Whether you are investigating a subrogation claim or conducting interviews of injured claimants, being able to record a conversation and refer back to it can be indispensable to the handling of a matter either before or during litigation. Today’s technology makes obtaining clear recordings of conversation with witnesses easy to obtain, and in an industry where words matter, the precise wording used by a witness can make all the difference in the world. However, if you do plan to record (or videotape) a witness, with or without the permission of one or more parties to the conversation, you must be aware of the state and federal wiretapping laws which govern this activity. These laws are intended to prevent wiretapping – having a third party record a conversation – and may expose violators to the risk of criminal prosecution and civil liability. At the same time, not recording an important conversation when it is within your right to do so arguably means that you’re not being as thorough or aggressive as you could or should be in the handling of a claim. Ultimately, doing your job properly and ethically isn’t possible unless and until you understand the applicable law.
The big issue when it comes to recording someone is whether or not the jurisdiction you are in requires that you get the consent of the person or persons being recorded. This begs the question of which jurisdiction governs when you are talking to a person in another state. Some states require the consent of all parties to the conversation, while others require only the consent of one party. It is not always clear whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws controls. A good rule of thumb is that the law of the jurisdiction in which the recording device is located will apply. Some jurisdictions, however, take a different approach when addressing this issue and apply the law of the state in which the person being recorded is located. Therefore, when recording a call with parties in multiple states, it is best to comply with the strictest laws that may apply or get the consent of all parties. It is generally legal to record a conversation where all the parties to it consent.
If the consent of one party is required, you can record a conversation if you’re a party to the conversation. If you’re not a party to the conversation, you can record a conversation or phone call provided one party consents to it after having full knowledge and notice that the conversation will be recorded. Under Federal law, 18 U.S.C. § 2511(2)(d) requires only that one party give consent. In addition to this Federal statute, thirty-eight (38) states and the District of Columbia have adopted a “one-party” consent requirement. Nevada has a one-party consent law, but it’s Supreme Court has interpreted it as an all-party consent law.
Twelve (12) states require the consent of everybody involved in a conversation or phone call before the conversation can be recorded. Those states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. These laws are sometimes referred to as “Two-Party” consent laws but, technically, require that all parties to a conversation must give consent before the conversation can be recorded.
What constitutes “consent” is also an issue of contention when you are considering recording a conversation. In some states, “consent” is given if the parties to the call are clearly notified that the conversation will be recorded, and they engage in the conversation anyway. Their consent is implied. For example, we have all experienced calling a customer service department only to hear a recorded voice warning, “This call may be recorded for quality assurance or training purposes.” It is usually a good practice for practitioners to let the witness know they are recording the call in order to accurately recall and commemorate the testimony being given – such as during the taking of a witness’ statement.
Note that this article deals solely with the simple recording of conversations and interviews with witnesses for purposes of litigation, claims-handling, or subrogation. Businesses who accept and/or process payment card data over the telephone must comply with Requirements 3.1 through 3.6 of the Payment Card Industry Data Security Standard (PCI DSS) with respect to storage and protection of stored data, a subject beyond the scope of this article.
The bottom line is that the legal recording of witnesses and persons of interest is an invaluable investigation and claims-handling tool. However, caution must be used to ensure that you are complying with applicable laws. Matthiesen, Wickert & Lehrer, S.C. has compiled a chart depicting the laws of all 50 states dealing with the recording of conversations and phone calls. It can be located HERE.