Bugs in the Office

On the other hand, because the employer can only speak through its employees, the supervisor's statement would be attributable to the employer. Because the employer is a party to the action, Rule 26(b) provides that the employer is entitled to the statement without any showing of substantial need. See Fed. R. Civ. P. 26(b) (“A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.”). Additionally, the supervisor might be a party to the litigation, where a claim is made under a statute that permits individual liability.

The conflict in these provisions, however, generally will not be an issue. Most courts confronting this situation have found that, where recordings of conversations with co-workers are surreptitiously made, any work product protection that may have attached to the recordings is vitiated because of the “unethical” conduct in secretly recording the conversations. For example, in Ward v. Maritz Inc., 156 F.R.D. 592 (D.N.J. 1994), Sally Ward sued her employer for sexual harassment and constructive discharge. Shortly after she commenced her lawsuit, Ward secretly tape-recorded conversations she had with a former Maritz employee regarding the “working environment” in Maritz's offices. Id. at 593. Ward admitted that she made the recordings at the suggestion of her counsel, who told her it would be helpful to obtain statements of employees familiar with the environment in Maritz's offices. Maritz sought the production of the tape recordings in discovery, but Ward refused to provide them. Maritz then moved the court to compel Ward to produce the tapes.

The court ruled in Maritz's favor. It first recognized that the tapes did, indeed, constitute work product, in that the recordings were prepared solely for use in litigation, and therefore satisfied the literal definition of work product under Rule 26. Nevertheless, because the recordings were surreptitiously made, the court held that any work product protection attached to the recordings was vitiated. Id. at 598.

The Ward court reached this conclusion by focusing on the New Jersey Rules of Professional Conduct, which prevented Ward's attorney from secretly tape-recording the conversations on his own. The court held that it would be improper to permit Ward's attorney to short-circuit this rule simply by having his client make the recordings. Other courts addressing this issue have reached the same conclusion, even where the party's attorney was not involved in the decision to tape record the conversations. See Smith v. WNA Carthage, LLC, 200 F.R.D. 576, 578 (E.D. Tex. 2001) (“Virtually all cases dealing with this issue have held that clandestine recordings of conversations with potential fact witnesses, whether made by a party or by counsel, before or after counsel is consulted, are not shielded under the work product doctrine.”) (emphasis in original) (collecting cases); Sea-Roy Corp. v. Sunbelt Equip. & Rentals, Inc., 172 F.R.D. 179, 182 (M.D.N.C. 1997) (“if attorneys must disclose [what they are doing] at the time of recording, the same duty should be imposed on the client and parties”); Otto v. Box U.S.A. Group, Inc., 177 F.R.D. 698, 701 (N.D. Ga. 1997) (“Secretly taped interviews with witnesses are considered unethical and do damage to the adversarial system, regardless of whether the attorney or the client operates the tape recorder.”); Pfeifer v. State Farm Ins. Co., No. CIV. A. 96-1895, 1997 WL 276085, at *3 (E.D. La. May 22, 1997).

It is unclear how a court would rule if the plaintiff or his attorney made the witness aware that he was recording the conversation at the time the tape was made. In light of the fact that a party to a lawsuit is entitled to his or her statements without any showing of substantial need, however, it is fair to infer that a court would require the tape to be produced.

When Must the Tape Recordings Be Produced?

A more difficult question concerns the timing of the production of surreptitiously made tape recordings. A number of courts have grappled with this question, and have reached inconsistent conclusions.

