Question for the lawyers.

[Jaye]

I searched for an ask the lawyer thread, but didn't find one.
Anyway, in the United States, what are the laws regarding recording conversations?

The situation I'm specifically interested in is this: If I'm on the telephone with someone who starts threatening to sue me, and I start recording that phone conversation, is it admissible as evidence in court? (I did not tell the person I was recording them.)

Thanks for your help in this, um... hypothetical situation.

[Tadhg]

Federal law allows the recording of phone conversations with the consent of one party. Some states require the consent of all parties. I know Massachusetts, California, and Michigan do.

[Jaye]

Massachusetts here.
Thanks.

[Slam_Bradley]

It's going to vary from state to state. In Idaho you have to have the consent of one party. So I can call you and record the conversation without your knowledge and I'm ok. I can't, however, record your conversation with Tadgh.

[Jaye]

Cool, I think I learned on tv that as long as one person knew it was fine. Sucks about the Massachusetts thing though.

Thanks so much.

[Dreadstar]

Federal law allows the recording of phone conversations with the consent of one party. Some states require the consent of all parties. I know Massachusetts, California, and Michigan do.

Oh! That brings up a hypothetical that I've always meant to ask:

Does the state law trump the fed law in all cases? What if the case is in the jurisdiction of the Feds? CAN a court higher than the state level rule that the Fed law takes priority? Further, should it?

[Ray R.]

Oh! That brings up a hypothetical that I've always meant to ask:

Does the state law trump the fed law in all cases? What if the case is in the jurisdiction of the Feds? CAN a court higher than the state level rule that the Fed law takes priority? Further, should it?

My first thought is that federal law trumps only if a party establishes that the action or claim concerns a "federal question of law," i.e., that there is a violation of the United States Code, as opposed to only a violation of state or local ordinance.

If there is a federal question of law, as decided by a district court judge or magistrate upon a motion for removal from the state court (such as the United States. "the Feds" entering as intervenor), then the whole shebang goes up to the federal level. Otherwise, the district court can decide that it's exclusively the domain of the state court and bow out accordingly, or refuse to hear arguments after ruling on the motion for removal.

That's my recollection, but I might be fuzzy on details.

[Dreadstar]

My first thought is that federal law trumps only if a party establishes that the action or claim concerns a "federal question of law," i.e., that there is a violation of the United States Code, as opposed to only a violation of state or local ordinance.

If there is a federal question of law, as decided by a district court judge or magistrate upon a motion for removal from the state court (such as the United States. "the Feds" entering as intervenor), then the whole shebang goes up to the federal level. Otherwise, the district court can decide that it's exclusively the domain of the state court and bow out accordingly, or refuse to hear arguments after ruling on the motion for removal.

That's my recollection, but I might be fuzzy on details.

OK, that makes sense.

Does the venue make any difference? If it's a Federal case, does the state law still hold sway?

[Slam_Bradley]

OK, that makes sense.

Does the venue make any difference? If it's a Federal case, does the state law still hold sway?


Not if it's an area where federal law has preempted state law. The exception would be in a case that is removed to Federal Court due to diversity jurisdiction. In that case state law will be applied, but the parties will use federal rules.

[Winslow]

Not if it's an area where federal law has preempted state law. The exception would be in a case that is removed to Federal Court due to diversity jurisdiction. In that case state law will be applied, but the parties will use federal rules.

What is diversity jurisdiction? Sounds like both State government and Federal government have jurisdiction?

I can't think of any examples of that.

[Winslow]

I searched for an ask the lawyer thread, but didn't find one.
Anyway, in the United States, what are the laws regarding recording conversations?

The situation I'm specifically interested in is this: If I'm on the telephone with someone who starts threatening to sue me, and I start recording that phone conversation, is it admissible as evidence in court? (I did not tell the person I was recording them.)

Thanks for your help in this, um... hypothetical situation.

If it's a hypothetical construction issue feel free to PM me.

If there's no contract, and there's no tangible damage, generally the person threatening has no case.

[Slam_Bradley]

What is diversity jurisdiction? Sounds like both State government and Federal government have jurisdiction?

I can't think of any examples of that.


Sorry. I get to rattling on in legalese and forget not everyone is fluent in it.

Diversity jurisdiction occurs when all plaintiffs in a suit are from a different state than all defendants and the amount in controversy is more than $75,000. In that case the Defendant can move to have the suit removed from state to federal court where it will be heard by a Federal District Judge (who will apply state law). It is to keep out-of-state defendants from being hauled in to State Court and getting "homered", the theory being that Federal Courts are less biased than state courts.

You were thinking of concurrent jurisdiction. The best example would be in Constitutional issues where the Constitutionality of something can be decided in either State or Federal Court (though the Federal appellate courts will ultimately have the final say).

[Jaye]

If it's a hypothetical construction issue feel free to PM me.

If there's no contract, and there's no tangible damage, generally the person threatening has no case.
Thanks Winslow. I deal in a lot of construction, but sadly this is not hypothetically the subject.