On July 6, 2000, the “Up in Smoke” tour, featuring performers known as Dr. Dre (Andre Young), Snoop Dogg, Ice Cube, and Eminem, was scheduled to take place at Detroit’s Joe Louis Arena. That afternoon, several Detroit officials and police representatives met backstage with the tour’s organizers, expressing concern about a sexually explicit video introduction to Dr. Dre and Snoop Dogg’s performances. The Detroit officials advised the tour organizers that, the video violated city ordinances, and that the city would take legal action and disrupt power to the arena if the video was played. The promoters did not play the controversial video, but, in a “bonus track” later marketed with a DVD of the tour, they used portions of a videotape of their meeting with the Detroit officials.
The Detroit officials sued the promoters and others for invasion of privacy, fraud, and eavesdropping. The eavesdropping claim is based on MCL 750.539c (eavesdropping upon private conversation), which provides in part: “Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.”
In 2003, the trial court granted summary disposition to the defendants and dismissed the plaintiffs’ claims, finding in part that the plaintiffs had had no reasonable expectation of privacy in the conversation. But in 2005, the Court of Appeals, in an unpublished decision, held that the trial court erred in dismissing the eavesdropping claim. The Court of Appeals remanded the case to the trial court, saying that there were outstanding questions of material fact as to whether the video was secretly taped and whether the plaintiffs had a reasonable expectation that their conversation would be private. On remand, the trial court again granted summary disposition to the defendants, finding as a matter of law that the plaintiffs had no reasonable expectation of privacy. In 2009, in an unpublished per curiam opinion, the Court of Appeals majority affirmed in part, reversed in part, and remanded for further proceedings. The majority held that there was sufficient evidence to allow the plaintiffs to move forward with their eavesdropping claim, and that “a jury must make the determination whether plaintiffs’ expectation of privacy under the circumstances presented here qualified as a reasonable one.” The dissenting judge would have affirmed the trial court in total. He concluded that “[a]n objective view of the evidence establishes no genuine issue of material fact that plaintiffs lacked a reasonable expectation that their conversation with tour officials would be private, let alone that it would not be recorded.” The defendants appeal.