To Tape, or Not to Tape?

As a whistleblower attorney for the last decade or so, I can’t tell you the number of times clients or potential clients have come to me with recorded conversations. With the voice memo function on smart phones, this number continues to climb.

Usually, the folks bringing these recordings are very excited about them – uniformly, they are sure that they have captured a "smoking gun" admission. But I can tell you from the perspective of a lawyer, a recording is a mixed bag at best. Which brings up the question: When is it a good idea to record a conversation?

If I have the opportunity to discuss this in advance with a client or potential client, here are the concerns I raise:

First and foremost, whether you are legally permitted to record a conversation varies by state, as shown in this handy reference guide. Here in Georgia, consent of all parties is not required. But in Florida, for example, not only do you need the consent of all parties, there are possible criminal penalties and civil liability just for recording the conversation without permission--and even more if you "publish" that information you record. (Of course neither the linked website nor this blog can serve as legal advice for your particular situation, and cannot substitute for a consultation with an attorney.)

Second, the vast majority of conversations simply don't sound as good as you think they will, because the conversation doesn't make sense to strangers who lack context. Think of it like this: outside the movies, where the villain handily sums up his evil scheme for the heroes in one nice chunk of dialog, real life bad guys are rarely so obliging. And so what seems obvious to you, as someone who has lived the story you are trying to tell, may be completely opaque to those of us who lack your history.

Even worse, sometimes it seems the real life bad guys have a sixth sense for when they are being taped, and make seemingly random, untrue statements. You can tell me all you want that what he/she said isn’t true  - and I will believe you – but that doesn’t change the fact that you have now created a piece of evidence that actually helps their defense. We, the government, or a jury cannot see the speaker "winking" on a recording. 

And that brings me to my last point. In the context of a False Claims Act investigation, we will have to disclose the recording first to the government attorneys and their investigators. Later, if there is litigation, we will likely also have to disclose it to the defendant. And contrary to what you may think, people who come to the government with recorded evidence do not start with “a leg up” – especially if that recording is hard to hear, hard to understand, and has mixed good and bad facts. In most cases, it is better to bring your case first, and then volunteer your willingness to "wear a wire" to the government and let its attorneys decide whether it is smart to do so. This will get the recorded evidence while simultaneously distinguishing you as a highly cooperative FCA relator in the eyes of the government.

So, is it ever a good idea to record? Honestly, very rarely. Unless you have a bad guy who will lay out his whole scheme for you in one telling, your recording could do more harm than good.

Of course, circumstances vary. The very best thing you can do is call us, or another attorney, for a free consultation tailored to your particular situation. We would love to speak with you!

Jason's Thoughts: I agree with Julie, but wanted to briefly address one other situation. Most recordings that clients bring to us are from when they are called into their employer's office to be fired because they want proof of what was said. And if they say they are firing you because you won't commit fraud or because you reported fraud, that can be an amazing piece of evidence for an FCA retaliation claim.

If only every FCA defendant were Robert Durst. A smart employer does not tell you they are firing you for complaining about fraud; they make up pretextual charges like that you are late too often, or not performing your job functions adequately, or for "insubordination" (even if that really means refusing to commit fraud, some courts have found this to be distinguishable).

If you come to us before you are fired, we can aid you in deciding whether a recording is the best course of action. It is even possible that we can teach you to guide your termination conversation into admissions of wrongdoing. But as Julie says, this should be discussed with counsel on a case-by-case basis.