In Jerolimo v. Physicians for Women, P.C., No. 3:05CV1777(CFD)(TPS), 2006 U.S. Dist. LEXIS 80939 (D.Conn. Nov. 7, 2006), the court denied the employee's motion to block disclosure of an audio tape the employee surreptitiously made that supports her assertion that her supervisor's made statements during a meeting that support her claim that she was terminated in violation of the FMLA. There was no question that the tape recording was discoverable pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure. Plaintiff sought to delay production until after the deposition of the persons whose statements were recorded, under the theory that pre-deposition disclosure may afford the witness an opportunity to tailer deposition testimony to conform with a previous statement.
In rejecting the employee's argument, the court observed that, absent a specific showing of good cause, there "is no reason to assume automatically that the party whose statements have been recorded will have a propensity to fabricate evidence or lie during the course of his or her testimony." There is no basis for treating the recorded statements any differently than prior written documents or other records which would be discoverable as of right. The court also noted that "the need for judicial expedience and the fundamental purpose of discovery militate against a finding of good cause for the delay." The court continued:
Under Rule 26(c), "[o]pen discovery is the norm. Gamesmanship with information is discouraged and surprises are abhorred. Adherence to these principles assists the trier of fact and serves efficiency in the adjudication of disputes.
Even if the employee had shown good cause for the delay in discovery, "a balancing of the countervailing interests of the defendants may nevertheless have topped the scales back in favor of the defendants." Where, as here, the plaintiff recorded her conversations with the defendants without their knowledge, "there is a heightened justification for producing the tape recordings to the defendants in advance of their depositions. A party whose "conversation was secretly recorded should not be subjected to a deposition, the partial purpose of which is simply to create inconsistencies or otherwise set up impeachment in [the defendants'] testimony, without [the defendant] having the chance to review the tapes- the same opportunity that [plaintiff] had prior to her deposition."
Comment: Employers would be well-advised to adopt a rule prohibiting all employees from secretly recording workplace conversations, including meetings with management. Employers may also want to consult federal anti-wiretapping laws which may cover a given situation. Federal law, however, generally does not prohibit a person from surreptitiously recording their own conversions, hence the need for a separate workplace rule.