Recording Conversations

Mike King
May 17, 2011 — 1,707 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

Question: Why can't I record people's conversations and send them to others?

Answer: Be careful, the Federal Wire Tap Act prevents intentionally intercepting spoken conversations or intentionally disclosing or using such illegally intercepted conversations!

As I dictate the initial draft of this article using my Lanier dictating machine, I am sympathetic to the plight of Dr. Leslie Lindberg, who was fired when his highly critical comments about his bosses were recorded by his own Lanier dictation system.  I have inadvertently recorded a great deal of traffic noise, dashboard radio, and mobile phone conversations with the Lanier dictating machine in the briefcase on the seat of my truck.  Fortunately, unlike Dr. Lindberg, I had the good fortune of not letting my staff transcribe the tapes.

Dr. Lindberg was not so fortunate.  In February, 2006, he was dictating a radiology report into his dictation machine.  Valerie McCann, a recently terminated employee of Iroquois Memorial Hospital, interrupted him to have him sign some checks for the Independent Physicians Association.  Ms. McCann had been the Director of Physicians' Services for the hospital, but was terminated in early February, 2006.  She was unhappy! 

The new Chief Executive Officer of Iroquois Memorial Hospital, Stephen Leurck, apparently brought his new broom with him to the hospital.  Not only did he shake up the Physicians' Services Department, but he talked the Board of Trustees into reorganizing the Radiology Department.  That reorganization put Dr. Lindberg's radiology services at risk.  As the court noted:  "Lindberg disapproved of the way the administration was handling things, and the administration was not particularly happy with him either."

So when Ms. McCann interrupted Dr. Lindberg's dictation of his radiology report, they began a conversation behind closed doors criticizing the hospital administration.  Unfortunately, their conversation was recorded by Dr. Lindberg's dictation machine and was transcribed by the hospital staff who normally transcribe the radiologists' dictated reports.  The recording and the transcription were handed to the bosses who were criticized by McCann and Lindberg.

During the conversation between Ms. McCann and Dr. Lindberg, Susan Freed, who oversaw the staff of transcriptionists, came into the room and picked up some requisition forms and left.  Dr. Lindberg and Ms. McCann alleged that Ms. Freed turned the recording machine on while she was in the room.  Ms. Freed said that she did no such thing, but merely had the staff transcribe the tape when Dr. Lindberg turned his radiology reports in for transcription.  When the contents of the tape were reported to Ms. Freed, she listened to the conversation.  Ms. Freed then told the transcriptionist to finish transcribing the conversation and gave the recording and transcript to the CEO, Mr. Leurck. 
Mr. Leurck discussed the recording with the Board of Trustees and gave copies to some of the Trustees.  Mr. Leurck told the Chairman of the Board that Dr. Lindberg and Ms. McCann "need to be put in their respective places." 

Dr. Lindberg's privileges at the hospital were soon terminated.  Dr. Lindberg's business went down because Mr. Leurck allegedly told other doctors not to send their radiology work to Dr. Lindberg.  Mr. Leurck thought that Ms. McCann was meddling around the hospital.  He banned her from entering the hospital other than for personal or family healthcare. 

Dr. Lindberg and Ms. McCann sued Ms. Freed, Mr. Leurck, the hospital and the members of the Board of Trustees of the hospital under the Federal Wiretap Act and various state laws.  The federal court did not deal with the state law claims in its opinion, but we could speculate that the claims included defamation, intentional interference with contractual relationships, trade libel, invasion of privacy, wrongful termination, and so on. 

The good news for us is that the Seventh Circuit Court of Appeals opinion in McCann v. Iroquois Memorial Hospital, 622 F.3d 745 (7th Cir. 2010) provides a powerful reminder of the need to be wary of the Federal Wiretap Act and similar laws protecting private conversations.  The Wiretap Act makes it illegal to intentionally intercept an oral conversation.  The Wiretap Act also prohibits intentionally disclosing or using the contents of conversations if you know they were illegally intercepted. 

Of course, there must be an "intentional interception" for the Wiretap Act to apply and the actions of Susan Freed in that regard were the central issue in the McCann case.  The court said that Ms. McCann and Dr. Lindberg (or other plaintiffs) "need not produce direct evidence of the intentional interception; for often the only way to prove that a stealthy interception occurred is through circumstantial evidence." 

The court kept Ms. Freed and the hospital in the case as defendants because there was a fact issue as to whether Ms. Freed intentionally intercepted the conversation while working as an agent of the hospital.  The CEO and Board of Trustees were dismissed because they had no reason to know the recording was made illegally.  After all, the CEO and the Board had been told that Dr. Lindberg had simply forgotten to turn off his dictation machine.  How could they know?  They may have Lanier dictating machines just like mine and be used to accidental recordings!  Moreover, the trustees did not "use or disclose" the information from the conversation.  

Intentionally intercepting or disclosing spoken conversations can get you and your company sued under the Wiretap Act and other laws.  Think carefully and get professional advice before recording the conversations of others! 
If you need assistance in determining when it may be appropriate, or illegally inappropriate, to intrude on the conversations of others, please call me.  I won't record it! 

Best regards,
GAMMAGE & BURNHAM, P.L.C.
By    
Michael R. King

Mike King

Website

Michael R. King is a founding partner of Gammage & Burnham, P.L.C., a Phoenix law firm with diverse areas of emphasis. His practice primarily centers around bankruptcy and creditors' rights, commercial litigation, including uniform commercial code cases, and real estate and business law. Mr. King is a former of the Creditor/Debtor Rights Committee and is a current member of the Bankruptcy, Real Estate and Construction Law Sections of the State Bar of Arizona. He is the past chair of the Board of Trustees of the Maricopa County Bar Foundation. Mr. King is an active alumnus of The University of Arizona, where he received his B.A. and J.D. degrees, with distinction and high distinction.