Sunday, January 22, 2012

Tape record another at your peril

By: Carole L. Chiamp

Too often a new client comes in with tape recorded evidence which negatively impacts the other spouse. The client knows nothing about the Michigan or federal eavesdropping law. Unfortunately, serious consequences are in store for the unwary eavesdropper.

There are several laws to which someone recording a conversation must adhere. One is MCL §758.539 which provides that if a person eavesdropping may be guilty of a two year felony, a fine of $2,000. In civil court, an injunction to stop the eavesdropping, money damages for each instance of violation of the law and punitive damages are available to the victim of an unlawful eavesdrop.

Sullivan v Gray, a Michigan case, provides:

The operative language of MCL 750.539c; MSA 28.807(3) prohibits a person from "wilfully [using] any advice to eavesdrop upon [a] conversation without the consent of all parties thereto." As used in the statute, the term "eavesdrop" means to "overhear", record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse". MCL 750.539a(2); MSA 28.807(1)(2). We believe the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to "the private discourse of others". The statute contemplates that a potential eavesdropper must be a third party not otherwise involved in the conversation being eavesdropped on. Had the Legislature desired to include participants within the definition, the phrase "of others" might have been excluded or changed to "of others or with others".

A common situation for a divorcing litigant is to install a device, without the other spouse’s knowledge, in order to record telephone conversations with a priest, marriage counselor, attorney and friends. The law is not clear in every state but Michigan and the Sixth Circuit Court of Appeals, enforcing a federal eavesdropping statute, finds those conversations inadmissible in any state or federal proceeding. Additionally parents have no right to consent on behalf of a minor to the interception of a conversation in which the parent is not a participant.

There are legal ways to record another which are too detailed to present here. If you want additional information, seek specific information BEFORE taking action. A good article on the subject can be found here, by attorney Renee C. Walsh.

No comments: