Watch what you say

published in The Journal Record | January 26, 2012

By Michael F. Smith

Isn’t modern technology grand? My smartphone has a recording icon. In Oklahoma, absent limited exceptions, secretly recording a conversation is legal if one person consents to the conversation. Thus, I can set my phone to record, drop it in my pocket, and surreptitiously record just about any conversation. So can your employees. Isn’t modern technology scary?

Now fast-forward to this scenario. Your lawyers are defending your company in a wrongful-termination lawsuit by a former employee. The plaintiff has recordings of conversations he had with you and other employees prior to but in anticipation of his termination and the lawsuit. The plaintiff refuses to produce the recordings, claiming they are work product and impeachment evidence that is not discoverable. The plaintiff’s lawyer has also requested your deposition.

Do you recall every conversation you had with or in the presence of the plaintiff? Wouldn’t you like to know what you and other employees said on those recordings before you give sworn testimony?

The quest to obtain surreptitious recordings in pretrial discovery may not be as easy as you’d expect. No Oklahoma court has addressed this question in a published opinion. If the question arises in an Oklahoma state court lawsuit, you, your lawyer, and the judge would have to look to decisions by other states’ courts for guidance. Reported case law on this topic, however, is scant and anything but uniform.

Some courts allow discovery of surreptitious recordings. Those courts view the recordings as a low-level type of work product that deserves little, if any, protection and they are therefore discoverable based on the need for factual accuracy, credibility, and other pretrial purposes. These courts also view the recordings as discoverable substantive evidence, not impeachment evidence.

Other courts deny discovery of surreptitious recordings until after depositions or just before trial to preserve the work product protection for as long as possible. This approach maintains the recording’s impeachment value, or shock value, depending on your perspective.

The lack of an Oklahoma opinion and the scant and conflicting decisions from other courts leaves you and your lawyer guessing how a state judge might rule. Approach oral communications as if they were written communications – carefully and with the assumption that what you say may be recorded and played back to you after your deposition or at trial.

This article appeared in the January 26, 2012, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.