Some courts have held that, because a party is entitled to a witness' unrefreshed recollection of a conversation reflected on a tape recording, it is proper to delay production of the tape until after the witness has been deposed. Judge Harold Baer, Jr. of the Southern District of New York recently reached this conclusion in Poppo v. AON Risk Servs., Inc., No. 00 Civ. 4165, 2000 WL 1800746 (S.D.N.Y. Dec. 6, 2000). In Poppo, the plaintiff acknowledged that she was obliged to turn over the tape recordings of conversations she had with officers and agents of the defendant, which allegedly supported her pregnancy discrimination claim. Nevertheless, the plaintiff sought a protective order delaying the production of the tapes until after the depositions of the persons captured on tape, to prevent the witnesses from “altering their testimony in order to conform with their recorded statements.” Noting that “[s]ince biblical times the prospect of tailoring testimony and its ramifications has been understood and condemned,” Judge Baer granted the plaintiff's motion, and ordered that the tapes be produced only after the depositions took place. Id. at *1-2. Additional courts reaching the same conclusion include Walls v. Int'l Paper Co., 192 F.R.D. 294, 298-99 (D. Kan. 2000); Torres-Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487, 489 (S.D. Cal. 1994); and Sherrell Perfumes v. Revlon, 77 F.R.D. 705, 707 (S.D.N.Y. 1977). See also Daniels v. Nat'l R.R. Passenger Corp., 110 F.R.D. 160, 161 (S.D.N.Y. 1986) (delaying production of surveillance videotapes of witness until after witness' deposition); Smith v. China Merchants Steam Navigation Co., Ltd., 59 F.R.D. 178, 179 (E.D. Pa. 1972) (proper to delay production of deponent's prior written statement until after deposition).

A number of courts have reached the opposite conclusion, however, and ruled that a party should be permitted to review his prior recorded statement before being deposed. See Smith, 200 F.R.D. at 579; Pro Billiards Tour Ass'n, Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 231-32 (M.D.N.C. 1999); Giladi v. Albert Einstein Coll. of Med., No. 97 Civ. 9805, 1998 WL 183874, at *1 (S.D.N.Y. Apr. 15, 1998); Sims v. Lafayette Parish Sch. Bd., 140 F.R.D. 338, 339 (E.D. La. 1992). See also Ex parte Weeks, 810 So.2d 661, 666 (Ala. 2001). The holdings in these cases find some support in the 1970 Amendments to Rule 26, in which the Advisory Committee noted that “[i]n appropriate cases the court may order a party to be deposed before his [prior] statement is provided.” This note suggests that there is a presumption in favor of the production of prior recorded statements before depositions, and that the presumption is only overcome in “appropriate” circumstances. The note does not explicate what those circumstances might be, however.

Notably, the cases requiring immediate production of previously recorded statements generally draw a distinction between situations in which the statements will be introduced as substantive evidence at trial and those in which the statements will be used only for impeachment purposes. Where the prior statements will be used as substantive evidence — such as where a plaintiff intends to introduce a recorded statement to support a claim of a hostile work environment — courts generally have held that pre-deposition production is required, because of the importance in the value of the statements to the issues in the case. See Pro Billiards Tour Ass'n, 187 F.R.D. at 231 (collecting cases). Where the statement is merely to be used for impeachment, however, its value is less significant, and delayed production is more appropriate. See Id. But see Sims, 140 F.R.D. at 339 (rejecting a substantive/impeachment dichotomy; “[i]f preservation of impeachment value were a valid reason for delaying production of statements, then production would be delayed to a post-deposition point in every case,” which does not comport with the Advisory Committee note requiring delayed production only in “appropriate circumstances”).

Conclusion

In the end, the logic and rationale supporting both pre- and post-deposition production of prior recorded statements is well founded, and courts will have wide discretion and latitude to resolve these disputes. See Perkins v. Memorial Sloan-Kettering Cancer Ctr., No. 02 Civ. 6493, 2003 WL 1831246, at *1-2 (S.D.N.Y. Apr. 4, 2003) (noting that there is “much to commend both points of view”; requiring tape-recorded conversations to be stored in a safe deposit box jointly controlled by the parties, so as to neither advantage nor disadvantage either side of the litigation).

Consider the following situation: An employee anticipates that his employment is about to be terminated, for what he believes to be discriminatory or otherwise unlawful reasons. After consulting with an attorney, he decides to tape-record conversations with his supervisors, in the hopes of recording a “smoking gun” comment. A short time later, the employee is terminated, and he later commences litigation in federal court against his employer. In that lawsuit, is the employer entitled to obtain copies of the tape recordings through discovery, or are the recordings protected as work product because they were made in anticipation of litigation? If the recordings are discoverable, is the employee nonetheless entitled to withhold producing them until after his supervisor has been deposed? Courts in New York and elsewhere have reached a consensus on the first question, but not the second.

Are the Recordings Discoverable?

