If the President’s own personal attorney records his private conversations, is it OK for you to secretly record someone you plan to sue? It is not uncommon for business associates that plan to sue a partner or supplier to come to their attorneys with secret recordings. Before you do the same, you should know two things: whether it is legal, and whether it will benefit your case.

Is it Legal to Secretly Record Someone?

Whether or not it is legal to secretly record another person depends on the state in which you recorded the conversation. Most states, including Arizona, adhere to the Federal Wiretap Act, which permits recording conversations if at least one person consents to the recording. If you are recording an exchange between you and someone you’re in business with, the one person consenting would be you.

However, there are several states — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington — where BOTH parties must consent to the recording. If you do business in one of these two-party consent states and you want to record a private conversation, you must have the other party’s consent to do so or that recording is illegal.

No matter where the recording takes place, you cannot plant a recording device somewhere to secretly record anyone having conversations to which you are not a party.

Will It Benefit Your Case to Secretly Record Someone?

Once you’ve determined whether your secret recording is legal, you need to consider whether it will be helpful to your case. The short answer is, it depends on the type of lawsuit you plan to file. If you are suing for defamation, a recording between you and the other party will not be useful to you as evidence since defamation requires that a derogatory statement be made to a third party.

For a recording to be admissible as evidence in court, you first have to prove that it is authentic and unaltered. Secondly, depending on the circumstances, there may be a potential issue with the hearsay rule regarding out-of-court statements offered as proof. The recording must also be relevant to the case.

Before you try to secretly record someone, you should talk with your attorney about the legality of a secret recording and whether it would be helpful or potentially harmful to your case.

Business disputes call for skilled representation. Mestaz Law is a law firm with decades of experience in commercial litigation, including employee lawsuits, IP infringement, business divorce, aviation, and high stakes litigation. Contact us at (602) 806-2068 and schedule a time to meet with us today.