fault.

However, the difference between an ORV and an SUV or truck can become difficult when these rigs are customized for off-roading. The Michigan Court of Appeals recently found that a heavily-customized “mud bog” was not a motor vehicle and did not give rise to the protections of the Michigan No-Fault Act. In Snyder v. Michigan Assigned Claims Plan, Marcus Snyder was hurt when he was hit by a “mud bog.” The mud bog was a stock vehicle that had been received many modifications. It was  not suited to drive on roads and was designed to drive for short periods of time through mud pits. It had tires that the owner claimed were not “road legal,” did not have an alternator and was powered not by a gas tank, but by a fuel cell that took racing fuel. However, the driver of the mud bog was intoxicated at the time of the crash and was convicted of operating a “motor vehicle” while intoxicated causing serious injury. Snyder sued for benefits under the Michigan No-Fault Act. The trial court found that the mud bog, despite its modifications, was a motor vehicle, entitling Snyder to No-Fault benefits. The Assigned Claims Facility (which provides No-Fault benefits for those hit by uninsured motorists) appealed the trial court’s decision.

The Michigan Court of Appeals found that the mud bog was modified so much that it was no longer designed for operation on a public highway. The court found that the mud bog was an ORV and not a motor vehicle under the law. Moreover, the court found that the driver’s criminal conviction for operating a “motor vehicle” while intoxicated had no bearing on whether the mud bog was a motor vehicle. Thus, the court found that Snyder could not receive Michigan No-Fault benefits.

This case illustrates some of the fact-specific subtleties that weigh on whether someone is eligible for No-Fault benefits. It also illustrates the importance of guidance by a law firm that focuses on representing people injured by motor vehicles, motorcycles or ORVs. The law firm of Numinen, DeForge & Mathieu, PC represents drivers injured by at-fault drivers under the Michigan No-Fault act as well as those injured by motorcycles, ORVs and snowmobiles. The firm represents clients throughout the Upper Peninsula, including Marquette, Houghton, Sault Ste. Marie, Escanaba, Menominee and Iron Mountain. To speak to an attorney, please contact Phil Toutant at or at (906) 226-2580.

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Felony Charges Dismissed

Made a client happy recently: client was charged in Marquette County, Michigan with felony delivery/manufacturing of marijuana and maintaining a drug house. Officers entered the house without consent or a search warrant, claiming a need to search for a domestic violence suspect, even though my client stated that the suspect was not in the house. A large amount of cured marijuana, growing plants and three guns were discovered in the house.  I filed a motion to suppress evidence and a hearing was held. After the hearing, the prosecutor’s office dismissed the charges, noting that “it appears that the evidence seized would not be admissible at trial. Continued prosecution would not be in the best interest of justice.” Victory!nolle-excerpt

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Michigan Supreme Court Hears Oral Argument on the Parked Vehicle Exception in No-Fault Case

In limited circumstances, a person injured by the ownership, operation, maintenance, or use of a parked car can receive Michigan No-Fault benefits. For example, a person can receive benefits under No-Fault if injured when a car is parked in a way that causes unreasonable risk of bodily injury, while in the car or getting in/out of the car, loading/unloading the car or where injured by the use of equipment permanently attached to a car or truck. No-Fault benefits are not available for parked car injuries if the injury is compensable under workman’s compensation or similar laws.

Though the No-Fault Act indicates that someone should receive benefits where “the injury was a direct result of … property being lifted onto or lowered from the vehicle in loading or unloading process,” in 1998, the Michigan Court of Appeals, in McKenzie v Auto Club Ins Ass’n, made the question more difficult when it held that the injury must also be “closely related to the transportational function of automobiles.” A recent case has brought the issue before the Michigan Supreme Court. In Kemp v Farm Bureau General Ins. Co. of Michigan, the Michigan Court of Appeals approved a trial court’s denial of No-Fault benefits to a person who tore his calf muscle when removing a briefcase, an overnight bag and a thermos from the floor of the back seat of his truck. However, one of the three appeals court judges disagreed, arguing that if the legislature found that there should be benefits for injuries that are a direct result of property being lifted onto or lowered from the vehicle in the unloading process, the injured person should receive No-Fault benefits. Mr. Kemp has now filed a leave application to the Michigan Supreme Court, which heard oral argument on the case on October 6, 2016. We now await the Michigan Supreme Court’s decision on whether No-Fault benefits are available in this circumstance.

