If both parties to a telephone conversation are located in New York State, then one of the parties to that telephone conversation may record the conversation, without the other party’s consent, for use in the recording party’s lawsuit. This is the case because neither the New York Penal Law nor the federal Electronic Communications Privacy Act (the “ECPA”) renders it a crime for one of the participants in a telephone conversation to record that conversation without the other’s consent.
Whether a recording of a telephone conversation, recorded by one participant without the other’s consent, will be admitted into evidence in the trial of a civil lawsuit depends upon whether that recorded conversation falls within an exception to New York’s hearsay rule.
New York State Law
N.Y. Penal Law §§ 250.00 and 250.05 define the class E felony of wiretapping as “the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.” That is, in New York State, it is not a criminal offense for a party to a telephone conversation to record that conversation without the other party’s consent, because the recording party is “a sender or receiver” of the telephonic communication. N.Y. Penal Law § 250.00(1).
The contents of any recorded telephone conversation which has been obtained by conduct constituting the crime of eavesdropping, N.Y. Penal Law §§ 250.00, 250.05, may not be received into evidence at any trial, hearing or proceeding of any civil lawsuit in the New York state courts. N.Y. C.P.L.R. 4506(1).
The federal Electronic Communication Privacy Act applies even to activity which is “wholly intrastate,” such a telephone conversation in which both of the participants are located in New York State. Spetalieri v. NAACP, 35 F. Supp.2d 92, 115-116 (N.D.N.Y. 1998).
Except as otherwise provided in the ECPA, the ECPA renders it a felony to “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1), 2511(1)(a); see 18 U.S.C. § 2511(2)(d). However, the ECPA specifically allows a private individual “to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 2511(2)(d).
In other words, under federal law, it is not a crime for a participant in a telephone conversation to record that phone conversation, without the other participant’s consent, for use in the recording participant’s lawsuit. This is the case because the recording participant is “a party to the [telephonic] communication” and because the use of the recorded telephone conversation in the recording participant’s lawsuit would not be a crime or a tort.
No part of the contents of any recorded telephone conversation which has been intercepted in violation of the Electronic Communications Privacy Act may be received in evidence in any trial, hearing, or other proceeding in any federal court, including any federal court sitting within New York State. See 18 U.S.C. § 2515. Further, any person whose telephone conversation is recorded in violation of the ECPA may, by bringing a lawsuit in federal court, recover damages or other relief against the violator. See 18 U.S.C. § 2520.
Interstate Telephone Conversations
In some states other than New York, such as the State of Connecticut, it is a civil wrong, for which an aggrieved party may recover damages, to record a telephone conversation without the consent of all parties. See Conn. Gen. Stat. § 52-570d. Likewise, in some states, such as Connecticut, recording a telephone conversation without the consent of all parties may constitute a crime.
Because laws on recording telephone conversations vary from state to state, an individual located in New York State should always consult an attorney before, among other activities, undertaking to record a phone conversation with an individual located in another state.
Circumstances Under Which A Telephone Conversation, Lawfully Recorded By A Participant, Is Admissible Into Evidence In A Lawsuit
In the New York state courts, a recorded telephone conversation, though lawfully recorded by one of the participants to the conversation, is hearsay. In other words, a recorded phone conversation is a statement made out of court, that is, not made in the course of the trial in which it is offered.
If evidence is hearsay, and no exception to the rule applies, the evidence must be excluded on proper objection to its admission. Thus, a recorded telephone conversation is admissible into evidence in the trial of lawsuit only if the conversation falls within one of the exceptions to the hearsay rule.
The circumstances under which a recorded telephone communication falls within an exception to the hearsay rule, and therefore may be admitted into evidence in a lawsuit, are beyond the scope of this post. That said, there are a number of hearsay exceptions which, on the particular facts, may apply to a given recorded phone conversation. Among such potentially applicable hearsay exceptions are: admission of a party; declaration against interest; inconsistent statement; impeachment; and res gestae or contemporaneous statements.
If both parties to a telephone conversation are located in New York, then one of the parties to that telephone conversation may record the conversation, without the other party’s consent, for use in the recording party’s lawsuit. Whether a recording of a telephone conversation, recorded by one participant without the other’s consent, will actually be admitted into evidence in the trial of the recording party’s lawsuit depends upon whether that recorded conversation falls within an exception to New York’s hearsay rule.
Individuals who intend to record telephone conversations for use in a lawsuit in New York are strongly advised to contact a litigation attorney and to get advice on whether, and if so how, to proceed.
If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.