Mel Gibson Saga: When is it legal to record a conversation?

Today we've got another attorney guest post looking at a ripped-from-the-headlines issue: when can you record a phone conversation without telling the other person? Joshua Briones and Ana Tagoryan are lawyers in the LA office of DLA Piper...

By Ana Tagvoryan and Joshua Briones

If you had this nagging feeling that there must be some law against recording conversations, you are right. The audio tape recording of what appears to be actor/director Mel Gibson is already the focal point for the attorneys and law enforcement involved in the high-profile domestic violence investigation and child-custody dispute between Gibson and ex-girlfriend Oksana Grigorieva. If it is Gibson in the recording, is it admissible in court? 

According to reports, Grigorieva secretly recorded the conversation, which was banned from release by the judge overseeing the child-custody lawsuit but somehow leaked to Radar Online. In California, it is illegal to intentionally record a confidential communication without the consent of all parties to the communication. Secretly recording a confidential communication -- defined by the California Penal Code as any communication carried on in circumstances reasonably indicating that one or more of the parties desires it to be confined to the parties to the communication -- is punishable by up to a $2,500 fine or imprisonment of up to a year, or both. Gibson, as the party who was allegedly secretly recorded, may also have a civil right of action against Grigorieva for statutory damages of $5,000 or actual damages, plus payment of his attorneys' fees and costs. 

Of course, the possible consequences of secretly recording a confidential communication do not stop there. The recording also may not be used as evidence in any court or administrative proceeding, which, at first blush, can be a great shield for Gibson in both the child-custody dispute and domestic violence investigation. 

But, as is the law, there are exceptions. A party to a conversation may record the conversation if the communication is related to the commission of a crime against a person. In the tape, the male's voice is menacing, enraged, and filled with sexual slurs. The male even threatens to hit the woman on the head with a baseball bat. Moreover, to the extent a domestic violence restraining order is in place, the “victim” may record a communication to prove that the restraining order was violated.     

Reports have indicated that Gibson's attorneys have already filed a contempt motion with the court for what they believe is a violation by Grigorieva of the court's order to not leak the tape. Grigorieva denies leaking the tape. If the judge believes her, Gibson's attorneys may consider going after the party disclosing the tape to the public, because the California Penal Code also makes it a crime to disclose a telephone communication without the consent of the party to whom the communication was directed. 

Regardless of the outcome, Gibson's troubles seem to be multiplying by the day. 

Ana Tagvoryan and Joshua Briones are litigation attorneys at DLA Piper who advise clients on the preservation and use of electronic information, including audio recordings. Got an idea for a guest post? Send us an email at [email protected].