A company thats represents my company and sells training is haviing other people call my office and pretend they are looking for our services hoping to catch us in a lie. I have been told they taped the phone calls and that they will use my answers that they taped in a lawsuit against me and my company. Can they tape and calls with my permission? and they threatened me that they had affidavits from people they put up to call and they taped the discussions. Can I sue them?
No, the tape of the phone conversation would not be admissible in a civil court. Yes, you can sue them.
Sections 632(a) and 637.2 of the California Penal Code, prohibits tape recording confidential communications unless all parties to a conversation consent. A conversation is "confidential" for purposes of this prohibition if a party has an objectively reasonable expectation that the conversation is not being recorded regardless of whether a reasonable person would expect the contents of the conversation to be divulged to others.
California Penal Code section 637.2 provides that any person who has been injured by a violation of California's Privacy Act may bring a civil action against each person who committed the violation and may recover damages for each violation in an amount equal to the greater of $5,000 or three times the amount of the actual damages sustained by the injured person. See:
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
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Employment / Labor Attorney
Mr. Chen is correct. Just to supplement, Penal Code section 632 expressly forbids the admissibility of the recording.
There are some exceptions to the prohibition, mainly related to law enforcement.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
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Trademark Application Attorney
An issue to keep in mind is what constitutes "consent" to being recorded.
Obviously, is they ask and you say "No," then they should not record. But what is the outcome if they do not ask, but only state that the conversation will be recorded? Even if you tell them "No" but you stay on the phone with them, they can make the argument that you consented through your conduct of staying on the phone after being informed they were recording.
Did they make any statement like this or just record the call in stealth?
If they didn't tell you, how do you know the calls were recorded?
Kevin King, Attorney at <a href="HTTP://ESSENTIALAW.COM">ESSENTIAL LAW SERVICES</a>. The information presented here is general in nature and is not intended and should not be construed as legal advice for a particular case. This post does not create any attorney-client relationship with the author of the question answered. For specific advice about your particular situation, consult with me or other qualified legal counsel.
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