Know the Law: Dangers of Recording Conversations

Ben Folsom Headshot
Benjamin B. Folsom
Director, Litigation Department
Published: Union Leader
January 21, 2023

Q:  My business competitor (or business partner, neighbor, ex-spouse, boss, co-worker, etc.) is doing bad things.  I just need to prove it.  I can record our conversations secretly on my smart phone, which would be a sure-fire way to get evidence of them admitting to their misdeeds.  Should I do it?

A:  In New Hampshire, the answer is a resounding no, unless you want to face potential criminal charges and a lawsuit from the person you record.

In this day and age when most of us walk around with iPhones, Androids, and the like, that can be used as pocket-sized recording devices with the tap of an icon, it may be tempting—or even seem justified—to secretly record a conversation in order to show that someone is engaged in some kind of misconduct.  This is particularly true if you stand to be harmed in some way by that misconduct.  If you do so, however, you would very likely be engaging illegal conduct yourself under New Hampshire law and opening yourself up to legal trouble.

New Hampshire is a “two party” state, meaning that it is against the law to intentionally record a conversation unless both (or if more than two, all) parties involved consent to the recording (with some narrow exceptions largely involving law enforcement activities).  Someone who violates this law could be charged with a Class B felony or a misdemeanor under the Wiretapping and Eavesdropping statute, RSA 570-A.  Moreover, the person you recorded without their consent could bring a civil lawsuit against you and be entitled to collect damages, punitive damages, and their reasonable attorneys’ fees and litigation costs.

At least you still have that great evidence of your counterpart admitting to dastardly deeds, right? Well, you may have the evidence but it is unlikely to see the light of day in court.  New Hampshire law prohibits the admission into evidence of conversations recorded in violation of the New Hampshire statute.

If you believe you have legal case or a claim to be made, talk to an attorney about how you can build your case.  If you take matters into your own hands and try to get evidence using a hidden hot mic, you may well end up on the hot seat.