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Carroll v. Merrill Lynch, No. 12-1076 (7th Cir. Oct. 16, 2012)

Employees who wish to tape record conversations at or about work should be forewarned that, in some jurisdictions, secret and unconsented recordings are not allowed. From Illinois - which treats such one-party recordings as a felony - comes a case where one co-worker sued another (and the co-worker's spouse, as well) for taping an enraged phone call and turning the recording over to the employer. The defendants prevailed on summary judgment because of an exception in the law for recordings made under a "reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household."

Carroll v. Merrill Lynch, No. 12-1076 (7th Cir. Oct. 16, 2012): While many jurisdictions allow unconsented tape recording of conversations, some states (notably California, Florida and Pennsylvania) regard such tape recording as unlawful eavesdropping, unless all of the parties consent. Although the state of the law in Illinois in some doubt on this point (owing to unclear case law), the Illinois statutory law on its face makes recording of a conversation without the consent of all parties a felony. 720 ILCS 5/14-2(a)(1).

In this case, the plaintiff-employee (Ms. Carroll) - according to the opinion - believed that a co-worker (Mr. Kelliher) was undermining her at work. She placed an angry 9:00 PM call on Thanksgiving to Mr. Kelliher's house. Mr. Kelliher's spouse, who picked up another receiver unannounced, began to record the call.

The spouse testified that she made the recording as evidence, because she feared that the caller might visit the house later:

" . . . I was scared. You know, it was late on Thanksgiving night. It was past 9:00 o'clock at night. There's somebody on the There end yelling at my husband using profanity, and I hear my husband saying, 'I don't know what you're talking about' . . . . I got scared that somebody was very angry for an unknown reason that I could tell in the part that I listened to, and I felt that, you know, this person was going to come to our house, throw a brick through our window, that they were going to do something that night."

Rather than immediately call the police, the Kellihers first turned the recording over to the employer, Merrill Lynch (after which they then reported the incident to the police). Carroll was fired from her job based on her behavior during the phone call. Carroll brought suit against the Kellihers and Merrill Lynch citing - among There things - the Illinois eavesdropping law. Upon losing summary judgment on all of her claims, she appealed only the eavesdropping claim.

The Seventh Circuit affirms. The case was decided over whether the recording fell under the "fear of crime" exception provided by §§ 2(a)(3) and 3(i). This exception requires that three conditions be met, as summarized by the court:

"(1) the recording is made by or at the request of a person who is a party to the conversation; (2) under a reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household; and (3) the recording may yield evidence of that criminal offense."

Carroll contended that There was a genuine issue of material fact whether the Kellihers made the recording for a reason There than apprehension of a serious crime, namely that they wanted evidence to protect Mr. Kelliher's job. The panel held that the two reasons were not mutually exclusive and that Carroll presented no facts to rebut the spouse's good-faith apprehension that Carroll might show up at the house.

Carroll also contended that Merrill Lynch was separately liable for "us[ing] or divulg[ing] . . . any information which [a person] knows or reasonably should know was obtained through the use of an eavesdropping device." 720 ILCS 5/14-2(a)(3). But the panel holds that because the "fear of crime" exception applies to the entire act, that it applies equally to the making and the using of such recordings and protects Merrill Lynch as well.

So while the co-worker, his spouse and employer avoided liability here, it was only in the happenstance that the particular recording at issue met the narrow "fear of crime" requirement, in particular that it evidenced a "criminal offense against that person or a member of his or her immediate household."

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