In a post I authored last summer, I discussed a case, ATF Michigan v Project Veritas, No 17-13292 (ED Mich), which threatened to unsettle the law under Michigan’s eavesdropping statute. For now, the Sixth Circuit has provided some much welcome clarity.
As I previously discussed, during the course of the aforementioned case, Michigan’s Attorney General certified the following question to the Michigan Supreme Court:
Whether Michigan’s eavesdropping statute, Mich. Comp. Laws § 750.539[] et seq., may prohibit a person from recording, without the consent of all parties thereto, private conversations to which she is a party.
Opinion and Order, ATF Michigan v Project Veritas, No 17-13292 (ED Mich June 14, 2019), ECF No 104.
At the time, I noted that the Michigan Supreme Court declined to answer to question, leaving state courts to choose between following a decades-old decision of a panel of the Michigan Court of Appeals, holding that Michigan is what is known as a “one-party consent” state, or a Federal ruling predicting that the Michigan Supreme Court would hold the opposite.
Now, the Sixth Circuit has weighed in on the matter, and made clear its view that under Michigan Law, state courts would adopt what is referred to as the “participant exception” Michigan’s eavesdropping statute. In Fisher v Perron, the plaintiff alleged that the defendant, his sister, violated state and federal law by recording various phone conversations discussing their late mother’s estate and related litigation. The District Court dismissed for failure to state a claim.
The Sixth Circuit in Fisher discussed the existing jurisprudence regarding Michigan’s eavesdropping statute, the back and forth in Project Veritas, and ultimately asserted its belief that Michigan is indeed a one-party consent state:
However, the 2019 AFT Michigan decision is of little probative value. The Michigan Supreme Court declined in May 2021 to answer the certified question from the AFT Michigan court on the proper interpretation of the eavesdropping statute. Then, in November 2021, the same district court granted a motion for reconsideration and entered an Opinion and Order holding that “the statute is not violated when a conversation is recorded by one of its participants.”
That leaves Sullivan untouched as a viable data point for our analysis. Although a published state appellate court decision does not dictate our determination of how the Michigan Supreme Court would construe the state’s eavesdropping statute, it “is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.”
. . . .
Based on the above data, we agree with the district court that, under the current law in Michigan, a participant does not violate Michigan’s eavesdropping statute by recording a conversation without the consent of the other participants. Fisher’s complaint alleges that Perron recorded conversations that she herself participated in. Therefore, he has failed to state a claim under Michigan’s eavesdropping statute.
Fisher v. Perron, 30 F4th 289 (6th Cir 2022).
With this holding, it seems clear—for now—that Michigan is a one-party consent state and that litigants should proceed accordingly. Stay tuned to this space, as we will continue to monitor decisions offering any further clarity on this issue.
