I often get asked by clients whether it is legal to tape record telephone conversations. I always answer that question by asking them a couple of questions, namely: will at least one participant in the telephone call consent to your recording the call? What state(s) will all of the participants in the call be in while the call takes place? The reason these two questions are critical is because Arizona is called a “one party consent jurisdiction.” What this means is that in Arizona an individual must have the consent or agreement of at least one party to a conversation to legally intercept or record a wire or electronic communication, including wireless and cellular calls. If one party to the conversation has not consented to your intercepting or recording the telephone call you will be committing a felony (Arizona Revised Statutes 13-3005). In addition, using a device to overhear (but not record) a conversation while not present, without the consent of a party to that conversation, is also a felony under Arizona law.
So what this means is that in Arizona you can tape record any telephone conversation that you are participating in and can tape record a telephone conversation that you are not participating in if one party to that telephone conversation consents to you doing so. The issue becomes more complicated when one party to the telephone call is in Arizona and the other is in another state.
I always tell my clients who are involved in disputes that they should assume that any telephone conversations they are having with the opposing party are being tape recorded and that they should temper the statements they make during these calls based on this.
In the 24 years that I have been doing jury trials, there have been numerous instances where tape-recorded telephone conversations have been extremely important in helping me win my client’s case. However, you also need to bear in mind that if you have tape-recorded a telephone conversation that is not helpful to your position and have provided that tape-recorded telephone conversation to your attorney, under Arizona’s mandatory disclosure rules your attorney will most likely have to produce a copy of that tape recording to the opposing party. So you can create both good and bad evidence with tape recordings.
Consent is not required for the taping of a telephone conversation where the person does not have a reasonable expectation of privacy for that communication. For example, someone participating in a telephone call in a crowded elevator would not have a reasonable expectation of privacy for his or her side of that telephone call. On the other hand, someone having a telephone conversation at a park with no one in sight would certainly have a reasonable expectation of privacy for that telephone call notwithstanding that amplification and other devices exist that would allow someone to intercept and record that telephone call.
Other states have made it illegal to tape record telephone calls unless all participants in the telephone call have consented to the telephone call being recorded. If you are interested in knowing what the law is on tape recording telephone conversations in the various states, visit www.rcfp.org/taping, which contains an informative state-by-state breakdown on the law concerning tape recording telephone calls in each of the 50 states.
The take away here is be careful when you are tape recording any telephone conversation that you are not a participant in since doing so might be a crime; and you might be creating bad evidence that you may have to disclose to the opposing party if litigation arises.
• Brian Foster is a 20-year Ahwatukee resident and senior partner at Snell & Wilmer L.L.P. in Phoenix. Reach him at (602) 382-6242 or firstname.lastname@example.org.