Because of a loophole in the Massachusetts Wiretap Statute, also known as G.L. c. 272, § 99, a recording of another person, even one alleged as illegal, is admissible evidence in a civil case. While G.L. c. 272, § 99 contains penalties such as up to five years in state prison, up to two and a half years in jail, a fine of up to $10,000, or a combination of a fine and incarceration, the statute is silent on evidentiary exclusions in civil matters.

A recent employment case has brought the Massachusetts Wiretap Statute, which coincides with organized crime, back into public discourse. In a recent Suffolk Superior Court case, Nicole Simpson v. Boston Public Health Commission, a workplace altercation boiled over into an incident captured on a smartphone.

Simpson, an African American woman and former Boston Public Health Commission (BPHC) employee, believed that her subordinate was acting in a racially insensitive manner towards her. On December 15, 2017, Simpson and her subordinate got into a verbal altercation where Simpson claimed her subordinate recorded the incident without her consent on a smartphone.

The subordinate reported the incident to HR, submitted the recording to HR, and claimed the plaintiff verbally assaulted them and used a racial slur. The Boston Public Health Commission (which claims it did not view the recording) conducted interviews, investigated the incident, and held a meeting with the plaintiff, where she was given the option of resigning or being terminated.

The plaintiff resigned and sued BPHC for discrimination, retaliation, and two counts of violating the Wiretap Statute. The plaintiff claims that the BPHC illegally used the recording in its investigation and response to her lawsuit. Simpson argued that the basis of BPHC’s employment decision could only have come from information obtained from using the recording.

BHPC filed a motion requesting that the recording be deemed admissible before a hearing on their Motion for Summary Judgment because of the plaintiff’s verbal assault. The plaintiff argued that the recording was inadmissible because it violated G.L. c. 272, § 99.

In ruling on the defendant’s motion, the Judge held that the Wiretap Statute does not bar the use of allegedly illegal recordings in civil cases. “Indeed, the Wiretap Statute contains explicit provisions about the use of illegally obtained communications in evidence, but those limitations are limited to criminal trials; there are no provisions limiting the use of such communications in civil trials.”

The Judge elected to rule on whether the plaintiff consented to the recording during the hearing on the motion for summary judgment. Additionally, the Judge noted that the use of the recording could also be protected by the litigation privilege, an established rule of law.

This ruling raises multiple policy questions. Will employers now be incentivized to record employees? What about instances where an individual is trying to protect themselves from abuse? Smartphones are easily obtainable devices. Legislative reform is likely needed. Otherwise, similar cases will likely fill courtrooms across the state.