Privacy Law
4:30 am
Mon January 27, 2014

Court To Lawyers: Not OK To Secretly Record Phone Calls As Evidence

Secretly-recorded phone calls are not protected under law even when done in the course of gathering evidence for a lawsuit, law firms were told in a state court ruling.

The Court of Appeals case grew out of the surreptitious recording of a former executive with a technology-engineering firm by lawyers at the Seattle law firm of Davis Wright Tremaine.

In the case of Jason Dillon v. Seattle Deposition Reporters, Dillon sued over the recording, saying it violated the state's privacy law. Washington state has a very strong privacy law that requires "all party consent" before recording a conversation.

A transcript of the recording was used by Davis Wright Tremaine in a contract dispute case between T-Mobile and NetLogix, Dillon's former employer.

Davis Wright Tremain contended the recorded calls were a protected part of evidence gathering.

But Dillon's attorney Dennis Moran says that just seemed crazy to him.

“We thought there’s no way this will get any traction, this is such nonsense, because, at the end of the day, it’s just illegal conduct, really no different than if one lawyer were to break into another lawyer’s office and steal his files. It’s still breaking and entering; it’s not evidence gathering,” Moran said.

But, a King County Superior Court judge sided with Davis Wright Tremaine. The law firm had also countersued Dillon, saying he was violating Washington's anti-SLAPP (Washington Act Limiting Strategic Lawsuits Against Public Participation) statute. It's a law meant to prevent the filing of harassing lawsuits against someone who is engaged in protected activity, such as free speech.

“What my client was doing, they said, by suing them for illegal recording was nothing more than violating their right to petition” — in other words, their right to use the courts, Moran said.

But now the Washington Appeals Court has reversed the lower court ruling.

The court says the state's anti-SLAPP statute does not, as Davis Wright Tremaine had argued, protect law firms from suits such as the one filed by Dillon. And the court said the secret recording of Dillon is not "protected activity simply because it is undertaken during the course of a lawsuit."