Legal Question in Civil Litigation in California

Re: Audio Recording of Conversations in Ca.

Penal Code section 632 criminalizes the recording of *any* confidential conversation, whether it is face-to-face or transmitted electronically, unless that transmission is by radio (in which case you can't reasonably expect confidentiality). Section 632 defines "confidential communication" to include all situations where the parties can reasonably expect privacy, but to exclude conversations held at a "public gathering" or in other contexts where the parties might reasonably expect their conversation to be overheard or recorded.

The key issue in your situation, then, is whether the harassing party should have expected someone to overhear, or should at least have known that there was a real likelihood of this. Your question doesn't include the information I would need to assess this issue.

This section SPECIFICALLY prohibits the use of such recordings in ANY trial or proceeding, except where they are used as evidence against the person who made the recording in a prosecution for violating Section 632. Thus, the tapes would not be admissible, even for impeachment purposes, if the conversations were confidential to begin with.

The sections also provide stiff criminal penalties for making such recordings, and the penalties are increased for repeat offenders. Thus, even the plaintiff never tries to use the tapes, the act of making the tapes may already be criminal if the conversations were "confidential."