How have the courts treated the disclosure of secret recordings in a civil case?

Applying Carol v. Gabriel (supra), and noting that the burden was on the plaintiff, the judge sought a reasonable explanation for the lack of timely disclosure. The judge rejected as a reasonable explanation the claim that the recordings were subject to litigation privilege. While prejudice was not required to be found in order to rule the documents inadmissible, the judge found that in this case there was potential prejudice. The defendants missed the opportunity to examine the recordings, prepare objections that might be proper, discover and respond to any problems with the recordings themselves and were unable to cross-examine witnesses who had already testified about the content of the recordings. The judge noted that the content of the recordings had been the subject of the witness’s testimony so the plaintiff was not deprived of the opportunity to put that aspect of his case before the court. The witness would have had to testify from memory had he not recorded the conversations or had the tapes been lost, and so the plaintiff had the benefit of the tapes to the extent of having had his memory refreshed by them. The tapes were excluded from evidence.