Legal Question in Civil Litigation in California

Re: Tape Recording Conversations

Normally when I see that another attorney has already answered a question, I read the response and conclude that there is nothing useful to add. Here, however, there is more to be said despite three prior answers. Go figure.

Mr. Pavone's answer gives a generally correct analysis of the law where the conversations were telephonic. The question, however, refers to "office conversations" and thus suggests that the conversations were actually face-to-face. If this is the case, Penal Code section 631 would not apply. Mr. Pavone is incorrect, however, when he argues that the recordings could be admitted if the person trying to get them in argues that the conversations were not private. Section 631 specifically states that recording a phone conversation is a crime unless all parties to the conversation consent to the recording. I'm not aware of any context where a telephone conversation would not be deemed "confidential"; I suppose you could make an argument to this effect where each party is on a speakerphone on a public street and knows that the others are also in such places, but this seems *very* far-fetched.

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. Mr. Weinberger's answer was correct as far as it went, but he left out the exception for conversations where the parties cannot reasonably expect confidentiality. This caveat is important and might make some tape recordings legal and admissible.

Both of these Penal Code sections SPECIFICALLY prohibit 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 these particular laws. Thus, despite Mr. Hayes' reply, 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 if your co-worker never tries to use the tapes against you, the act of making the tapes is already criminal (assuming, of course, that the conversations were "confidential"). Your colleague seems to be treading on very thin ice here.

I hope this helps.

Re: Tape Recording Conversations

Against the law to tape record conversations without consent of all parties involved. California penal code has section right on point. It is a crime. Cannot be used in a civil proceeding.

Re: Tape Recording Conversations

The answer, with some hesitation, is no. In other words, it is illegal to tape record phone conversations without consent. Evidence obtained illegally is generally inadmissible in a court of law. However, information like this tends to leak its way into the lawsuit through other means. For example, though she may not be able to get the tape in, she can testify to things that were said or sign affidavits to that fact. If the case goes to a jury, sure, the jury may not hear the tape recording, but it tends to influence interim legal rulings, settlement discussions and the like. Also, if she is clever, you can use certain magic words because technically only "confidential" phone conversations are illegal. Thus, by taking steps to paint the conversation as one that may be heard by anyone, arguments can be made that the conversation was understood to be not confidential. California Penal Code section 631, I think, is the code section.

Re: Tape Recording Conversations

Cannot be entered into the record as direct evidence.

However it may be used to impeach testimony of witnesses. For example say that

her attorney asks you if you have ever stated something

and you say no. If you did and it was recorded it could

be used to impeach your testimony and your credibility as

a witness.