PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Nanny Cams, Recordings, and Other Evidentiary Problems under Florida’s Security of Communications; Surveillance Act

Everyone knows that nanny cams are legal. What if the nanny cam includes audio? Is the recording admissible? What if the caregiver uses the Ward’s home computer for her emails. Can your client use spyware to copy the emails? These are serious questions with potentially serious penalties (civil and criminal) for your client and potential ethical problems for you.

Installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the person being recorded may be illegal under Florida’s Security of Communications; Surveillance Act (Ch. 934, F.S.). A private place is one where a person expects that his communication is not subject to interception, i.e. where privacy is expected. §934.02(2), F.S. The law provides the “most heightened” protection to the privacy interests of individuals in their home. Thus, filming/recording in a home is a risky venture.

The following factors should be considered in determining whether, under the totality of the circumstances, an intercepted oral communication falls within the purview of the Act: (1) the location where the communication took place; (2) the manner in which the communication was made; (3) the nature of the communication; (4) the intent of the speaker asserting Chapter 934 protection at the time the communication was made; (5) the purpose of the communication; (6) the conduct of the speaker; (7) the number of people present; and (8) the contents of the communication. See, Brugmann v. State, 117 So. 3d 39 (Fla. 3rd DCA 2013). For example, there is no absolute right of privacy in a party’s office or place of business. See,Cohen Brothers. LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3d DCA 2004) wherein the court held that members of an LLC’s management committee did not have a reasonable expectation of privacy with respect to participation in telephone conference calls with other committee members to discuss continued financing of the LLC, and thus could not hold the committee members liable for recording the conference calls.

    1. Silent Video Surveillance: In Minotty v. Baudo, 42 So. 3d 824(Fla. 4th DCA 2010, Dr. Minotty received information that caused him to suspect that the dissident shareholders of FEI were planning to remove him from the practice, including setting him up for an arrest. FEI documents were also disappearing from the offices. As a result, Dr. Minotty’s private investigator set up hidden security cameras at FEI offices, included the offices of Drs. Todd and Zudans. Although the cameras were equipped with audio as well as video recording, the audio recording never worked and therefore never intercepted any oral communications. The cameras were subsequently removed, but not before video was recorded of the doctors in their offices both alone and with their patients. The court concluded that silent video surveillance was not covered by the Act.
    2. Emails: In O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. 5th DCA 2005), the wife, unbeknownst to her husband, installed a spyware program on a computer used by the husband that copied and stored electronic communications between the husband and another woman as they were transmitted. The trial court found that the electronic communications were illegally intercepted in violation of the Act and ordered that they not be admitted in evidence.
    3. Audio Recordings: Under the Act, audio records are generally prohibited. §934.03, F.S. However, consent is not required for the taping of a communication uttered by a person who does not have a “reasonable expectation of privacy” in that communication.
    4. Personal Jurisdiction: A tape-recorded telephone call between a nonresident defendant and a Florida resident plaintiff can serve as the basis for personal jurisdiction over the defendant under §48.193(1)(b), F.S. See, France v. France, 90 So. 3d 860 (Fla. 5th DCA 2012).
    5. Duty to Disclose / Not Work Product: The communication is not work product protected and must be produce in response to a discovery request. See, Rules Regulating the Florida Bar, 4-3.4(d) (prohibits intentional failure to comply with legally proper discovery requests); The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997); Professional Ethics of the Florida Bar, Opinion 07-1, September 7, 2007; Employment Law Ethics – Surreptitiously Recording Conversations, American Petroleum Labor Lawyers Association (10/25/12).
    6. Admissibility of Recording: Pursuant to §934.06, F.S., no part of the contents of any wire or oral communication in violation of the Act, and no evidence derived therefrom, may be received in evidence in any trial, hearing, or other proceeding in or before any court.
    7. Ethical Obligation: In Professional Ethics of the Florida Bar, Opinion 07-1, 9/7/07, the inquiring attorney was in possession of certain documents that his client either (1) removed from her husband’s office, (2) printed from her husband’s computer, including financial documents and emails, or (3) accessed on her own computer with her husband’s password. The Florida Bar found that the inquiring attorney has the following ethical obligations:

The inquiring attorney needs to discuss the situation, including the ethical dilemma presented due to the client’s actions, with the client. If the client possibly committed a criminal act, it may be prudent to have the client obtain advice from a criminal defense attorney if the inquiring attorney does not practice criminal law. The inquiring attorney should advise the client that the inquiring attorney is subject to disqualification by the court as courts, exercising their supervisory power, may disqualify lawyers who receive or review materials from the other side that are improperly obtained. See, e.g., Maldonado v. New Jersey, Administrative Office of the Courts –Probation Division, 225 F.R.D. 120 (D. N.J. 2004). The inquiring attorney should also advise the client that the client is also subject to sanction by the court for her conduct. See Perna v. Electronic Data Systems, Corporation, 916 F. Supp 388 (D. N.J. 1995). Finally, the inquiring attorney must inform the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. See The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997). If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation. See Rule 4-1.16(a)(1).