The countervailing interests at issue in this situation are laid out in Rule 26 of the Federal Rules of Civil Procedure. On one hand, because the tape recordings were made in anticipation of litigation, they arguably constitute work product, and thus would be discoverable only upon a showing of substantial need and inability to obtain equivalent information by the employer, pursuant to Rule 26(b)(3). Given that the employer can simply speak with the supervisor to determine what was said to the former employee, it would be difficult for the employer to argue that it could not obtain the substantial equivalent of the tape-recorded statement. It should be noted that work product protection in this situation would not turn on whether the employee's attorney advised the employee to make the recordings. Indeed, Rule 26(b)(3) protects not only material prepared in anticipation of litigation by a party's attorney, but also material prepared by the party.

On the other hand, because the employer can only speak through its employees, the supervisor's statement would be attributable to the employer. Because the employer is a party to the action, Rule 26(b) provides that the employer is entitled to the statement without any showing of substantial need. See Fed. R. Civ. P. 26(b) (“A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.”). Additionally, the supervisor might be a party to the litigation, where a claim is made under a statute that permits individual liability.

The conflict in these provisions, however, generally will not be an issue. Most courts confronting this situation have found that, where recordings of conversations with co-workers are surreptitiously made, any work product protection that may have attached to the recordings is vitiated because of the “unethical” conduct in secretly recording the conversations. For example, in Ward v. Maritz Inc. , 156 F.R.D. 592 (D.N.J. 1994), Sally Ward sued her employer for sexual harassment and constructive discharge. Shortly after she commenced her lawsuit, Ward secretly tape-recorded conversations she had with a former Maritz employee regarding the “working environment” in Maritz's offices. Id. at 593. Ward admitted that she made the recordings at the suggestion of her counsel, who told her it would be helpful to obtain statements of employees familiar with the environment in Maritz's offices. Maritz sought the production of the tape recordings in discovery, but Ward refused to provide them. Maritz then moved the court to compel Ward to produce the tapes.

The court ruled in Maritz's favor. It first recognized that the tapes did, indeed, constitute work product, in that the recordings were prepared solely for use in litigation, and therefore satisfied the literal definition of work product under Rule 26. Nevertheless, because the recordings were surreptitiously made, the court held that any work product protection attached to the recordings was vitiated. Id. at 598.

The Ward court reached this conclusion by focusing on the New Jersey Rules of Professional Conduct, which prevented Ward's attorney from secretly tape-recording the conversations on his own. The court held that it would be improper to permit Ward's attorney to short-circuit this rule simply by having his client make the recordings. Other courts addressing this issue have reached the same conclusion, even where the party's attorney was not involved in the decision to tape record the conversations. See Smith v. WNA Carthage, LLC , 200 F.R.D. 576, 578 (E.D. Tex. 2001) (“Virtually all cases dealing with this issue have held that clandestine recordings of conversations with potential fact witnesses, whether made by a party or by counsel, before or after counsel is consulted, are not shielded under the work product doctrine.”) (emphasis in original) (collecting cases); Sea-Roy Corp. v. Sunbelt Equip. & Rentals, Inc. , 172 F.R.D. 179, 182 (M.D.N.C. 1997) (“if attorneys must disclose [what they are doing] at the time of recording, the same duty should be imposed on the client and parties”); Otto v. Box U.S.A. Group, Inc. , 177 F.R.D. 698, 701 (N.D. Ga. 1997) (“Secretly taped interviews with witnesses are considered unethical and do damage to the adversarial system, regardless of whether the attorney or the client operates the tape recorder.”); Pfeifer v. State Farm Ins. Co., No. CIV. A. 96-1895, 1997 WL 276085, at *3 (E.D. La. May 22, 1997).

It is unclear how a court would rule if the plaintiff or his attorney made the witness aware that he was recording the conversation at the time the tape was made. In light of the fact that a party to a lawsuit is entitled to his or her statements without any showing of substantial need, however, it is fair to infer that a court would require the tape to be produced.

When Must the Tape Recordings Be Produced?

A more difficult question concerns the timing of the production of surreptitiously made tape recordings. A number of courts have grappled with this question, and have reached inconsistent conclusions.

