How often are lawyers, deponents, and other participants surreptitiously recording depositions, including conversations during breaks that are meant to be private or privileged? Jim Garrity reports on this troubling conduct and surmises that it happens a lot more than many realize. As always, Garrity offers practice tips at the end of the episode, and our research on the topic appears in the show notes below. Thanks for listening!

SHOW NOTES

Defendant’s Second Motion for Terminating Sanctions (filed Sept. 29, 2020), Plaintiffs’ Opposition to Defendant’s Second Motion for Terminating Sanctions (Redacted) (filed Jan. 28, 2021), and Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Second Motion for Terminating Sanctions and Granting Alternative Relief, Winters v. Dennis, Case No. A-15-723886-C, Dept. XI (Dist. Ct. Nevada July 26, 2021)Andrew C. v. Karcher, et al., 2006 WL 2664267, Case No. B184495 (Ct. App. Cal. Sept. 18, 2006) (sanctions imposed in form of $6,000 fine and order barring use of deposition transcript, where lawyer alleged arranged for second camera and a microphone to capture testimony and conversations of opposing counsel and his client)

Picard v. Guilford House, LLC, No. X03CV106016061S, 2014 WL 1876595 (Conn. Super. Ct. Apr. 3, 2014) (order staying case, imposing fines, and expressing an intention to refer plaintiff’s counsel to the bar following allegations that lawyer left her iPhone on, in record mode, during all breaks during the deposition, allegedly picking up privileged conversations between a key defense witness and defense lawyers; rejecting arguments of privilege in the recording or an absence of privacy expectations by those who were recorded.)

Knopf v. Esposito, 2018 WL 1226023, Case No. 17-cv-5833 (DLC) (S. D. N. Y. Mar. 5, 2018) (sanctions imposed after attorney video recorded deposition despite denying five times on the record that he was not recording)

Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCEEFB, 2010 WL 148179 (E.D. Cal. Jan. 12, 2010) (noting, without ruling on it, that defendant’s efforts to depose the pro se plaintiff were disrupted when “…counsel for defendants became aware Plaintiff was apparently surreptitiously recording the deposition and conversations in the room during breaks by way of an audio recording device in her purse…”)

Fluckiger v. Hawkins, No. 1:11-CV-00120-DAK, 2012 WL 6569485 (D. Utah Dec. 17, 2012) (where plaintiff admitted to secretly recording his depositions on a personal audio or video recorder, counsel was ordered to review the tapes and certify whether they had been altered in any way)

Hylton v. Anytime Towing, No. 11CV1039 JLS WMC, 2012 WL 3562398 (S.D. Cal. Aug. 17, 2012) (ordering pro se plaintiff to attend a second deposition and “to destroy the unauthorized computer recording he made of the first deposition,” finding that the plaintiff “secretly recorded the deposition proceedings on his laptop computer, including off-the-record sidebars between defense counsel”)