George Barclay
Because of a loophole in the Massachusetts Wiretap Statute, also known as G.L. c. 272, § 99, a recording of another person, even one alleged as illegal, is
admissible evidence in a civil case. While G.L. c. 272, § 99 contains penalties such as up to five years in state prison, up to two and a half years in jail, a fine of up to $10,000, or a combination of a fine and incarceration, the statute is silent on evidentiary exclusions in civil matters.
A recent employment case
has brought the Massachusetts Wiretap Statute, which coincides with organized
crime, back into public discourse. In a recent Suffolk Superior Court case, Nicole
Simpson v. Boston Public Health Commission, a workplace altercation boiled
over into an incident captured on a smartphone.
Simpson, an African
American woman and former Boston Public Health Commission (BPHC) employee,
believed that her subordinate was acting in a racially insensitive manner
towards her. In 2017, Simpson and her subordinate got into a verbal altercation
where Simpson claimed her subordinate recorded the incident without her consent
on a smartphone.
The subordinate reported
the incident to HR, submitted the recording to HR, and claimed the plaintiff
verbally assaulted them and used a racial slur. The Boston Public Health
Commission (which claims it did not view the recording) conducted interviews, investigated
the incident, and held a meeting with the plaintiff, where she was given the
option of resigning or being terminated.
The plaintiff resigned
and sued BPHC for discrimination, retaliation, and two counts of violating the
Wiretap Statute. The plaintiff claims that the BPHC illegally used the
recording in its investigation and response to her lawsuit. Simpson argued that
the basis of BPHC’s employment decision could only have come from information
obtained from using the recording.
BHPC filed a motion
requesting that the recording be deemed admissible before a hearing on their
Motion for Summary Judgment because of the plaintiff’s verbal assault. The
plaintiff argued that the recording was inadmissible because it violated G.L.
c. 272, § 99.
In ruling on the
defendant’s motion, the judge held that the Wiretap Statute does not bar the
use of allegedly illegal recordings in civil cases. “Indeed, the Wiretap
Statute contains explicit provisions about the use of illegally obtained
communications in evidence, but those limitations are limited to criminal
trials; there are no provisions limiting the use of such communications in
civil trials.”
The judge elected to rule
on whether the plaintiff consented to the recording during the hearing on the
motion for summary judgment. Additionally, the judge noted that the use of the
recording could also be protected by the litigation privilege, an established
rule of law.
This ruling raises multiple policy questions. Will employers now be incentivized to record employees? What about instances where an individual is trying to protect themselves from abuse? Smartphones are easily obtainable devices. Legislative reform is likely needed. Otherwise, similar cases will likely fill courtrooms across the state.
George is an associate
attorney at Rudolph Friedman LLP. He
counsels and represents individuals and businesses in commercial litigation
matters in state and federal court. He litigates complex commercial disputes,
employment disputes, and shareholder disputes. George can be contacted at gbarclay@rudophfriedman.com
