Taping Phone Calls
Most Nevada attorneys are at least generally aware of the Nevada law that prohibits a person from recording a telephone call without consent of the other party to the call. In fact, many have had uncomfortable conversations with clients explaining that they weren’t allowed to secretly record the telephone call that they want to use in their case. In the recent case of Ditech Financial LLC, f/k/a Green Tree Servicing, LLC v. Sanford Buckles, 133 Nevada Adv. Op. 64 (Sept. 14, 2017), the Nevada Supreme Court was faced with the question of whether the prohibition against recording phone calls without consent applies if the recording was made by someone outside Nevada who uses recording equipment that is also located outside of the state.
In Ditech, Sanford Buckles, a Nevada resident, sued Ditech in federal court in Nevada. Buckles alleged that Ditech, which was headquartered in Minnesota, with call centers in Arizona and Minnesota, recorded his phone calls without his consent. He argued that secret recording of his calls violated NRS 200.620, and sought damages under the statute’s private right of action provisions. Ditech responded by filing a motion to dismiss. In its motion, Ditech argued, first, that NRS 200.620 does not apply to telephone calls recorded by persons located outside of the state on equipment that is also located outside of Nevada. Second, Ditech argued that if the statute were to apply to such situations, the statute would violate the United States Constitution’s Due Process Clause and Dormant Commerce Clause. In reviewing the motion, the federal court determined that the outcome of Ditech’s motion hinged upon whether or not NRS 200.620 applies to recordings made outside of the state on equipment located outside of the state. Seeking guidance on that issue, the federal court certified the question to the Nevada Supreme Court pursuant to NRAP 5. The fundamental question presented to the Nevada Supreme Court upon certification was whether NRS 200.620 applies to recordings of telephone conversations with a person in Nevada without that person’s consent, when the person recording the conversation, and the equipment recording, the conversation, are not located in Nevada.
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The Writ – Appellate Briefs
December 2017, Vol. 39, No.11
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