Can you secretly record your conversation with someone else?

California prohibits anyone from tape recording confidential communications without all parties’ knowledge and consent. (Penal Code § 630-637-9). Violating the statute is a misdemeanor. The punishment can be a fine of $2,500.00 and up to one-year imprisonment. Repeat offenders can be fined up to $10,000.00 and be imprisoned for longer than one year. Anyone secretly recorded can sue the recording party for $5,00.00 or three-times the actual damages.

What is a “confidential” communication? Courts have ruled if the conversation is carried on in such a manner as to reasonably indicate the speakers are only desirous of communicating amongst themselves, then it is confidential. This does not apply to conversations made in a public gathering. Nor does it apply to conversations in which the parties may reasonably expect the communication to be overheard or recorded.

Ms. A believes her boss Mr. B is sexually harassing her. She wants to get evidence of his behavior and sets out to secretly record their conversations. They meet in his office behind closed doors with no one else present. She records what she thinks is block buster evidence of his outrageous conduct. Can this recording be used? It seems to meet the confidential communication standard. There was no one else present and they were speaking behind closed doors. It seems the communication is confidential. Secret recordings are not admissible. However, there is one way to use the recording. If Mr. B provides testimony under oath that is contradictory to what is contained on the recording then the recording can be used as evidence. The law considers perjury a much graver offense than secretly recording someone. Therefore, it will allow the secret recording t come into evidence.

The moral of this story is do not secretly record confidential communications. If you feel you must record a conversation, get everyone’s permission. Alternatively, have the conversation in an area where no one would expect it to be confidential such as a busy restaurant or other area where people would overhear the conversation.