May audio recording be used?

[codewarren]

State of Ohio:

I am a member of an LLC. There are three other members. At a members' meeting, I used my laptop (which I always have with me) to record the meeting. I've done this at multiple meetings so that I can remember what happens in the meeting if necessary. I don't ever feel the need to notify them that I'm recording. At the last meeting, there was an argument where some of the members made threats of litigation with the clear intent of intimidating me. If they continue with their intimidation lawsuit, I'd like to use the recording to demonstrate that the purpose of the lawsuit may be intimidation. (Whether or not that is useful might be a different discussion). What I want to know is whether or not I can use that recording.

I am on the recording as are the two members that threatened me and a fourth member that did not.

I haven't been able to find what the guidelines are for when you can use an audio recording. I know that things like phone taps are illegal and can't be used, but can recordings from a recording device in a meeting be used?

 

[Some Random Guy]

see http://www.rcfp.org/taping/
Ohio appears to be a single party state.

Talk to a lawyer before telling anyone about this recording. Be sure to backup this recording AND ALL OTHER recordings you have made on a CD. If you only have th esingel recording to show the judge, the people being taped will say that they were responding to threats you made the week before that you conveniently did not tape.

 

[1justiceseeker]

So, may I ask how you decided to pursue this matter ...? any advice?

I have a similar situation - where I recorded my wife - have that as evidance ... exploring to see if I can use that in court ....? (State: CA)

thanks
1justiceseeker

 

[racer72]

So, may I ask how you decided to pursue this matter ...? any advice?

I have a similar situation - where I recorded my wife - have that as evidance ... exploring to see if I can use that in court ....? (State: CA)

thanks
1justiceseeker

Please don't hijack someone else's thread, Different states have different laws and the answer you want may be totally different that the OP's. Answering different questions in the same thread can make things very confusing. Plus some folks think it's rude. Please start your own thread, they are on sale for the next 30 days, 10 for a dollar and the first 7 are free.

 

[badapple40]

Ohio is a one party state -- meaning that, so long as you were a party to the conversation, and so long, in this circumstance, that there were no corporate/LLC rules against it, and it does not involve the improper disclosure of trade secrets, your recording is perfectly acceptable.

I would not disclose to the other folks that you have the recording. The time to disclose this is probably later down the road -- like after they deny making the statements under oath in the legal proceeding.

--ba (attorney in Ohio)

 

[BelizeBreeze]

Ohio is a one party state -- meaning that, so long as you were a party to the conversation, and so long, in this circumstance, that there were no corporate/LLC rules against it, and it does not involve the improper disclosure of trade secrets, your recording is perfectly acceptable.

I would not disclose to the other folks that you have the recording. The time to disclose this is probably later down the road -- like after they deny making the statements under oath in the legal proceeding.

--ba (attorney in Ohio)

I knew we would clash at some point in time. Now is as good a time as any

Because this was not a public meeting, held in private and between members, I would argue for the expectation of privacy.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," Ohio Rev. Code Ann. § 2933.51.

The exact conditions of the meeting would need to be examined, as well as behaviors at prior meetings (i.e., inviting guests or outsiders or not) and the conduct of the parties during the meetings (was sensitive information disclosed or discussed).

However, from the facts presented, I would argue that each member of the meeting had or could have reasonably relied upon an expectation of privacy and based on this, the recording is in violation of the statute.

 

[badapple40]

You could argue all day BB, but you'd be incorrect.

R.C. 2933.52(B) specifically exempts from the prohibition on electronic surveilance:

(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;

The poster here is not a law enforcement officer, and is a party to the communication, and, as such, is specifically excluded from the prohibitions and provisions of R.C. 2933.51, et. seq.

 

[BelizeBreeze]

You could argue all day BB, but you'd be incorrect.

R.C. 2933.52(B) specifically exempts from the prohibition on electronic surveilance:

(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;

The poster here is not a law enforcement officer, and is a party to the communication, and, as such, is specifically excluded from the prohibitions and provisions of R.C. 2933.51, et. seq.

Oh my friend, you seem to be glossing over one big fact that we do not yet know the answer. And that is, the members meeting and who actually can be determined to have 'participated'.

