Was It Legal to Record Donald Sterling's Rant?

Los Angeles Clippers owner, Donald Sterling, has been banned from the NBA for life for a racist rant made to his alleged mistress, V. Stiviano, which was recorded and subsequently leaked to the media. There is no doubt that what Sterling said was wrong, but was it legal to record his rant in the first place? In the majority of states, the answer to this question would be yes as most states require only one person to have knowledge that a conversation is being recorded. However, California requires that all individuals involved in a conversation know that they are being recorded in order for it to be legal. There is certainly a debate as to whether Sterling actually knew he was being recorded, but if it turns out that Sterling did not know he was being recorded then that recording was illegal.

While Donald Sterling’s rant has become a media sensation, you do not have to be famous or the owner of a basketball team for this concern to arise. Audio recordings often become the center of contested divorce cases and custody disputes. Frequently, clients believe that they can record the conversation of their spouse or child’s parent without that person’s knowledge and later use it against them in Family Court in order to obtain custody or steer the divorce in a certain direction. Recording a conversation without the other party’s knowledge or consent has become increasingly simple with technology on smart phones. However, what people must understand is that the Court will not admit into evidence an illegally obtained recording. The fact that the act of recording an individual without their consent is illegal can actually damage the recording party’s reputation in the eyes of the judge and even potentially expose that person to criminal prosecution.

Not every recording is illegal. We all remember Mel Gibson’s famous rants towards his then-girlfriend and mother of his child Osanka Grigorieva, which were subsequently leaked to the media. Mel argued at the time that these were private conversations and therefore illegally obtained, however they were rants left on Ms. Grigorieva’s voicemail. Conversations obtained through voicemail are not illegal and can be used against a party in a divorce or custody action. People know that their voicemail will be recorded. Thus, by leaving a voicemail for someone you are consenting to the recording. This has the potential to be very damaging to an individual’s case.

It remains to be seen how the story of Donald Sterling will end, however it is a warning to all to be very careful about what you say and who you say it to. At Mello & Pickering, LLP we can advise you of your rights if a situation such as this were to occur throughout a divorce or custody case and can help you avoid these issues from arising.