While this case seems to fit within the “parked vehicle exception” to the No-Fault Act, it illustrates the significance highly-nuanced facts can have on whether or not someone qualifies for No-Fault benefits. For example, the Michigan Court of Appeals has previously held that where a person was injured by reaching for a briefcase while sitting in his parked car, he was not entitled to No-Fault benefits. Shellenberger v Insurance Co of North America (1990). No matter the Michigan Supreme Court’s ultimate decision in the Kemp case, it shows the importance of obtaining guidance from legal counsel when considering your options if you have a potential Michigan No-Fault claim. The law firm of Numinen, DeForge & Mathieu, PC represents people injured by at-fault drivers under the Michigan No-Fault Act. The firm represents clients throughout the Upper Peninsula, including Marquette, Houghton, Sault Ste. Marie, Escanaba, Menominee and Iron Mountain. To speak to an attorney, please contact Phil Toutant at or at (906) 226-2580.

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Michigan Court of Appeals Rules No Liability for Second Accident Caused by Aftermath of First Accident

On August 9, 2016, the Michigan Court of Appeals held that a driver at fault for an accident is not at fault for injuries to a driver that subsequently crashes into disabled accident vehicles on the road. In Tanikowski v. Jacisin, Plaintiff Leonard Tanikowski was driving on a three lane highway, approaching the scene of an accident. He was tired and wanted to get to a hotel to sleep. He was traveling in a lane where there was a two-car rollover accident ahead. Instead of merging into the slowed/stopped traffic on either side of the accident, Mr. Tanikowski chose to veer in between the two disabled vehicles. He missed the first disabled vehicle, driven by Christopher Switzer, who was at fault for the first accident. However, he collided with the second vehicle, suffering injuries. He sued Switzer and the trial court dismissed his case. He appealed.

The Michigan Court of Appeals held that the driver could not sue because Switzer, the driver responsible for the first accident, because the driver at fault for the first accident could not have been anticipated or foreseen. The court of appeals held that despite Switzer’s negligence for causing the first accident, Mr. Tanikowski caused an entirely separate and distinct accident, and thus he could not sue.

The law firm of Numinen, DeForge & Mathieu, PC represents drivers injured by at-fault drivers under the Michigan No-Fault act. The firm represents clients throughout the Upper Peninsula, including Marquette, Houghton, Sault Ste. Marie, Escanaba, Menominee and Iron Mountain. To speak to an attorney, please contact Phil Toutant at or at (906) 226-2580.

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Medical Billing and Michigan No-Fault

Providing care to patients who have been in car accidents has the potential to give rise to a number of legal issues for healthcare professionals. I recently presented on medical billing and provider-focused issues associated with the Michigan No-Fault Act. I presented at the Michigan Medical Billers Association and at the Oakland County Medical Society Group Managers’ Meeting.

It was a particularly fun presentation to give because it gave me the opportunity to discuss the pending legislation to reform Michigan’s No-Fault Act with a number of healthcare stakeholders.

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Bar Journal Article on Attorney-Conducted Voir Dire

There is significant evidence that attorney-conducted voir dire (the final phase of jury selection) is more likely to ferret out jury bias, as opposed to solely judge-conducted voir dire. Check out this article I wrote concerning the advantages of attorney-conducted voir dire and some legal arguments to make to judges so that reasonable attorney-conducted voir dire be allowed:

The Case for Attorney-Conducted Voir Dire


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I passed the Michigan Bar! I learned of this last Thursday, through a letter in the mail. I am pleased with my results, and am eligible for admission to Minnesota, North Dakota and the District of Columbia by merely filling out an application.


This morning, I took the oath of office in Wayne County Circuit Court Judge Amy Hathaway’s courtroom, sponsored by my boss and mentor, Brian McKeen. I am very exited to join his office as an associate attorney. I will be learning from one of the best, and it will truly be a pleasure. I can think of no better job than representing people in medical malpractice litigation.

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