When a conflict arises between neighbors, attorneys often recommend that their clients keep a record of events. A written log of dates and times is one thing, but a video or audio recording can easily step over the line from keeping tabs to violating privacy rights.
In neighbor dispute situations—e.g., involving use of an easement, noise issues, criminal activity—attorneys often advise their clients keep a contemporaneous log of dates and times that new events of importance occur. If this log is kept at the direction of the attorney, in contemplation of litigation, it can be shielded from forced disclosure under the work product (see CCP §§2018.010–2018.080) and attorney-client (see Evid C §§950–954) privileges. And the log is a contemporaneous statement of the witness at the time it was written down that can later be used as a “past recollection recorded” under Evid C §1237, i.e., as an exception to the hearsay rule.
But keeping a paper log may not be enough to satisfy your client. Your client may want to take photos or video record a neighbor’s activities. Photos and videos can certainly be compelling evidence at a court proceeding, but getting them can be risky.
If the photos and recordings are made in public, they’re probably ok. The privacy torts generally don’t apply to conduct undertaken in public, for which there is little to no expectation of privacy. See California v Ciraolo (1986) 476 US 207, 213, 106 S Ct 1809. This means that photo or video of offensive conduct visible or audible to the public, without taking extraordinary steps such as trespassing on the property of another or peeping in their windows, generally shouldn’t subject the client to civil liability for invasion of privacy.
But wielding a camera outside of the public sphere can result in an invasion of privacy claim. Here’s some important advice to give your clients:
- Don’t train cameras on a neighbor’s yard or home. Focusing a camera on someone’s yard or home could become the basis for a privacy violation claim. For example, in the unpublished decision in Haro v Rimes (Apr. 18, 2007, E040297; not certified for publication) 2007 Cal App Unpub Lexis 3090, there were mutual claims by neighbors of harassment and videotaped invasions of privacy.
- Don’t photograph children. Even if the children are the source of the dispute, advise your clients to avoid photography of children. Cases have arisen involving complaints about neighbors’ children, to which the neighbors respond that the client is illicitly photographing and stalking their children or is a potential child molester who must be restrained. See, e.g., the unpublished decision in Martorano v Fagan (Apr. 13, 2007, B191344; not certified for publication) 2007 Cal App Unpub Lexis 3000, in which one neighbor threatened to build a pedophile case against another for videotaping his children during a prolonged dispute over a barking dog.
- Don’t make surreptitious recordings. Recordings of noise from inside one’s own home or vitriolic and harassing comments by a neighbor can be compelling evidence, but secretly recording a confidential conversation may subject your client to criminal liability. Under Pen C §632, it’s a crime to use any device to record or eavesdrop on confidential communications without the consent of all the parties being recorded, even if the person doing the recording is a party to the communication. In addition, the recording can be the basis of a civil action. Pen C §637.2. Note that a communication isn’t considered confidential if the parties to it can’t reasonably expect that the communication won’t be overheard or recorded, as in a common backyard of an apartment building. People v Shaw (2002) 97 CA4th 833. There are other exceptions to §632, including Pen C §633.5, which provides for surreptitious recording to get evidence reasonably believed to relate to the commission by another party to the communication of certain crimes.
Get help on the issues, responses, and resolutions for common neighbor disputes in CEB’s award-winning book Neighbor Disputes: Law and Litigation. For in-depth discussion of privacy rights, turn to CEB’s Privacy Compliance and Litigation in California.
Other CEBblog™ posts you may find useful:
- Spiteful Neighbors
- Don’t Lose Out on Your Fees in a Neighbor Dispute Case
- Remedies for a Lurking Landlord
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