Secret Recording: What Do You Do?

So what happens when there are secretly recorded audiotapes of an employer by an employee?

Although the employee may be able to make the recording, it MUST be produced before the witness is deposed. Pass on the following cases if you know someone facing this issue:

Walls v. Int'l Paper Co., 192 F.R.D. 294 (D. Kan. 2000):

A female plaintiff brought suit against her employer for alleged sexual discrimination and violation of the ADA. The plaintiff secretly tape recorded conversations between herself and her supervisor, and subsequently filed for a protective order to postpone production of recordings of conversations until after the deposition of her supervisor. Plaintiff alleged that the tapes are privileged work product that she prepared in anticipation of litigation. Subsequently, she admitted that they were not privileged because the statements were made by a named party, entitled to  production. The Court denied plaintiff’s protective order, and ordered plaintiff to produce the tape recorded statements at the time of the defendant’s deposition.

It should be noted the Court made a clear distinction in this case, that if an individual surreptitiously tapes a conversation with an unsuspecting partner, upon advise or direction from

plaintiff’s counsel, this would and likely could void plaintiff’s right to oppose discovery of tape!

Doebele v. Sprint Corp., 2001 WL 392513:Plaintiff filed suit against Sprint for violations of the ADA. She recorded conversations and messages from various Sprint employees, and objected to production of the tapes until the individuals had been deposed. She filed a protective order to regulate the terms, conditions, time or place of discovery. The Court denied to rule on the protective order, and the appellate court remanded the case for a ruling on the protective order.

Costa v. AFGO Mechanical Services, Inc., 237 F.R.D.21, 24 (S.D. N.Y. 2006): Plaintiff filed suit alleging employment discrimination on the basis of gender, pregnancy, disability, and retaliation. Prior to her termination, she recorded telephone conversations with defendants without their knowledge. She subsequently sought a protective order delaying defendant company officers’ discovery of their conversations until after officers’ depositions had been taken. The Court reasoned:

"A party whose conversation was secretly recorded should not be subject to a deposition, the partial purpose of which is simply to create inconsistencies or otherwise set up impeachment in testimony, without the defendant having had a chance to review the tapes, the same opportunity that plaintiff had prior to her deposition."

It  should be noted the N.Y. Court acknowledged the difference between surveillance tapes, and recorded statements, by explaining that surveillance tapes are often only taken for purposes of impeachment at trial, whereas recorded statements are typically taken to prove allegations.

Lastly, the Court addressed the requirements for plaintiff to successfully show "good cause" to obtain a protective order. Specifically, the Court held that "mere conclusory allegations, unsupported by any particular and specific demonstration of fact that the witness may alter his testimony, does not constitute good cause" to grant a protective order.

Rule 26 (c) requires that parties be forthcoming with discovery information relevant to the proceedings, and intentionally withholding information on the basis of gamesmanship is discouraged.

"Unless the statement is disclosed, there is a serious risk that the speaker may be sandbagged."
The Court also held that if a tape may be used as substantive evidence, as well as impeachment evidence, then it has evidentiary value, and many courts require them to be produced before the deposition.