ANY conversation between parties where our poster was not a party can be considered external to his right as an interested party to record. A discussion your state Attorney General has already forwarded

A court employee may not tape record a conversation or meeting to which that employee is not a party unless that employee acquires the consent of at least one of the parties involved. See R.C. 2933.52(A)(1) and (B)(4).5 An employee may, however, tape any conversation or meeting to which that employee is a party without obtaining the consent of any of the other participants as long as the tape recording is not made for an illegal or tortious purpose. See R.C. 2933.52(B)(4). Cf. Employment Coordinator EP-22,610 to 614 (Clark Boardman Callaghan March 21, 1994) (discussing effect of federal wiretap law on monitoring of employees by an employer); see generally Edwin R. Render and Robert D. McClure, A Recent Sixth Circuit Debate. Surreptitious Monitoring by a Participant in a Conversation: Does Title III Impose Liability Even if the Recording Is Never Divulged?, 22 Toledo L. Rev. 427, 436 (1991) (discussing issues involved in monitoring of conversations by persons who are not law enforcement officers).

In such a meeting as we have here, there is no evidence that the poster was a 'participant' in each and ever conversation which took place, laying the groundwork for establishing the unwarranted and illegal interception.

If the poster had turned off the recorder during those times where he was not involved in the conversations being undertaken, I would agree with you. However, prudence suggests that this is not what occurred. Therefore, while those snippets of conversations where our poster was a participant are perfectly legal, we cannot and should not attempt to ascertain that the entire recording, under the above scenario, was legally obtained.

 

[badapple40]

Oh my friend, you seem to be glossing over one big fact that we do not yet know the answer. And that is, the members meeting and who actually can be determined to have 'participated'.

ANY conversation between parties where our poster was not a party can be considered external to his right as an interested party to record. A discussion your state Attorney General has already forwarded

A court employee may not tape record a conversation or meeting to which that employee is not a party unless that employee acquires the consent of at least one of the parties involved. See R.C. 2933.52(A)(1) and (B)(4).5 An employee may, however, tape any conversation or meeting to which that employee is a party without obtaining the consent of any of the other participants as long as the tape recording is not made for an illegal or tortious purpose. See R.C. 2933.52(B)(4). Cf. Employment Coordinator EP-22,610 to 614 (Clark Boardman Callaghan March 21, 1994) (discussing effect of federal wiretap law on monitoring of employees by an employer); see generally Edwin R. Render and Robert D. McClure, A Recent Sixth Circuit Debate. Surreptitious Monitoring by a Participant in a Conversation: Does Title III Impose Liability Even if the Recording Is Never Divulged?, 22 Toledo L. Rev. 427, 436 (1991) (discussing issues involved in monitoring of conversations by persons who are not law enforcement officers).

In such a meeting as we have here, there is no evidence that the poster was a 'participant' in each and ever conversation which took place, laying the groundwork for establishing the unwarranted and illegal interception.

If the poster had turned off the recorder during those times where he was not involved in the conversations being undertaken, I would agree with you. However, prudence suggests that this is not what occurred. Therefore, while those snippets of conversations where our poster was a participant are perfectly legal, we cannot and should not attempt to ascertain that the entire recording, under the above scenario, was legally obtained.

He is a member of the LLC. He is a participant in that he has voting rights and membership rights (as well as the right to participate, even if he did not exercise that right), and, coupled with his statement that "I am on the recording as are the two members that threatened me and a fourth member that did not," which indicates to me that he is a party and was engaged in the conversation, he has the right to tape record the meetings. The entire meeting, I believe, is deemed to be the conversation.

I know how much you hate tape recordings BB, but under the facts above, I'd say the OP had the right to tape record. He doesn't need to speak. Participation includes listening and having a right to listen, which he does as a member of the LLC at members meetings.

 

[BelizeBreeze]

He is a member of the LLC. He is a participant in that he has voting rights and membership rights (as well as the right to participate, even if he did not exercise that right), and, coupled with his statement that "I am on the recording as are the two members that threatened me and a fourth member that did not," which indicates to me that he is a party and was engaged in the conversation, he has the right to tape record the meetings. The entire meeting, I believe, is deemed to be the conversation.

I know how much you hate tape recordings BB, but under the facts above, I'd say the OP had the right to tape record. He doesn't need to speak. Participation includes listening and having a right to listen, which he does as a member of the LLC at members meetings.

O.K. grunt, it's Black's at 20 paces...and no blonde seconds.

 

[badapple40]

O.K. grunt, it's Black's at 20 paces...and no blonde seconds.

I had to take an oath to give up dueling when I got admitted to the Kentucky bar. Seriously, no joking. My Kentucky license says that, in relevant part, "it appearing further that the applicant has taken the oath prescribed by Section two hundred twenty-eight of the Constitution and has satisfied all remaining requirements for admission to the bar..."

http://www.lrc.ky.gov/Legresou/Constitu/list2.htm#Provisions

Oath of officers and attorneys.

--------------------------------------------------------------------------------

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

 

[BelizeBreeze]

Lord love a DUCK!!!!

I knew there was sumthin bout them thar hills I loved