You might be surprised how many times I am asked this question. Of course, the circumstances of every case warrant separate consideration, but here are the basic facts concerning recording of phone conversations in Connecticut as it relates to civil litigation and lawsuits:
Civil Liability. You are subject to liability in a civil lawsuit if you violate Connecticut General Statutes 52-570d entitled "Action for illegal recording of private telephonic communications." The full text of the statute is here, but the basic summary is that an aggrieved person may bring a civil lawsuit for the recovery of damages and attorney’s fees if someone uses a device to record "an oral private telephonic communication" unless the use of the recording device involves:
- the consent of all parties (some states only require one party consent), and such consent is obtained prior to the recording
- the consent documented in writing or part of the recording
- verbal notification given at the start of the recording
- an automatic tone warning device producing a signal every 15 seconds
There are various exceptions to this rule, including for law enforcement and FCC officials. In addition, one of the more relevant exceptions is for "any person who, [is] the recipient of a telephonic communication which conveys threats of extortion, bodily harm or other unlawful requests or demands." For example,if your Mel Gibson’s girlfriend, and you are in Connecticut, its probably safe to record his phone calls. To recover in Connecticut, however, you have to prove actual damages related to the recording.
Many people that want to record phone conversations are trying to document conversations as evidence for potential use in a lawsuit. However, if the recording is done unlawfully, Connecticut law prohibits the use of the recording in "any court of this state." As such, although an improperly recorded phone call might be available for use in a deposition, it will not be permitted as evidence in any court.
Whether an improper phone recording is criminal will depend on the circumstances. For example, it is a Class D Felony in Connecticut to engage in wiretapping or "mechanical overhearing" of a conversation. Wiretapping and mechanical overhearing are defined to include "intentional overhearing or recording" of telephonic communication or conversations without the consent of at least one person involved. This is more likely to apply to a situation like the allegations against Shaq O’Neal for intercepting cellular phone conversations he was not a part of as opposed to private two way conversations. However, the possibility of criminal penalty should be factored into any decision to record a phone call.
Keep in mind also that this post is only a summary as it pertains to Connecticut state law. If phone calls involve an out-of-state caller, different laws might apply. For a good example of the intersection of various state recording laws, visit the website for the Reporters Committee for Freedom of the Press. In addition to state law, there are federal wiretapping laws that might come into play. For an example of some federal laws, see this post on the Citizen Media Law Project.
The takeaway here is that if you improperly record phone conversations in Connecticut you could: (1) face criminal penalties; (2) face a civil lawsuit for damages and attorney’s fees; and (3) be precluded from using the recordings in court in any civil lawsuit. As such, if you are planning on recording phone conversations of any kind, you would be well served to contact an attorney and get advice on whether to proceed.