If and When to Record Conversations in Minnesota: Just Because You Can Does Not Mean You Should

We all do things out of anger – we curse, we yell, we fixate on how someone hurt us. For those going through a divorce or custody case there are times a person is angry enough with an ex-significant other that they record telephone or electronic conversations thinking it could help their court case as proof of the horrible things that ex-significant other has said.  It is one thing for an attorney to hear those recordings, it is another when we want them to impact that divorce or custody case.  Posting audio or electronic recordings can not only be illegal but harmful to a family court case. 

Minnesota law allows individuals to record telephone and electronic conversations.  Minnesota Statute Section 626A.02, subdivision 2(d) says:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state.

It is legal in Minnesota for an individual participating in a telephone or electronic conversation to record it.  It is also legal in Minnesota for an individual to record a conversation if the other person consents to the recording.  It is illegal, however, to use a recording for criminal or tortious intent.  In other words, a recording cannot be used to blackmail someone or to post on social media knowing it is going to be injurious to that person.  The burden of proof is on the accuser to show a recording was made for not-so-good reasons.

Having these recordings is often not helpful in family court cases.  Illegality aside, most recordings are inaudible, blurry or both.  Often times the recordings do not carry the full context of a conversation.  For those judges who are even willing to listen or watch recordings, they may see them as unnecessary, inflammatory, harassing and intimidating and not helpful to the case which could negatively impact the court case.  There may be a case to be made for the issuance of a Harassment Restraining Order or Order for Protection if recordings are regularly done when parents talk with one another or they pick up and drop off their children.

Recording an ex-significant other may seem like a good idea especially when he or she is saying or doing things that are upsetting, but looking at the bigger legal picture recording conversations or parenting exchanges could create greater parental conflict which is not in the children’s best interests.  Just as important, a judge may not even consider the recordings in a case.  The bigger legal – and personal – moral of the story is to pick one’s battles.

Jessica Sterle

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