Some courts have held that, because a party is entitled to a witness' unrefreshed recollection of a conversation reflected on a tape recording, it is proper to delay production of the tape until after the witness has been deposed. Judge Harold Baer, Jr. of the Southern District of New York recently reached this conclusion in Poppo v. AON Risk Servs., Inc., No. 00 Civ. 4165, 2000 WL 1800746 (S.D.N.Y. Dec. 6, 2000). In Poppo, the plaintiff acknowledged that she was obliged to turn over the tape recordings of conversations she had with officers and agents of the defendant, which allegedly supported her pregnancy discrimination claim. Nevertheless, the plaintiff sought a protective order delaying the production of the tapes until after the depositions of the persons captured on tape, to prevent the witnesses from “altering their testimony in order to conform with their recorded statements.” Noting that “[s]ince biblical times the prospect of tailoring testimony and its ramifications has been understood and condemned,” Judge Baer granted the plaintiff's motion, and ordered that the tapes be produced only after the depositions took place. Id. at *1-2. Additional courts reaching the same conclusion include Walls v. Int'l Paper Co. , 192 F.R.D. 294, 298-99 (D. Kan. 2000); Torres-Paulett v. Tradition Mariner, Inc. , 157 F.R.D. 487, 489 (S.D. Cal. 1994); and Sherrell Perfumes v. Revlon , 77 F.R.D. 705, 707 (S.D.N.Y. 1977). See also Daniels v. Nat'l R.R. Passenger Corp. , 110 F.R.D. 160, 161 (S.D.N.Y. 1986) (delaying production of surveillance videotapes of witness until after witness' deposition); Smith v. China Merchants Steam Navigation Co., Ltd. , 59 F.R.D. 178, 179 (E.D. Pa. 1972) (proper to delay production of deponent's prior written statement until after deposition).

A number of courts have reached the opposite conclusion, however, and ruled that a party should be permitted to review his prior recorded statement before being deposed. See Smith, 200 F.R.D. at 579; Pro Billiards Tour Ass'n, Inc. v. R.J. Reynolds Tobacco Co. , 187 F.R.D. 229, 231-32 (M.D.N.C. 1999); Giladi v. Albert Einstein Coll. of Med., No. 97 Civ. 9805, 1998 WL 183874, at *1 (S.D.N.Y. Apr. 15, 1998); Sims v. Lafayette Parish Sch. Bd. , 140 F.R.D. 338, 339 (E.D. La. 1992). See also Ex parte Weeks, 810 So.2d 661, 666 (Ala. 2001). The holdings in these cases find some support in the 1970 Amendments to Rule 26, in which the Advisory Committee noted that “[i]n appropriate cases the court may order a party to be deposed before his [prior] statement is provided.” This note suggests that there is a presumption in favor of the production of prior recorded statements before depositions, and that the presumption is only overcome in “appropriate” circumstances. The note does not explicate what those circumstances might be, however.

Notably, the cases requiring immediate production of previously recorded statements generally draw a distinction between situations in which the statements will be introduced as substantive evidence at trial and those in which the statements will be used only for impeachment purposes. Where the prior statements will be used as substantive evidence — such as where a plaintiff intends to introduce a recorded statement to support a claim of a hostile work environment — courts generally have held that pre-deposition production is required, because of the importance in the value of the statements to the issues in the case. See Pro Billiards Tour Ass'n, 187 F.R.D. at 231 (collecting cases). Where the statement is merely to be used for impeachment, however, its value is less significant, and delayed production is more appropriate. See Id. But see Sims, 140 F.R.D. at 339 (rejecting a substantive/impeachment dichotomy; “[i]f preservation of impeachment value were a valid reason for delaying production of statements, then production would be delayed to a post-deposition point in every case,” which does not comport with the Advisory Committee note requiring delayed production only in “appropriate circumstances”).

Conclusion

In the end, the logic and rationale supporting both pre- and post-deposition production of prior recorded statements is well founded, and courts will have wide discretion and latitude to resolve these disputes. See Perkins v. Memorial Sloan-Kettering Cancer Ctr., No. 02 Civ. 6493, 2003 WL 1831246, at *1-2 (S.D.N.Y. Apr. 4, 2003) (noting that there is “much to commend both points of view”; requiring tape-recorded conversations to be stored in a safe deposit box jointly controlled by the parties, so as to neither advantage nor disadvantage either side of the litigation).