Tennessee is known as a “one party” state when it comes to recording calls or communications. This means that only one party to the conversation has to consent to it being recorded. It also means that you cannot record a conversation that you are not a part of when the parties to the conversation do not have knowledge that it is being recorded. It is common for people to record phone calls, videoconference calls, or other forms of communication prior to or during divorce or custody litigation. These recordings are usually captured legally, but there are some instances where recording a call or communication could be in violation of Tennessee and federal law.
The Tennessee Wiretap act states that a person commits an offense who intentionally intercepts, any wire, oral, or electronic communication, or intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.
In the case of McDaniel v. McDaniel, the Court of Appeals of Tennessee held that a person was in violation of Tennessee wiretapping laws for not disclosing that a call was being recorded to the parties of the conversation. 2010 WL 2134146 (Tenn. Ct. App. 2010). In this case the father filed for divorce against the mother, and during the trial the mother was asked a series of questions about a phone conversation she had with one of her children from a previous marriage. The topics of the conversation were detrimental to mother’s case, and she denied making the statements she allegedly made. The father then attempted to admit a recording of the call between mother and her son from a prior marriage into evidence. The mother objected to the admissibility of the recording, and its origin came to light.
Mother’s son from a prior marriage was living with his father, mother’s ex-husband, and step-mother. Mother’s ex-husband and the step-mother operated a real estate rental business. They installed a recording machine on the business’s telephone line to record all telephone calls after receiving too many calls from irate renters. The recorded call that became an issue at trial was made between the mother and her son from a prior marriage, while the son was using the business phone. Neither party knew they were being recorded, and the step-mother testified that she overheard the conversation and knew that the call was being recorded.
The Court of Appeals of Tennessee held that this was an intentional interception of a communication under Tennessee wiretapping laws because the step-mother knew the call was being recorded, and took no steps to stop the conversation from being recorded or to inform the mother and her son that their conversation was being recorded. Additionally, the Court of Appeals also held that the recording should not have been admitted to evidence either because it was an intentional interception of a communication.
The McDaniel case illustrates a very particular situation in a divorce or custody case where a party thinks that they may have a key piece of evidence to use at trial, but won’t be able to use it at trial because of how it was obtained. If you present a recording to your attorney for use as evidence, or if a recording is used against you at a hearing, be sure to know who obtained the recording, how it was obtained, and if at least one of the parties to the conversation gave consent to be recorded or had knowledge of the conversation being recorded. Communications that are intercepted in violation of wiretapping laws are not admissible in court, and could make the intercepting party subject to civil and possibly criminal penalties. Be sure to make sure that any communications or recordings of conversations that you give your attorney, or that are used against you in a hearing are not in violation of Tennessee or federal wiretapping laws.