Discoverability of Secretly Recorded Conversations
By In Whitney v. City of Milan, Tennessee, 2010 WL 2011663 (W.D. Tenn. May 20, 2010), the plaintiff allegedly secretly recorded conversations with witnesses. The district court affirmed the magistrate judge’s order requiring the plaintiff to produce the audiotapes prior to the depositions of those witnesses.
Here, the defendant served discovery requests seeking the production of any audio recordings. The plaintiff neither sought a protective order nor produced the recordings. Instead the plaintiff sought to take the depositions of the relevant witnesses and then produce the recordings.
When the defendant filed a motion to compel, the plaintiff relied on Varga v. Rockwell Int’l Corp., 242 F.3d 693 (6th Cir. 2001), an employment discrimination case, in which a Rockwell withheld two documents that the parties agreed were responsive to proper discovery requests. Rockwell then produced the documents at trial for impeachment purposes, arguing that it was justified in withholding the documents because it viewed them as only useful for impeachment. The Sixth Circuit was unimpressed, and called the argument “specious” and “patently wrong.” In Whitney, the plaintiff argued that Varga was a narrow ruling and, since she intended to produce the recordings after the depositions but well in advance of the trial, her actions were proper under Varga.
The District Court was similarly unimpressed. It noted that there was nothing in Varga that would indicate the Sixth Circuit intended such a narrow reading of the case. To the contrary, the District Court stated that “both the Sixth Circuit and this Court consistently have eschewed discovery practices that run counter to the paramount goals of efficiency and openness in the discovery process.” The District Court also noted that a plain reading of Rule 26 of the Federal Rules of Civil Procedure required the production of the recordings when presented with a proper discovery request. And, the District Court held that there was a remedy available for a party with discoverable information that it would prefer not to disclose — a protective order. Here, since the plaintiff did not object to the discovery request or file a motion for a protective order, “she waived her objection to the Defendant’s request, and cannot now assert her right to withhold the recordings.”
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