After-Acquired Evidence & Surreptitious Recordings

I never take California cases when a potential client informs me that he or she secretly recorded either phone conversations or conversations in person. That’s because in California, it’s illegal to do so without the consent of all parties to the conversation. Besides the fact that I would initially distrust one who engages in this illegal behavior, I just want to have to deal with all the problems it entails. Such as informing the client to also seek criminal counsel (which I tell any potential client in this situation, anyway), listening to the recordings, preserving the recordings and doing legal research on the ramifications of the recordings as it relates to the underlying case.

This case illustrates why I avoid these cases. In this unpublished opinion from the Fourth District Court of Appeal, Greenberg v. Broadcom Corp., plaintiff sued his former employer for disability discrimination under FEHA, which included the regular accompanying claims. Plaintiff also secretly recorded several conversations he had with supervisors and co-workers, without first obtaining permission from them. That invited counterclaims against plaintiff. The trial court granted employer’s motion for summary judgment on the underlying FEHA and related causes of action, and then hammered plaintiff by awarded defendants $5,000 for each conversation plaintiff recorded for a whopping total of $145,000!

The Court of Appeal agreed and provided a detailed discussion of the law in California on secretly recording conversations and affirmed the judgment of $145,000.

So lawyers out there can throw this case at potential clients who come to the office thinking they are going to win the litigation lottery by violating the law.

The other issue this opinion addresses is the doctrine of after-acquired evidence, which the California Supreme Court addressed last year in Salas v. Sierra Chemical Co. And readers of this blog already know this, but the after-acquired evidence doctrine does not provide a complete defense to a FEHA claim. It simply provides damages to plaintiff only from the time of wrongful termination or refusal to hire to the date the employer acquired the information on the employee’s wrongdoing.

Greenberg v. Broadcom Corp.,
2015 Cal. App. Unpub. LEXIS 6822
September 22, 2015

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